author: Dabster, J. S. C.

text:
    ANGELA DE ANGELIS, ET AL., PLAINTIFFS, AND ESSEX COUNCIL NUMBER 1, NEW JERSEY CIVIL SERVICE ASSOCIATION, INC., INTERVENING PLAINTIFF, v. HUGH J. ADDONIZIO, MAYOR OF THE CITY OF NEWARK; THE MUNICIPAL COUNCIL OF THE CITY OF NEWARK, A MUNICIPAL CORPORATION OF THE STATE OF NEW JERSEY; THE NEW JERSEY COLLEGE OF MEDICINE AND DENTISTRY, A BODY CORPORATE AND POLITIC IN THE DEPARTMENT OF HIGHER EDUCATION OF THE STATE OF NEW JERSEY; C. RICHARD WEINBERG, DIRECTOR OF NEWARK CITY HOSPITAL; ARTHUR J. SILLS, ATTORNEY GENERAL OF THE STATE OF NEW JERSEY; CIVIL SERVICE COMMISSION OF THE STATE OF NEW JERSEY; DR. CARL L. MARBURGER, COMMISSIONER OF EDUCATION OF THE STATE OF NEW JERSEY; AND ROBERT R. CADMUS, M.D., PRESIDENT, NEW JERSEY COLLEGE OF MEDICINE AND DENTISTRY, DEFENDANTS.
    Superior Court of New Jersey Law Division
    Decided October 7, 1968.

      Mr. Solomon Golat, for plaintiffs (Messrs. Talisman & Golat, attorneys).

      Mr. Jacob Fox, for intervening plaintiff Essex Council Number 1, New Jersey Civil Service Association, Inc. (Messrs. Fox, Yanoff and Fox, attorneys).

      Mr. Brian Harris, Assistant Corporation Counsel of the City of Newark, for defendants Mayor Addonizio; the Newark Municipal Council, and Director Weinberg (Mr. Philip R. Gordon, Corporation Counsel of Newark, attorney).

      Mr. Clyde Szuch for defendants The New Jersey College of Medicine and Dentistry, and Dr. Cadmus (Messrs. Pitney, Hardin <6 Kipp, attorneys).

      Mr. Theodore A. Winard, Deputy Attorney General of the State of New Jersey, for defendants Attorney General Sills, the Civil Service Commission and Commissioner of Education Marburger (Mr. Arthur J. Sills, Attorney General of the State of New Jersey, attorney).
   Dabster, J. S. C.

This action is brought by a group of employees of the former Newark City Hospital (hospital) on behalf of themselves and others in the same class seeking a declaratory judgment relating to their status as employees of the New Jersey College of Medicine and 'Dentistry (college), which now owns and operates the hospital. By order of the court, Essex Council Number 1, New Jersey Civil Service Association, Inc. was permitted to intervene as- a party plaintiff, asserting the same position as co-plaintiffs on behalf of approximately 200 members of the Association who are also employees at the hospital.

■ The matter came before the court initially on plaintiffs’ application .for preliminary restraints pending final hearing, which application was denied. Because of the public importance of the issues involved in the litigation and the obvious need for. early disposition, the court suggested that the parties stipulate that the pleadings, affidavits, briefs and arguments submitted on the motion for preliminary restraints be considered by the court as if both sides had filed .counter-motions for summary judgment. Since the material facts are not in dispute, counsel for the respective parties stipulated to that effect and subsequently perfected the record by filing formal motions for summary judgment.

• The litigation stems from the take-over of the hospital .complex by the college on July 1, 1968 pursuant to an agreement between the City of Newark and the college, whereby the city conveyed and transferred to the college without ■ monetary consideration all the land, buildings, equipment, furnishings and supplies representing the tangible assets of the hospital owned and operated by the city for many years. Under this agreement the college accepted “complete and sole responsibility” for the operation • and management of the hospital. Although the city conveyed and transferred absolute title to the college, the latter agreed to reconvey the hospital assets to the city in the event that it ceased to operate as a college in the State of New Jersey.

In addition to provisions involving the care of the indigent, the- continuation of the school of nursing, and the maintenance of the ambulance service, the city incorporated in the agreement various provisions relating to the existing municipal employees assigned to the hospital prior to the takeover. Some of these provisions dealt with the preservation of employees’ pension and retirement benefits; others dealt with the continued maintenance of hospitalization and medical coverage; still others obligated the hospital to grant certain minimum benefits to employees regarding salaries, vacations, sick pay, promotions, etc.

It is apparent from the agreement and the preceding negotiations that there existed a sharp dispute between the city and the college as to the applicability of the civil service laws and regulations to the hospital employees after the commencement of the college’s ownership and administration. In any event, this was not resolved by the agreement, which in fact contained provisions which would become applicable if civil service laws were held to control and alternate provisions which wonld become applicable if civil service laws were held not to control.

Nevertheless, regardless of the applicability of all the civil service laws to these employees, the college agreed to comply with those provisions of the Civil Service Act which prohibit removal, suspension, demotion or loss of position of employees without cause.

Plaintiffs contend that all “permanent” employees on the city payroll at the time of the change in administration, numbering approximately 750, are entitled to full civil service status as state employees, with the full panoply of rights and benefits guaranteed by the Civil Service Act and regulations of the Civil Service Commission. Although no declaratory relief is sought for approximately 500 “temporary” employees or for employees who may be hired in the future, it is manifest that the court’s ruling as to the civil service status of current permanent employees will affect these other classes as well.

In seeking a declaration that the permanent employees are entitled to the full benefits and rights guaranteed by civil service status, plaintiffs seek protection which goes beyond the basic guarantees undertaken by the college iu the agreement.

Examples of the many additional controls and guarantees which'would be required if the civil service laws are found applicable are the following: a classification plan approved and supervised by Civil Service Commission representatives, N. J. S. A. 11:5—1, 11:7-1; Civil Service approval for the creation of new positions, promotions, transfers, demotions, etc., N. J. S. A. 11:7-5; determination by the Commission as to designation of positions in classified and unclassified service, N. J. S. A. 11:7—11, 13; establishment of a compensation plan by the Commission and payment in accordance with such plan, N. J. S. A. 11:8-2, 3; use of competitive tests for employment eligibility tests, N. J. S. A. 11:9—1, 2; filling of vacancies from eligibility lists, N. J. S. A. 11:10-1 to 6; regulations as to promotion following competitive tests, N. J. S. A. 11:10-7; provisions for emergency appointments, N. J. S. A. 11:11-2; regulations as to probationary period of employment, N. J. S. A. 11:12-1, 2; establishment of service standards and ratings by the Commission, N. J. S. A. 11:13-1; regulation by the Commission of hours of work, vacations and sick leave, N. J. S. A. 11:14-1 to 4; establishment of machinery for appeal to the Commission in connection with suspension, demotion and removal, N. J. S. A. 11:15—1 to 6; reinstatement of employees separated for economy reasons, N. J. S. A. 11:15-10.

The college asserts that it should not be hamstrung in its effort to rehabilitate the hospital and bring its service up to the best professional standards by the imposition of the many limitations and controls imposed by civil service laws and regulations, and it contends that its own policies afford adequate protection and security to employees without the implementation of civil service requirements. It seeks to be free to make radical changes in the quality and quantity of the staff in order to achieve its goal of developing a first-rate hospital.

Plaintiffs are fully in accord with the laudable objective of an improved hospital and service, but assert that this objective can be obtained just as readily within the framework of civil service laws and regulations.

It is manifest, of course, that in the context of this litigation this court cannot concern itself with the question of whether the imposition of civil service laws upon the relationship between the college and its employees would aid or impair the efficient administration and improvement of the hospital. Nor is it appropriate for this court to consider the social consequences and community reactions asserted by both sides of this controversy in the event of a ruling for oi' against the applicability of civil service laws.

Bather, the issues of this litigation are controlled by the intent of the Legislature, as gleaned from the pertinent legislation and aids to construction which may he found in applicable judicial precedents. The rights of the employees are dictated by the applicable law rather than the agreement between the city and the college, and if they are entitled to civil service status under that law, any agreement to the contrary between the contracting parties inter se would have no legal impact.

I

The agreement between the city and the college came about after lengthy negotiations and pursuant to the authorization of an enabling act adopted by the Legislature on June 21, 1968, L. 1968, c. 103; N. J. S. 18A:64C-21 to 25. The act authorizes the governing body of a municipality where a site has been selected for the New Jersey College of Medicine and Dentistry to enter into an agreement for the sale of its public hospital to the college without compliance with the laws relating to sale of public property. The act affirmatively provides fox the preservation of the retirement and pension rights of the former municipal employees of the hospital who continue as college employees and makes appropriate provision for payments by the college to the municipality and to the retirement system in implementation of the maintenance of these benefits for the former municipal employees.

The section of the enabling act which is particularly pertinent to the issue at bar is N. J. S. 18A:64C-25:

“Upon the effective date of the acquisition of the hospital by the college, all permanent municipal employees of the hospital in the classified Civil Service, except physicians and dentists, shall continue as employees of the college and in accordance with the provisions of Title 11 of the Revised Statutes, Civil Service, shall not suffer loss of position or be removed, suspended or demoted except for cause.”

Plaintiffs urge that this enabling statute, which was specifically adopted to authorize the sale and transfer of the hospital from the city to the college, reflects an intent on the part of the Legislature to preserve all the rights, benefits and procedures applicable to “permanent” municipal employees by virtue of full civil service status.

It is manifest that the Legislature intended that “all-permanent municipal employees of the hospital” shall continue as employees of the college. This mandate was incorporated in the agreement and has been carried out by the college since its acquisition on Jufy 1, 1968.

It is also clear that the Legislature determined that former permanent employees cannot suffer loss of position or be removed, suspended or demoted unless for cause. This obligation was also undertaken by the college in the agreement with the city using the language of the statute.

The college does not deny that these guarantees must be applied in its relations with former permanent municipal employees, and in fact has evinced an intent to do so. It maintains, however, that the legislative prohibition concerns only the “for cause” limitation on the power to discharge, suspend or demote “permanent” employees, and that the Legislature did not intend in the enabling act to afford the full complement of civil service procedures, controls and guarantees to these employees.

An analysis of the statutory language reflects a legislative intent to protect “permanent” employees from loss of position, removal, suspension or demotion because of the take-over by the college. The Legislature directed that the college must comply with basic principles of civil service law and refrain from discharging, suspending or demoting “permanent” employees unless such action is for cause. In this manner, the positions of the former permanent employees are protected from the exercise of arbitrary or capricious action by the college and its administrators.

The structure of the language and punctuation reveals that the clause “and in accordance with the provisions of Title 11 of the Devised Statutes, Civil Service” modifies the subsequent clause dealing with loss of position, removal, suspension and demotion rather than the preceding clause, “shall continue as employees of the college.” From this it would appear that the Legislature did not intend to apply the total effect of all provisions of Title 11 to the employees of the college, but only to apply the principles of Title 11 so far as they concern the prohibition against loss of position, removal, suspension and demotion except for cause.

If the Legislature intended the broad application of full civil service status to “permanent” employees, it could have expressed its intent in simple, direct language, such as “shall continue as employees of the college subject to civil service laws as theretofore,” or “The college and all permanent municipal employees of the hospital shall continue to be subject to Title 11, Civil Service.” (See N. J. S. A. 34:5-174, 30:9-25.1, and 40:54A—3 for instances of express statutory language making civil service laws applicable to employees of certain institutions and agencies.) The particular designation of the area in which the provisions of Title 11 have any effect upon the status of emplojrees of the college negates plaintiffs’ assertion of a legislative intent to incorporate in the statute the broad scope of civil service laws and status. The particular designation also negates any inference of civil service applicability from the failure to insert specific exclusionary language.

The reference to Title 11 is no more than ,the imposition of safeguards in connection with personnel action which, might be taken as to “permanent” employees in the areas of removal, suspension, demotion or loss of position in order to insure their continuance in their positions unless good cause is shown.

Further evidence of the intent of the Legislature to ex-, elude applicability of full civil service status to employees of the college may be found in N. J. S. 18A:64C-8(j). (See parallel provision applicable to Rutgers University, N. J. S. 18A:65-25 (i)). In outlining the powers of the board of trustees of the college, the Legislature authorized the board to “appoint, remove, promote and transfer * * * officers, agents, or employees as may be required to carry out the provisions of this chapter and assign their duties, determine their salaries, and prescribe qualifications for all positions and in accordance with the salary schedules of the state civil service commission wherever possible.”

By this section the board is granted untrammeled power to appoint, remove and transfer the employees and to prescribe qualifications for all positions. Of course, this broad power is delimited by the special provisions contained in the act enabling the college to acquire the hospital, N. J. S. 18A:64C-21 to 25, which has already been discussed. However, the subject matter of this grant of power in the basic statute establishing the college is clearly inconsistent with the broad application of civil service laws and their administration by the Civil Service Commission.

It is manifest that the Legislature did not intend to subject the college or the employees to the provisions of all civil service laws, except to issue a caveat that salary schedules of the state civil service commission shall be applied “wherever possible.” The applicability of this latter provision to a specific position or salarjr is not before the court, nor is its significance from the viewpoint of enforceability. Deference to it is made, however, to demonstrate that the legislative intent throughout the applicable statutes is to place employees of the college in a special category, beyond the normal sweep of civil service laws, and protected in narrowly defined areas by civil service standards.

Since the hospital was to be operated by the college and its administrators and not by the city through its elected officials, the Legislature apparently concluded that it was not necessary to apply all the provisions of civil service laws. The absence of a political hierarchy in the new management of the hospital eliminated the need for strict application of all civil service laws which were conceived originally to overcome the “spoils” system in our governmental entities.

II

It is manifest that the hospital employees are no longer in the service of the city and are therefore not governed by the municipal civil service laws adopted by that municipality, N. J. S. A. 11:19-1 to 11:26-1; although, in the event of separation from service, they would be entitled to reemployment rights vis-a-vis the city under N. J. S. A. 11:22-10.1, 10.2.

Plaintiffs therefore contend that regardless of the provisions of the enabling act, the employees at the hospital since the take-over by the college are in the service of the State and are therefore entitled to the protection of the state civil service laws by virtue of Art. VII, sec. I. par. 2 of the New Jersey Constitution, as implemented by N. J. S. A. 11:4-1 et seq. The Constitution provides:

“Appointments and promotions in the civil service of the State, and of such political subdivision as may be provided by law, shall be made according to merit and fitness to be ascertained, as far as practicable, by examination, which, as far as practicable, shall be competitive; except that preference in appointments by reason of active service in any branch of the military or naval forces of 1he United States in time ol' war may be provided by law.”

If employees of the college are held to be in the service of the State, this constitutional provision would require the guarantee to them of civil service status regardless of statutory enactments which might call for a contrary construction. Therefore, the determinative factor on this point is whether the hospital employees of the college are truly in the “civil service of the State” within the meaning of the New Jersey Constitution.

It is urged by the plaintiffs that the college is but an agency of the State of New Jersey, exercising “public and essential governmental functions” established under N. J. S. 18A:64C-2 in the State Department of Higher Education. Although the statutory scheme creates the college as a corporate entit}' with corporate succession, it is urged that such corporate organization is only for convenience of administration and that, as a matter of substance, the college is a mere branch or agency of the State for the particular purpose of operating and administering a college of medicine and dentistry. In support of this position, plaintiffs cite as analagous precedents the cases of Trustees of Free Public Library v. Civil Service Commission, 83 N. J. L. 196 (Sup. Ct. 1912), affirmed 86 N. J. L. 307 (E. & A. 1914), and Glick v. Trustees of Free Public Library, 1 N. J. Super. 308 (App. Div. 1949) affirmed 2 N. J. 579 (1949).

The former case, Trustees, dealt with the application of civil,service laws to the employees of the library of the City of Newark. Our former Supreme Court held that the employees were entitled to civil service status on the ground that the library, though a separate corporate entity under N. J. S. A. 40:54-11, was merely a branch or agency of the municipality and therefore subject to- civil service laws and regulations, as any municipal department or agency would be. The. Court of Errors and Appeals affirmed the holding but rested the affirmance on the narrow ground that the employees of the library were in the “paid service” of the municipality, 86 N. J. L., at p. 309.

In Glick the present Supreme Court concluded that the library of the City of Newark was an adjunct of the municipality despite its corporate form, and that as a matter of policy and legislative intent it was subject to the bidding laws controlling municipalities.

Similarly, in State, Dept. of Civil Service v. Clark, 15 N. J. 334 (1954), the court found that the Civil Service Act, adopted by referendum in Hudson County, applied to the Boulevard Commission of Hudson County and its employees, regardless of the fact that the Boulevard Commission was created as a separate entity (N. J. S. A. 27:17-2, et seq.), because its funds are derived from the county board of freeholders. See Nolan v. Fitzpatrick, 9 N. J. 477 (1952). The court also relied upon the contemporary construction 0Arer many years during Avhich the civil service status of the Commission employees Avas recognized both by the Boulevard Commission and the Civil Service Commission.

A contrary conclusion has been reached with respect to other governmental entities, such as the Mew Jersey Turnpike Authority, N. J. S. A. 27:23—5(m), and the New Jersey Highway Authority, N. J. S. A. 27:12B-5 (q), where the Legislature expressly excluded the application of the civil service laws; and the local parking authorities, N. J. S. A. 40:11A-1 et seq., and the local housing authorities, N. J. S. A. 55:14A-1, et seq. (prior to an amendment in 1943, N. J. S. A. 55:14A-6.1 et seq.), where the courts have concluded that civil service laws are not applicable as a matter of legislative intent although the subject matter is not mentioned in the legislation. State v. Parking Authority of Trenton, 27 N. J. Super. 284 (Law Div. 1953), affirmed 29 N. J. Super. 335 (App. Div. 1954).

The foregoing cases dealing with authorities and other governmental corporate entities illustrate that the mere fact that the corporate body exercises public and governmental functions does not in itself dictate that its employees are in the service of the State. The crux of this problem is whether the function and life of the particular agency is dependent upon the State in its management and control, and whether it depends solely and entirely upon the’ financial sustenance it receives from the State through its tax revenues. State v. Clark, supra, at p. 339.

The college was established in the State Department of Higher Education as a body corporate with corporate succession, controlled and managed by a board of trustees appointed by the Governor with the advice and consent of the Senate. N. J. S. 184:64C-2 to 4. The board of trustees has general supervision over the conduct of the college, including the following powers, among others: to adopt a corporate seal; sue and be sued; determine the policies for organization, administration and development of the college; disburse all moneys received from various sources; appoint officers and employees and fix their compensation; fix and determine with the approval of the State Treasurer the tuition rates and other fees; grant diplomas; enter into contracts with the State, any other public body, private individual or corporation; accept grants from public or private agencies; acquire, sell or lease real and personal property; exercise the right of eminent domain, and adopt such bylaws, rules and regulations as are necessary for the operation of the college. N. J. S. 184:64C-8.

It is significant also that the college has all powers incident to the proper government, conduct and management of the school “without recourse or reference to any department or agency of the state,” except as may be specifically provided in the legislation. N. J. S. 18A:64C-9. The college is deemed to be an employer for the purposes of the act integrating public employees into the social security system (N. J. S. A. 43:15A—1, 71), N. J. S. 18A:64C-11; and the legislation further provides that nothing contained therein involving the college or its activities shall be deemed to create or constitute a debt, liability or pledge of credit of the State of New Jersey, N. J. S. 18A:64C—17.

The State has the responsibility to provide the financial support necessary to the continuation of the college program, N. J. S. 18A:64C-1, and does so through annual appropriations made upon budget requests of the college board of trastees. This financing is supplemented by tuition and fees and by grants and gifts from private and other public sources. With particular reference to the hospital facility operated by the college, a large portion of the financing is derived from patients’ fees, including $7,400,000 annually from the City of Newark for care of the indigent.

An analysis of the foregoing powers, duties and method of operation of the college and the hospital points to ilie conclusion that the college is a truly independent entity whose autonomy is substantive rather than merely formal or organizational. The board of trustees has full control of the policies and functioning of the college, subject to minor supervisory functions of some state agencies. Not only does the institution have complete power to control its own destiny without recourse to any department or agency of the State, and not oidy is it designated as an employer for social security purposes, but it is granted power to enter into contracts with the State. If the college was but an agency or arm of the State as asserted by the plaintiffs, such power to contract with the State would have been wholly unnecessary and inappropriate.

From the viewpoint of financial support, it is evident that although the college depends in part on annual appropriations from the State, a substantial portion of its financial maintenance is derived from other sources. And what is more significant to the issue at hand is that the major source of revenue for the maintenance of the hospital is derived iron non-state sources. It follows, therefore, that the existence and functioning of the hospital does not depend entirely upon financial support from the State and its tax revenues, and that the employees of the hospital are not paid exclusively from state tax revenues.

The court therefore finds that the employees of the hospital are in the service of the college, as an independent employer, and not in the service of the State. As a consequence, they are not entitled to the guarantee of civil service status contained in the New Jersey Constitution or its implementing statutes.

Ill

As an additional basis for their contention that they are entitled to full civil service status, plaintiffs advance N. J. S. A. 30:9-23.12, which provides:

“No contract, agreement or lease authorized by this act shall deprive any employee of the county or municipality of any civil service status or rights, tenure or pension rights.”

This section is part of a statute adopted in 1955 (L. 1955, c. 22; N. J. S. A. 30:9-23.6 to 23.14), which authorized the governing body of any municipality having a public hospital under its control to contract “for the affiliation of such hospital with any corporation licensed in this State to conduct a college of medicine or a college of medicine and dentistry.” N. J. S. A. 30:9-23.6.

The several sections of this act reflect a legislative authorization for an affiliation agreement between a college of mediciné and a municipality, including the sale, lease or permission to use equipment and facilities reasonably required for the performance of teaching and research functions of the college: N. J. S. A. 30:9-23.10 limits the duration of such agreement to a term not to exceed 50 years.

It is clear that this act was intended to enable a municipality to enter into an agreement of affiiliation with a medical school, whereby the latter would be able to undertake the management and operation of a city hospital and also utilize its facilities for school purposes under a financial arrangement providing for the sharing of costs and expenses. It is just as clear that this act does not and was never intended to authorize a total sale and transfer of a hospital in the' manner accomplished 'by the transaction between the city and the college in this case.

In fact, the parties to the agreement impliedly recognized that N. J. S. A. 30:9-23.6 to 23.14 did not authorize the contemplated sale and transfer, for, in anticipation of the necessary enabling legislation of 1968 (L. 1968, c. 103) the Newark municipal council in its ratifying resolution of May-21, 1968 stated that the agreement is to become effective upon the adoption of an appropriate ordinance and “the enactment of enabling statutory legislation authorizing the City of Newark to convey the premises * *

There is no doubt that the transaction between the city and the college was given legal validity by the 1968 enabling act and not by the affiliation act of 1955. The latter statute has no applicability to the sale involved herein, and its proviso preserving the civil service status of employees is limited in its effect to the employer-employee relationship resulting from an affiliation agreement under that 1955 act. It has no applicability to an outright sale under the aegis of the 1968 statute.

IV

In a further effort to sustain their position, plaintiffs point also to N. J. S. A. 11:28-1, 11:28-2 and 11:28-3. These statutes protect the status of employees upon transfers of a department and functions from one service to another in a state, municipality, county or school district, or from one political subdivision of the State to another. However, none of these provisions applies to a transfer of functions from a municipality to the State or to a corporate entity created by the State to exercise public and governmental functions. The transfer of functions incorporated in the foregoing statutes do not encompass the transfer of the hospital from the city to the college, and thus the protective measures for civil service employees contained therein are not applicable.

The final statutory basis for relief asserted by plaintiffs is L. 1966, c. 302 § 36 (formerly N. J. S. 18:21A-36, saved from repeal by N. J. S. 18A:3-5). This statute provides as follows:

“Nothing in this act shall be construed to deprive any' person of any tenure rights or of any right or protection provided him by Title 11, Civil Service, of the Revised Statutes, or’ under any pension law or. retirement system.”

This section is part of the statute adopted in 1966 which created the Department of Higher Education in the Executive Branch of the. State Government. It was adopted solely for the purpose of protecting the civil service status of employees who were transferred to the Department of Higher Education at the time of its creation under L. 1966, c. 302, § 35 (formerly N. J. S. 18:21A-35). It was merely intended to continue the same status for employees who had been in other departments of State Government, the functions of which were assumed by the Department of Higher Education or the Board of Higher Education created thereunder. The statute was never intended to apply to employees of municipalities whose positions might be affected by the sale or transfer of a hospital from the municipality to the College of Medicine. Since the employees of the hospital, as already noted, are employees of the college and not of the State or the State Department of Higher Education, the foregoing statute is wholly inapplicable, and the mere fact that the college was established as a corporate entity in the Department of Higher Education does not alter this conclusion.

For the foregoing reasons, the court concludes that the employees of the college performing services at the hospital are not entitled to full civil service status.


source: Caselaw Access Project

author: Seidman, J. C. C.

license: Public Domain

text:
    BERNARD KICZALES, PLAINTIFF, v. JUNE STRELECKI, DIRECTOR OF THE DIVISION OF MOTOR VEHICLES, DEPARTMENT OF LAW AND PUBLIC SAFETY OF NEW JERSEY, DEFENDANT.
    Superior Court of New Jersey Law Division
    Decided October 11, 1968.

      Mr. Mahlon L. Fast argued the cause for plaintiff (Messrs. Fast & Fast, attorneys).

      Mr. James 8. Cramer argued the cause for defendant (Mesrs. Lamb, BlaTce, Hutchinson <& Dunne, attorneys).
   Seidman, J. C. C.

(temporarily assigned). Plaintiff, a resident of New York, moves for a pretrial determination that he is qualified to bring an action against the Director of the Division of Motor Vehicles for damages allegedly resulting from a “hit-and-run” incident which occurred in this State. The issue to be resolved is whether, on the facts here present, New York affords to residents of this State recourse of substantially similar character to that provided by our Unsatisfied Claim and Judgment Fund Act.

It is plaintiff’s contention that on February 8, 1965, as he was operating his automobile along Eoute 9 in Wood-bridge, an unknown and unidentified vehicle cut him off, causing his car to leave the highway and resulting in bodily injury to him. Ooncededly, there was no contact between the vehicles. Thereafter, he filed suit against June Strelecki, the Director of the Division of Motor Vehicles, claiming, inter alia, that he was a qualified person as defined in N. J. S. A. 39:6-62 and thus competent to avail himself of the “hit-and-run” section of the Fund Law, N. J. S. A. 39:6-78. The Director asserts that plaintiff is not qualified because New York does not give New Jersey residents relief on similar facts.

N. J. S. A. 39:6—62 defines a “qualified person” as “a resident of this State or the owner of a motor vehicle registered in this State or a resident of another State, territory, or Federal district of the United States or Province of the Dominion of Canada, or foreign country, in which recourse is afforded, to residents of this State, of substantially similar character to that provided for by this act.” By enactment of the Motor Vehicie Accident Indemnification Corporation Law, L. 1958, c. 759; 27 McKinney’s Consol. Laws, “Insurance Law”, c. 28, § 600 et seq., New York created an unsatisfied claim & judgment fund (MVAIC) comparable to ours. The definition of a nonresident qualified to prosecute a claim against the MVAIC, contained in § 601 (5) (2), is virtually identical with the language of N. J. S. A. 39:6-62, and includes the prerequisite that New York residents be afforded, in the state of the nonresident claimant, recourse “of substantially similar character to that provided for by this article.” See Feliciano v. Oglesby, 102 N. J. Super. 378 (Law Div., 1968).

The controversy arises because, under our statute, a hit- and-run case does not require physical contact by the unidentified vehicle; whereas there must be such contact under the comparable section of the New York law. The Director argues that since a New Jersey resident, in such situation, would not be granted relief in New York, the essential element of reciprocity is lacking, and the claimant is thus pre- ' eluded from maintaining his action against the Director. No reported case in this State appears to have resolved the precise issue now before the court. What must be determined is whether, to constitute reciprocity, both statutes need merely be broadly comparable in scope and intent; or whether, on the same facts, the foreign state must afford a New Jersey resident the same relief which is sought here.

Both the New Jersey and the New York statutes contain “hit-and-run” provisions. The significant difference between the two is the element of physical contact. Subject to compliance with certain requirements not applicable here, N. J. S. A. 39:6-78 authorizes a qualified person to bring an action for death or personal injury against the Director “when the death of, or personal injury to, any person arises out of the ownership, maintenance or use of a motor vehicle in this State * * * but the identity of the motor vehicle and of the operator and owner thereof cannot be ascertained * * There need not be physical contact. See, for example, Lieberman v. Saley, 94 N. J. Super. 156 (App. Div. 1967). Section 617 of the New York statute specifies that the “protection provided by this article shall not apply to any cause of action by an insured or qualified person arising out of a motor vehicle accident occurring in this state lying against a person or persons whose identity is unaseertainable, unless the bodily injury to the insured or qualified person arose out of the physical contact of the motor vehicle causing such bodily injury with the insured or qualified person or with a motor vehicle which the insured or qualified person was occupying at the time of the accident.” (Emphasis supplied). Although the impact need not be directly to the claimant’s vehicle or person, there must be an initial physical contact, as, for example, where an unidentified vehicle strikes another automobile, propelling it into the claimant’s vehicle or person. See Motor Vehicle Acc. Indemn. Corp. v. Eisenberg, 18 N. Y. 2d 1, 271 N. Y. S. 2d 641, 218 N. E. 2d 524 (Ct. App. 1966).

Clearly, had the accident in question occurred in New York, it would not have come within the protection of the MVAIC law.

In considering the problem of reciprocity the basic test to be applied is whether the foreign state offers our residents substantially similar recourse. Substantial similarity requires more than similarity of purpose, although this is essential to establish general reciprocity. There must also be substantial similarity of relief. For a comprehensive discussion of this subject, see Ward, “The Uninsured Motorist: National and International Protection Presently Available and Comparative Problems in Substantial Similarity,” 9 Buffalo L. Rev. 283, 306.

Obviously, if a foreign state has no statute which approximates the coverage and protection of our Fund law, the element of similarity of purpose is lacking, there is a complete absence of reciprocity, and no resident of the foreign state is qualified to avail himself of our Fund law. Prior to January 1, 1959 New York had no law which met this standard of substantial similarity of purpose, inasmuch as no remedy was afforded a qualified person who sustained personal injury or death at the hands of a financially irresponsible or unknown motorist. Betz v. Director, Div. of Motor Vehicles, 27 N. J. 324 (1958); Rudnick v. Bentler, 66 N. J. Super. 224 (App. Div. 1961).

When the New York Motor Vehicle Accident Indemnification Corporation Law was enacted, effective January 1, 1959, the Attorney General of this State concluded that the New York law now afforded recourse of substantially similar character to that provided in New Jersey and that reciprocity existed on a general level. F. O. 1959, No. 1.

Although the absence of general reciprocity precludes claims by any resident of a foreign jurisdiction lacking comparable legislation, it does not follow that the existence of general reciprocity thereby qualifies as claimants all residents of the foreign state which has the equivalent of our Fund. Specific reciprocity is also required. The two laws must be compared to determine whether there is similarity of relief. It should be noted that the New Jersey and the New York statutes both refer to “recourse” of substantially similar character in their respective definitions of a qualified nonresident; and “recourse,” in this context, means relief or protection.

Although Betz, supra, 27 N. J., at p. 330, notes that the foreign legislation need not be completely identical with ours, and that reciprocity does not require that the foreign law exactly parallel that of New Jersey, the need for specific reciprocity is indicated, at least with respect to relief:

“The present case, involving a ‘hit-and-run’ accident, is a striking example of this difference. Scott H. Elder in his analysis of the New Jersey Fund law’s reciprocal provision (N. J. S. A. 39:6-62) in Current Trends in State Legislation, 1953-1954, pp. 45 to 197 (1954), states at page 85: ‘* * * the test of reciprocity most often applied in specific cases is whether the state from which the nonresident comes would extend an equal benefit to a nonresident upon the same facts.’ It is apparent that on the facts of this case, the law of New York would not extend a benefit to a New Jersey resident similar to that available under the law of New Jersey.”

In Rudnick, supra, the court said that “The crucial factor is whether the sister jurisdiction would afford recourse to a New Jersey resident injured under similar factual circumstances”. Ward, op. cit., at pp. 314-315, points out that a New Yorker, hit in New Jersey by an uninsured motorist with a resulting property damage claim, would probably not be permitted to recover from the Fund, since the New York system does not cover property damage.

New York applies the principle of specific reciprocity in determining whether a nonresident claimant is qualified. In the case of Farina v. Motor Vehicle Accident Indem. Corp., 34 Misc. 2d 34, 228 N. Y. S. 2d 20 (Sup. Ct. 1962), three petitioners, all residents of New Jersey, moved for leave to bring suit against the MVAIC as the result of a hit-and-run accident. One of the petitioners was the operator of an uninsured motor vehicle owned by his mother. The others, his sister and a friend, were passengers. The issue was whether the petitioners were qualified persons. It was conceded that the operator was not qualified, because his vehicle was uninsured. The court, looking to the laws of New Jersey to determine whether a resident of New York involved in a similar factual situation in New Jersey could secure the same relief in that state, ruled that the friend could maintain the suit, but the other passenger could not:

“The real test of reciprocity, as applied by the courts of New Jersey, and which equally should be applied by our courts, ‘is whether the state from which the nonresident comes would extend an equal benefit to a nonresident upon the same facts’. * * * In conjunction with this criterion, therefore, section 39:6-78 of the New Jersey Statutes Annotated, which pertain to ‘hit-and-run’ cases, is particularly pertinent. It reads, in part: ‘no judgment against the director shall be entered in such an action unless the court is satisfied, upon the hearing of that action, that - * * * (c) The claimant was not at the time of the accident operating or riding in an uninsured motor vehicle owned by him or his spouse, parent or child. In the instant case, petitioner Gertrude Farina is the owner of the vehicle and petitioner Theodora Farina, although only a passenger in the automobile, is the daughter of the owner of said vehicle. The New Jersey statute specifically bars recovery by a passenger who is the owner of or one whose parent owns the vehicle. Accordingly, under a similar set of facts, New York residents such as Gertrude Farina and Theodora Farina could not maintain suit against the Director of the New Jersey Fund. It follows that, as to such situation, the law of New Jersey would not provide an equal benefit to a New York resident and, therefore, such law is not of a substantially similar character. Neither Gertrude Farina nor Theodora Farina is a ‘qualified person’ within the meaning of the applicable statute (Insurance Daw, § 601, subd. b), and neither may maintain suit.
On the other hand, the laws of New Jersey — like the laws of New York — do not prevent a nonresident passenger, who is unrelated to the owner of a vehicle involved in a hit-and-run accident, from recovery against the Fund. As to such person an equal benefit is afforded by both states, the statutes are substantially similar, and, therefore, passenger petitioner Eva Bruno is a ‘qualified person’ for the purpose of bringing an action here.”

See also White v. Motor Vehicle Accident Indem. Corp., 39 Misc. 2d 678, 241 N. Y. S. 2d 566 (Sup. Ct. 1963); Martin v. Motor Vehicle Accident Indem. Corp., 50 Misc. 2d 974, 272 N. Y. S. 2d 3 (Sup. Ct. 1966).

Plaintiff cites the case of Feliciano v. Oglesby, supra, recently decided by this court, presumably in support of his contention that he is a qualified claimant. It is readily distinguishable. A hit-and-run situation was not involved. The question raised there was whether the inclusion of uninsured motorist coverage in a nonresident claimant’s automobile insurance policy would preclude recourse under the New York MYAIC, thus denying a New York claimant who had such coverage relief under our Eund law because of lack of reciprocity. This court held that since each state provided the nonresident comparable relief, reciprocity existed. On the facts there present, a New Jersey resident involved in an accident in New York with an uninsured vehicle would not be treated differently from a New York resident similarly involved. However, the court concluded in Feliciano that the nonresident judgment creditor coud not seek payment from the Eund because the applicable uninsured motorist provisions entitled the insurer to the proceeds of any settlement or judgment resulting from the exercise by the insured of a right of recovery against the tortfeasor. The claimant was acting for and as the alter ego of the insurer, and the Eund was not designed to benefit that class.

In the present case, plaintiffs’ automobile insurance policy contained the standard New York uninsured motorist coverage provisions, including protection against hit-and-run automobiles. In language similar to that in the MYAIC law, a hit-and-run automobile is defined as one causing bodily injury arising out of physical contact. Consequently, the plaintiff in this case cannot look to his policy for relief. Fo issue of reimbursement or subrogation arises.

This case turns solely on lack of reciprocity. It is clear that a New Jersey resident, involved in a no-contact hit-and-run ease in New York, could not submit a claim to the MVAIC. Since the plaintiff resides in a state which does not afford our residents, on similar facts, recourse of substantially similar character to that provided by our Fund law, he is not a qualified person and cannot bring an action against the Director under N. J. S. A. 39:6—78.


author: Gaulkin, S. J. A. D.

text:
    IN THE MATTER OF THE ESTATE OF WILLIAM CLARK ARKELL, DECEASED.
    Superior Court of New Jersey Appellate Division
    Decided October 18, 1968.

      Before Judges Gaulkin, Collester and Labeecque.

      Mr. George A. Brown argued the cause for appellants (Messrs. Morrison, Lloyd & Griggs, attorneys).

      Mr. T. Robert Zochowski, Deputy Attorney General, argued the cause for respondent (Mr. Arthur J. Sills, Attorney General, attorney; Mr. Blias Abelson, Deputy Attorney General, of counsel).
   The opinion of the court was delivered by

Gaulkin, S. J. A. D.

In calculating the taxable value of decedent’s estate, the Transfer Inheritance Tax Bureau (Bureau) refused to allow as a deduction that portion of the executors’ commission which was calculated upon the amount by which the market value of the common stocks left by the testator had risen since his death. The executors appeal. We affirm.

In 1962 the Bureau promulgated a ruling which reads in part as follows:

“Pursuant to the authority granted by the Director of the Division of Taxation the following policy will be followed in determining the amount to be allowed as a deduction for executor’s or administrator’s commissions. (R. S. 54:34-5c; N. J. S. 3A:10-1 et seq).
1. Rates
First ..........$ 100,000.00 — 5% (gtatutory)
Next .......... 400,000.00 — 3%%
Next ....... 500,000.00 — 3%
Excess over............ 1,000,000.00 — 2%
# * s|: ❖ ❖ * *
3. Where a formal account is filed, and the amount allowed by the court for the executor’s or administrator’s commissions is greater than the amount previously fixed by the Bureau, the examiner shall, before revising the assessment, obtain a plain copy of the judgment allowing commissions, and shall apply the rate used by the court to the value, as of the date of death as determined by the Bureau, of the property on which the allowance of the court is based; provided, that'the value of any property not subjected to tax shall be excluded from the computation.” (Emphasis ours)

The Chancery Division granted executor’s commissions of $231,540, admittedly calculated upon the following formula:

“$ 100,000 at 5% ........................... $ 5,000.
5.012.000 at 3Yz% ........................ 175,420.
5.112.000 at 1% ........................... 51,120.
$231,540.”

The Bureau allowed a deduction of only $173,386.06 of this amount, on the basis that the difference represented commissions upon the increased value of the stocks. The executors contend that this was error, arguing that, since R. S. 54:34-5(c) says flatly that “The ordinary expenses of administration, including the ordinary fees allowed executors” shall be allowed and sets forth no exceptions or limitations upon this direction, the Bureau was obliged to follow the express language of the statute, and its regulation to the contrary is invalid. Furthermore, pointing out that N. J. S. 3A :10-1 provides that “Allowance of commissions on corpus in excess of $100,000.00 to executors * * * shall be made with reference to their actual pains, trouble and risk in settling the estate, rather than in respect to the quantum of the estate,” they argue that the statute sets up no mathematical formula for the calculation of commissions in estates of this size; if it were not known how the Chancery Division arrived at the commissions it awarded, the entire sum would have to be allowed by the Bureau; and the fact that here the court’s reckoning was known should make no difference. Indeed, say they, the court did not reward them for the rise in value of the stocks but rather for the risk they took in advising their retention, and the use of the mathematical formula was purely fortuitous and was not intended to isolate and pay for the rise in value.

A testamentary transfer, in legal contemplation, occurs at the date of death; the value of the property so transferred upon which the tax is computed is its net value as of the date of death; the tax is not only due but vests in the State immediately upon the date of death, and the appreciation of the value of the assets after the testator’s death is not taxable. Hamlen v. Martin, 128 N. J. Eq. 393 (Prerog. 1940); United States v. Kingsley, 41 N. J. 75 (1963); R. S. 54:35-1. That being so, we are persuaded to follow the reasoning of In re Woolworth’s Estate, 235 App Div. 160, 256 N. Y. S. 839 (App. Div. 1932) affirmed 260 N. Y. 637, 184 N. E. 125 (Ct. App. 1932). There commissions based on an increase in asset value were disallowed. The Appellate Division said that since “no increase in the value of the estate occurring subsequent to the transfer is taxable * * *

It would seem to follow naturally and logically that any increase or decrease cannot affect the amount of deductions based thereupon, but that such deductions should be based upon the value of the estate passing at the time of decedent’s death.” (256 N. Y. S., at p. 847)

The court continued:

“In other words, these commissions on the increase are an expense having no basis in the property transferred, but arising solely from property not transferred by the decedent’s death and acquired since the transfer, and therefore not subject to taxation.
[The increase in value upon which these commissions are based] accrued and became the property of the beneficiaries subsequent to the transfer, and it would seem that any commissions based upon this increase are an expense to be borne by the beneficiaries of the estate and not deductible from the appraised value. To deduct these additional commissions from the appraised gross value of the estate at the time of decedent’s death would result in relieving from taxation a portion of the estate which did pass to the transferees.” (at p. 848)

The executors reply that this decision might have been to the contrary if the New York statute had specifically directed the deduction of executor’s commissions, as ours does, citing a comment in 92 A. L. R. 537, 544 (1934) to that effect. However, as the Bureau points out, the New York Appellate Division, in In re Hard’s Estate, 261 App. Div. 192, (App. Div. 1941) 24 N. Y. S. 2d 867 (1941), held the reasoning of Woolworth applicable to the New York Tax Law of 1930, McKinney’s Consol. Laws, c. 60 (adopted after Woolworth’s death) which, in § 249-n, provided for an estate tax on the decedent’s “net estate,” and in § 249-s defined the “value of the net estate” as the “gross estate” minus, inter alia,

“1. Such amounts * * * (b) for administration expenses * * * as are allowed by the laws of this state. * * * Deductions on account of commissions or allowances to executors shall not exceed the amount of such commissions or allowances as prescribed by law.”

Under section 285, subdivision 2 of the Surrogate’s Court Act then in effect commissions were to be computed on “the value of any real or personal property, to be determined in such manner as the surrogate may direct, and the increment thereof, * * Nevertheless the court held in Hard’s Estate that the reasoning in Woolworth was unaffected by the enactment of the new law.

Affirmed.


author: Sullivan, S. J. A. D. Foley, J. A. D.

text:
    MARK DAVID COLEMAN, AN INFANT BY HIS GUARDIAN AD LITEM, MICHAEL COLEMAN, PLAINTIFF-APPELLANT, v. ABRAHAM STEINBERG AND OLGA STEINBERG, DEFENDANTS-RESPONDENTS.
    Superior Court of New Jersey Appellate Division
    Argued September 30, 1968
    Decided October 24, 1968.

      Before Judges Sullivan, Polly and Lewis.

      Mr. Paul K. Anderson argued the cause for appellant (Messrs. Kovacs, Anderson, Horowitz & Bader, attorneys).

      Mr. H. Alton Neff argued the cause for respondents (Messrs. Carton, Nary, Witt & Arvanitis, attorneys).
   The opinion of the court was delivered by

Sullivan, S. J. A. D.

This is an appeal from the action of the trial court granting a judgment of involuntary dismissal at the close of the plaintiff’s case. The basis for the court’s ruling was its determination that plaintiff had not established a jury issue as to defendants’ liability. For reasons hereinafter stated we reverse.

The following facts appear from the record. Plaintiff is the infant son of Mr. and Mrs. Michael Coleman who were tenants occupying the first floor in a two-family house owned by defendants. The premises contained a single heating system for the entire building, the furnace being located in the cellar. Defendants, as part of the leasing agreement, furnished the heat to plaintiffs apartment. There was a thermostat in plaintiffs apartment to control room temperature.

The Colemans had lived in the apartment for about two years prior to the accident which occurred in April 1964. Plaintiff was approximately one year of age at the time and was playing on the living room door in the apartment. He had crawled into another room when his mother heard him let out a cry and then he began to whimper. She went over to pick him up and found that his foot was caught between the wall and an uncovered pipe which was connected with the radiator. His leg was up against the pipe. When she freed his leg, she noticed that the side of his leg was “completely gone.” The first aid squad was called and plaintiff was taken to the hospital where he was treated for burns.

In dismissing the case, the trial court indicated that no evidence of negligence had been presented and that the landlord could not be held responsible for plaintiff’s injury.

This State adheres to the common law rule that a landlord owes to his tenant the duty of exercising reasonable care to guard against foreseeable danger arising from the use of the premises in connection with such portions thereof as remain within the landlord’s control. Ellis v. Caprice, 96 N. J. Super. 539, 547 (App. Div. 1967). This duty extends to a heating system over which the landlord has retained control. Monohan v. Baime, 125 N. J. L. 280 (E. & A. 1940); Prosser, Law of Torts, §63, p. 421 (1964); 2 Harper and James, The Law of Torts, §27.17, p. 1518. Cf. Daniels v. Brunton, 7 N. J. 102, 108-109 (1951).

Plaintiff’s injuries were caused by an uncovered pipe running to a radiator. The pipe was part of the central heating system over which the landlord retained control.

There is a split in authority as to whether a landlord may be held responsible for burns suffered by a tenant who comes in contact with exposed pipes in a leased apartment which are part of the central heating system maintained by the landlord. Typical of the cases holding that the landlord does not retain control over those portions of the heating system within the leased apartment and therefore no liability exists is Yuppa v. Whittaker, 88 R. I. 214, 145 A. 2d 255, 86 A. L. R. 2d 788 (Sup. Ct. 1958).

Other decisions hold that an exposed pipe in an apartment extending from the central heating system is under the retained control of the landlord. These cases impose a duty on the landlord under the common law rule (supra) to exercise reasonable care to maintain the pipes in a reasonably safe condition. Thompson v. Paseo Manor South Inc., 331 S. W. 2d 1 (Mo. App. 1959). See Annotation, “Landlord’s liability for personal injury or death of tenant or his privies from heating system or equipment,” 86 A. L. B. 2d 791 (1962). New Jersey would appear to follow this latter rule.

In Monohan v. Baime, supra, an employee of the tenant was injured by a falling radiator- in the leased building. The lease contained a covenant by the landlord to keep in repair, inter alia, the heating plant. However, the landlord denied that it reserved and retained control of the heating plant. There, a jury verdict in favor of plaintiff and against the landlord was upheld on the ground that the jury apparently found from the disputed evidence that control of the heating plant, including the radiator, remained in the landlord, thus placing upon him a duty of exercising reasonable care to keep and maintain the same in a manner not to bring harm or injury to those making use of the premises. Cf. Daniels v. Brunton, supra; see also Restatement of Torts 2d, §361, comments (b) and (c).

Harenburg v. August, 119 N. J. L. 83 (E. & A. 1937), relied on by defendants’ landlord herein is not to the contrary. In Harenburg plaintiff tenant, who was burned by a radiator while using the toilet in the bathroom, alleged that the landlord had agreed to change the location of the radiator, but failed to do so. At the trial a verdict was directed in favor of defendant landlord. On appeal the Court of Errors and Appeals, after noting the general rule that in the absence of a continuing nuisance or of an express contract there is no duty on the landlord to alter or repair the demised premises, upheld the directed verdict on the ground that “under the undisputed proofs” the leasing agreement in effect at the time of the alleged injury did not include or contemplate any alteration of the location of the radiator or of any fixture in the bathroom. However, the decision did not consider or discuss any question of retained control.

In the instant case it was shown that the uncovered pipe, readily accessible to infant plaintiff, inflicted a severe burn on his leg. Thus, a jury could have reasonably found that a dangerous condition, arising out of the landlord’s maintenance of the heating system, existed. The jury could have also properly found that the landlord failed to exercise reasonable care to guard against the foreseeable danger that a child playing on the floor might come in contact with the pipe and suffer a burn.

In Totten v. Gruzen, 52 N. J. 202 (1968), which dealt with a similar type of accident, while the appeal involved only the dismissal of plaintiff’s claim against the architect, the general contractor and the heating contractor, for designing and installing a heating system with an uncovered pipe leading to a radiator, it is to be noted that the landlord was also sued and was held in the cause by the trial court.

We conclude a jury issue as to liability was presented.

Reversed and remanded for a new trial.

Foley, J. A. D.

(dissenting). I am obliged to dissent from the conclusion reached by the majority that “a jury issue as to liability was presented.”

There is no suggestion that the landlord was under a contractual duty to defendant to repair or alter the pipe in question. Nor is it claimed that the condition which caused the infant plaintiff to be injured constituted a hidden or latent defect, the knowledge of which was solely within the landlord. Compare Conroy v. 10 Brewster Ave. Corp., 97 N. J. Super. 75 (App. Div. 1967).

The landlord agreed only to supply heat. Neither by reason of express agreement nor by operation of law may it be said that he reserved control of the radiator and appurtenances thereof within the tenant’s apartment.

In Harenburg v. August, 119 N. J. L. 83 (E. & A. 1937), the then highest court of the State restated the familiar principle that in the absence of a continuing nuisance, or of an express contract, the relation of landlord and tenant at common law imposed a duty upon the tenant of repairing the demised premises. More recently, in Bauer v. 141—149 Cedar Lane Holding Co., 24 N. J. 139, 145 (1957), our present Supreme Court, citing the Harenburg case with approval, restated the rule that in the absence of an agreement to do so a landlord is under no obligation to a tenant to make repairs to remedy defects in the leased premises that either existed at the beginning of the tenancy or developed thereafter.

In this case the majority places reliance, in Monohan v. Baime, 125 N. J. L. 280 (E. & A. 1940), where an employee of a tenant was injured by a falling radiator in a leased building. It may be of some interest to note that Monohan, decided only three years after Harenburg and by a substantial complement of the judges who decided Harenburg, did not even mention that case. The reason, I think, is obvious ■ — • the two cases dealt with differential factual complexes. In Monohan the lease expressly provided that the laiidlord was to keep in repair the exterior parts of the building, including the roof, conductor pipes, sidewalks, plate glass show windows and the heating giant, which latter appurtenance was italicized in the court’s opinion. Monohan went no further than to hold that there were disputed questions of fact with respect to the issue of retention of control by the landlord which required submission to the jury.

As I see it, the majority by its decision, has extended the landlord’s liability beyond the boundaries surveyed and fixed by the highest courts of this State. Whether or not its efforts in this respect are or arc not commendable in point of legal philosophy is not for mo to say. However, I strongly feel that this approach, intruding as it does upon the established law, has no place in the decisional processes of this intermediate appellate court.

I would therefore affirm the trial court.


author: Collester, J. A. D.

text:
    STATE OF NEW JERSEY, PLAINTIFF-APPELLANT, v. CLEMENT C. MASCO, DEFENDANT-RESPONDENT. STATE OF NEW JERSEY, PLAINTIFF-APPELLANT, v. ROBERT J. DALTON, DEFENDANT-RESPONDENT.
    Superior Court of New Jersey Appellate Division
    Argued September 16, 1968
    Decided October 25, 1968.

      Before Judges Gaulicet, Collester and Labrecque.

      Mr. Elliott Katz, Assistant County Prosecutor, argued the cause for appellant (Mr. Vincent P. Keuper, County Prosecutor, attorney).

      Mr. Robert I. Ansell argued tlio cause for respondents (Messrs. Anschelewiiz, Barr, Ansell cG Bonello, attorneys).
   The opinion of the court was delivered by

Collester, J. A. D.

This is an appeal by the State, pursuant to leave granted, from orders entered in the Monmouth County Court in two separate and unrelated bookmaking eases granting motions of defendants Masco and Dalton, respectively, to suppress all of the evidence seized by the police in raids on two private dwellings made following the issuance of search warrants. The cases were consolidated for the purpose of appeal.

In both cases the affidavits submitted to the warrant-issuing judge contained facts indicating that horse race bets were being taken by an unknown man over telephones located in the one-family dwelling houses involved.

In State v. Masco the warrant described with particularity the place to be searched, namely, a dwelling house located at 5 Ash Drive in Neptune Township occupied by one Ralph Hofficer (Masco’s father-in-law). It described the property to be seized as "consisting of pads, papers, slips, memorandum, pens, pencils, monies and other bookmaking paraphernalia.” It commanded the police:

"* ' * to enter and search * * * the dwelling herein above named and the person of those found within, for the property specified * * * and to take into your possession all such specified property which may be found in the said dwelling and on the person of those found within * *

In State v. Dalton, the warrant also described with particularity the place to be searched •— a dwelling house located at 132 Washington Street in Long Branch, occupied by Marian E. Owen (Dalton’s mother). The language in the warrant describing the property to be seized and commanding the search of the place and the persons found within was identical with that contained in the warrant issued in the Masco case.

When the state police officers entered the Hoffner dwelling house on May 18, 1967, Masco, who was the only occupant, was observed coining out of a small office-type room on the second floor in which the police found a telephone and an adding machine. One officer was detailed to receive incoming telephone calls. Masco was arrested and searched. A racing publication, bail-point pen. and $74 found on his person were seized by the police. During the period that followed the police received telephone calls placing bets.

On June 7, 1967 state police entered the Owen residence in Long Branch where defendant Dalton was observed standing next to a dining room table upon which they found a telephone, two racing publications, a bail-point pen and sheets of paper containing horse race bets totaling $228. An officer manned the telephone and thereafter “accepted bets” of $358. Dalton was arrested and searched and the police seized $15.20 found on his person.

In both cases the court concluded that the language in the warrants authorizing the search of persons found within the premises lacked the specificity required by the Fourth Amendment of the United States Constitution and R. R. 3:2A-3 relating to, the issuance of search warrants. The court ruled that the warrants were totally void al initio and suppressed not only the evidence found on the persons of Dalton and Masco but all evidence seized.

The State contends that the court erred in holding that the warrants were wholly invalid. It alleges that the existence of probable cause to believe crimes were being committed required for issuance of the warrants is not in dispute; that the premises to be searched were described with particularity; that the property to be seized was specifically described as gambling paraphernalia, and that the warrants contained the necessary requisites for a search and seiziire under the Fourth Amendment.

In support of the court’s ruling defendants argue that warrants authorizing the search of persons found on the premises, without naming or describing such persons, are general or blanket warrants which are prohibited by the Fourth Amendment of the United States Constitution and Article I, paragraph 7 of the New Jersey Constitution, and therefore are void ab initio.

The Fourth Amendment in pertinent part provides:

“[N]o warrants shall issue, hut upon probable cause, supported by oath or ailirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

Similar language is contained in Art. I, par. 7 of our State Constitution, and R. R. 3:2A—3 provides that when grounds exist to issue a warrant the judge shall do so “identifying the property to be seized and naming or describing the person or place to be searched.”

Innumerable cases have dealt with the requisite specificity of description for places to be searched (see Steele v. United States, 267 U. S. 498; 45 S. Ct. 414, 69 L. Ed. 757 (1924); State v. Daniels, 46 N. J. 428 (1966); State v. Sheppard, 46 N. J. 526 (1966)), and the “things” to be seized (see Stanford v. State of Texas, 379 U. S. 476, 485, 85 S. Ct. 506, 13 L. Ed. 2d 431 (1965)). However, there are few cases which deal with warrants authorizing the search of persons, apparently because usually the search of persons takes place as incidental to a lawful arrest, with or without a warrant. See cases cited in Annotation, “Search of Person - Warrant - Description,” 49 A. L. R. 2d 1209-1212 (1956). Such authority as there is, and general statements from cases not involving the exact factual situations which here exist, support the view that the validity of a warrant commanding the search of a person depends essentially upon whether or not it describes the person to be searched with such particularity that he may be identified with reasonable certainty.

In the instant cases it is conceded that the warrants would have been valid if they had omitted the mandate to search persons and were directed only to a search of the particularly described premises. There was ample evidence in the affidavits upon which the issuance of the warrants were based to show probable cause for a-reasonable belief that.bookmaking was being conducted on the premises. See Carney v. United States, 79 F. 2d 821 (6 Cir. 1935), and United States v. Diange, 32 F. Supp. 14 (W. D. Pa. 1940).

Thus, the question here is whether a warrant which contains a valid command to search the premises is wholly void ab initio because it also contains an illegal general or blanket command to search all persons found on the premises. We conclude that it is not. We believe that the erroneous inclusion of the command to search the person as well as the .premises did not vitiate the warrants — that since the warrants were 'valid as to one command and not as to the other, the part which was not essential or invalid may be treated as surplusage. Cf. Dow v. State, 207 Md. 80, 113 A. 2d 423, 425, 49 A. L. R. 2d 1205 (Ct. App. 1955); Martini v. State, 200 Md. 609, 92 A. 2d 456, 457 (Ct. App. 1952); State v. Moore, 125 Iowa 749, 101 N. W. 732 (Sup. Ct. 1904). We hold that in the instant cases the court erred in ordering all the evidence to be suppressed on the ground that the warrants were totally void ab initio. At most, defendants here would have been entitled to the suppression of the evidence found upon their persons, if their arrests were not legal and the searches of their persons were not incidental to their arrests. But defendants, through counsel, conceded at oral argument that on the facts adduced the police had probable cause to arrest and search them.

. After leave to appeal was granted defendants raised another argument, namely, that the testimony of the telephone bets taken by the police ■ during the raids should be suppressed as evidence. They argue that the search warrants did not authorize the police officers to receive such telephone calls and that if the warrants could be construed as granting such authority they were invalid as general warrants because they did not impose on the officers predetermined judicial restraints of the action to be taken.

The search warrants issued in both cases were based upon a finding of probable cause by the issuing judge that bookmaking was being carried over the telephones located in the premises. The warrants authorized the executing officers to enter the premises and to search for and seize certain property including, inter alia, bookmaking paraphernalia. A telephone is an indispensable facility for a bookmaker engaged in this type of illegal operation and as such obviously must be included in the description of “bookmaking paraphernalia.” Cf. State v. Bisaccia, 45 N. J. 504 (1965).

Moreover, the police officers were lawfully on the premises when the incoming telephone calls were made. Cf. State v. Puryear, 94 N. J. Super. 125, 135 (App. Div. 1967), reversed on other grounds, 52 N. J. 81 (1968). In their search for evidence to establish defendants’ complicity in the crime they could lawfully receive such calls. Evidence thereof has long been upheld in our courts. See State v. Carbone, 38 N. J. 19 (1962); State v. Tamburello, 69 N. J. Super. 166 (App. Div. 1961); State v. O’Donnell, 8 N. J. Super. 13 (App. Div. 1950); and see Annotation, “Telephone Calls—Admissibility”, 13 A. L. R. 2d 1409, 1414-1419 (1950). We find no violation of defendants’ Fourth Amendment rights.

The search of defendants’ persons having been made incidental to a valid arrest the evidence obtained should not have been suppressed.

Reversed.


author: Leonard, J. A. D.

text:
    CLARE DAVIS, PLAINTIFF-APPELLANT, v. ROBERT DAVIS, DEFENDANT-RESPONDENT.
    Superior Court of New Jersey Appellate Division
    Argued October 14, 1968
    Decided October 25, 1968.

      Before Judges' Coneokd, Kilkenny and Leonard.

      Mr. Julius B. Poppinga argued the cause for appellant (Messrs. McCarter & English, attorneys).

      Mr. Robert B. Silverman argued the cause for respondent.
   The opinion of the court was delivered by

Leonard, J. A. D.

Plaintiff appeals from a judgment of the Bergen County Juvenile and Domestic Relations Court which dismissed her complaint for support referred to it by the Pamily Court of New York under the Reciprocal Enforcement of Support Act (N. J. S. 2A:4-30.1 to 30.23).

The parties, wife and husband, were married on January 9, 1960. In March or April 1965 defendant left plaintiff and they have been living separately ever since. Defendant has provided no support for plaintiff since his departure. Plaintiff now lives in New York City and defendant in Hackensack.

On January 10, 1967 plaintiff filed a verified petition for support against defendant with the Pamily Court of New York, pursuant to the Uniform Support of Dependents Law of that state. She appeared before that court and testified, albeit very generally, that she was ill and unemployed, had an income of $1,500 to $2,000 annually from stock dividends, and needed $75 a week for support. She also testified defendant was then living with another woman. Exemplified copies of plaintiffs petition and a transcript of her testimony were thereafter transmitted to the Bergen County Juvenile and Domestic Relations Court.

On June 22, 1967 defendant testified before the Juvenile and Domestic Relations Court, ex parte. Although he did not deny that he deserted plaintiff, he did controvert her testimony as to her income and financial status and her need for support. He further asserted that his own monthly earnings (of some $750 to $900) was barely sufficient to meet his expenses.

Believing that plaintiff should be given an opportunity to “meet this information,” the court directed that defendant’s testimony be sent to the New York court. Actually, only “court notes” of his testimony, and not a transcript thereof, were forwarded.

On July 24, 1967 plaintiff gave “answering testimony” before the New York court. The judge apparently had possession of the “court notes” and examined her in detail on the contents thereof. A transcript of plaintiff’s testimony was returned to New Jersey, and the local court, after a consideration of all the evidence before it, concluded that “no order for payment of support monies is warranted at this time” and accordingly dismissed plaintiff’s complaint.

Plaintiff primarily urges that the trial court erred in taking and accepting defendant’s testimony without having notified her of the hearing date thereof so that she might have an opportunity to cross-examine him. In support of this contention plaintiff states that at the time she filed her petition she understood that defendant would be summoned to appear in New Jersey to present his testimony and that she requested the New York court to advise her of the date of the hearing so that she might go to New Jersey with counsel and cross-examine defendant. However, she was not so advised and was not given a copy of the “notes” of defendant’s testimony until after the judgment of dismissal was entered and this appeal was in progress. Defendant does not deny these allegations.

Generally, the cross-examination of a party witness on matters directly in issue or directly relevant thereto is a matter of right. Brogan v. Passaic Daily News, 22 N. J. 139, 153 (1956); Mitilenes v. Snead, 45 N. J. Super. 246, 251 (App. Div. 1957). Where failure to permit cross-examination seriously affects the substantial rights of a party to the suit, a judgment based upon such failure will not be permitted to stand. Mitilenes, at p. 251; Liberatori v. Yel low Cab Co. of Phila., 35 N. J. Super. 470, 478 (App. Div. 1955).

The pertinent inquiry here presented is whether the right of notice of hearing and of cross-examination is possessed by the parties to a proceeding under N. J. S. 2A :4—30.1 et seq. Under the statute, when New Jersey is the “responding state” our court is obligated to hold a hearing (N. J. S. 2A :4-30.12) to determine whether defendant is under a duty to support plaintiff, and to issue an appropriate order (N. J. S. 2A :4-30.13). We have held that this determination can be made only upon the‘basis of evidence adduced before the court and of depositions taken on notice to defendant. Pfueller v. Pfueller, 37 N. J. Super. 106 (App. Div. 1955). Eurther, there is no “hearing” within the contemplation of due process when the affected party has not the means of knowing what evidence is offered or considered and is not afforded an opportunity to test, explain or refute it. Hyman v. Muller, 1 N. J. 124, 129 (1948).

In Daly v. Daly, 21 N. J. 599 (1956), plaintiff wife proceeded under the Uniform Reciprocal Act in Kentucky. In the course of the proceedings the New Jersey trial court propounded certain “depositions and interrogatories” to plaintiff which were answered by her in her home state, without defendant having had an opportunity of' cross-examination. On defendant’s appeal from an order for support, the court noted that defendant’s lack of such an opportunity “could present a constitutional question of some difficulty.” However, it was able to reach a decision upon the proof in the record “without considering these depositions or interrogatories.” (at p. 607).

In Brogan v. The Passaic Daily News, supra, 22 N. J., at p. 154, the court, citing Daly, said:

“A construction of the statute [not the one here involved! permitting the deprivation of a party’s right of cross-examination on vital issues of his cause of action could create constitutional difficulty or infirmity. It is our duty to so construe a statute that its enforcement is confined within constitutional limits.”

This problem was squarely presented in Carpenter v. Carpenter, 231 La. 638, 92 So. 2d 393 (1956). There, plaintiff was living in California and defendant in Louisiana. She instituted proceedings for support under the reciprocal support act and her testimony was taken in her home state. The husband denied liability for support. However, the trial court after considering the wife’s testimony directed defendant to pay support to plaintiff. The Louisiana Supreme Court, in agreeing with the husband’s contention that the testimony of the wife taken in California was ex parte evidence and inadmissible, said:

“However, there is merit in the contention of appellant that the judgment was predicated on improper and insufficient evidence. When in his answer, he denied liability for the alimony herein sought a duty devolved upon plaintiff to prove her claim with legal evidence as with ordinary suits, that is, by means of oral testimony, interrogatories, depositions, etc. with the defendant having the right to cross-examine the witnesses. Yet this plaintiff introduced only, and she relied wholly on, the testimony given by her during the hearing before the California Court, at which the defendant w'as not cited to appear and hence had no opportunity for cross-examination; and it amounted to nothing more than an inadmissible ex parte statement.” (at p. 396)

To the same effect see also Lambrou v. Berna, 148 A. 2d 697 (Me. Sup. Jud. Ct. 1959).

Here, although defendant did not deny that he deserted his wife, he challenged her right to support. His testimony was directly related to her separate income and property, her lack of need for support and his own income and financial status. The evidence addneed by him was directly material to the question to he resolved by the court. Thus, we conclude that plaintiff was entitled to notice of the hearing and an opportunity to cross-examine defendant, and that she was deprived of a fundamental right when such an opportunity was not made available to her.

Defendant asserts that even if plaintiff was entitled to notice and cross-examination she waived it. The basis of this argument is that plaintiff knowingly appeared in the New York court with her attorney for the purpose of responding to defendant’s testimony and that at that time neither she nor her attorney requested the right to cross-examine defendant, nor did either of them ever assert such a claim to the New Jersey court. This contention has no merit. Plaintiff at the very beginning of the proceedings in New York requested that she be told of the date when her husband would testify in this State so that she or her counsel might come here and cross-examine him. She was never so advised. Nor was she timely given a transcript of defendant’s testimony. She received the “court notes” thereof only after the hearing below had been concluded. In our opinion, these circumstances do not spell out a waiver, either expressly or by failing to avail oneself of an opportunity to cross-examine. See United States v. Hickey, 360 F. 2d 127, 145 (7 Cir. 1966), certiorari denied 385 U. S. 928, 87 S. Ct. 284, 17 L. Ed. 2d 210 (1966); Silva v. Klinger, 355 F. 2d 657, 658 (9 Cir. 1966).

Defendant further contends that we should not consider plaintiff’s claim that she was denied the opportunity to cross-examine him because she did not raise it “below.” Upon the record, we are unable to find that plaintiff did not raise this issue. She clearly did not have an opportunity to make a timely objection before the New Jersey court. In any event, we deem the absence of notice and the consequent deprivation of her right to cross-examine defendant to be sufficiently grievous as to amount to plain error under R. R. 1:5-3 (c).

Based upon the above, the judgment of, dismissal is reversed and this matter is remanded to the trial court for a plenary hearing.

Upon the remand the court shall forthwith fix a hearing date and cause notice thereof to be given to both parties. See Pfueller v. Pfueller, supra, 37 N. J. Super., at pp. 109-110. Plaintiff should first adduce her proof before defendant presents his. Each party should be given appropriate opportunity to cross-examine the other and their respective witnesses.

Our holding in this case is not intended to indicate that where an indigent wife files a proceeding under the act in a distant state and where it is clear that she cannot or will not appear here personally or by counsel, the court is necessarily without power to examine defendant ex parte. But in such case the court should require the presence of the county adjuster, as representative of the complainant, as directed by N. J. S. 2A :4—30.12.

As a guide to the trial court, on the merits, we note that the duty to support resting upon a husband is not solely dependent upon the adequacy or inadequacy of the wife’s means, or upon the fact that she is working and earning an income or capable of working and supporting herself. The controlling rule as to the effect of such factors is stated in Bonanno v. Bonanno, 4 N. J. 268, 274 (1950).

Reversed and remanded in accordance herewith.


author: Per Curiam.

text:
    STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT, v. THOMAS SATTERFIELD, DEFENDANT-APPELLANT.
    Superior Court of New Jersey Appellate Division
    Argued October 21, 1968
    Decided October 29, 1968.

      Before Judges Coneord, Kilkenny and Leonard.

      Mrs. Miriam N. Span, Assistant Deputy Public Defender, argued the cause for appellant (Mr. Peter Murray, Public Defender, attorney).

      Mr. Alan 8ilber, Assistant Prosecutor, argued the cause for respondent (Mr. Joseph P. Lordi, Essex 'County Prosecutor, attorney).
   Per Curiam.

Defendant appeals from a judgment of conviction of possession of narcotics.

Defendant had been seen by a 13-year-old boy one morning acting suspiciously in a driveway adjacent to the boy’s home, as though visiting from time to time a place in the driveway where he had something hidden. The hoy reported the occurrence to his mother and pointed defendant out to her. They both then saw defendant hand something to the occupants of a double-parked car. The mother informed the police about these occurrences and described the man to them. Shortly thereafter the police brought defendant and two companions of his in a police ear to be viewed by the boy and his mother. The boy was not asked by the police to make an identification, but it may be inferred from the proofs that the mother was. She failed to identify defendant to the police on the scene, but she testified that he was in fact one of the three men and that she had withheld an identification at the time because of fear for her son. She later so explained to the police. The boy also testified that defendant was one of the three men produced by the police.

After searching the alley and finding nothing suspicious the police released defendant. Shortly thereafter the boy found concealed under a slab in the alley a brand-name cigarette package which contained some 13 packets of a substance established at the trial to have constituted heroin. Defendant was indicted for possession thereof.

Defendant did not testify, but sought to establish an alibi through another witness.

On appeal defendant raises two points: (a) the State failed to prove a primo.s facie case of possession and (b) the procedure by which ho was confronted with the witnesses for purposes of identification without the presence of counsel violated the recent decisions of the United States Supreme Court in United States v. Wade, 388 U. S. 218, 87 S. Ct. 1926, 18 L. Ed. 2d 1149 (1967); Gilbert v. State of Califoria, 388 U. S. 263, 87 S. Ct. 1951, 18 L. Ed. 2d 1178 (1967), and see Stovall v. Denno, 388 U. S. 293, 87 S. Ct. 1967, 18 L. Ed. 2d 1199 (1967) (all three cases having been decided the same day). On motion by defendant to strike the testimony concerning this confrontation, the trial court ruled adversely, holding the cases cited to apply only to postindictinent identification procedures.

The first point requires no discussion. We are satisfied that the proofs were such as to have made proper the submission to the jury of the question of possession of the narcotics by defendant.

We here determine that the Wade line of cases (requiring the presence of counsel for an accused subjected to a police ‘line-up” or comparable identification procedure) was not applicable in these circumstances for the reason that this confrontation took place in the course of an on-the-spot, general, street investigation of a complaint of suspicious activity. At the time there was no specific complaint to the police of possession of narcotics by defendant, merely of suspicious behavior by him. We are satisfied that this type of routine police investigative activity was not intended to be comprehended within the presence-of-counsel specifications laid down by the Court in the Wade line of cases. Compare the recognition of a comparable exemption in Miranda v. State of Arizona, 384 U. S. 436, 477, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966), which mandated counsel in relation to custodial interrogation of a suspect. See also State v. Gosser, 50 N. J. 438, 446 (1967).

We find it unnecessary here to consider the merits of the State’s contentions that Wade is inapposite in any case because (1) there was no out-of-court identification of defendant to the police at the scene of confrontation, and (2) the Wade rule applies only to post-indictment confrontations (cf. Stovall v. Denno, supra). The question was regarded as open in State v. Matlack, 49 N. J. 491, 499 (1967). See also State v. Woodard, 102 N. J. Super. 419 (App. Div. 1968).

Judgment affirmed.