author: Dalton, J. S. C.

text:
    SILVER CREATIONS, LTD., A CORPORATION OF THE STATE OF NEW JERSEY, PLAINTIFF, v. UNITED PARCEL SERVICE, A CORPORATION AUTHORIZED TO DO BUSINESS IN NEW JERSEY, DEFENDANT.
    Superior Court of New Jersey Law Division
    April 17, 1975.

      Messrs. Sovel & Gruber, attorneys for plaintiff (Mr. Charles Sovel on the brief).

      Messrs. Crummy, Del Deo, Dolan & Purcell, attorneys for defendant (Mr. David J. Sheehan on the brief).
   Dalton, J. S. C.

This is an action initiated by a shipper, Silver Creations, Ltd., against United Parcel Service (UPS), a carrier for hire. The issues are whether the form of payment collected by defendant UPS upon delivery of plaintiff’s goods to its consignee, Gotham Sales, was in conformity with the type of payment which it was authorized to receive and whether, by accepting the payment tendered, plaintiff waived any and all claims for breach against the carrier.

The facts are not in dispute, the parties having submitted a stipulated set of facts and legal briefs in lieu of trial.

Under the terms of the shipment contract defendant was required to collect either' cash or check. Three deliveries are in dispute. In each delivery defendant collected a check, properly dated on its face, but containing instructions on the reverse side requesting that the check be deposited on a future date.

On the first delivery UPS collected a check from the consignee, Gotham Sales, in the amount of $1,203.30 dated May 16, 1973 on its face, with the written instructions, “Do not deposit until June 2, 1973” on the reverse side. Plaintiff accepted the check from defendant UPS on May 22, 1973 and held it until June 4, 1973, at which time plaintiff deposited it for collection.

On the second delivery defendant collected a check for $602.15 dated May 23, 1973, with the instructions to hold until June 6. Defendant presented the check to plaintiff on May 30 and plaintiff did not deposit it until June 4.

The third cheek collected, also for $602.15, was dated May 24, 1973 and instructed plaintiff to hold it until June 8. Defendant presented the check to plaintiff on May 31 and plaintiff did not deposit the check until June 4.

The checks, subsequent to their deposit, were returned as uncollectible. Consequently, plaintiff has filed this action fox breach of contract, contending that the instruments collected were not cheeks within the meaning of the Uniform Commercial Code. The complaint originally alleged that defendant had breached the contract by accepting checks which were post-dated.

This court had previously ruled, on a motion for summary judgment by defendant, that since the date on the faces of the cheeks were the same dates as their issuance, the checks were, as a matter of law, not post-dated. Plaintiff amended its complaint to state that the instructions on the hacks of the checks make them conditional promises, thereby removing them from the definition of a check contained in Article 3 of the Uniform Commercial Code. Article 3 provides as follows:

12A:3-104. Form of Negotiable Instruments; “Draft”; “Cheek”; “Certificate of Deposit”; “Note”.
(1) Any writing to be a negotiable instrument within this Chapter must
(a) be signed by the maker or drawer; and
(b) contain an unconditional promise or order to pay a sum certain in money and no other promise, order, obligation or power given by the maker or drawer except as authorized by this Chapter; and
(c) be payable on demand or at a definite time; and
(d) be payable to order or to bearer.
(2) A writing which complies with the requirements of this section is
(a) a “draft” (“bill of exchange”) if it is an order;
(b) a “check" if it is a draft drawn on a hank and payable on demand ;
(c) a “certificate of deposit” if it is an acknowledgment by a bank of receipt of money with an engagement to repay it;
(d) a “note” if it is a promise other than a certificate of deposit. [Emphasis added]

Plaintiff argues that the written instructions on the reverse side of the checks, limiting the time for deposit to a future date, preclude the instruments from being payable on demand as required by N. J. S. A. 12A:3-104(2) (b). However, to hold as plaintiff suggests would require a ruling that the requests as to the date of deposit were legally binding instructions which superseded the effect of the promise to pay on the face of the checks.

The effect, if any, of these written instructions appears to present an issue of first impression. Are these instructions mere requests to the plaintiff-payee, or do they have a binding legal effect which alters the express provisions on the face of the instrument? An analysis of various provisions of the Uniform Commercial Code, although not dispositive of the issue, indicates that such instructions have no legal effect.

These written instructions cannot be indorsements. N. J. S. A. 12A:3-202(2) states that “an indorsement must be written by or on behalf of the holder * * *.” N. J. S. A. 12A:1-201 (20) defines a “holder” as; “A person who is in possession of * * * an instrument * * * drawn, issued or indorsed to him or to his order or to bearer or in blank.”

It is not disputed that these instruments were issued to plaintiff. Therefore, Gotham, as the drawer, did not have the capacity of a holder necessary to indorse these instruments. Since Gotham could not be an indorser, the written instructions on the checks cannot be qualified or restrictive indorsements. The instructions, not being indorsements, are merely requests to plaintiff who may or may not comply at its own pleasure. The instructions are neither binding on pnaintiff nor the subsequent holders. The effect is similar to that of written memoranda for the benefit of the drawer.

Regardless of the effect of these written instructions, the consignor, Silver Creations, by accepting a form of payment which is allegedly not in conformance with the shipping contract, waives any objections or claims for breach which he may have against the carrier. Therefore, even if these instruments were in breach of contract, it ratified the actions of defendant so as to preclude a subsequent claim for breach when it accepted these checks without qualification.

This doctrine was espoused in Rathbun v. Citizens’ Steamboat Company, 76 N. Y. 376 (Ct. App. 1879). There the carrier was authorized to accept only cash as payment from the consignee. The carrier accepted a check, clearly in breach of the contract, and delivered it to the consignor. The consignor accepted the check without qualification or objection and transmitted it for collection. The court ruled that the acceptance of a form of payment not in conformance with the original terms of the contract between carrier and consignor, constitutes a ratification of the carrier’s actions. Such unconditional acceptance waived any future claims against the carrier for breach of contract upon subsequent dishonor of the check. The court noted that since there was no dispute that the carrier was in breach, the carrier would have been liable to the consignor if the consignor “had refused to accept the check, or had accepted it in a qualified manner.” Id. at 380 (32 Am. Rep. 321, 322). However, the court added that

The circumstances here are capable oí but one construction according to the mode and habits oí business, and that is, that the plaintiffs adopted and ratified the act of the carrier, by the unqualified acceptance of the check, [at 324]

This doctrine of waiver, as espoused in Rathbun, was adopted in New Jersey in the case of S. B. Penick & Co. v. Triple “M” Trans. Co., 131 N. J. L. 114 (Sup. Ct. 1943). In that ease a carrier accepted a post-dated chock contrary to the terms of a C. O. D. contract. The consignor accepted the check subject to the qualification that he would assume no responsibility for collection. Although the court held that this qualified acceptance was sufficient to preserve the consignor’s cause of action of current date, the court did adopt the rationale of Rathbun when it noted that a “shipper may waive its rights by an unqualified acceptance of that which the carrier has taken in lieu of money or of that which it was authorized to receive.” Id. at 115.

The Rathbun decision was re-examined in Compuknit Indus., Inc. v. Mercury Motors Exp. Inc., 72 Misc. 2d 55, 337 N. Y. S. 2d 918 (Civ. Ct. 1972). There plaintiff attacked the validity of Bathbun in light of modern business practices, asserting that the doctrine of waiver contradicts the doctrine that a party should attempt to avoid or lessen the extent of damage before resorting to litigation. Plaintiff relied on Freedman & Slater, Inc. v. Great Lakes Forwarding Corp., 7 A. D. 2d 978, 183 N. Y. S. 2d 684 (App. Div. 1959), in which the court, although reluctantly following Rathbun, stated that a better theory would be that a consignor’s rights against a carrier accrue at the time of the breach and that “consequently plaintiff had the right * * * to deposit the check” until actual dishonor to avoid damage before resorting to litigation. In spite of this’ argument, the court in Compuknit upheld the Rathbun rationale that actions such as acceptance, holding or depositing, constitute a waiver of any rights against the carrier for breach.

In this case, plaintiff argues that the issue before the court is what responsibility a common carrier assumes when it contracts to make a C. O. D. delivery. Plaintiff states .that between the carrier and the shipper, the party most able to prevent loss is the carrier; since the shipper is not present, the carrier is his sole agent and must inspect the instrument. Plaintiff argues that the driver could have inspected the reverse side of the instrument just as easily as its face and was under a duty to report any deficiency to the shipper prior to releasing the goods. Plaintiff also asserts that to hold that a carrier making a C. O. D. delivery does not have a duty to examine the reverse side of an instrument, which was presented in payment on a O. O. D. order, would defeat the purpose of C. O. D. deliveries since C. O. D. shipments are used to protect a shipper who is unwilling to relinquish possession of his goods until he is certain of payment. Plaintiff further asserts that a holding that a carrier is not responsible for examining the entire document, accepted as payment, would transform a C. O. D. shipment from a protective device to a means by which purchasers could commit fraud.

Plaintiff’s argument appears to be displaced in light of the facts of this case. First, to hold in conformance with plaintiff’s assertions would require this court to hold that the written instructions have an effect on the nature and effect of the instrument. Secondly, plaintiff appears to misconstrue the nature of a C. O. D. contract. In the Gompulcnit decision the nature of C. O. D. shipments was examined in light of modern commercial practices with specific attention to the use of checks in C. O. D. contracts.

In affirming Bathbun the court in Compulcnit also held that the acceptance of a post-dated check did not constitute a breach of the C. O. D. contract. The court stated that the fact that a post-dated check was dishonored had no different effect than had a demand check been dishonored when presented for payment. Recognizing that “cash on delivery” contracts do not normally mean checks will be valid payment, the court found that the consignor had assumed a risk when it altered the C. O. D. contract to an authorization to receive checks. The court stated:

In effect, it relinquished control over the shipped goods and chose to rely upon its customer’s credit as represented by the check whether demand or postdated. *' * *. Both are equally dependent upon the customer’s credit. [337 N. Y. S. 2d at 921, 922]

Thirdly, the above language from the Gompuhnit decision is especially significant in this case since the contract between the parties included a clause which stated:

* * * unless instructions to collect cash only written on the C.OJD. tags, the carrier will accept checks from consignees in payment of C.O.D.’s. Such checks accepted at the risk of the shipper, will he transmitted to the shipper together with the carriers own check for amounts collected in cash. [Emphasis added]

While this court had previously determined as a matter of law that these checks were not post-dated, the ratónale employed by the court in Compuknit is still relevant in this matter. A check merely constitutes a promise to pay, and conceivably it is always subject to dishonor. Plaintiff, by authorizing defendant to accept cheeks as payment, modified the shipping contract from the classical C. O. D. contract which affords a shipper the security that he has been paid before his goods are released, to a contract in which he received merely a promise that he would be paid in the future. He received merely a written confirmation of the debt and a promise to pay. Plaintiff would not have received the type of protection that he attributes to C. O. D. deliveries even if these checks had contained no written requests on their reverse side. There existed no assurance that the consignee had funds to cover the face amounts of the checks when they were initally presented to defendant in exchange for the plaintiff’s goods.

Purthermore, the litigation in this case did not arise from the failure of the carrier to inspect the reverse side of the checks. Plaintiff is now suing defendant carrier simply because Gotham, the consignee, did not have sufficient funds to cover the debt. Plaintiff asserts breach of contract in the hope of finding another means to offset his loss. Rever has it been asserted that the instrument was dishonored by the bank because it was not a check, nor that the bank refused to honor the check due to any adherence to — or objection to — the instructions on the reverse side. The bank was willing to honor tho check but for Gotham’s insufficient accounts and financial status.

In conclusion, it is undisputed that C.O.D. shipments are a device to protect shippers. It is also undisputed that if a carrier breaches his duty to collect the price or collects a form of payment not in conformance with the delivery contract, the carriel’ is liable for “whatever it would have collected if the duty had been fulfilled.” S. B. Penick & Co. v. Triple “M” Transp. Co., 131 N. J. L. 114, 115 (Sup. Ct. 1943). However, this does not mean that the shipper is thereby absolved from responsibility for his own actions; the shipper may waive his rights against the carrier by an unqualified acceptance of whatever the carrier collects in lieu of that which it was authorized and required to receive.

In the present case plaintiff decided to follow the instructions on the reverse side of the instruments and withheld depositing the checks. The issues are not the duty of inspection the carrier had under the contract, nor who was in a better position to examine the checks. Those issues have been waived by plaintiff’s unqualified acceptance of the checks, and his ratification of the carrier’s actions by withholding deposit as Gotham had instructed. The law of contracts and waiver, as expressed in Raihbun and Penick, adequately protects all parties involved.

For all the aforestated reasons, judgment must be entered in favor of defendant United Parcel Service.


source: Caselaw Access Project

author: Miller, J. C. C.,

license: Public Domain

text:
    NATIONAL FREIGHT, INC., A CORPORATION OF THE STATE OF NEW JERSEY, PLAINTIFF, v. HAROLD OSTROFF; BENJAMIN BERGSTEIN, INDIVIDUALLY AND T/A CARMEL LUMBER CO.; YETTA BERGSTEIN AND MAX EISENMAN, INDIVIDUALLY AND T/A BONANZA CLOTHES, JOINTLY, SEVERALLY AND IN THE ALTERNATIVE, DEFENDANTS.
    Superior Court of New Jersey Law Division
    April 24, 1975.

      Mr. Robert N. McAllister for plaintiff (Messrs. Valore, McAllister, DeBrier, Aron & Westmoreland, attorneys).

      Mr. Marvin Perskie for defendant Harold Ostroff (Messrs. Perskie & Callinan, attorneys).

      Mr. Seymour Wasserstrum for defendants Benjamin Berg-stein and Yetta Bergstein.

      Mr. Matthew Aaron for defendant Max Eisenman.
   Miller, J. C. C.,

Temporarily Assigned. On July 25, 1974, and subsequent thereto, over 100 criminal complaints issued out of Vineland Municipal Court against defendant Harold Ostroff charging him with larceny, embezzlement, forgery and conspiracy to defraud plaintiff National Freight. The complaints were forwarded for consideration by the Cumberland County grand jury on August 9, 1971. No indictments have been returned to date.

On January 29, 1975 National Freight filed a civil complaint against Ostroff and other defendants seeking compensatory and punitive damages. Both criminal and civil complaints appear to have the same factual basis. Ostroff now moves to place the civil matter on the inactive list pending conclusion of the criminal charges against him. He claims that a complete defense to the civil action would necessitate full revelation of any defense to the criminal charges, thereby compromising his Fifth Amendment rights.

The ease appears novel in New Jersey.

In Sternberg v. Michigan State Bar, 384 Mich. 588, 185 N. W. 2d 395 (Sup. Ct. 1971), an attorney moved to stay a bar grievance proceeding on the ground that his testimony in the hearing could be used against him in a pending criminal prosecution for embezzlement. Denial of this motion was upheld.

State v. Schauenberg, 197 Iowa 445, 197 N. W. 295 (Sup. Ct. 1924), involved a suit to enjoin a liquor nuisance. The same facts gave rise to a pending indictment against defendant charging him with maintaining a nuisance. Defendant moved for a continuance on the ground, among others, that he would be compelled to take the witness stand and testify concerning matters involved in the criminal ease and would, therefore, be deprived of his constitutional rights. His motion was denied.

Other cases with similar results are Poston v. Some Insurance Co. of New York, 191 S. C. 314, 4 S. E. 2d 261 (Sup. Ct. 1939), Lowe v. Lowe, 293 S. W. 915 (Tex. Civ. App. 1927), and Fagan v. Powell, 237 So. 2d 579 (Fla. App. 1970).

In DeVita v. Sills, 422 F. 2d 1172 (3 Cir. 1970), plaintiff, a member of the New Jersey Bar and a judge of the Union County District Court, sought to restrain a state judicial inquiry looking toward the attorney’s disbarment and removal from judicial office. He alleged that a criminal indictment arising out of the same alleged misconduct was pending and claimed that holding such judicial inquiry prior to completion of the criminal prosecution would violate his right against self-incrimination.

Recognizing that granting the attorney’s motion would create countervailing possibilties of prejudice to civil litigants, the Third Circuit Court of Appeals denied him the relief sought, stating:

But, says the plaintiff, I will nevertheless be put to a difficult choice, and the Fifth Amendment should be so construed that one is not faced with the compulsion to add his own possibly affirmative good impression to weight of evidence in the disciplinary hearing before the criminal trial.
This argument proves too much, for it applies with equal force to every situation where civil and criminal procedings may arise out of the same factual pattern. If, for example, the charge against an attorney was embezzlement of a client’s funds, acceptance of plaintiff’s position would require that the wronged client await the completion of a criminal trial before he sought a civil recovery, because of the possible compulsion of the risk of a judgment. The same would be true of every defendant in a wrongful death action ; of many taxpayers ; of most antitrust defendants. The same would, indeed, be true if instead of a disciplinary proceeding we had before us a proceeding for impeachment of a judge by the New Jersey Legislature pursuant to Article VII, Section III of the New Jersey Constitution.
No authority has come to our attention for so broad a reading of the Fifth Amendment, and the countervailing possibilities of prejudice to civil litigants militates against any such extension of constitutional doctrine.
Plaintiff can, of course, object to depositions or interrogatories directed against him in a civil action where the answers might incriminate him in a pending criminal case. Perry v. McGuire, 36 F. R. D. 272 (S. D. N. Y. 1964); Paul Harrigan & Sons, Inc. v. Enterprise Animal Oil Co., 14 F. R. D. 333 (E. D. Pa. 1953); National Discount Corp. v. Holzbaugh, 13 F. R. D. 236 (E. D. Mich. 1952). But the contention that an actual or potential defendant in a criminal case should not even be put to the difficult choice of having to assert the privilege in a related civil case was rejected in United States v. Kordel, 397 U. S. 1, 90 S. Ct. 763, 25 L. Ed. 2d 1 decided on February 24, 1970. . . .
Undoubtedly there are eases in which a court in the exercise of its discretion should stay discovery in a civil action pending the disposition of a criminal ease. See, e. g., Texaco, Inc. v. Borda, 383 F. 2d 607 (3 Cir. 1967), where this court approved the exercise of such discretion by the district court in an antitrust case. But there is no constitutional requirement that this be done, and in the same case some of the limitations which the district court placed upon discovery were found to be an abuse of discretion, Texaco, Inc. v. Borda, supra, at 608. In United States v. American Radiator & Standard San. Corp., 388 F. 2d 201, 204 ( 3 Cir. 1967). cert. den. 390 U. S. 922, 88 S. Ct. 857, 19 L. Ed. 2d 983 (1968), this court said, with respect to a contention similar to that advanced here:
“On the merits, we know of no rule or equitable principle that protects a defendant in a pending criminal prosecution from the disclosure, by another person in a separate civil action, of evidence which may later become part of the prosecution’s case against him.”
See also Standard Sanitary Mfg. Co. v. United States, 226 U. S. 20, 52, 33 S. Ct. 9, 57 L. Ed. 107 (1912). Cases such as Campbell v. Eastland, 307 F. 2d 478 (5 Cir. 1962), cert. denied 371 U. S. 955, 83 S. Ct. 502, 9 L. Ed. 2d 502 (1963), staying civil discovery against the government until the disposition of the criminal case, are not relevant. They rest on the policy of preventing defendants in criminal cases from using civil process to obtain information from the government’s file which would in the criminal ease be privileged. That discretionary rule lends no support to plaintiff’s constitutional contentions, [at 1178-1181]

There is no absolute rule in New Jersey ox elsewhere by which civil actions must be suspended as a matter of right to await the event of an indictment pending in relation to the subject matter of the suit. Instead, the equities and necessity of the particular case must govern. Here the interests of other parties will be jeopardized by a delay of the civil suit. That danger is magnified by the fact that a criminal trial (whether speedy or not) may never occur at all. Indictments have not yet been found and nor is there any certainty that any will be.

Defendant seeks to counterbalance these considerations by asserting his constitutional right not to incriminate himself.

The court is thus presented with two sharply diverging interests. One is the absolute right against self-incrimination under the Fifth Amendment, although in New Jersey the Federal Constitution need not be relied on since the protection against self-incrimination, originally a common law right, has existed in this state since its beginning. Fries v. Brugler, 12 N. J. L. 79, 82 (Sup. Ct. 1830); In re Vince, 2 N. J. 443, 448 (1949); N. J. S. A. 2A:84A-19 (which replaced N. J. S. A. 2A:81-5 and R. S. 2:97-7). There is probably no principle more deeply embedded in Anglo-American jurisprudence and it may well remain the most significant contribution of that jurisprudence to the stream of history.

Competing with this consideration are the rights of plain-. tiff and other co-defendants. While defendant ought not to be compelled to convict himself criminally, plaintiff and the other parties ought not to be compelled to await the determination of their rights, pending a future course of action which is out of the control of these parties and, indeed, of the court. It must he remembered that the courts must do justice to all parties. In compelling defendant to proceed with this case, the law is not compelling the parties to do anything but disclose the truth. To quote Mr. Justice Burling, “The truth is always the truth, and telling the truth will not hurt anyone except in so far as he ought to be hurt.” Vince, supra 2 N. J. at 457.

To say that the civil suit must remain in statu quo indefinitely is to import to the courts an impotency unworthy of them. To compel other parties to sit supinely by while their rights or possibility of recovery are eroded is to invite contempt for the law as well as to permit any guilty party to secrete or dissipate the fruits of his wrongdoing.

The present case has not yet proceeded so far as to criminally jeopardize the defendant. He is not yet required by it to elect whether to avail himself of his privilege against self-incrimination. That choice, still open to him, will come, if at all, if he is required under discovery rules to reveal so much of his case as is demanded of him by his adversary. To accede to defendant’s demand in the posture of events would frustrate justice and, as Judge Gibbons pointed out in DeVito, supra at 1180, “He has no constitutional right to be relieved of the burden of that choice.” See also People ex rel. Moll v. Danziger, 238 Mich. 39, 213 N. W. 448 (Sup. Ct. 1927), where the court said:

* * * the criminal conduct of defendant which ho is not obliged to disclose by his answer would operate as a shield to protect him from the enforcement of his opponents’ rights. Such is not the law and cannot be. The constitutional rights of the defendant must be protected, but the constitutional rights of the plaintiff to his day in court must be likewise protected. [213 N. W. at 451]

Defendant’s motion is denied. If the question of self-incrimination is raised by him at the present time, he, or, indeed, any party may apply to the court for a protective order sealing the testimony. DeVito, supra at 3180.


author: Per Curiam.

text:
    BERTHA SCHRAER, PETITIONER-APPELLEE, v. SOUTHERN TRUCKING CO., RESPONDENT-APPELLANT.
    Superior Court of New Jersey Appellate Division
    Argued November 9, 1971
    Decided December 17, 1971.

      Before Judges Kilkenny, Labrecque and Lane.

      Mr. Thomas J. Osborne, Jr. argued the cause for respondent-appellant (Messrs. Vaccaro & Osborne, attorneys).

      Mr. Robert J. Inglima argued the cause for petitionerappellee.
   Per Curiam.

Respondent Southern Trucking Co. appeals from a judgment finding it liable for payment of compensation to petitioner Bertha Schraer for the work-connected death of her husband Walter Schraer on January 18, 1965.

Respondent raises two points:

1. In evaluating- the testimony on the issue of whether or not decedent’s coronary occlusion was causally related to, or contributed to in a material degree, beyond <2e minimis, by his employment activity, the County Court failed to give sufficient weight to the opportunity of the Judge of Compensation to judge the credibility of the witnesses, disregarded impeaching evidence, and its conclusion is based upon insufficient credible evidence.
2. The allowance of counsel fees by the County Court is excessive and does not bear a reasonable relationship to the work involved or the award entered, fails to consider fee allowed in the Division and, therefore, represents an abuse of discretion.

[The court concluded that the County Court’s determination that decedent’s death was work-connected and compensable was supported by substantial credible evidence present in the whole of the record.]

We are, however, convinced that respondent’s second point is meritorious. The award in favor of petitioner amounted to $14,400 and provided for a counsel fee to petitioner’s counsel of $2,150, $1,500 payable by respondent and $1,250 by petitioner, for his services in the Division. For his services in the County Court counsel requested $6,500 and was awarded $4,000, $3,000 by respondent and $1,000 by petitioner. We are satisfied, from our consideration of the record and the affidavit of services filed, that the allowance of $4,000 for his services in the County Court amounted to a mistaken exercise of. the judge’s discretion. We have concluded that a fee of $2,000, payable $1,500 by respondent and $500 by petitioner, together with costs, would adequately compensate counsel for his services in the County Court, and we direct that the order for counsel fees be modified accordingly.

The judgment appealed from is modified and, as modified, is affirmed.


author: Handler, J. A. D.

text:
    STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT, v. JOSEPH MORIARTY AND SHIRLEY MARIE WATFORD, DEFENDANTS-APPELLANTS.
    Superior Court of New Jersey Appellate Division
    Argued December 2, 1974
    Decided April 10, 1975.

      Before Judges Lora, Handler and Tarleton.

      Mr. Alan Silber argued the cause for appellant Joseph Moriarty (Messrs. Brown, Vogelman & Ashley, attorneys).

      Mr. Horatius A. Greene, II, argued the cause for appellant Shirley Marie Watford (Mr. William O. Perkins, Jr., attorney and on the brief).

      Mr. Michael Graham, Deputy Attorney General argued the cause for respondent (Mr. William F. Hyland, Attorney General of New Jersey, attorney; Mr. L. Steven Pessin, Deputy Attorney General, of counsel and on the brief).
   The opinion of the court was delivered by

Handler, J. A. D.

A four-coxmt indictment returned by the state grand jury charged that (1) defendants Joseph Moriarty and Shirley Marie Watford a/k/a Shirley Marie Dawson (hereinafter Watford) conspired to possess lottery paraphernalia, in contravention of N. J. S. A. 2A:98-1 and N. J. S. A. 2A:98-2; (2) Moriarty did knowingly possess lottery paraphernalia, in contravention of N. J. S. A. 2A :121-3(b); (3) Watford did knowingly possess lottery paraphernalia, in contravention of N. J. S. A. 2A:121-3(b), and (4) Moriarty did willfully and knowingly commit an assault and battery upon a law enforcement officer, in contravention of N. J. S. A. 2A:90-4. Prior to trial a motion to suppress evidence was made by defendants, which was denied. Defendants were then jointly tried and the jury found Ühem guilty as charged on all four counts of the indictment.

Moriarty was sentenced to the New Jersey State Prison for concurrent terms of to 3 years and separate fines of $1,000 on the two gambling counts; and a consecutive 1 to 2 years and a $1,000 fine on the fourth count for the assault on a police officer. Watford was sentenced to the Hudson County Penitentiary to concurrent terms for 1 year, 4 months to be served in custody, with 8 months suspended and 2 years probation for the gambling charges. Defendants each filed a notice of appeal from their convictions, which appeals were consolidated.

I

Defendant Watford contends that she was not accorded a fair trial or a trial by an impartial jury. She asserts that she was entitled to a mistrial, or at the very least a severance should have been granted, because of a newspaper article appearing in the New Yorlc Daily News during trial. It is her contention that the combination of this newspaper article with “Newsboy” Moriarty’s reputation presented a “substantial probability” that her due process right to a fair trial was subverted.

Upon being informed of the existence of this article the trial judge conducted a voir dire of all members of the jury. By the time the last juror was questioned it was clear that none of them had read the article or knew of its existence. In addition, it was discovered that, although a copy of the Daily News had been brought into the jury room, this edition did not contain the offending article.

It is within the discretion of the trial judge whether to grant severance or any other appropriate relief where prejudice is alleged. R. 3:15-2(b); State v. Sinclair, 49 N. J. 525, 550 (1967); State v. Yedwab, 43 N. J. Super. 367, 380 (App. Div.), certif. den. 23 N. J. 550 (1957). A denial of severance by a trial court will not be disturbed upon appeal unless there is a clear showing of abuse of discretion. State v. Rios, 17 N. J. 572, 584 (1955); State v. Yormark, 117 N. J. Super. 315 (App. Div. 1971), certif. den. 60 N. J. 138 (1972). The trial judge committed no error in ruling that no prejudice was suffered by defendant and that neither a severance nor a mistrial was justified by virtue of the newspaper article.

Watford also contends that it was prejudicial for her to have been tried jointly with Moriarty because of inevitable jury bias attributable to the fact that he was a notorious gambler. No timely motion for severance on this ground, however, was made and she failed utterly to demonstrate that any juror was biased because of Moriarty’s notoriety.

This defendant also questions whether prejudice was created by the trial judge in ordering a sequestration of the jurors. Whether or not the jury is to be sequestered lies in the sound discretion of the trial court. His decision will not be disturbed on appeal, save for abuse of discretion. Foolish v. United States, 340 F. 2d 513, 528 (8 Cir. 1965), cert. den. 381 U. S. 951, 85 S. Ct. 1805, 14 L. Ed. 2d 724 (1965); Estes v. United States, 335 F. 2d 609, 615 (5 Cir. 1964); cert. den. 379 U. S. 964, 85 S. Ct. 656, 13 L. Ed. 2d 559 (1965). In light of the circumstances it cannot be said that the trial judge abused its discretion in this respect.

II

Defendant Moriarty contends that the application for a search warrant based upon an affidavit of Detectives Eoon and Dragatto failed to establish probable cause to search vehicle UJR — 501 and its occupant.

It is also asserted that the warrant was deficient in that it failed to identify Moriarty as the person to be searched or to describe him with sufficient particularity, defendant being described in the warrant as a “white male, wearing black horn-rimmed glasses.”

Defendant has not furnished the court with a transcript of the hearing upon the motion to suppress. We are, nevertheless, of the view that upon the merits his contentions must fail.

The application for the warrant, fairly read, demonstrates sufficiently that the described person was observed to be engaged in lottery operations utilizing certain automobiles, one of which was the vehicle with the registration UJR-501. There was, therefore, a sufficient showing of probable cause for the search of this vehicle and its occupant. We are also satisfied that the description of the subject or person to be searched was not fatally deficient, considering especially the circumstance that the officers executing the warrant knew the person to be searched. State v. Malave, 127 N. J. Super. 151 (App. Div. 1974); cf. State v. Bisaccia, 58 N. J. 586 (1971).

Defendant contends that the trial court improperly restricted the cross-examination of the State’s two key witnesses. In particular, he asserts that he was prevented from pursuing the issue of why Moriarty’s name was not mentioned in the affidavit in support of the search warrant. He also states that he was prevented from delving into Boon’s prior knowledge of Moriarty stemming from his relationship with a suspended Jersey City police officer, Detective Bullock. It is asserted that he was foreclosed in cross-examining the witnesses, Santelli and Boon, on the crucial issue of “whether it really was Joseph Moriarty in horn-rimmed glasses * * * who received a brown paper bag from Shirley Marie Watford” on a particular date during the course of their surveillance.

Prefatorily we would observe that, in our view of the examination and cross-examination of the various witnesses, including Santelli and Eoon, the defense was not fettered or circumscribed unduly in its efforts through cross-examination to explore fully the bases for the identification of Moriarty. Santelli, who had known Moriarty from a previous incident involving a kidnapping of defendant, clearly was in a position to identify defendant positively, as he did. The detectives who applied for the warrant were Dragatto and Eoon. In actuality, neither was cross-examined to any extent as to why Moriarty was not referred to by name in the affidavit. While the defense did endeavor to cross-examine Eoon as to his knowledge of Moriarty’s identity prior to the application for the search warrant, it was established, without substantial dispute, that Eoon did come to know or strongly suspect Moriarty’s identity before he made the application for the search warrant. It was not highly significant, in the context of the evidence, that Eoon may have come to this knowledge or belief prior to April 13, 1972, since this information in any event antedated the application for the warrant. Thus, defense counsel was able to exploit, for what it was worth, the asserted anomaly as to the prior knowledge of the investigating officers as to Moriarty’s identity and their failure to identify him by name in the affidavit in support of the search warrant.

The court did restrict the cross-examination of Eoon in some respects concerning the information obtained from Bullock, who was an informant. In the course of a proffer, out of the presence of the jury, it became apparent that the information brought by Bullock added nothing new or significant to the pending investigation. We conclude, upon our review of the record, on this issue, that the trial court did not abuse its discretion in placing limits upon the extent of cross-examination of State’s witnesses and that particularly any asserted errors in this respect with regard to the cross-examination of Detective Roon had no appreciable impact on the outcome of the ease, in light of the convincing evidence of the identification of Moriarty.

Defendant further argues, with respect to his conviction for assault upon a police officer, that the trial judge improperly restricted the introduction of evidence as to a kidnapping of defendant approximately two years before his arrest and the nature of the injuries which he had sustained as a result thereof. These circumstances, according to defendant, were relevant to the issues of his intent and knowledge as elements of this charge.

The trial judge did prohibit certain questions during the cross-examination of Santelli, who on direct examination had been permitted to testify, over objection, that he had met and questioned Moriarty at length approximately 11 months before his current arrest. This testimony had been permitted as tending to show that Moriarty knew Santelli and knew that he was a police officer performing his duty when defendant was stopped, searched and arrested by Santelli and Roon. While the judge did not allow testimony as to the circumstances of a kidnapping, Santelli was allowed to testify that Moriarty was in an injured condition, had been hospitalized and was drowsy when he was questioned on the prior occasion. Moriarty, on his own direct examination, was similarly allowed to testify as to his physical and mental state on that occasion. In refusing to permit questions as to the circumstances which gave rise to Moriarty’s physical injuries and hospitalization on that prior occasion — apparently a kidnapping and beating — the court determined that this would entail a subject which would he collateral, prejudicial and confusing, although Moriarty stated repeatedly and non-responsively that he had been kidnapped and beaten.

The judge, we conclude, did not create reversible error with respect to curtailing testimony as to defendant’s earlier kidnapping and resultant injuries. While these factors had some bearing on defendant’s state of mind or intent at the time of his apprehension — the possibility that he believed that he was being kidnapped rather than arrested — and on the issue of whether he recognized Santelli as an arresting officer, this exploration and development would have been collateral to the essential issues to be resolved and clearly productive of confusion and undue consumption of time. Evid. R. 4; State v. Gallicchio, 51 N. J. 313 (1968), cert. den. 393 U. S. 912, 89 S. Ct. 233, 21 L. Ed. 2d 198 (1969). The impact of the judge’s ruling upon the outcome of the case was not substantial in light of the convincing evidence that the police officers identified themselves and that Moriarty in fact committed an assault and battery while attempting to escape from their efforts to restrain him.

Defendant also argues that the defense of self-defense or justified resistance was, as a matter of law, raised by the evidence. In this circumstance, it was the trial judge’s function to determine if sufficient proof had been elicited to send the issue to the jury. State v. Montague, 55 N. J. 387 (1970); State v. Gardner, 51 N. J. 444 (1968). Whether there is sufficient proof must be viewed in a light most favorable to defendant. State v. Mulvihill, 57 N. J. 151, 154 (1973).

It is recognized that “a private citizen may not use force to resist arrest by one he knows or has good reason to believe is an authorized police officer engaged in the performance of his duties, whether or not the arrest is illegal under the circumstances obtaining.” State v. Koonce, 89 N. J. Super. 169, 184 (App. Div. 1965). The duty imposed on the citizen to submit also obtains when the restraint by the police officer is for any lawful purpose. State v. Mulvihill, supra. If, however, the citizen resists, the officer is not only justified in but has the duty of employing such force as is reasonably necessary to overcome the resistance and accomplish the arrest. Id. But, the citizen may protect himself whenever the force applied is excessive and unnecessary. Id. 57 N. J. at 157. A right of self-defense, in this circumstance, ¡however, may be exercised only if the repelling force is no greater than that which reasonably appears to be necessary and if submission to the excessive force would not end its use. Otherwise, the defense is forfeited. Id.

The testimony by the State’s witnesses indicated that Moriarty was approached by two police officers after they had “boxed in” his vehicle with theirs. Both police officers displayed their identifications to Moriarty and told him that they had a search warrant for the car and for Moriarty’s person. Santelli told Moriarty to shut off the ignition and get out. When Moriarty remained motionless, Santelli started to reach in to shut off the ignition, and defendant then restarted the car and proceeded to move it. At that point, Santelli lunged in and turned off the ignition. There is no evidence remotely suggesting that force was ever directed at Moriarty or that force was unnecessarily applied in any way to effectuate the detention. Moreover, Moriarty testified that a “fat Pollack” • — • not Santelli — “dove” into the car on top of him to shut off the ignition. He denied even believing that he was involved with police officers or that he used any force at all. Thus, his testimony was not aimed at establishing the reasonableness of his physical behavior in light of alleged egregious police conduct. Consequently, the trial judge was correct when he denied defendant’s request to charge on self-defense. Since it was not supported by the facts, it should not, therefore, have gone to the jury. State v. Montague, supra.

During the course of their deliberations the jury sent this question to the trial judge: “If no intention of assault, but a jostling occurred, how does the law apply ?” Defendant Moriarty objected to the charge given by the judge in response to the question, contending in effect that the court had eliminated intent from the crime. The charge was allowed 'to stand. On appeal Moriarty again complains that the supplementary instruction was prejudicial because it confused and misled the jury.

The trial judge in its charge to the jury re-instructed it as to the three elements constituting an assault and battery upon a law enforcement officer. He charged further:

Now, how may you find intent? Every person is under an obligation to submit to an arrest and to refrain from using force to resist either the initial apprehension or any continued detention in the custody of a law enforcing officer. If a person under those circumstances jostles, grapples, pushes or shoves the arresting officer, he is committing an unlawful act.
If you believe beyond a reasonable doubt that Joseph Moriarty jostled, grappled, pushed or shoved the arresting officer under those circumstances, he committed an unlawful act. And where the act is unlawful it is unnecessary to show an unlawful intent, it being implicit in an unlawful act. It may be inferred by the injury from the unlawful act.

The supplemental instructions were in accord with the general rule that a private citizen may not use force to resist an arrest by one he has good reason to believe is a law enforcement officer performing his duties. State v. Washington, 57 N. J. 160 (1973); State v. Mulvihill, supra; State v. Koonce, supra.

The charge did not remove the intent issue from the jury’s consideration. The judge, after reiterating the elements of the crime, carefully defined intent and how it can be ascertained. The reference to an unlawful act in the supplemental charge adequately denoted the act of resisting or failing to submit to an arrest or detention. The judge did not by this instruction charge the jury that an unlawful act had been committed. Cf. State v. Hanly, 127 N. J. Super. 436 (App. Div. 1974). The charge that the unlawful intent was implicit in the wrongful act, involving, as it did, resisting arrest, was not erroneous. Cf. State v. Chiarello, 69 N. J. Super. 479, 490 (App. Div. 1961), certif. den. 36 N. J. 301 (1962); State v. Adamo, 9 N. J. Super. 7 (App. Div. 1950). Other criticisms of this supplemental charge — that it was not properly responsive or that it indicated the possible commission of a lesser crime, resisting arrest rather than assault and battery upon a police officer — are without merit.

Eor the foregoing reasons, the convictions of defendants Watford and Moriarty are affirmed.


author: King, J. C. C.,

text:
    TIMBER RIDGE TOWN HOUSE, PLAINTIFF, v. JAMES AND MARY DIETZ, DEFENDANTS.
    Superior Court of New Jersey Law Division
    March 11, 1975.

      Mr. Thomas J. Donovan for plaintiff (Messrs. Portella, Donovan and Favieri, attorneys).

      Mr. Dermis Riley for defendants (Messrs. Riley and Alaksen, attorneys).
   King, J. C. C.,

Temporarily Assigned. This is an action for summary dispossession brought pursuant to N. J. S. A. 2A:18-53 et seq. alleging a default in rental payments for the month of October 1974. The monthly rental is $285 for this 3-bedroom, 2^-bath, 2-story garden apartment or townhouse in Lindenwold. Defendants withheld rent due for one month, depositing the funds in their attorney’s escrow account. Thereafter the monthly rentals were deposited in escrow pending this court’s decision. Defense counsel made application to the court for removal' of the matter to the Superior Court, Law Division, pursuant to N. J. S. A. 2A: 18-60, on the grounds that the issues raised were novel and of sufficient importance to warrant an appeal. The court agrees. Plaintiff consented to this application and an order of removal was entered by the court. Both parties waived the right to jury trial and the matter was submitted to the court as trier of fact.

Defendants raise so-called habitability defenses and request an abatement of a portion of the rent. The questions are novel because the allegedly affected area is external to the actual leased premises. Tenants claim the area immediately surrounding his leased townhouse is very poorly maintained and is overflowed by mud and water most of the time, presenting a physically and aesthetically undesirable situation. They also request an abatement because a swimming pool and playground area which was promised to the tenants on initial leasing have never been furnished. This latter assertion of lack of habitability raises the problem of the right to relief where the landlord has failed to furnish certain amenities which are to be used in common with other tenants of the complex. (About 100 of the total 192 units are now completed and occupied).

Timber Eidge was designed as a family community. Of the 192 units ultimately to be constructed, about one-third are three-bedroom units and two-thirds are two-bedroom-units. Of the 100 units presently occupied it was estimated that 80-85% include children among the tenants’ families. The townhouse complex is located in Lindenwold, a town of about 23,000 residents, 16,000 of whom live in rental dwellings, located at the eastern terminus of the Philadelphia-Lindenwold High Speed Line. A brochure used in the rental of the properties was placed in evidence. Defendants leased the property in December 1973 in partial reliance upon the representations in the brochure. The brochure described the project as: “Quietly nestled in a gently rolling wooded glen * * * [offering] serene living in a beautiful country setting with on-site recreational facilities including a swimming pool and childrens’ play area * * * and individual patio facing a spacious landscaped court yard.” The written lease agreement executed on December 1, 1913 for a term of one year refers to the premises as “the apartment consisting of 5 rooms and baths.”

Tenants here seek to extend the doctrine of implied warranty of habitability beyond the actual physical structure. The court with the approval of the parties, inspected the premises exteriorly on the day following the final hearing, December 19, 1914. There is no doubt that the external conditions detract substantially from the tenants’ living pleasure. Defendants’ townhouse is immediately adjacent to the area where a large retaining wall is being constructed. Construction has been in progress for four months, and from the court’s, observation may continue for at least several more months. These defendant tenants are almost uniquely affected by the construction because of their proximity to the conditions. No other occupied unit is affected in such a severe manner. Their “individual patio facing a spacious landscaped court yard” is unusable, as it is surrounded and overflowed by mud and water. The mud flows over the walkway connecting defendants’ main entrance-way and the common parking area. The parking area itself, especially where defendants or their visitors would park their vehicles, is covered with mud. The “court yard” which these tenants could legitimately anticipate appreciating is nonexistent throughout the course of construction. The construction prevents use of the patio and affects ingress and egress, use of the parking area and any outdoor recreational use of the area adjacent to the premises for either the two adult tenants or their three children. The subject premises is the highest price townhouse or apartment available in this municipality (oriented to multifamily dwellings). Tenants had a reasonable expectancy of a decent exterior environment from; the sales promotion, the initial condition of the premises, and the higher price of. the apartment compared to others in the community, whether the expectancy be characterized as one of amenity or necessity. They are deprived of a substantial attribute of the premises through no fault of their own and they have no control over any possible remedy to the situation. Plaintiff landlord and developer was required to install the new concrete retaining wall by the municipality after defendants took possession. The initial wooden railroad tie wall had become unsafe.

The landlord argues that the implied warranty of habitability should not be extended beyond the scope of the presently controlling cases so as to encompass conditions exterior to the premises. The evolution of the doctrine to date has not explicitly included exterior conditions within its scope. In Reste Realty Corp. v. Cooper, 53 N. J. 444 (1969) , where exterior surface water was flooding the first floor of a leased office building, our Supreme Court first recognized the necessity for a more contractually oriented analysis of a lease agreement and announced the implied warranty of habitability doctrine in a commlercial leasehold setting. The court upheld the tenant’s right to vacate before the termination of the lease in such a situation.

The Supreme Court in Marini v. Ireland, 56 N. J. 130 (1970) , applied the doctrine to a duplex-apartment rented for dwelling purposes. The tenant was permitted to pay the cost of toilet repair and offset this expense against current rental by way of abatement. Analyzing the Marini lease according to contract principles, the court examined the intention of the parties, i. e., the representations of the landlord as to what he had available and the reasonable expectations of the tenant as to what she would obtain, and implied a warranty of habitability as a covenant of the lease.

Several years later the court decided Berzito v. Gambino, 63 N. J. 460 (1973), a county district court action by, the tenant against -the landlord for money damages. Plaintiff had occupied a particularly dilapidated second-floor apartment for several years and then vacated. Alleging that the landlord had breached an express oral agreement to make the premises “livable” and to make certain specific repairs, plaintiff sought a judgment for the difference between the actual rent paid and the fair rental value of the substandard accommodations during- her stay. The action was in effect one for retroactive abatement. The Supreme Court perpiitted the judgment for plaintiff tenant in the amount of $1180 entered below to stand, thus approving the award of the abatement retrospectively through money damages. Again the court emphasized the contractual nature of a lease and specifically held that

* ’*’ * the covenant on the part of a tenant to pay rent, and the covenant — whether express or implied — on the part of the landlord to maintain the demised premises in a habitable condition are for all purposes mutually dependent. Accordingly, in an action by a landlord for unpaid rent a tenant may plead, by way of defense and setoff, a breach by the landlord of his continuing obligation to maintain an adequate standard of habitability, [at 469]

In Academy Spires v. Brown, 111 N. J. Super. 477 (Cty. Dist. Ct. 1970), the tenant withheld rent for three months, claiming various substandard conditions, including lack of heat, water, elevator service, trash facilities and water damages. Although there was no written agreement between the parties, the court implied into the oral rental agreement a covenant of habitability to effectuate the purpose of the lease, and then found a breach of that covenant. The court felt it unreasonable to require a ninth floor tenant in a 400-unit complex to vacate as a prerequisite for abatement in this situation and granted a 25% reduction in rent. It was noted, however, that loss of amenities, such as lack of paint, plaster damage and defective Venetian blinds of the apparently minimal character present in the Academy Spires case, did not come within the abatement doctrine.

In deciding what kind of defect will be deemed to constitute a breach of the warranty of habitability, the court is guided by the factors listed by Justice Mountain in Berziio. These factors are as follows:

1. Has there been a violation of any applicable housing code or building or sanitary regulations?
2. Is the nature of the deficiency or defect such as to affect a vital facility?
3. What is its potential or actual effect upon safety and sanitation?
4. For what length of time has it persisted?
5. What is the age of the structure?
6. What is the amount of the rent?
7. Can the tenant be said to have waived the defect or be estopped to complain?
8. Was the tenant in any way responsible for the defective condition?

Here, no housing code violation is present, but the work on the retaining wall, causing the unsavory condition, was required by the borough engineer as a public safety measure. The defect affects all outside use of the premises. In the context of the promotional effort and type of townhouse development promised, the court feels a vital facility is affected. There is a possible effect on sanitation and safety. The defect has persisted now for a period of four to five months and is not transitory. The structure and the project are virtually new. Defendants were original occupants and had a reasonable right to expect first quality facilities. The rental was the highest in the municipality. Defendant tenants cannot in any sense be charged with waiver or estoppel and are in no way responsible for the defective condition. All of these factors support their position.

The court has considered the intention of the parties to this agreement as indicated by the representations of Timber Eidge to defendants, and defendants’ reasonable expectations with respect to those representations, the location and type of residential environment of Timber Eidge, and the high rental fee for the premises. It is the finding of the court that an implied covenant arose between the parties, whether it is characterized as an implied warranty of habitability or an implied covenant to provide certain amenities. Further, the court finds that the implied covenant or warranty has been breached. An abatement of rent in the amount of 15% a month will be allowed from the date the rent was initially withheld and the summary dispossession action commenced.

The court has little to guide the admeasurement of damages other than the application of equitable principles. Samuelson v. Quinones, 119 N. J. Super. 338, 343 (App. Div. 1972). From observing the conditions the court feels at least 15% of the general livability of the premises is affected. The abatement will continue until the condition is rectified. The court stresses that in many multiple-family dwelling units exterior habitability would be a minimal or nonexistent consideration, especially in a city where the tenant’s expectations are limited to a habitable apartment. In this suburban “townhouse” setting defendants did have a reasonable belief that they were renting some adjacent exterior living space, and their reasonable anticipation should not be frustrated.

Tenants also seek an abatement because the promised swimming pool facility and play area have never been provided. The court finds as a fact that these promised facilities were a substantial inducement offered by the landlord to procure the rental agreement. The brochure shows a swimming facility and a sketch of a child playing croquette out of doors. Plaintiff actually installed the swimming pool, but was not able to install the slab and apron or open the pool during the summer of 1974 because the pool area is immediately adjacent to the new retaining wall. Heavy equipment must be used in the area of the pool for the construction work. The flooding and mud slide condition affecting the exterior of defendant tenants’ townhouse also affects the nearby pool area. The playground is to be installed next to the pool and this area is similarly affected. Plaintiff promised at trial to complete the pool and playground areas as soon as construction of the retaining wall is completed. Plaintiff offered all tenants use of an alternate pool facility at a nearby project at the same modest charge contemplated for the unavailable onsite facility for the 1974 swimming season. Defendants did not accept this alternative offer. This situation then raises the question of whether an abatement of rent in a summary dispossess proceeding is the appropriate remedy where landlord has failed to provide expressly promised social amenities to be used by all tenants in common. No decision in the country known to the court has gone this far. Tenant here is no more affected by the landlord’s failure to provide the pool and playground than any of the other approximately 100 tenants in possession at the site. This is in contrast to the very special and individualized harm tenant experienced with respect to the exterior habitability of his premises. The court is reluctant to extend the Marini doctrine as far as defendants desire. Where the living vitality of the rented facility and its immediate environs is not specially affected by the failure to perform, the court believes tenants’ remedy, individually or in combination with other similarly aggrieved tenants, would be best handled in a more conventional legal proceeding. No abatement will be allowed for failure of plaintiff to provide swimming and playground facilities as promised. This determination is without prejudice to the tenants’ right to seek relief in an action at law for damages, possibly in a class action (R. 4:32) or in a proceeding in equity, if appropriate.

      “A covenant in a lease can arise only by necessary implication from specific language of the lease or because it is indispensable to carry into effect the purpose of the lease. In determining, under contract law, what covenants are implied, the object which the parties had in view and intended to be accomplished, is of primary importance. The subject matter and circumstances of the letting give at least as clear a clue to the natural intentions of the parties as do the written words.” 56 N. J. at 143.


author: Verga, J. S. C.

text:
    STATE OF NEW JERSEY, PLAINTIFF, v. KENNETH GROCHULSKI, DEFENDANT.
    Superior Court of New Jersey Law Division
    Decided April 11, 1975.

      Mr. Edward Farynyk for plaintiff (James T. O’Holleran, Hudson County Prosecutor, attorney, Office of the Hudson County Prosecutor).

      Mr. Kenneth Claudai for defendant (Messrs. Claudai & Kealy, Esqs., attorneys).
   Verga, J. S. C.

On April 11, 1975 defendant filed a motion to suspend proceedings, pursuant to N. J. S. A. 24:21-27(a)(2). Defendant was arrested on May 11, 1974 and subsequently indicted for (1) possession of a controlled dangerous substance, to wit, LSD, phencyclidine (PGP) and marijuana, a violation of N. J. S. A. 24:21-20(a); (2) possession with intent to distribute said CDS, a violation of N. J. S. A. 24:21 — 19(a) (1), and (3) maintaining premises for illegal use of narcotics, in violation of N. J. S. A. 24:21-21 (a) (6). Tinder a plea bargain arrangement, defendant pleaded on March 3, 1975 to the first count charging possession, with counts two and three to be dismissed on sentence date. The issue presented is whether defendant qualifies for suspension of proceedings.

The statute provides that the suspended proceedings are available to any first offender who is charged with, pleads to, or is convicted of use or possession of a controlled dangerous substance, so long as, in the court’s discretion:

(1) defendant’s presence in the community will not pose a danger to the community, or (2) the conditions of the supervisory treatment will be adequate to protect the public and will benefit defendant. N. J. S. A. 24:21-27(c) (1) and (c) (2).

Although, technically, defendant initially qualifies for the program under N. J. S. A. 24:21 — 27(a) because he has no other drug-related offenses since January 19, 1971, the novel issue here is what other factors the court, in its discretion, should take into account under subsection (c) (1) in determining whether defendant is a danger to the community — specifically, whether nondrug-related offenses should be considered, and whether open drug charges should be considered.

Since 1963 defendant has been charged with more than 30 statutory violations. Among his early convictions from 1963 to 1971 are: 1963, stealing of hubcaps; 1963, breaking and entering; 1963, larceny; 1965, welfare fraud and 1969, larceny of auto. More recently, and since the passage of the Suspended Proceedings provisions on July 27, 1972, defendant pleaded guilty to eight counts of a ten-count indictment, all ten counts being indictable motor vehicle related violations. In addition, separate breaking and entering, and receiving stolen property charges were dismissed as part of this sanie plea bargain. On all charges defendant was sentenced to serve two to three-years in the New Jersey State Prison, all sentences to run concurrent with each other. He was paroled on May 29, 1973. His final involvements with the law to date include two disorderly persons convictions for larceny and trespass on February 15, 1974, and two disorderly persons convictions for larceny under $200 and trespass on May 3, 1974. On August 8, 1974 defendant was arrested for possession of marijuana with intent to distribute. That charge is still awaiting grand jury action.

Although it is true that drug-related convictions occurring prior to the enactment of the act are not to enter into judicial consideration in determining the disposition of the motion (State v. DiLuzio, 130 N. J. Super. 222, 228 (Law Div. 1974)), the court feels it is necessary to recite some of the defendant’s convictions prior to the effective date of the sentence to show his patent disregard for lawful authority.

Parenthetically, it should be noted that in interpreting the legislative intent in the passage of the statute, it is evident that its main purpose is to provide a method whereby a youthful offender may avoid a lifetime criminal record for possession of a controlled dangerous substance. DiLuzio, supra, at 222. In the instant case defendant is 30 years old and this legislative goal would not be furthered in the least if this motion were granted.

Judicial discretion is a crucial factor in considering the motion. As stated in DiLuzio:

It should be noted that applications for suspension are not to be automatically, mechanically or arbitrarily granted. The Legislature has provided through subsection (c) for the application of judicial discretion which can call into play additional pertinent information concerning the applicant, considerations upon which a grant or denial of the motion can be predicated, even if the subsection (a) requirements have been satisfied, [at 230-231]

Thus, although defendant has no drug-related convictions since the effective date of the statute, January 19, 1971, and qualifies under subsection (a), under subsection (c)(1), based on defendant’s large number of involvements with the law and his present pending drug offense, it is this court’s opinion that the defendant is a danger to the community and the motion is hereby denied.


author: DiBuono, A. J. S. C.

text:
    JEROME M. EPSTEIN AND CHARLES F. KENNEDY, PLAINTIFFS, v. THOMAS W. LONG, WALTER E. ULRICH, EDWARD H. TILLER, HERBERT J. HEILMANN, JR., HAROLD J. SEYMOUR, JR., WILLIAM J. MC CLOUD, WALTER E. BORIGHT, JOHN D. MOLLOZZI AND EVERETT C. LATTIMORE, INDIVIDUALLY, JOINTLY AND SEVERALLY AS MEMBERS OF THE BOARD OF CHOSEN FREEHOLDERS OF THE COUNTY OF UNION AND WALTER G. HALPIN, UNION COUNTY CLERK, DEFENDANTS.
    Superior Court of New Jersey Law Division
    Decided April 18, 1975.

      Messrs. Green, Silver & Waters, attorneys for plaintiffs (Mr. John J. Waters, of counsel).

      Mr. Ralph V. Mancini, attorney for defendants.
   DiBuono, A. J. S. C.

This proceeding in lieu of prerogative writs against the individual members of the Union County Board of Chosen Freeholders and the Union County Clerk seeks a declaratory judgment concerning the validity, application and effect of L. 1974, c. 141 (N. J. S. A. 40: 41A-124(d)) and a judgment directing the county clerk to receive petitions of candidates for all nine freeholder positions in the primary and general elections in June and November 1975.

This matter comes before this court on plaintiffs’ motion for summary judgment. The parties have stipulated most of the facts, and there being no genuine issue as to any remaining material facts, a determination by summary judgment is appropriate. R. 4:46-1; Judson v. People’s Bank and Trust Co. of Westfield, 17 N. J. 67, 73-75 (1954).

It appears that the following series of events precipitated the filing of the complaint:

Plaintiffs were duly elected as members of the Union County Charter Study Commission by the voters of Union County on November 6, 1973, pursuant to the provisions of the Optional County Charter Law, N. J. S. A. 40:41A-1 et seq. Simultaneously, the voters of Union County approved the public question placed on the ballot by resolution of the board of chosen freeholders for the election of a charter study commission in Union County for the purpose of studying the various forms of county government outlined by the Legislature, N. J. S. A. 40:41A-45 through 58.

The Union County Charter Study Committee reported its findings and recommendations for adoption of the county manager plan, with a freeholder board of nine members, elected for nonconeurrent terms and all elected at-large by tbe citizens of the county, and it filed its final report with the Union County Clerk.

The charter study commission published on two successive weeks the full text of the proposed charter, together with a summary of its findings and recommendations, a summary of tbe provisions of tbe plan, and an analysis of and commentary upon tbe county manager plan recommended for approval. Public action took place on September 24 and October 1, 1914.

Tbe Union County Clerk then placed upon the ballot for consideration by tbe voters in the general election to be held November 5, 3914 a referendum question as to whether or not tbe charter study commission’s recommendation should be accepted. The voters of the county were given notice of the referendum by sample ballot mailed on October 30, 1914 by the Union County Board of Elections. On November 5, 1914 the county manager plan was adopted by tbe voters, thereby discharging tbe commission.

Senate Bill No. 1323 was introduced on July 24, 1914 and passed in the Senate on September 30, 1914; the bill was amended in the Assembly on October 15, 1914, then passed the General Assembly as amended on October 21, 1914, and was finally passed by tbe Senate, as amended by the General Assembly, on the same day. The Bill was signed into law on November 2, 1914 by tbe Governor and became known as L. 1914, c. 141. By its terms the measure became effective immediately.

The optional County Charter Law contains the following pertinent language in § 124(c) :

The offices of the entire board of freeholders and all other offices established by any plan in this act which has been adopted by the registered voters of the county except sheriff, clerk, surrogate and register of wills shall be voted on at the first general election following adoption of such plan. In November of the first general election after the adoption of any plan provided in this act, the term of all incumbent members of the board of freeholders shall be deemed terminated at noon on the first Monday following the election of the new board of freeholders. On that date the newly elected freeholders shall' take office- and the new board shall organize itself in accordance with the plan adopted thereunder. All freeholders and other officers elected in the first general election following the adoption of any plan provided in this act shall take office at noon on the Monday next following their election, but their terms shall expire in accordance with the plan selected, as if they had taken office on January 1 in the year following their election. But nothing in this section shall be construed to prevent an incumbent freeholder from becoming a candidate for the new board, even if his present time on the board has not yet expired. In the event that the plan approved provides for concurrent terms, all freeholders shall be elected for concurrent 3-year terms. In the event that the approved plan provides for staggered terms, terms shall be as follows:
(1) If there be five members to be elected, two shall be elected for 3 years, two shall be elected for 2 years, and one for 1 year.
(2) If there be seven members to be elected, three shall be elected for 3 years, two for 2 years, and two for 1 year.
(3) If there be nine members to be elected, three shall be elected for 3 years, three for 2 years, and three for 1 year.
In all elections, after the first election under this act, all members shall be elected for 3-year terms beginning on January 1 in the year following their election.

L. 1974, c. 141, amended § 124 of the Optional County Charter Law by adding section (d) :

If the adopted plan shall provide for a new board of freeholders composed of the same number of freeholders as served on the existing board with all members to be elected at large for non-concurrent terms, the initial elections to the new board of freeholders shall be held to fill only those freeholder offices for which the terms would have otherwise expired on January 1 next following the date of election but for the provisions of this act. The board members so elected shall serve for a term of 3 years expiring the following January 1 as provided in section c. hereof.
The terms of the incumbents of the existing board whose offices are filled at the initial election shall be deemed terminated at noon on the first Monday following the election of the new member of the board. On that date, the newly elected freeholders shall take office and together with those freeholders whose terms have not expired, shall constitute the new board.

Plaintiffs’ contention is that L. 1974, c. 141, amending N. J. S. A. 40:41A-124, is void and of no force and effect as to the referendum adopted on November 5, 1974; void and of no force and effect as in violation of N. J. S. A. 40:41A-1 et seq.; unconstitutional as in violation of the Equal Protection and Due Process Clauses of the State and Federal Constitutions; unconstitutional as “special” legislation regulating the internal affairs of Union County, and void and of no force and effect upon the primary election in June 1975 and the general election of November 1975.

The sole issue before this court is the validity, application and effect of L. 1974, c. 141, amending N. J. S. A. 40:41A-124, both generally and as to the 1975 elections.

There is a strong presumption that a statute is constitutional, General Electric Co. v. Passaic, 28 N. J. 499, 510 (1958), and to declare a statute unconstitutional is a judicial power to be delicately exercised. Wilentz v. Hendrickson, 133 N. J. Eq. 447, 487 (Ch. 1943), aff’d 135 N. J. Eq. 244 (E. & A. 1944). A legislative act will not be declared null and void unless its repugnancy to the Constitution is clear beyond a reasonable doubt. Gangemi v. Berry, 25 N. J. 1, 10 (1957). Here plaintiffs have the heavy burden of overcoming these statutory presumptions and principles. Harvey v. Essex Cty. Bd. of Freeholders, 30 N. J. 381, 388 (1959).

I

Is chapter 141 violative of the equal protection guarantees of the United States and New Jersey Constitutions?

Plaintiffs realize that the constitutional requirement of equal protection is met by legislation which treats all persons within a class reasonably selected in a like or similar manner. Kohler v. Barnes, 123 N. J. Super. 69 (Law Div. 1973). Notwithstanding, they contend that the classification in the present case rests upon grounds wholly irrelevant to the achievement of the State’s objective. Because only Union County comes within the exception created by chapter 141, only the incumbent Union County freeholders need not stand for re-election in 1975, while the incumbent freeholders in other counties must run again.

The intent of the Legislature in enacting L. 1974, c. 141, can be gleaned from the statement attached to the bill itself (S. 1323). The Legislature decided as a matter of public policy that any change in the form and structure of local government under the Optional County Charter Law should, where possible, provide for an effective continuation in office of knowledgeable and experienced incumbents, previously elected by the people, whose terms have not yet expired at the time of the change in the structure of government.

It must be remembered that chapter 141 was introduced in the New Jersey Senate on July 24, 1974, before the findings and recommendations of any charter study commissions throughout the State had to be reported. N. J. S. A. 40:41A-12. Hence, when the measure was introduced the Legislature had no idea what forms of government, if any, would be recommended by the various charter study commissions. Having determined that continuity of experience in government was a desirable end, the Legislature remained cognizant of the atmosphere within which it was acting. The Legislature was well aware that the forms of government which it had outlined in the Optional County Charter Law were diverse in many respects, and a smooth transition from an old to one of the new forms, together with achieving the goal of continuity in government, could only be effectuated in limited circumstances, namely, where the number of freeholders on the new board were equal in number to, and were elected in the same manner as those of the old board; that is, where all of the freeholders were required to be elected at large. L. 1974, c. 141. That Union County would be the only county to fall within these limited circumstances could not be foreseen by the Legislature. Also, the applicability of chapter 141, when enacted, to even Union County was tentative because it depended entirely upon whether the electorate voted for the county manager plan recommended by the commission. There can be no doubt that the scope of chapter 141 coirld only be termed “speculative” on the date of its introduction.

This court holds that the classification created by L. 1974, c. 141, bears a reasonable and just relation to not only the general objective of the legislation, but also to substantial considerations of public policy. Washington National Ins. Co. v. Board of Review, 1 N. J. 545 (1949.) The Legislature has a wide range of discretion in determining classifications, and the factors already mentioned, which this court believes affected the thinking of the Legislature in enacting chapter 141, are sufficient to furnish a rational basis for the classification thereunder.

II

Does L. 1974, c. 141, constitute “special” legislation?

N. J. S. A. 1:6-10 et seq. governs the procedure to be followed for the enactment of special legislation regulating the internal affairs of a county. The details of those statutes need not be set forth here, as there is no question that the requirements of those laws were not adhered to in the ease at bar. The issue, of course, is whether or not compliance therewith was necessary.

In deciding whether an act is general or special, what is excluded is the determining factor, and not what is included. Koons v. Atlantic City Bd. of Comm’rs., 134 N. J. L. 329 (1946), aff'd 135 N. J. L. 204 (E. & A. 1947). If no one is excluded that should be encompassed, the law is general. A general law must affect equally all of a group who, bearing in mind the purpose of the legislation, are distinguished by characteristics sufficiently marked and important to make them a class by themselves. Harvey v. Essex Cty. Bd. of Freeholders, supra, 30 N. J. at 389.

Special laws rest on a false and deficient classification in that “their vice is that they do not embrace all the class to which they are naturally related; they create preference and establish inequalities; they apply to persons, things or places possessed of certain qualities or situations, and exclude from their effect other persons, things or places which are not dissimilar in these respects.” Van Riper v. Parsons, 40 N. J. L. 1, 9 (Sup. Ct. 1878). This court cannot say that the case at hand illustrates such a situation. As explained above, the combination of different procedures for the election of freeholders within the separate . counties and the recommendations of the various county charter study commissions resulted in Union County being the only county in which continuity of experience in government could be achieved along with a workable transition to a new form of county government. No other county presented a similar situation. Hence, this court is of the opinion that L. 1974, c. 141, does not constitute “special” legislation, and neither the Union County freeholder board nor the voters of Union County had to petition the Legislature in order to render that statute constitutional. N. J. S. A. 1:6 — 10 et seq.

Ill

Does the Legislature possess the power to amend referendum legislation before the referred matter has been voted upon?

Plaintiffs argue in Points 6 and 7 of their brief that the Legislature, in enacting the Optional County Charter Law (N. J. S. A. 40:41A-1 et seq.) provided that each charter study commission was to select and designate its choice of procedure for succession in government from the alternatives set out by the Legislature in that law, N. J. S. A. 40:41A-14. (This, of course, would only occur if a particular charter study commission voted to recommend adoption of one of the optional plans.) If this be so, and defendants do not dispute same, then plaintiffs’ contention is that the only succession in government proposal validly before the Union County voters on November 5, 1974 was the recommendation of the Union County Charter Study Commission. Plaintiffs ask this court to rule that L. 1974, c. 141, amending N. J. S. A. 40:41A-124, could not be considered by the voters because the Legislature lacked the power to amend the referred measure while the voters were in the process of expressing their views on the subject.

Both counsel have invited this court’s attention to the case of State ex rel. Drain v. Becker, Secretary of State, 240 S. W. 229 (Mo. Sup. Ct. 1922). There the court defined the term “referendum” to be a “reservation by the people of the right to have submitted to them for their approval or rejection any laws passed by the Legislature, except those necessary for the immediate preservation of the public peace, health or safety, appropriations for the current expenses of the state government, the maintenance of State institutions, and the support of public schools.” 240 S. W. at 230-31. Missouri Constitution, Art. 4, § 57, which details the steps to be followed by the people in invoking the right of referendum, also states, however, that “this section shall not be construed to deprive any member of the legislative assembly of the right to introduce any measure.” Consequently, the Secretary of State contended that the right of reference reserved to the people could be forestalled or nullified by legislative action before the referred matter had been voted upon. 240 S. W. at 232.

In a 4-3 decision the Supreme Court of Missouri held that the provision cited by the Secretary of State meant “Any measure except those which, if adopted, will interfere with or defeat the rights granted in the preceding portions of the section,” 240 S. W. at 232, meaning the right of referendum. The forceful dissent stated that the language in Art. 4, § 57 could not be any clearer, and the provision meant nothing less than that, notwithstanding a referendum has been invoked, the right of the legislature itself to introduce and pass “any” measure is unaffected thereby. 240 S. W. at 233.

Agreeing with the dissent in Becker is In re Senate Resolution No. 4, 54 Colo. 262, 130 P. 333 (1913). Presented with the same constitutional language as the Missouri court, the Colorado justices decided that the General Assembly could abridge the right to invoke the referendum. 130 P. at 336.

Relatively few states have had the opportunity to consider the question before this court. See also, In re Opinion of the Justices, 132 Me. 512, 174 A. 853 (1933). However, this court has been forced to examine those decisions because of the paucity of case law in our own State. Peculiarly, the absence of authority in New Jersey may furnish the resolution of the problem.

In New Jersey, unlike Missouri and Colorado, the right of initiative and referendum does not exist as a recognized limitation upon the legislative power. N. J. Const. (1947), Art. IV, § I, para. 1 states, “The legislative power shall be vested in a Senate and General Assembly.” The word “referendum” does not appear in the Constitution, nor is it alluded to.

The Legislature, in establishing the Optional County Charter Law (N. J. S. A. 40:41A-1 et seq.) extended to the people of each county the privilege of electing a charter commission to study the governmental structure of their own county, and then voting on the commission’s recommendation, if any, of one of the governmental plans which the Legislature had devised. It is reasonable to conclude that the Legislature, by enacting the amendment, L. 1974, c. 141, was motivated, not by the intention to avoid or evade the effect of the referendum, but rather to support it by implementing its policy of continuity of experience in government in certain instances where it would be possible to do so without thwarting the will of the electorate, in the event a new form of county government should be adopted. This court does not believe that if the Legislature discovered that the alternative plans it had drafted were deficient in some respect, any action taken by the Legislature to correct that deficiency would be invalid simply because the plans had been referred to the voters. This is especially so in a State such as ours where, as previously indicated, the legislative power rests solely in the Senate and General Assembly. If the Legislature must refrain from affirmative action in this type of situation, laws will inevitably be adopted which are not in the best interests of the people of New Jersey.

The referendum here was enacted statutorily, and the plans which are the subject matter of the referendum can bo amended by statute. See also, Smith v. Livingston Tp., 106 N. J. Super. 444 (1969), aff’d 54 N. J. 525 (1969). Hence, L. 1974, c. 141, was properly before the voters of Union County on November 5, 1974, and the ballot reflected the provisions of that act. The voters were asked to elect three freeholders for a three-year term. Because of this court’s holding that L. 1974, c. 141, is constitutional and valid, the three freeholders duly elected on November 5, 1974, in addition to the freeholders elected on November 6, 1973, will be permitted to serve their full three-year terms.

Plaintiffs’ remaining claim, that L. 1974, c. 141, is invalid because the Legislature did not comply with sections 1 through 23 of the Optional Charter Law (N. J. S. A. 40:41A-1 et seq.) is without merit. See N. J. S. A. 40:41A-124(a). Those sections only apply to the procedure which must be adhered to by the freeholders and/or voters of each county in presenting a charter study election question. The Legislature is not bound by the language contained therein.

For the reasons stated, this court is of the opinion that L. 1974, c. 141, is constitutional and valid, and that it applied with full force and effect to the November 5, 1974 election. Therefore, plaintiffs’ motion for summary judgment is hereby denied and the Union County Clerk is directed to accept petitions from candidates for only the three freeholder offices expiring at midnight on December 31, 1975.