author: Duffy, (Paul J.), J. C. C.

text:
    STATE OF NEW JERSEY, PLAINTIFF, v. LUIGI MELE, DEFENDANT.
    Hudson County Court
    Decided October 17, 1968.

      Mr. John Feeney, Assistant Prosecutor, for plaintiff {Mr. James A. Tumuliy, Jr., Hudson County Prosecutor).

      Mr. Edward A. Dreskin for defendant (Messrs. Dreskin & Vitiello, attorneys).
   Duffy, (Paul J.), J. C. C.

This is an appeal from a conviction in the Municipal Court of Jersey City. Defendant Mele was convicted of operating a motorcycle without wearing an approved protective helmet, in violation of N. J. S. A. 39:3-76.7. Defendant admits not wearing the helmet but asserts that his conviction should be reversed on the ground that the statute is unconstitutional because it does not seek to protect the general public but rather only the individual motorcyclist and is, therefore, not a legitimate exercise of the police power. Since there have been no decisions in New Jersey in regard to this, we must look to the decisions of other jurisdictions as well as to general principles of law for guidance.

Initial^, defendant questions the effectiveness of such helmets and claims that the helmets in fact retard safety rather than improve it. Whether or not this is true need not be discussed here. The effectiveness or ineffectiveness of a statute to achieve its purpose does not affect its constitutionality.

Decisions in this area present a divergence of opinion as to the constitutionality of a statute requiring protective headgear for motorcyclists. Defendant relies heavily on a recent Michigan case, American Motorcycle Ass’n v. Davids, 158 N. W. 2d 72 (Sup. Ct. 1968), which held unconstitutional a statute requiring motorcyclists to wear crash helmets because it had no relationship to the public health, safety or welfare. This appears to be the only case so holding. Cases reaching an opposite result are State ex rel. Colvin v. Lombardi, 241 A. 2d 625 (R. I. Sup. Ct. 1968); Commonwealth v. Howie, 238 N. E. 2d 373 (Mass. Sup. Jud. Ct. 1968), which approves Colvin and states that American Motorcycle is not persuasive; People v. Bielmeyer, 54 Misc. 2d 466, 282 N. Y. S. 2d 797 (Cty. Ct. 1967); People v. Schmidt, 54 Misc. 2d 702, 283 N. Y. S. 2d 290 (Cty. Ct. 1967), and People v. Carmichael, 56 Misc. 2d 388, 288 N. Y. S. 2d 931 (Cty. Ct. 1968), which reversed a finding of unconstitutionality by a city court in 53 Misc. 2d 584, 279 N. Y. S. 2d 272 (1967). The city court decision was relied on by defendant himself as well as by the Michigan court in American Motorcycle.

The New York eases are most persuasive since the New York statute is virtually identical to N. J. S. A. 39:3-76.7. Section 381, subsection 6 of the Vehicle and Traffic Law of the State of New York, McKinney’s Consol. Laws, c. 71, provides:

“It shall be unlawful, on and after January first, nineteen hundred sixty-seven, for any person to operate or ride upon a motorcycle unless he wears a protective helmet of a type approved by the commissioner. Such a helmet must be equipped with either a neck or chin strap and be reilectorized on both sides thereof. The commissioner is hereby authorized and empowered to adopt and amend regulations covering the types of helmets and the specifications therefor and to establish and maintain a list of approved helmets which meet the specifications as established hereunder.”

Basically, the New York cases hold that the prevention of injury or death to a motorcyclist and to other users of the public highwajrs is a valid exercise of the state’s police power. 1 agree with this conclusion. At first glance, a requirement of protective headgear seems aimed only at protection of the individual. However, serious thought indicates otherwise. The general public has a right to be protected from the accidents which might result from a blow on the head received from objects kicked up from the highway. The blow, however slight, might be just enough to distract a motorcyclist and cause him to lose control and become a menace to other vehicles or pedestrians on the highway.

In addition, the state has an interest in attempting to protect people from the consequences of their own carelessness. The Defendant points out that although many states have passed laws requiring manufacturers to install seat belts in their automobiles, none requires that drivers use them. This situation is clearly'distinguishable;, since the refusal to .wear a seat belt will'not cause a .driver to become a menace to other users of the highways, it clearly is directed 'only at the individual and not at the general public.

' - Since the statute in question bears a reasonable, real and substantial relation to the public health, safety and welfare, it- is constitutional as a valid exercise of the police power ■of the State of New Jersey. Therefore, since neither the facts nor anything else 1 is in dispute, the conviction below .must be affirmed.


source: Caselaw Access Project

author: Per Curiam. Carton, J. A. D.

license: Public Domain

text:
    JACOB WILLIAM WOLF AND PEARL M. WOLF, PLAINTIFFS-RESPONDENTS, v. THE HOME INSURANCE COMPANY, DEFENDANT-APPELLANT.
    Superior Court of New Jersey Appellate Division
    Argued October 14, 1968
    Decided November 1, 1968.
    Before Judges Goldmann, Kolovsky and Carton.

      Mr. Samuel A. Gennet argued the cause for appellant.

      Mr. Leonard Rosenstein argued the cause for respondents.
   Per Curiam.

The judgment is affirmed substantially for the reasons expressed in the opinion of Judge Joseph H. Stamler filed in the court below.

Carton, J. A. D.

(concurring). Plaintiffs entered into a contract in May 1964 to sell two parcels of real property to the State of New Jersey for $2?,000. There was in force at that time a $25,000 fire insurance policy which plaintiffs, as owners, had procured in 1963 from defendant insurance company. The policy covered, for a period of three years, a building situated on one of these parcels.

On October, 8, 1964 a fire totally destroyed the building. The following March, plaintiffs conveyed title to the purchaser and received the full amount of the agreed purchase price.

I agree with my colleagues that the trial court properly granted a partial summary judgment in favor of plaintiffs. But I come to'that conclusion by a somewhat different route.

The insurance issues presented in .this case arise primarily because of the existence of the doctrine of equitable conversion and the failure of the standard fire insurance policy to define precisely the rights of the owner of the real property insured in the circumstances where that doctrine becomes applicable. The difficulties are compounded by the absence of any provision in the contract of sale covering the factual situation now confronting us. Since these problems also present equitable considerations, it would seem appropriate that equitable principles be applied generally to their solution.

The insurance company here has received the premium covering the eleven-month period between the execution of the contract and the deliveiy of the title. The poliej'’ of insurance is an open policy limited by its face amount. In it the company has agreed to make good the insured’s loss or damage by fire not exceeding the sum stated “to the extent of the actual cash value of the property at the time of the loss.” So far as the record shows, defendant never returned the premiums attributable to that period nor reduced the amount thereof to reflect any diminished equitable interest of the owner by,reason of the execution of the contract of sale. Nor did it attempt to cancel the policy of insurance.

Furthermore, it is not disputed that had the plaintiffs, at the time the contract of sale was entered into, requested the insurance company to issue an. endorsement covering the interest of the.purchaser as it,might appear, the company would have complied without requiring the payment of 'any additional premium. That concession accords with the common' practice in everyday situations involving sales of realty. In essence, this practice is a recognition by the insurer of at least a general 'obligation to make good the amount of any loss to someone in consideration of the premium with really no particular interest as to whom the amount of the fire loss should bo payable. This standard practice would seem to accord with the normal expectations of the parties to such transactions.

Although a vendor is not obligated to insure, he may properly do so to the full value of the property, including both the legal and equitable estates which may arise in the event of a sale. Certainly plaintiff retained an insurance interest in the property after the execution of the contract, notwithstanding the operation of the doctrine of equitable conversion.

In a number of eases where the present problem has been considered, the issue has been rendered more complex by the fact that the vendee also had interposed a claim for the proceeds of the policy. In the majority of such cases the courts have applied a constructive trust rationale, holding that where the purchaser would bear the loss occasioned by a casualty to the property pending completion of the sale, the proceeds of the vendor’s insurance policy should be held by the vendor for the benefit of the purchaser in reduction of the purchase price. See Millville Aerie, No. 1836 v. Weatherby, 82 N. J. Eq. 455 (Ch. 1913), and x\n notation, “Eights of vendor and purchaser, as between themselves, in insurance proceeds,” 64 A. L. R. 2d 1402 (1959), and cases collected therein.

It is clear, however, that even if such a constructive trust theory is applicable here, it is not open to defendant to assert the equitable ownership of another as a defense to a suit on the policy by the vendor. Moreover, because of the special circumstances of the present case, I agree that we should refrain from expressing any opinion as to the applicability of this theory where the purchaser is not a party to the litigation, and where the ultimate ownership of the insurance proceeds, as between vendor and vendee, is not before the court. In addition, the pertinent facts are not sufficiently revealed by the record on this motion for summary judgment to permit such a determination.


author: Collester, J. A. D.

text:
    STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT, v. ROBERT F. CULLEN, DEFENDANT-APPELLANT.
    Superior Court of New Jersey Appellate Division
    Argued May 20, 1968
    Decided November 4, 1968.

      Before Judges Coneord, Collestee and Labkecque.

      Mr. M. Gene Haeberle, assigned counsel, argued the cause for appellant.

      Mr. John Harrison, Assistant County Prosecutor, argued the cause for respondent (Mr. Myron H. Gottlieb, Assistant County Prosecutor, on the brief; Mr. Martin J. Queenan, County Prosecutor, attorney).
   The opinion of the court was delivered by

Collester, J. A. D.

Defendant Robert Cullen, together with James Moran and Joseph Baranowski, was indicted for (1) armed robbery of Larry Dinnerman at the Marion Inn in Cinnaminson Township on May 25, 1964, (2) armed robbery of Edwin Woolman, the manager of a drive-in theater in Edgewater Park, on April 6, 1964, and (3) on two counts for carrying concealed weapons during the robberies. Prior to defendant's trial Moran pleaded guilty and was sentenced to prison; Baranowski was not required to stand trial because he had been committed to a mental institution in Philadelphia. Defendant was tried on the three indictments and found guilty of the robbery and concealed weapon charge which took place in Cinnaminson Township. He was acquitted on the indictments charging him with armed robbery and canning a concealed weapon in Edgewater Park. Following a denial of his new trial motion defendant appealed.

The paramount issue raised on appeal is whether defendant sustained prejudicial error because the prosecutor was permitted to cross-examine two state witnesses, John O'Brien and James Moran, in the presence of the jury, after the court and prosecutor had been informed that such witnesses intended to recant statements previously given by them to the police.

•. The record indicates that at the beginning of the trial defense' counsel informed the court and prosecutor that he anticipated that “a State witness or two will recant.” He requested the court, in such event, to invoke the procedure suggested in State v. Guido, 40 N. J. 191, 199-200 (1963), namely, that such witnesses be examined out of the presence of the jury. The court agreed that defendant would be accorded such protection. The record further reveals that at a pretrial motion and during the course of the trial defense counsel informed the court and prosecutor that Moran would recant if called as a witness by the State.

O’Brien was subsequently called as a witness for the prosecution. He had not been named as a defendant in the indictments and had previously been convicted and sentenced to prison for committing an armed robbery in Trenton. After testifying that he was confined to State Prison and knew defendant slightly, O’Brien refused to answer all questions propounded by the prosecutor on the ground that his answers might incriminate him.

Thereafter, despite the court’s previous assurance that defendant would be protected under the guidelines laid down in State v. Guido, supra, and defendant’s continuing objections, the court permitted the prosecutor to cross-examine O’Brien at length in the presence of the jury. O’Brien continued to invoke his Eifth Amendment privilege. The prosecutor, through leading questions which were unanswered, clearly indicated to the jury that O’Brien had given a statement to the police in which he admitted that following the robberies he delivered a suitcase to defendant’s brother-in-law to be turned over to defendant, and that the suitcase contained clothing allegedly worn by the robbers and an attache ease in which the guns used in the robberies were secreted. (Me also note that during colloquies between counsel and the court relating to such cross-examination the prosecutor frequently referred to O’Brien as a defendant).

Despite previous notice given to the court and the prosecutor that Moran would also recant a statement he had given to the police, the State called Moran as a witness. Moran also refused to answer questions, claiming the protection of the Eifth Amendment. Moran’s refusal to testify and a substantial' part of the argument relating to the prose-' cutor’s contention that Moran should' be compelled to testify took place in the presence of the jury.

The practice of calling a co-defendant (Moran) as a witness where the prosecution has knowledge that the witness will claim his privilege against self-incrimination has been condemned because it operates to prejudice defendant in the eyes of the jury. See Annotation “Prosecution — Accomplice As Witness,” 86 A. L. R. 2d 1443, 1446—50 (1962), and see cases supplementing the Annotation in 6 Later Case Service A. L. R. 2d (1966). The procedure to be followed in such a case is set forth in State v. Fournier, 91. N. J. Super. 477, 480-81 (App. Div. 1966). When the prosecutor knows or has good reason to believe that the witness will claim his privilege against self-incrimination he should inquire of the witness in advance as to whether the witness intends to testify if called and then inform the court and defense counsel of the result of his inquiry before calling upon the witness to testify in the presence of the jury. If he desires to test the witness’ intent, the prosecutor should call the witness to the stand and question him out of the presence of the jury. The same procedure should be followed when the prosecutor is advised in advance that the witness intends to testify contrary to a previous statement given to the authorities. State v. Guido, supra.

Here both the court and prosecutor were notified by defense counsel at the outset of the trial that a “State witness or two” would probably recant. They were further informed specifically prior to and during the trial that Moran would probably do so. Thus, insofar as Moran is concerned the procedure set forth in Fournier should have been followed and the failure to do so visited serious prejudice on defendant.

The record does not indicate that the prosecutor had specific knowledge that O’Brien intended to rely upon his Fifth Amendment privilege when he called O’Brien as a witness. Accordingly, the court did not commit prejudicial error in allowing the State to call O’Brien and to pursue his inquiry sufficiently to determine whether the witness intended to claim the privilege of immunity. However, once it was established that O’Brien intended to claim his privilege of iinmunit_y, the court committed error prejudicial to the defendant in permitting the prosecutor to continue his line of .questioning, which placed before the jury innuendo evidence or inferences of evidence which the State could not get before the jury by direct testimony of the witness. State v. Dinsio, 176 Ohio St. 460, 200 N. E. 2d 467, 472 (Sup. Ct. 1964).

The prosecutor’s comment that O’Brien had given a statement to the police, and his leading questions, which were actually assertions of statements the witness was alleged to have made implicating defendant in the robberies, unquestionably prejudiced defendant. Moreover, by effectively bringing to the jury’s attention the substance of a statement which was not in evidence, and therefore not subject to cross-examination, defendant was deprived of his fundamental rights secured by the confrontation clause of the Sixth Amendment. Robbins v. Small, III, 371 F. 2d 793 (1 Cir. 1967), certiorari denied 386 U. S. 1033, 87 S. Ct. 1483, 18 L. Ed. 2d 594 (1967).

The State’s case against defendant was based on circumstantial evidence. The questions asked of O’Brien, if answered, clearly bore on a fundamental part of the State’s case against defendant and formed a crucial link in the proof. The harmful import of O’Brien’s statement, improperly brought to the attention of the jury, was substantial and no attempt was made by the trial court to eliminate the prejudice sustained by curative instructions. Indeed, if such instructions had been given it is doubtful that they would have erased from the minds of the jury the lengthy cross-examination of O’Brien.

For the reasons above expressed the judgments of conviction are reversed and the case remanded for a new trial.

Because this case must be retried, it is essential that we deal with another issue raised on this appeal, namely, that the trial court erred in dismissing defendant’s motion to suppress evidence without a hearing on the merits.

At the conclusion of the first trial of this case (which terminated in a mistrial) the court, apparently having concluded there was good cause to enlarge the time provided for such a motion (R. R. 3:2A-6), directed that it “be properly perfected and listed for hearing within 30 days.” Thereafter, the court notified counsel it would hear argument on the motion on a specified date, and defendant submitted a pro se brief in support of the motion. On the date of the argument the court dismissed the motion without a hearing on the merits, stating that the motion came too late and was not properly perfected.

The record indicates that defendant was arrested in his Philadelphia apartment on July 23, 1964. Five days later Pennsylvania police officers searched his automobile, which •was found in a garage in that city. It had been repossessed by the finance company on July 17, 1964. The police found some keys under the' front seat of the car aud it was later discovered that the keys would open the locks of the suitcase and attache ease, hereinbefore referred to, which were in the possession of defendant’s sister. • .

From our' examination of "the record it seems clear that neither defendant" nor his attorney knew, until it was revealed at the trial, that defendant’s repossessed automobile had been searched and the keys seized. It is also apparent that numerous, unsuccessful pretrial attempts had been made -by defendant and his attorney to ascertain what evidence, if any, had been seized by the police. Even during the first abortive trial, in his argument opposing defendant’s request for" a hearing on a motion to suppress evidence, the prosecutor said he would not reveal “anything” other than as required by a bill." of particulars. (Defendant’s motion for a bill of particulars was" subsequently denied by the court).

Under such circumstances we believe that the court erred in denying defendant’s motion to suppress without granting a hearing on the merits. Accordingly, our remand shall include a direction that defendant he permitted to make a motion to suppress in advance of the impending trial. Cf. State v. Wade, 89 N. J. Super. 139, 145-147 (App. Div. 1965). We express no opinion concerning the disposition of such a motion following a hearing on the merits. However, consideration should be given to the question whether defendant had any protected interest in the privacy of the vehicle searched, once it was repossessed by the finance company.

We find it unnecessary to pass upon the other grounds of appeal raised by defendant’s attorney or in defendant’s pro se brief.

Reversed and remanded for a new trial.


author: Carton, J. A. D.

text:
    STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT, v. GALLOP BUILDING, DEFENDANT-APPELLANT.
    Superior Court of New Jersey Appellate Division
    Argued October 14, 1968
    Decided November 8, 1968.

      Before Judges Goldmann, Kolovsky and Carton.

      Mr. Michael D. Schottland argued the cause for appellant (Mr. George M. Gharnlin, attorney).

      Mr. Robert E. Tarlelon argued the cause for respondent (Mr. John E. Keale, attorney; Mr. Donald F. Stevens on the brief).
   The opinion of the court was delivered by

Carton, J. A. D.

Defendant appeals from a conviction after a trial de novo in the County Court on a charge of violating section 7(3) (b) of the Borough of Shrewsbury zoning ordinance. It was fined $20 and costs.

In September 1965 defendant acquired property in the B-l business zone, consisting of two adjoining plots, known as lots 4 and 5, each 50 feet in width by 145 feet in depth, and fronting on White Road. An office building on Lot 4 houses five enterprises which employ a total of 14 persons who presently use the remainder of lot 4 and 5 as a parking lot, there being insufficient parking space for lot 4 alone to accommodate all the vehicles.

Section 7(3) (a) of the zoning ordinance provides that in any business zone, every portion of land less than 50 feet from a residential zone boundary line shall be known as a business buffer area. Such area may not be used for the erection of any building or structure or extension thereof, except in the case of an existing building wholly or partly located in that area and exclusively devoted to residential uses.

Section 7(3) (b), the specific section under which defendant is charged, provides as follows:

“No part of any lot containing a business buffer area shall be used for or devoted to any business purpose unless there shall have been established a screen belt of at least 20 feet wide and parallel to the zone boundary and consisting of evergreen trees planted and maintained at a minimum height of five feet and of such density across the entire width of the lot so as to obscure from the residential zone the business activity conducted on the lot. Such planting shall be in accordance with a plan which shall first be approved by the Planning Board of the Borough of Shrewsbury in accordance with the standards herein set forth.”

Section 7(3) (c) states that when any land in a business zone abuts a residential zone boundary line and is used for business or forms a part of a lot used for business, the screening belt shall be placed at the boundary line within the business buffer area.

Defendant produced a landscape contractor who testified that it would take 180 trees, spaced four feet apart, to cover the 20' X 145' area in order to screen the activities on its property from the adjoining residential area. At $28 a tree, this would cost $5,040. In addition, planting the trees and maintaining them for one year would cost $3,024. Maintenance in succeeding years would be $750 a year. The county judge found this testimony purporting to establish the cost as prohibitive, “incredible to the point of absurdity,” and therefore gave it no weight.

The trial judge said that the ordinance was presumed to be valid and could not be set aside except upon a clear showing that it was arbitrary and unreasonable, citing Vickers v. Gloucester Tp. Committee, 37 N. J. 232 (1962), certiorari denied, 371 U. S. 233, 83 S. Ct. 326, 9 L. Ed. 2d 495 (1963). There being no such showing, he found defendant guilty of violating the ordinance.

Defendant assails the validity of the ordinance on the general grounds that these requirements provide for different treatment of property within the same district, contrary to N. J. S. A. 40:55—31; that they serve no legitimate zoning purpose, and that there exists no reasonable relationsbip between the regulations and the public interest.

On the record before us, we are not prepared to state that the presumption in favor of the validity of the ordinance has been overcome.

This provision of the ordinance does not offend N. J. S. A. 40:55-31, which mandates equal treatment for lands bearing the same classification. The ordinance provides for general uniformity of treatment for all property within the B-l business zone, with special requirements for all property used for business purposes in that zone which borders on a residential zone.

Such a classification, while recognizing the reality that zoning boundaries must be fixed somewhere, seeks at the same time to provide a buffer provision to accommodate the needs of property owners bordering the two different zones. It evidences a determination that the permitted business operation has a potential for harmful influence, requiring protection for abutting property owners in the residential zone. See Kozesnik v. Montgomery Tp., 24 N. J. 154, 175, 184 (1957).

A buffer provision such as the one under consideration contains attributes similar in character to the setback, rear yard, side line, percentage of lot use, and similar requirements customarily found in zoning ordinances. Such requirements, when reasonable in scope, have been uniformly upheld as proper. See Honigfeld v. Byrnes, 14 N. J. 600 (1954), and Annotation, “Construction of zoning regulations requiring side or rear yards,” 94 A. L. R. 2d 419 (1964).

Nor can it be fairly said that the ordinance serves no legitimate zoning purpose and that it has no reasonable relationship to the public interest. Such a purpose can readily be found in the general welfare provision of N. J. S. A. 40:55-33 from the standpoint of conserving the value of abutting residential property, from an aesthetics standpoint, and from other standpoints as well.

Defendant further contends that the ordinance is arbitrary and confiscatory because it is unreasonable to deprive the owner of a tract of land having a 100-foot width of the use of 20 feet of that property. Defendant argues that such a requirement is particularly unreasonable in its application to its property in view of the intended use of the buffer area and the cost of complying with the terms of the ordinance.

In considering the validity of the ordinance generally, we cannot limit ourselves to its impact on the property of a particular defendant. Even if it appears that the ordinance may be unreasonable in relation to the owner’s property, it does not follow that this court should strike it down. As the Supreme Court said in Kozesnik, supra, at p. 183, “Ordinarily the invalidity of an ordinance as to a small parcel will not vitiate the treatment of the entire district within which it is situated.”

The record does not disclose the number, size, character or uses of the various properties located in the B-1 business zone which border residential districts. Without proof of this nature, it is impossible to determine whether such a provision is reasonable as applied to other tracts in the municipality. For example, it may be eminently proper to require 20 feet or more as a buffer area on premises to be used for a large shopping center or for a similar purpose. Even as to a parcel 100 feet in width, we are not prepared to say that such requirement, although perhaps approaching the limits of reasonableness, is necessarily excessive under all conditions. Particularly is this true since the variance procedure of N. J. S. A. 40:55-39 is available.

The court should, under such circumstances, decline to adjudicate the attack upon the ordinance until the owner has exhausted his remedy before the board of adjustment. Cf. Deal Gardens, Inc. v. Board of Trustees of Loch Arbour, 48 N. J. 492 (1967). At the trial before the County Court defendant’s counsel intimated that it had sought and been denied a variance from the provisions of section 7 of the ordinance. However, there was no evidence adduced that such was the fact, nor was there any information supplied as to the specific nature of the application.

As a result of inquiry at the oral argument, we have ascertained that defendant, in December 1966, referring to itself as owner of lot 5 and without specifically describing itself as owning the adjoining lot, applied for a special exception under N. J. S. A. 40:55-39(b) and, in the alternative, for a variance under N. J. S. A. 40:55-39(c), to use lot 5 for a “driveway and parking area in conjunction with established professional building use on westerly half of Lot 4.” The application was denied by the board of adjustment without any stated reasons.

Apparently as a tactical measure, defendant, rather than appeal, decided to continue the use of the premises contrary to the zoning ordinance, planning to challenge its legality when and if action was brought against it to enforce the ordinance.

In the light of what has developed, a more appropriate procedure would have been to seek a review of the denial of the variance in an action in lieu of prerogative writs. In such a proceeding the issue as to the validity of the ordinance generally and its applicability to defendant’s property in particular could have been raised by defendant without running the risk of being penalized for its violation. Such a review would also have permitted a comprehensive determination on what is essentially a civil zoning ease rather than a fragmented determination in a proceeding to enforce a penalty.

Under the circumstances, we are of the opinion that justice will best be served by an affirmance of the judgment appealed from, but without prejudice to the right of defendant to file a new application for a variance, and if that application is denied, to institute an action in lien of prerogative writs for a further review. The board of adjustment, in considering such application, may, if it determines that a variance should be granted in whole or in part, impose reasonable conditions designed to protect any abutting property owner from the harmful influences which the challenged ordinance was designed to regulate. It is expected that such a proceeding would result in a fuller record than that with which we are presented here.

Affirmed.


author: Herbert, J. S. C.

text:
    DIVISION OF PENSIONS, PLAINTIFF, v. HARRY W. LINDEMAN, DEFENDANT.
    Superior Court of New Jersey Chancery Division
    Decided October 25, 1968.

      Mr. Arthur J. Sills, Attorney General of New Jersey, attorney for plaintiff (Mr. William J. Brennan, III, appearing).

      Messrs. Btickel, Kain and Stickel, attorneys for defendant (Mr. Harold M. Kain, appearing).
   Herbert, J. S. C.

Both parties seek a declaratory judgment. Although the action might have been brought in the Law Division, there has been no motion to transfer. In all respects counsel have cooperated admirably to bring the case on quickly for pretrial conference and final hearing. The question presented for judgment is whether defendant, a judge of the Essex County Juvenile and Domestic Delations Court, is or is not required to retire upon reaching the age of 70. Defendant contends he was appointed to a five-year term on June 9, 1965 and is entitled to hold office and carry on his judicial work until June 9, 1970. Plaintiff's position is that the age of 70 is a compulsory retirement age for defendant.

The facts have been supplied by stipulation and exhibits. Judge Lindeman was first appointed a judge of the Juvenile Court in March 1945 and has served continuously since then. November 25, 1968 will be his seventieth birthday. In 1955 he applied for membership in, and became a member of, the Public Employee’s Eetirement System of New Jersey (quite commonly called PEES).' The application filed at that time shows that he had been a member of the New Jersey Assembly in 1924, a councilman of the City of East Orange in 1929 and 1930, and judge of the East Orange District Court from April 1930 to March 1945:

Judge Lindeman relies primarily upon N. J. S. 2A :4-7:

“The judges [of the Juvenile and Domestic Relations Courts in the various counties] appointed under sections 2A:4r-4 to 2A:4r-6 of this title shall each hold office for a term of 5 years and until his successor is appointed and confirmed.”

His current appointment, as noted, was made in June 1965 and he holds a commission signed by the Governor certifying that he is to hold the office “for and during legal time.” Title 2A was adopted by chapter 344 of the Laws of 1951.

Primary reliance is placed by plaintiff upon sub-section (b) of N. J. S. 43:15A-47. That section is part of the legislation establishing PERS whcih was enacted as chapter 84 of the Laws of 1954. It reads as follows:

“Retirement from service shall be as follows:
a. A member who shall have reached 60 years of age may retire from service by filing with the hoard of trustees a written statement, duly attested, stating at which time subsequent to the execution and filing thereof he desires to be retired. The board of trustees shall retire him at the time specified or at such other time within 30 days after the date so specified as the board finds advisable.
b. A member who shall have reached 70 years of age shall be retired by the board for service forthwith, or at such time within 90 days thereafter as it deems advisable, except that an employee reaching 70 years of age may be continued in service from time to time upon written notice to the board of trustees by the head of the department where the employee is employed.”

Plaintiff also points to N. J. S. A. 43:15A-25 which, in part, reads:

“Every employee to whom this act applies shall be deemed to consent and agree to any deduction from his compensation required by this act and to all other provisions of this act. Notwithstanding any other law, rule or regulation affecting the salary, pay, compensation, other perquisites, or tenure of a person to whom this act applies, or shall apply, and notwithstanding that the miuimum salary, pay, or compensation or other perquisite provided by law for him shall be reduced thereby, payment, less such deductions, shall be a full and complete discharge and acquittance of all claims and demands for service rendered by him during the period covered by such payment.”

There is no statute which refers to the Juvenile and Domestic Relations Courts by title or similar designation and then specifies that the judges of those courts shall be retired at 70 or any other age. By contrast, the State Constitution (1947) Art. VI, § VI, ¶ 3, provides that justices of the Supreme Court and judges of the Superior Court shall retire at 70. N. J. S. A. 43:15A-125, adopted in 1957, provides:

“Judges of the County Courts who are members of the retirement system shall be retired upon attaining the age of 70 years.”

There is in N. J. S. A. 2A:3-21.1 — adopted in 1963 — another provision for retirement of County Court judges at 70.

Eor defendant it is argued with much force that the specific legislation fixing definite five-year terms for judges of the Juvenile and Domestic Relations Court should not be subject to an implied repeal or amendment by the passage at a later date of pension legislation which makes no mention of that court or its judges and applies in general terms to a great many government employees, most of them obviously working without fixed terms. There is also some force in the argument that the express provisions for retirement of County Court judges at 70 (referred to above) indicates a need for something more than the generalities of N. J. S. A. 43:15A-47 where judicial retirement is involved. In this connection exhibits were marked at the hearing to show that legislation setting 70 as the retirement age for judges of the Juvenile and Domestic Relations Courts and for municipal magistrates has in the past been introduced but has not been adopted.

As might be expected, there is little case law which can be regarded as applicable to the question to be decided. In McGee v. Board of Trustees, Public Employees Retirement System, 45 N. J. 576, 578 (1965), 70 was mentioned as the mandatory retirement age of county district court judges, but that comment was not necessary to the decision reached and there is no indication that it was more than a casual one. I do not consider McGee a helpful authority for the present case, although there appears to be for the county district courts, as well as for the juvenile courts, an absence of direct and specific legislation fixing an age of retirement. A case relied upon by defendant because of the reasons expressed in the opinion is Jacobs v. N. J. State Highway Authority, 101 N. J. Super. 572, 576 (App. Div. 1968), where the employee contended that the Authority had no power to adopt and enforce a regulation requiring its employees to retire at 65. It was held that the Authority was not deprived of such power by the provisions of the PEES legislation, the court saying:

“It is inconceivable that by its enactment of a program concerned with the mechanics of a pension system, the Legislature intended to promulgate a state-wide policy governing a mandatory retirement age for all public employees. The Public Employees’ Retirement Act simply establishes a system for the accumulation, investment and disbursal of a pension fund and the rights of a member as against the Pension Eund upon retirement for age, and prescribes minimum and maximum retirement ages.”

The first sentence of this quotation is helpful to defendant’s point of view, but the statement in the second sentence to the effect that our pension laws prescribe minimum and maximum retirement ages is favorable to plaintiff.

The case most nearly in point is Ehrlich v. Public Employees' Retirement System, 42 N. J. Super. 419 (Law Div. 1956). There the plaintiff was a municipal clerk serving under tenure. He was a member of PEES and having reached the age of 70, brought suit for a judgment declaring that he could continue to hold office during good behavior due to his tenure rights under N. J. S. 40:46-7, a statute dealing exclusively with the office of municipal clerk. After quoting from N. J. S. 43:15A-25 and 47 (both quoted above), Judge Waesche said:

“The plaintiff has accepted the provisions of the Publie Employees’ Retirement System, N. J. S. A. 43:15A-1 et seq. He is, therefore, subject to the provisions of that act, and must accept retirement unless he is ‘continued in service from time to time upon written notice to the board of trustees by the head of the department where the employee is employed.’ N. J. S. A. 43:15A-47 (L. 1954, c. 84, sec. 47). To this extent, he has waived the protection of N. J. S. A. 40:46-7.” (at p. 422)

I think the reasons stated in Ehrlich are sound and should be applied here. Judge Lindeman joined PEES in 1955. By joining he became subject to the retirement provisions of N. J. S. 43:15A-47b. His current appointment, though based on a five-year statute, cannot override the statutory retirement age set for all PERS members. If he were not a member of PERS, and therefore not subject to those provisions, he would apparently be entitled to continue in office until June 9, 1970. I have not overlooked the statement made at the hearing by the Deputy Attorney General to the effect that certain judges of the Hudson County Juvenile and Domestic Relations Court are not members of PERS, being members of the Hudson County pension system. They or some of them may become entitled to continue in office beyond the age of 70 on the basis of appointments under N. J. S. 2A:4-7 and because of the absence of a 70-year retirement age in the Hudson County pension plan. However, that result for nonmembers of PERS furnishes no sound reason for adopting defendant’s point of view.

A judgment will be entered declaring that Judge Lindeman is subject to the retirement provisions of N. J. S. 43:15A-47b and that — there having been for him no extension arrangements as permitted by N. J. S. A. 43:15A-47(b) — he shall be retired when he reaches the age of 70.


author: Fusco, J. S. C.

text:
    STATE OF NEW JERSEY, PLAINTIFF, v. RUGGERIO BOIARDO, TOBY BOYD, ET AL., DEFENDANTS.
    Superior Court of New Jersey Law Division
    Decided September 20, 1968.

      Mr. Michael A. Querques for defendants Euggerio Boiardo and Toby Boyd.

      Mr. Charles O. Garella for defendants Angelo Sica, Nunzio Sica and Thomas DeBenedetto a/k/a Louis DeBenedetto.

      Mr. Samuel Rosenthal for defendant Benjamin Thomas.

      Mr. Donald S. Coburn, Assistant Prosecutor, for the State of New Jersey (Mr. Joseph P. Lordi, Prosecutor of Essex County, attorney).

      Mr. Harold Krieger for defendant Andrew Gerardo.

      Mr. Michael Balandra for defendants Cesar Cerato and Michael Del Guercio.

      Mr. Samuel Rosenthal for defendants Joseph Cipriano and Michael Russomano (Mr. Myron P. Maurer, attorney).

      Mr. Daniel B. Isles for defendant Julia Orsi.

      Mr. Mario V. Barco for defendants Geraldino Donato Custode and Nino Maccioli.

      Mr. Saul C. Schutzman for defendants Carmine Liquori, Michael Maironino and Joseph Sarrecchia.

      Mr. Samuel D. Bozza for defendants John Malanga and Thomas Sperduto.
   Fusco, J. S. C.

I am going to consider these matters in the order in which they have been presented. I am cognizant of the fact there are some 19 defendants involved in indictment 2224^-61, all of whom have joined in a motion to dismiss the indictment charging conspiracy. Julia Orsi also makes a motion to dismiss the indictments against her charging her with a violation of the lottery laws under indictments 2233 and 2234. Benjamin Thomas moves for a dismissal of indictments 2239, charging maintaining, and 2240, charging violation of the lottery laws. ' Nunzio Sica seeks a dismissal of indictments 2235, charging maintenance, and 2236, charging violation of the lottery laws. Michael Russomano moves for a dismissal of indictment 2233, charging violation of the lottery laws.

Thus, besides the principal indictment, the several indictments referring to the individual defendants which I have made reference to are the subject matter of this motion or these motions to dismiss.

It appears that all the defendants have been indicted by the Essex County grand jury for conspiracy to violate the lottery laws of the State of New Jersey, and certain of them for having in their possession lottery slips or maintaining premises to which persons might resort for gambling.

It appears and is almost conceded by the State that the evidence upon which the indictments are founded was originally seized by federal authorities pursuant to search warrants which asserted violations of the Federal Wagering Tax Laws, specifically, 26 U. S. C. §§ 4401, 4411, 4412, 4901, 7203 and 7262, and 18 U. S. C. 371.

The State indicates that the evidence so gathered by the federal authorities was then turned over to the Essex County IvTosecutor. The federal indictments against these several defendants, which were based upon these statutes and upon the evidence so seized, were dismissed on motion of the United States Attorney for the District of New Jersey on June 7, 1968.

Defendants contend, generally, that the Supreme Court of the United States has shown a trend over the past several decades for making more and more of the constitutional guarantees embodied in the Bill of Rights obligatory upon the states under the Fourteenth Amendment. Moreover, that court has required the states to employ federal standards when interpreting these rights. This trend has continued from the landmark case of Wolf v. People of State of Colorado, 338 U. S. 25, 69 S. Ct. 1359, 93 L. Ed. 1782 (1949), through Mapp v. Ohio, 367 U. S. 643, 81 S. Ct. 1684, 6 L. Ed. 2d 1081 (1961), and Gideon v. Wainwright, 372 U. S. 335, 83 S. Ct. 792, 9 L. Ed. 2d 799 (1963).

The court focused ou the self-incrimination clause of the Fifth Amendment in Malloy v. Hogan, 378 U. S. 1. 84 S. Ct. 1489, 12 L. Ed. 2d 653 (1964), holding that the states may not abridge that, basic right under the Fourteenth Amendment. Defendants argue that it is against this background that the issues in this case must be considered.

In Marchetti v. United States, 390 U. S. 39, 88 S. Ct. 697, 19 L. Ed. 2d 889 (1968), the Supreme Court, it is contended by the defendants, held that the privilege against self-incrimination provides a complete defense to a prosecution under 26 U. S. C. §§ 4411 and 4412, the federal statutes which impose an occupational tax on gamblers and require the registration of all those who must pay this tax. Defendants call to the attention of the court various excerpts from this case:

“Wagering and its ancillary activities are very widely prohibited under both federal and state law. Federal statutes impose criminal penalties upon the interstate transmission of wagering information.”

And

“State and local enactments are more comprehensive. The laws of every state, except Nevada, include broad prohibitions against gambling, wagering, and associated activities.”

The Marchetti opinion goes on:

“Information obtained as a consequence of the federal wagering tax laws is readily available to assist the efforts of state and federal authorities to enforce these penalties. Section 6107 of Title 26 requires the principal internal revenue offices to provide the prosecuting officers a listing of those who have paid the occupational tax. * * * Evidence of the possession of a federal wagering tax stamp, or of payment of the wagering taxes, has often been admitted at trial in state and federal prosecutions for gambling offenses.”

And

“Petitioner was confronted by a comprehensive system of federal and state prohibitions against wagering activities; * * * the question is not whether petitioner holds a ‘right’ to violate state law, but whether, having done so, he may be compelled to give evidence against himself. * * * Further, the acquisition of a federal gambling tax stamp, requiring as it does the declaration of a present intent to commence gambling activities, obliges even a prospective gambler to accuse himself of conspiracy to violate either state gambling prohibitions, or federal laws forbidding the use of interstate facilities for gambling purposes. * * * Indeed, (prospective registrants) can reasonably fear that registration, and acquisition of a wagering tax stamp, may serve as decisive evidence that they have in fact subsequently violated state gambling prohibitions.”

And, finally:

“Moreover, the imposition of such restrictions would necessarily oblige state prosecuting authorities to establish in each case that their evidence was untainted by any connection with information obtained as a consequence of the wagering taxes * *

Grosso v. United States, 390 U. S. 62, 88 S. Ct. 709, 19 L. Ed. 2d 906 (1968), is further cited, indicating that the court dealt similarly with the excise tax imposed on wagering.

Defendants contend that the present state prosecutions cannot be maintained in the wake of these two cases because first, the literal language of the cases appears to preclude any criminal prosecution based upon the failure to comply with these federal statutes, and this prosecution is based upon evidence obtained as the result of the defendants’ failure to comply; and secondly, since the self-incrimination clause of the Fifth Amendment is binding upon the states and the Marchetti and Grosso decisions were based on the Fifth Amendment, any state prosecution based on the same evidence is violative of the Fifth Amendment.

This reasoning was followed in Commonwealth v. Katz, 429 Pa. 406, 240 A. 2d 809 (1968), a case involving a state lottery conviction based upon evidence seized by federal officers pursuant to warrants alleging violations of the same federal statutes as we are concerned with here.

To effectuate the federal policy of federal-state uniformity and to follow the Marchetti and Grosso decisions, as interpreted by the Supreme Court in Katz, defendants contend that the present indictment should be dismissed. They also refer to Silbert v. United States, 289 F. Supp. 318, a ease from the United States District Court for the District of Maryland published or filed on August 15, 1968, which the affidavits for search warrants were supported in allegations of federal wagering tax law violations. The court in Silbert said that “this Court orders that the Government may not use, or permit the use, directly or indirectly, of any evidence seized pursuant to the warrants in Silbert, in any federal or state prosecution of Silbert * * *”.

The State, on the other hand, contends that the United States Constitution does not prohibit the use of the evidence so obtained in a prosecution in the state courts. In referring to Marchetti, the State indicates that the court in that case stressed that it was only holding that defendants may not be criminally punished for their failure to comply with the requirements of the federal statutes involved, quoting as they do, “Eor reasons which follow we have concluded that these provisions may not be employed to punish criminally those persons who have defended a failure to comply with their requirements with a proper assertion of the privilege against self-incrimination.” The State concludes, therefore, that the holding is inapplicable to the instant prosecution.

The State argues that since federal officers can no longer obtain search warrants based on failure to comply with the registration provisions of the federal statutes, there is no danger that state courts may use evidence that federal courts may not. Thus, no Fifth Amendment self-incrimination possibility exists and the trend of the federal-state uniformity is not violated.

As the court reviews the arguments made and the authority of Marchetti and Grosso, it appears that in those cases prosecutions were based upon the failure of defendants to register and pay an occupational tax and an excise tax imposed by the existing federal statutes for engaging in the business of accepting wagers and for conspiracy to avoid the payment of these taxes. The United States Supreme Court, by these decisions, overruled its position heretofore enunciated, and concluded in Marchetii, that, “We hold only that those who properly assert the constitutional privilege as to these provisions may not bo criminally punished for failure to comply with their requirements.”

During the colloquy before this court there was some question in the mind of the Prosecutor as to whether defendants were so asserting their constitutional privilege. It is clear before this court that defendants, all of them, assert their constitutional privilege against self-incrimination, as guaranteed by the Fifth Amendment.

The Marchetii Court held:

“We can only conclude, under the wagering tax system as presently written, that petitioner properly asserted the privilege against self-incrimination, and that his assertion should have provided a complete defense to this prosecution. This defense should have reached both the substantive counts for failure to register and to pay the occupational tax, and the count for conspiracy to evade payment of the tax.”

Even though the State suggests that Commonwealth v. Katz, supra, is on point and in defendants’ favor, it concludes by suggesting that the court in Katz fell into error in its decision and that this court should not be bound thereby. That opinion recognized that

“Emphasizing the comprehensive state and federal system of gambling regulation and the fact that, once an individual has registered under the federal statute, this information is made available to state prosecutors, the Court [in Marchetti] obviously bottomed its decision upon [the fact that] * * * if the individual registers, then this information is available to state prosecutors; if ho does not register and pay the tax, then he can be prosecuted for failure to do so in federal court. The impact of this legislative package, according to the Court, was a fifth amendment violation.”

The court in Katz went on to say:

“Whether this evidence is used in state or federal court, the evil is identical — an accused’s failure to register and pay the tax, as well as evidence seized to prove this failure, becomes the basis of a criminal prosecution violative of the fifth amendment.”

The United States Supreme Court in Marchetti, supra, did not conclude that the failure to register and pay an occupational tax under the federal statutes was unconstitutional. The court merely stated that the requirement that a person make known his occupation, when that occupation will expose him to federal prosecution, is violative of the Fifth Amendment. The statute is still in effect. Any search warrant issued to ferret out violators thereof will be valid.

The vice is not in the statute. The vice is not in the search warrant. The vice is in requiring a person about to engage in a gambling operation to make known to the federal authorities the purpose of his business. That is the vice of the statute.

The evidence obtained is not tainted. Search warrants can continue to be issued for the violation of the gambling laws of the state and federal governments. Prosecutions cannot be had for the violation of the particular law in question since to compel a defendant to admit he is a gambler subjects him to a Fifth Amendment violation. But even if this were not so, at the time of the issuance of the search warrant in the instant case the statute was considered valid by the highest courts of this country. See Silbert v. United States, 282 F. Supp. 635 (D. Md. 1968).

The statute was considered valid at the time of the issuance of the search warrant, and although the prosecutor is inclined to agree with defendants, this court does not feel that in any subsequent prosecution any evidence obtained in a manner in which this evidence was obtained may not be used. This court finds as a matter of fact that the statute was considered valid when the search warrant was issued and, therefore, any evidence obtained and used for the purpose of obtaining these indictments is valid.

The issue of whether the indictments should be dimissed stands or falls on whether the only evidence adduced before the grand jury was the evidence so obtained. There is no indication before me at this argument concerning this matter, with the exception of the following passing comment by the State: “The aforesaid evidence gathered by the federal authorities was then turned over to the Essex County Prosecutor.” The State concedes that it fully intends to use this evidence in the instant prosecution, but there is no indication that it does not have other evidence and there is no indication that nothing other than that obtained from the federal authorities was submitted to the grand jury.

So that for the reasons stated, the motion to dismiss the several indictments will be denied.


author: Camarata, J. S. C.

text:
    WINANS CARTER CORPORATION, A NEW JERSEY CORPORATION, PLAINTIFF, v. JAY & BENISCH, A NEW JERSEY PARTNERSHIP, DEFENDANT.
    Superior Court of New Jersey Law Division
    Decided October 29, 1968.

      Mr. Alan B. Ghesler for plaintiff (Messrs. Lowenstein, Sandler, Broehin <& Kohl, attorneys; Mr. Ghesler on the brief).

      Mr. Allan Maitlin for defendant (Messrs. Feuerstein & Sachs, attorneys; Mr. Maitlin and Mr. Leonard Bosenstein on the brief).
   Camarata, J. S. C.

Plaintiff sues defendant, an insurance broker, for failure to change an endorsement on a fire insurance policy written by defendant and issued by Commerce & Industry Insurance Company (Commerce Co.). The suit is in two counts (1) negligence and (2) breach of contract.

Plaintiff seeks summary judgment; defendant seeks leave to file an amended answer to set up the defense of contributory negligence and moves for summary judgment.

Prom the affidavits and exhibits, no genuine issue of fact appears. The essential facts follow:

Defendant had been writing insurance for plaintiff for at least seven years. Until March 1967 plaintiff had a warehouse located at South Main Road, Vineland, and during March and April 1967 it moved the warehouse operation to South West Elmer Road, Vineland. On March 14, 1967 plaintiff wrote to defendant informing it that they were in the process of moving to South West Elmer Road and required contents coverage on both the old and new premises, instructing defendant to cancel the old coverage on South Main Road as of March 28.

Defendant on March 17 directed its memorandum to plaintiff acknowledging the move to the new Vineland location at South West Elmer Road and enclosed various binders. Not included was one for the policy which is the subject matter of this suit, written by Commerce Co. in the sum of $15,000. On April 3 plaintiff directed a letter to defendant to cancel all the insurance on the South Main Road address, and amongst other things stated, “make certain that coverage now is on West Elmer Road address.” This was pursuant to plaintiff’s letter of March 14.

On April 18 defendant by its letter to plaintiff enclosed certain endorsements changing the coverage from South Main Road to South West Elmer Road. The Commerce Co. policy was not included. On the endorsements this legend appears:

“IMPORTANT
This Endorsement forms a part of your Policy and should be attached to the same. Please DO NOT PAID to have this done.”

It is this legend that defendant contends placed a burden on plaintiff to check the endorsements to make sure all policies were changed, and that its failure to do so bars recovery because of plaintiff’s alleged contributory negligence.

On September 3, 1967 plaintiff’s warehouse at South West Elmer Road was completely destroyed by fire. On the same date defendant was so notified by telephone by plaintiff. Defendant told plaintiff it would report the fire. Plaintiff was paid $82,770 from three companies, the proceeds of the Commerce Co. $15,000 policy was not paid.

On September 26, 1967 defendant wrote to Commerce Co. stating, “I am responsible for this assured.”

Defendant admits that it was notified by plaintiff of the new location on March 14, 1967 and that all the companies except Commerce Co. were notified.

To be noted in the letter of September 26, 1967 is the following:

“Mrs. Cannon, who is my secretary, apparently overlooked your contract, which could have happened for several reasons. The probability is that your daily became attached to some other papers and therefore did not come to her attention.”

Again, in the letter the following appears:

“We are most distressed because of the errors that occurred in notifying your office. However, the tone of your letter suggested to Ab and myself that perhaps you felt there had been some deliberate action within our office to cover up these errors, which is not the case. I think both Mr. Horn and Mrs. Cannon were attempting to protect me from being upset, and therefore X was not aware of what had occurred. I can assure you that if X had known of the incident, the first thing I would have done would have been to call Mike Connolly or one of the officers to explain the situation.”

Commerce Co. refused to date back the endorsement.

On January 29, 1968 plaintiff filed a proof of claim with Commerce Co., prepared by defendant. Uo explanation is given by defendant for doing so, and the court infers it was trying to rectify its own mistake.

Plaintiff gave defendant ample notice of proposed change of location, with definite instructions for temporary coverage and permanent coverages.

Defendant’s admission that the failure to include or change the endorsements on the Commerce Co. policy was due to its employee, Mrs. Cannon, did not, nor does it not, relieve defendant of the responsibility to have done so. Its failure was a breach of the duty it owed to plaintiff. See Rider v. Lynch, 42 N. J. 465, 477 (1964).

For determination is defendant’s proposed defense of contributory negligence. The facts in the instant case are distinguishable from those in Schustrin v. Globe Indemnity Co. of New York, 44 N. J. Super. 462 (App. Div. 1957). In that case the suit was against the broker for negligence in failing to obtain a workmen’s compensation policy; the defense was contributory negligence. In the instant case plaintiff’s suit is for breach of contract and negligence.

This court has not been referred to a New Jersey case precisely in point with the situation before it. There are cases in other jurisdictions which suggest that the defense of contributory negligence to an action for breach of contract is not available.

In White v. Calley, 67 N. M. 343, 355 P. 2d 280 (Sup. Ct. 1960), the suit was by the insured for losses incurred because of the agent’s breach of an agreement to increase the amount of insurance. Defendant set up the defense of contributory negligence contending that plaintiff had ample time and opportunity to examine the policy forwarded to it. The court said:

“The court did not err in overruling the motion of contributory negligence of plaintiff in not 1‘eading and familiarizing himself with the terms of the policy is not a defense to an action such as this. The suit was for a breach of contract brought by the principal against his agent, and in such a situation the authorities support the rule that negligence on the part of the plaintiff in not reading the policy is no defense.” (355 P. 2d, at p. 281; emphasis added)

In Carter v. Hawaii Transportation Co., 201 F. Supp. 301 (D. Hawaii 1961), the suit was for a copyright infringement. Defendant charged plaintiff with contributory negligence in not checking the brochure in question. The court said that “Contributory negligence is not a defense to a breach of contract. 17 C. J. S. Contracts § 525, p. 1149.” (At p. 303; emphasis added)

In Fresno Air Service v. Wood, 232 Cal. App. 2d 801, 43 Cal. Rptr. 276 (D. Ct. App. 1965), the suit was for damages to plaintiff’s airplane when defendant, who chartered it, attempted to fly it. Defendant set up a defense of contributory negligence in that plaintiff left the keys in the airplane. The court said:

“Assumption of risk and contributory negligence appear to fall within the general field of trespass and negligence regarding personal injury actions and hence are not applicable as theories of law and defenses to actions for trespass to personal property or for breach of contract.” (43 Cal. Rptr., at p. 279: emphasis added)

This court adopts the rationale of the cited cases to the instant case and concludes that plaintiff’s alleged contributory negligence is not a defense to its suit for breach of contract. The defense of contributory negligence is not a bar to plaintiff’s suit for negligence. Rider v. Lynch, supra, where the court said (42 N. J., at page 482), “nor will such failure support a defense of contributory negligence.”

Summary judgment for plaintiff in the sum of $15,000, plus interest and costs.

Defendant’s application to amend its answer to set up the defense of contributory negligence is denied. Defendant’s motion for summary judgment is denied.


author: Barger, J. S. C.

text:
    INTERSTATE WRECKING CO., INC., PLAINTIFF, v. PALISADES INTERSTATE PARK COMMISSION AND CLARKE & RAPUANO, INC., DEFENDANTS.
    Superior Court of New Jersey Law Division
    Decided October 2, 1968.

      Mrs. Sonia Napolitano for plaintiff (Messrs. Pindar, McElroy, Connell & Foley, attorneys).

      Mr. J. Joseph Murphy, Assistant Attorney General of the State of New York, for defendant Palisades Interstate Park Commission {Mr. Louis J. Leflcowitz, Attorney General of New York; Mr. William J. Brennan, III, Assistant Attorney General of the State of New Jersey, on the brief).

      Mr. Clifford J. Sheehan for defendant Clarke & Rapuano, Inc. {Messrs. Hueston & Nueston, attorneys).
   Barger, J. S. C.

Defendant Palisades Interstate Park Commission (hereinafter Commission) moves under R. R. 4:12-2(a) and (b) for an order quashing the service of the summons and complaint upon it on the ground that Superior Court of New Jersey lacks jurisdiction over the subject matter and of this defendant on the grounds herein discussed, there being no objection raised to the service of process.

On the return of the motion defendant Clarke & Rapuano, Inc. appeared and through counsel joined in the arguments advanced by plaintiff and contained in its brief opposing the motion. This defendant further indicated it was not objecting to the hearing of the motion because it had not been served as one of the parties with a notice of the motion.

This litigation arises out of a public improvement contract, known as B.M.-76 dated February 10, 1967, between defendant Commission and plaintiff. The work to be performed thereunder was the demolition of certain buildings situated on Iona Island in Rockland County, N. Y., in preparation for the recreational development of the area concerned.

A summons and complaint was served by registered mail upon the Commission on April 11, 1968 under R. R. 4:4-5(b). The three counts of the complaint directed against the Commission are based on an implied contract for extra work, alleged fraud, negligence, and misrepresentation in supplying certain pre-bid information. Co-defendant Clarke & Rapuano, Inc., a New York corporation, with offices at 830 Third Ave., New York City was the firm of consulting and supervising engineers and architects employed by the Commission in the project, the subject matter of the contract. It has raised no objection to the service of process.

The Commission was created by interstate compact entered into between the States of New York and New Jersey on June 3, 1937, pursuant to chapter 170 of the Laws of the State of New York for the year 1937 (Conservation Law, McKinney’s Consol. Laws, c. 65, § 745 et seq.) and chapter 148 of the Laws of New Jersey for the year 1937 (N. J. S. A. 32:17-1 et seq.). The consent of Congress was received under Joint Resolution No. 65 of August 19, 1937, chapter 706, 50 Stat. 719.

Article II of the compact (N. J. S. A. 32:17-4) creates a body corporate and politic and provides that “the commission shall have power to sne and be sued.”

The contract referred to and brought into question through this litigation resulted from specifications and requests for bids advertised in New York State, executed in New York State and totally performed in New York State. The total amount of the consideration in the contract has been or will be paid out of the appropriations by the Legislature of the State of New York to the Commission. Plaintiff is a corporation of the State of New Jersey with its principal office at 52 Commerce St., Springfield, N. J. The Commission is under the aforementioned compact, a bi-state body politic and instrumentality of the States of New York and New Jersey.

It is the contention of the Commission that as an instrumentality of the sovereign State of New York, performing governmental functions on behalf of that state, it is entitled to governmental immunity against suit since there is no “express waiver” of such immunity contained in the compact or under the laws of New York. It points to certain legislative enactments that indicate an intention on the part of the New York Legislature of not waiving the immunity and that the Commission continue to be an agency or instrumentality of the state, specifically referring to section 745 of the Conservation Law of New York, as amended by chapter 663 of the Laws of 1939 of that state, which provides that the Commission

“* * * shall continue in the division of parks in the conservation department in so far as lands in Palisades Interstate Park lie within this state, said Palisades Interstate park commission by said compact having succeeded to the rights, powers, duties and obligations of the board of commissioners of Palisades interstate park, a body politic created pursuant to chapter one hundred seventy of the laws of nineteen hundred, in the manner and to the extent provided in said compact.”

Uuder the provisions of section 672 of the Conservation Law of New York, the Commission is the body having immediate jurisdiction and control of parks and parkways owned or acquired by the State of New York in the eighth park region, comprising Rockland and Orange Counties. This is one of the park regions into which the state is divided for the purpose of such administration. All lands acquired by the Commission are for the use of the public for park purposes. Monies required for the support and maintenance of the work of the Commission are included in the annual budget of the Conservation Department, a part of the New York State Budget, and which appropriations are made by the Legislature to cover approved requirements of the Commission and are examined and audited by the New York State Comptroller. It is the contention of the Commission that all of these foregoing facts conclusively establish that the Commission is an instrumentality of the State of New York performing governmental functions, and that as such it can only be sued for damages in the Court of Claims of the State of New York. Further, that plaintiff does not have the right to select the forum and this claim should have been filed in the Court of Claims.

It has long been established that a state instrumentality does have governmental immunity unless waived by the Legislature. Breen v. Mortgage Commission of State of New York, 285 N. Y. 425, 35 N. E. 2d 25 (Ct. App. 1941), reversing 260 App. Div. 753, 23 N. Y. S. 2d 948 (1940).

The cases cited in the brief filed in behalf of the Commission point up the distinction which must be drawn between immunity from suit and immunity from liability and restrictions on the forum. Further, where there is consent on the part of the state for its instrumentality to sue or be sued, this does not necessarily permit the claimant to select the forum for that suit where a special forum has been established by the Legislature. Breen, supra, 285 N. Y., at p. 432. If this court determines that there has been consent to suit under the compact language, then the question arises as to whether plaintiff has filed the suit in the proper forum in view of the Court of Claims Act herein referred to, or whether this court lacks jurisdiction. The question of the forum is never reached until it is first determined that the state has consented to the suit through language in legislation construed as waiving its immunity. Whether the action is in contract or in tort is of consequence only in determining the question of substantive law applying, and this question, of course, is not reached until the state has consented to be sued and it is determined that the forum selected by the claimant has jurisdiction.

It is a well established rule of law that the state cannot be sued without its consent. Smith v. State, 227 N. Y. 405, 125 N. E. 841, 13 A. L. R. 1264 (Ct. App. 1920) reversing 185 App. Div. 918, 171 N. Y. S. 1100 (1918); Breen, supra, 285 N. Y., at p. 432, 35 N. E. 2d 25. In Breen the court pointed out that under the statute there being construed the state had not consented to have its liability determined outside the Court of Claims, and that the Supreme Court of the State of New York had no jurisdiction to entertain the action. It is noted that in Breen the commission involved was created for a restricted purpose and the consent was only in connection with the administration of certain mortgages; and the Commission, when created, was created as an agency of the State of New York (Mortgage Commission Act, L. 1935, c. 19, § 2, McKinney’s Unconsol. Laws, § 4802). The agency was created to meet the then public emergency existing with respect to certain mortgages. The court determined that the inclusion of the language “sue and be sued” did not amount to a consent on the part of the state to be subjected to a judgment obtained in an action brought in any court other than the Court of Claims. The inference from this language is that there was consent to the suit hut not to the forum.

The court in Karp v. High Point Park Commission, 131 N. J. Eq. 249 (Ch. 1942), affirmed 132 N. J. Eq. 351 (E. & A. 1942), noted:

“Our statute, R. S. 13:5-2, N. J. S. A. 13:5-2 enacts that the Board of Commissioners of High Point Park and its successors shall be a body politic with power to sue and be sued. The defendant argues that those words only confer a power on the Commissioners and mean that the Commissioners may be sued in those eases in which the Legislature, by some other enactment, consents that the defendant be sued. I do not so construe them. The section constitutes a consent by the legislature to suit against the Commission. In the Strobel case cited above, it is clear that the court was of the opinion that the words “with power to sue and he sued” have this result. To the same effect are [cases cited], * * * The defendant, relies on Stephens v. Commissioners of Palisades Interstate Park, 93 N. J. L. 500, 108 A. 645. But there, the judgment for defendant went on the ground that no cause of action in favor of an individual arose from the negligence, of a public agency in the discharge of a public duty. Though the statute creating the public agency, which was the defendant in that suit, expressly authorized suit against the agency, the court held that this did not create a liability in favor of the plaintiff.”

In Taylor v. N. J. Highway Authority, 22 N. J. 454, 470 (1956), the court indicates the growing hostility to the doctrine of governmental immunity. This is due to several causes, one being the tendency of the several states to entrust to such separate bodies politic, instead of a department or agency of the State Government, various functions not perhaps previously regarded as necessary or essential governmental functions. The vast changes in population and our economic life creating complex governmental problems in transportation, recreation, air pollution and other public areas requires joint action by the states concerned. The court states:

“The hostilily towards the doctrine of governmental immunity is also evidenced in the states and it seems to us that pertinent statutory waivers should fairly receive as liberal construction in the states as in the federal sphere. In recent years there has been a noticeable tendency of legislative bodies to entrust to independent Authorities, functions which necessitate relationships comparable to those ordinarily existent between private parties. It would seem that in all justice such Authorities should generally not be afforded the highly special immunities of the State acting in its sovereign capacity; that much has been recognized by the New Jersey Highway Authority Act, particularly in its broad terminology which unre■strictedly permits the Authority to sue and he sued in its own name. Cf. Cardozo, J. in Anderson v. John L. Hayes Constr. Co., 243 N. Y. 140, 147, 153 N. E. 28, 29 (1926):
The exemption of the sovereign from suit involves hardship enough, where consent has been withheld. We are not to add to its rigor by refinement of construction, where consent has been announced.”

Interstate problems are more and more being handled by interstate bodies because of their complexity. Petty v. Tennessee-Missouri Bridge Commission, 359 U. S. 275, 79 S. Ct. 785, 3 L. Ed. 2d 804 (1959).

As‘ indicated in the cases cited in the brief of the Commission and herein, it is one, thing to waive the right not to be sued and quite another to waive immunity from liability. Certainly, the least that can be said is that the Legislatures of both states intended that there should be a right to sue the Commission in matters relating to and concerning its everyday ■ business transactions occurring in the ordinary course of business, and particularly relating to questions involved in contracts entered into by the Commission in furtherance of its expressed objectives and in carrying out the purposes of its creation. This court cannot construe the words, “the commission shall have power to sue and be sued,” as narrowly as contended by the Commission, and concludes that it was the intention of the legislatures of both states, through the compact, to waive any governmental immunity against suit if, in fact, the Commission ever had such immunity. Such independent authorities cannot claim the immunities of the sovereign authority in view of their varied functions, many of which involve everyday public and private business transactions in carrying out their stated purpose of mating the recreational facilities under their supervision available to the public.

Article II of the compact (N. J. S. A. 32:17-4) describes the Commission thereby created as follows:

“There is hereby created a body corporate and politic with name and style of ‘Palisades Interstate- park commission’ (for brevity hereinafter referred to as ‘the commission’) which shall be a joint corporate municipal instrumentality of both the state of New York and the state of New Jersey for the purpose of effecting the objects of this compact and which shall be deemed to be performing governmental functions of the two states in the performance of its duties hereunder.”

This court concludes that the aforementioned immunity, as the result of the language cited, was clearly waived by legislative authority in authorizing the compact, and it appears to be the only construction as a matter of justice that can be placed on the language referred to. Certainly any other construction would be a narrow one contrary to the growing expressed intent of the legislative authority in creating such bodies, and would frustrate the legislative purpose. Taylor, supra, 22 N. J., at p. 471.

The Court of Claims of the State of New York is provided for in Article VI, Section 9 of the New York Constitution entitled “Court of claims; jurisdiction,” and in pertinent part, states:

“The Oourt shall have jurisdiction to hear and determine claims against the State or by the State against the claimant or between conflicting claimants as the legislature may provide.”

In furtherance of the constitutional provision, the New York Legislature, under L. 1920, c. 922, passed what is known as the “Court of Claims Act.” It has been amended from time to time but its jurisdiction never broadened as herein commented upon. In furtherance of authority contained in the statute, the court on November 13, 1939 adopted “Rules of the Court of Claims,” amended on July 1, 1966.

The Court of Claims was created for the limited purpose of determining claims for money damages against the State of New York and to avoid in such eases judgments against the State and to provide a forum for such claims where none had existed. It has no general or equity jurisdiction. It cannot constitutionally determine or adjudicate the rights of private parties. The Court of Claims would have no jurisdiction to resolve the issues in this cause between plaintiff and codefendant Clarke & Eapuano, Inc., wliich, if this motion were granted, would still have to he resolved in this action. Smith-Cairns Motor Sales Co. v. State, 45 Misc. 2d 770, 258 N. Y. S. 2d 51, 272 N. Y. S. 2d 667 (Ct. Cl. 1966); Braun v. State, 203 Misc. 563, 117 N. Y. S. 2d 601 (Ct. Cl. 1953); Court of Claims Act, §§ 8, 9, subdivisions 2, 3, 6, 9; § 12, subdivision 3. Conflicting determinations could result.

In Anderson v. John Hayes Const. Co., Inc., 243 N. Y. 140, 153 N. E. 28, 29-30 (N. Y. Ct. of App. 1926), Judge Cardozo, later, Mr. Justice Cardozo of the United States Supreme Court, in reviewing a similar question stated:

“We find no basis in the statute for this division of judicial functions. The state has consented to be sued in the ordinary courts of justice, when the subject matter of the controversy is a lien upon money owing to its contractor, and has consented that, out of any money that may be found to be so owing, judgment may be rendered, directing payment to be made. In consent so explicit, we see no suggestion of a condition that the remedy is to fail if the debt shall be disputed. Justice and convenience combine with the plain wording of the statute in forbidding us to imply a condition so oppressive. No sensible reason can be imagined why the state, having consented to be sued, should thus paralyze the remedy. A court of dignity and power had the parties before it, and had heard the controversy between them. To transfer the controversy to the Court of Claims could work no gain to any interest worthy of protection. Indeed, the special limitations applicable to claims in that court (Court of Claims Act [Laws 1920, c. 922] § 12) might often bring it to pass that the claim would be barred before the transfer could be made. The exemption of the sovereign from suit involves hardship enough, where consent has been withheld. We are not to add to its rigor by refinement of construction, where consent has been announced.”

This cause of action involves the alleged breach of a private right and duty. The Court of Claims could not, even though the cause of action was not barred under its regulations, give complete relief in view of the cause of action alleged against the codefendant. A multiplicity of actions would result since the issues would not be resolved in one trial. As pointed out in Taylor, supra, 22 N. J., at p. 468, in actions not involving a charge of negligence in maintaining public highways, the courts have construed the language, “sue am! be sued,” liberally in favor of consent to be sued. The eases are reviewed in Taylor, supra. The State should not be able to shield itself from liability arising in an ordinary business transaction with one of its instrumentalities by invoking the immunity doctrine. To do so would mean that anyone doing business with any such instrumentality would be doing so at their peril. Duke Power Co. v. Patten, 20 N. J. 42, 50 (1955).

This court concludes that the clear intention of the Legislature, under the language referred to, was to consent to suit, and particularly in those transactions resulting from ordinary business contacts with the instrumentalities concerned. That under the compact the Court of Claims of New York is not the exclusive forum for the determining of the rights of the parties concerned, and that this court does have jurisdiction and should for the reasons indicated, as a matter of jusiiee to the parties retain jurisdiction.

On the return of the motion the court raised the question as lo whether the doctrine of forum non conveniens applied in view of the fact that an instrumentality of a State was involved. There is no indication of any inconvenience or hardship on the instrumentality. This is a doctrine of justice for the convenience of parties and witnesses and is recognized by R. R. 4:3—3. We do not have here the situation which existed in Devlin v. National Broadcasting Co., Inc., 47 N. J. 126 (1966), where there were causes of action involving the same subject matter in several states, and there is no indication that the trial in this county rather than in some other county of the State would pose any hardship or inconvenience upon the Commission. In any event, there is no application before the court for a transfer under the cited rule.

For the reasons indicated, the motion to dismiss the complaint is denied.