author: Per Curiam.

text:
    CAROL INELLI BERRY, AN INFANT BY HER GUARDIAN AD LITEM ARMAND INELLI AND ARMAND INELLI, INDIVIDUALLY, PLAINTIFFS-APPELLANTS, v. DENNIS BERRY, EARLY HINES, JR., RICHARD N. TAYLOR AND RONALD N. HEYMANN, DIRECTOR OF MOTOR VEHICLES, DEFENDANTS-RESPONDENTS.
    Superior Court of New Jersey Appellate Division
    Submitted June 5, 1972
    Decided August 31, 1972.

      Before Judges Collester, Mintz and Lynch.

      Messrs. Stein, Bliablias d Goldman, attorneys for appellants (Mr. James G. Leonardson on the brief).

      Mr. John W. Taylor, attorney for respondent Dennis Berry.
   Per Curiam.

Plaintiffs, pursuant to leave granted, appeal from a summary judgment dismissing their complaint against defendant Dennis Berry.

The facts are not in dispute. On April 12, 1970 plaintiff Carol Inelli Berry, then unmarried and an unemancipated minor, was injured when she was a passenger in an automobile driven by defendant Dennis Berry which collided with an automobile operated by defendant Early Hines, Jr. and owned by defendant Richard D. Taylor. A third automobile operated by an unknown driver was also involved in the accident but left the scene.

On August 20, 1970 Carol married defendant Berry. Thereafter, on December 30, 1970, Carol by her guardian ad litem, Armand Inelli, brought suit against her husband and the other defendants to recover damages for injuries she had sustained. Her father, Armand Inelli, joined in the suit to recover expenses he incurred for the medical care of his daughter and the loss of her services.

On August 17, 1971 defendant Berry moved for summary judgment on the ground that plaintiffs’ cause of action was barred under the doctrine of interspousal immunity. The court granted the motion, relying upon Darrow v. Hanover Township, 58 N. J. 410 (1971).

On July 10, 1970, prior to Carol’s marriage to Berry and the institution of suit, the Supreme Court in Immer v. Risko, 56 N. J. 482, abrogated the doctrine of interspousal immunity in automobile negligence cases. Thereafter, on June 7, 1971, the court in Darrow v. Hanover Township, supra, held that the Immer rule would be available only to persons suffering injuries in automobile accidents which occurred after July 10, 1970, the date Immer was decided. The accident in the instant case having taken place on April 12, 1970 the trial court ruled that plaintiffs’ cause of action was barred.

Plaintiffs first contend that Immer had no effect upon Carol’s cause of action because she was unmarried on July 10, 1970, the date Immer was decided; that her claim was not extinguished by her marriage to Berry on August 20, 1970 because'the doctrine of interspousal immunity had then been abolished in Dew Jersey. They further contend that Darrow must bo construed on its facts and rationale as applying only to automobile accidents occurring after the parties were married and prior to July 10, 1970. They argue that Darrow applies only to postnuptial accidents and not prenuptial accidents.

We do not agree. First, whether interspousal immunity is a defense must be resolved by the status of the parties when the cause of action is judicially determined—not when the cause of action accrued or suit was commenced. Koplik v. C. P. Trucking Corp., 27 N. J. 1, 7—8 (1958). Here Carol and Berry were married to each other when the motion for summary judgment was granted.

Secondly, we do not agree with the contention that Darrow applies only to postnuptial accidents. While the parties in that case were married at the time of the accident, the Immar rule abolishing interspousal immunity, which was given a prospective application by Darrow, was based on a prenuptial accident similar to that in the instant case. The Darrow court made no distinction between prenuptial or postnuptial accidents although it certainly was mindful that Immer was a prenuptial case. The ruling in Darrow is clear, “The Immer rule will bo available only to persons suffering injuries in automobile accidents occurring after July 10, 1970, the date Immar was decided.” (58 N. J. at 420). The ruling is not limited to parties who were married at the time of the accident, but to all persons.

We note that in Darrow the court stressed the fact that there was a reasonable basis for reliance on the doctrine of interspousal immunity—particularly on the part of insurance companies in the investigation of accidents. Prior to Immer insurers had no reason to promptly investigate accidents involving the possibility of interspousal claims. However, as already noted, the accident in the instant case occurred on April 12, 1970 when Carol was unmarried. Immer was decided on July 10, 1970. Carol did not marry Berry until August 20, 1970. Under these circumstances we conceive no basis for concluding that the insurance company relied upon the doctrine of interspousal immunity. The sequence of events dictate otherwise. However, while Darrow is factually distinguishable we, nevertheless, are obliged to apply the rule of law therein enunciated.

We conclude that the trial court properly granted summary judgment dismissing the action brought by Carol Berry against her husband.

We turn next to the action brought by Armand Inelli, Carol’s father, to recover damages for expenses he incurred for medical care to cure the injuries sustained by his daughter and the loss of her services until her marriage to Berry on August 20, 1970. While not argued below or raised on appeal, it is settled that the marriage of an infant daughter to the alleged perpetrator of a prenuptial tort does not bar the right of a father to recover for medical expenses or loss of services for the period between the date of the accident and the date of the marriage. Orr v. Orr, 36 N. J. 236 (1961).

The judgment barring the suit by Carol Berry • against Dennis Berry is affirmed; insofar as it bars Armand Inelli’s cause of action it is reversed and remanded for trial.


source: Caselaw Access Project

license: Public Domain

text:
    HARRY G. CARR, PLAINTIFF-APPELLANT, v. STATE FARM MUTUAL INSURANCE COMPANY AND JULIA SOLAN, DEFENDANTS-RESPONDENTS.
    Superior Court of New Jersey Appellate Division
    Submitted March 21, 1972
    Decided March 29, 1972.
    Before Judges Goldmann, Halpern and Lora.

      Messrs. Jamieson, Walsh, McOardell, Moore & Peshin, attorneys for appellant {Mr. Alan M. Wallaclc, on the brief).

      Messrs. Lewis, Siegel and Wood, attorneys for respondent State Farm Mutual Insurance Company {Mr. Richard I. Wood, on the brief).
   Per Curiam.

The judgment is affirmed essentially for the reasons expressed by Judge Seidman.


text:
    STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT, v. DAVID A. ROSENFELD, DEFENDANT-APPELLANT.
    Superior Court of New Jersey Appellate Division
    Submitted August 1, 1972
    Decided September 5, 1972.

      Before Judges Sullivan, Leonard and Carton.

      Mr. Richard J. Schachter, for appellant (Messrs. Ilalpern, Schachter ffi Wohl, attorneys).

      Mr. Wilbur II. Mathesius, First Assistant Prosecutor, for respondent (Mr. Bruce M. Schragger, Mercer County Prosecutor, attorney).
   Per Curiam.

Defendant was convicted as a disorderly person for violating N. J. S. A. 2A:170-29(1) by using loud and indecent language at a public meeting in a public school.

The County Court in a trial de novo found that defendant uttered loud, offensive and indecent language in a public place and that the language was of such a nature that it would likely, in the light of the gender and the age of the people present, affect the sensibilities of the hearers.

We upheld the conviction on the basis of State v. Profaci, 56 N. J. 346 (1970). The Supreme Court of New Jersey denied certification. 59 N. J. 435 (1971). On application to the United States Supreme Court, it was ordered that the judgment of affirmance be vacated and the case remanded to the Appellate Division for reconsideration in the light of Cohen v. California, 403 U. S. 15, 91 S. Ct. 1780, 29 L. Ed. 2d 284 (1971), and Gooding v. Wilson, 405 U. S. 518, 92 S. Ct. 1103, 31 L. Ed. 2d 408 (1972). See Rosenfeld v. New Jersey, 408 U. S. 901, 92 S. Ct. 2479, 33 L. Ed. 2d 321.

Based on Gooding, we have no alternative but to hold that N. J. S. A. 2A:170—29(1), as construed by our Supreme Court in Slate v. Profad-, is overly broad and violative of the First Amendment. Gooding states that it matters not that the words used might have been constitutionally prohibited under a narrowly and precisely drawn statute. If tho statute is susceptible of application to protected expression, it must be struck down as overbroad. Here, the findings on which defendant’s conviction was bottomed (use of loud, offensive and indecent language at a public meeting which was likely to affect the sensibilities of a hearer), was held in Gooding to sweep too broadly.

The prosecutor argues that the language defendant used at the public meeting could also be found to be “fighting words” within the purview of Chaplinsky v. New Hampshire, 315 U. S. 568, 62 S. Ct. 766, 86 L. Ed. 1031 (1942), and that the conviction can be sustained on a new such finding. However, as heretofore noted, Gooding clearly states that it matters not that the language used might be constitutionally prohibited under a narrowly and precisely drawn statute. If a statute, either as drawn or as authoritatively construed by the courts of the state in question, is susceptible of application to protected expression, it is overly broad and facially unconstitutional. Gooding, supra.

The judgment of conviction herein is hereby vacated and the complaint against defendant hereby dismissed. No costs.


author: Collester, P. J. A. D.

text:
    IN THE MATTER OF, PETER BRIDGE, CHARGED WITH CONTEMPT OF COURT.
    Superior Court of New Jersey Appellate Division
    Argued August 21, 1972
    Decided September 12, 1972.

      Before Judges Collesteb, Carton and Abboobn.

      Mr. Edward J. Gilhooly argued the cause for appellant (Messrs. Yauch, Peierpaul & Clark, attorneys).

      Mr. Bichard L. Slavitt, Assistant Prosecutor, argued the cause for respondent (Mr. Joseph P. Lordi, Essex County Prosecutor, attornejr).

      Mr. Arthur Uscher argued the cause for American Civil Liberties Union of New Jersey as amicus curiae, by leave of court (Messrs. Friedman, Kates & Uscher, attorneys).
   The opinion of the court was delivered by

Collester, P. J. A. D.

This is an appeal by Peter Bridge from an order of the Superior Court, Law Division, holding him in contempt for refusing to answer five questions before tlie Essex County grand jury and confining him to the county jail until he purged himself by answering the questions posed. The trial judge stayed the order pending an appeal and we granted the prosecutor’s motion to accelerate the appeal for early argument.

On May 2, 1912 the Newark Evening News published an article under Peter Bridge’s by-line concerning an alleged offer of a bribe to Pearl Beatty, a member of the Newark Housing Authority. The article contained the following statements:

Sirs. Bearl Beatly, a commissioner of the Newark Housing Authority, said yesterday an unknown man offered to pay her $10,000 to influence her vole for the appointment of an executive director of the authority.
Mrs. Beatty said also that at least two other commissioners had been harassed and threatened in efforts to control their votes.
* * * *• v * *r *
Mrs. Beatty said, “a man walked into my office and offered me $10,000 if I would vote for ‘their’ choice for executive director.”

The Essex County grand jury commenced an investigation of the alleged bribe attempt and on May 19, 1972 subpoenaed Bridge to appear before it. Bridge moved to quash the subpoena. Assignment Judge Giuliano denied the motion and ordered Bridge to appear before the grand jury. He rejected Bridge’s contention that compelling him to testify would violate the guarantee of freedom of the press contained in the First Amendment. Judge Giuliano held that Bridge had waived the privilege afforded him by N. J. S. A. 2A:84A-21 (Evidence Rule 27) under the provisions of N. J. S. A. 2A:84A-29 (Evidence Rule 37).

Bridge moved for leave to appeal from the order. This court granted leave and, following oral argument, affirmed the order denying the motion to quash and directing Bridge to appear before the grand jury. No appeal or petition for certification of the appeal was thereafter filed with the Supreme Court.

On June 8, 1972, following this court’s decision, Bridge appeared before the grand jury. When he refused to answer certain questions he was brought before Judge Giuliano who, following a hearing, directed Bridge to answer. On June 14 Bridge again returned before the grand jury and refused to answer certain questions. Judge Giuliano ordered him to answer the questions, including the five questions which were the basis for the subsequent contempt action. When Bridge subsequently refused to answer the five questions before the grand jury, Judge Giuliano ordered Bridge to show cause why lie should not be adjudged in contempt. The order was made returnable before Judge Meanor. Following a hearing, Judge Meanor held that Bridge had neither a constitutional privilege nor a statutory privilege to refuse to answer the questions. The judge entered an order adjudging Bridge to be in contempt of court and directed that he be confined to the county jail until he answered the five questions or until the grand jury was discharged. This appeal followed.

We first note that the two principal issues in this appeal, namely, (1) whether appellant waived his newspaperman’s privilege accorded by Evidence Rule 27 (N. J. S. A. 2A:84A-21), and (2) whether the First Amendment grants him the privilege of refusing to testify before a grand jury, were raised on his prior appeal from the denial of the motion to quash the subpoena. In that appeal we held that appellant waived his privilege under Evidence Rule 27 by disclosing in the nows article the source of his information and that compelling his appearance before the grand jury did not amount to an abridgment of his rights under the First Amendment. The issues having been decided on the merits in that appeal, the decision became the law of the case. State v. Cusick, 116 N. J. Super. 482, 485 (App. Div. 1971). However, rather than dismiss the appeal on that ground, not raised by either party, we prefer to decide the case on its merits.

The privilege of nondisclosure granted to a newspaperman in this State is set forth in Evidence Rule 27 (N. J. S. A. 2A:84A-21). It reads as follows:

Subject to Buie 37, a person engaged on, connected with, or employed by, a newspaper has a privilege to refuse to disclose the source, author, means, agency or person from or through whom any information published in such newspaper was procured, obtained, supplied, furnished, or delivered.

Evidence Rule 37 (N. J. S. A. 2A:84A-29) provides that “a person waives his right or privilege to refuse to disclose * * * a specified matter if he * * * without coercion and with knowledge of his right or privilege, made disclosure of any part of the privileged matter * * *."

Appellant first argues that the term “source” in Evidence Buie 27 protects both the identity of the informant as well as that part of the informant’s statement which was not published and that his disclosure of the identity of the' informant does not constitute a waiver of his right of nondisclosure of the unpublished information. We conclude that the argument lacks substance. Evidence Buie 37 clearly states that a person waives his privilege of nondisclosure if he “made disclosure of any part of the privileged matter.” Cf. In re Murtha, 115 N. J. Super. 380, 387-388 (App. Div. 1971), certif. den. 59 N. J. 239 (1971). Here appellant disclosed in the newspaper article that Mrs. Beatty was the source of his information and also disclosed at least part of the information given him by Mrs. Beatty. We are satisfied and hold that appellant waived his newspaperman’s privilege and can be compelled to testify before the grand jury like any other person.

We find no merit in appellant’s contention that Evidence Rule 37 (N. J. S. A. 2A:84A-29) is unconstitutionally vague.

We turn next to the question of whether appellant was privileged under the Eirst Amendment to refuse to answer the five questions posed to him before the grand jury. In ruling that Bridge was not so privileged Judge Meanor relied on Branzburg v. Hayes, 408 U. S. 665, 92 S. Ct. 2646, 33 L. Ed. 2d 626 (1972). We are in full accord with Judge Meanor’s ruling. In Branzburg the court laid down a broad rule that the Eirst Amendment accords a newspaperman no privilege against appearing before a grand jury and answering questions as to either the identity of his news sources or information which he has received in confidence. The court specifically stated, “We are asked to create another [privilege] by interpreting the Eirst Amendment to grant newsmen a testimonial privilege that other citizens do not enjoy. This we decline to do.” (at 688, 92 S. Ct. at 2660, 33 L. Ed. 2d at 644).

Appellant contends that it a reporter is required to testify before a grand jury concerning unpublished information received from a public official, such as Mrs. Beatty, then “government” will have an effective tool to prevent its wrongdoings from being brought to the attention of the public; that not only must the identity of a public employee be protected but all unpublished information received from the public employee as well. He bases his argument on the dissenting opinions filed in Branzburg. We cannot agree with appellant’s argument. A reading of the majority opinion in Branzburg indicates that the court there considered a similar argument and refused to accept it. See 408 U. S. at 692-698, 92 S. Ct. at 2662-2664, 33 L. Ed. 2d at 646-648. The court stated:

Accepting the fact, however, that an undetermined number of informants not themselves implicated in crime will nevertheless, for whatever reason, refuse to talk to newsmen if they fear identification by a reporter in an official investigation, we cannot accept the argument that the public interest in possible future news about crime from undisclosed, unverified sources must take precedence over the public interest in pursuing and prosecuting those crimes reported to the press by informants and in thus deterring the commission of such crimes in the future, (at 695, 92 S. Ct. at 2663, 33 L. Ed. 2d at 647-648).

Appellant also contends that a majority of the justices in Branzburg held that society’s interest in being informed, which requires a free flow of information, must be weighed against the State’s interest in obtaining information relevant to the investigation of a particular crime. He alleges that the five questions which he refused to answer are so lacking in relevance and need that no matter upon whom the burden of proof is placed in balancing of the issues, it is clear that his rights as a reporter outweigh any right of the State. We do not read the majority opinion in Branzburg as requiring a balancing of the interests test to determine when a reporter should be compelled to testify. Quite to the contrary, Justice White in the majority opinion rejects such a contention, 408 U. S. at 698—709, 92 S. Ct. 2665— 2670, 33 L. Ed. 2d at 650-655.

Moreover, we agree with Judge Meanor that the five questions which Bridge refused to answer were relevant to the inquiry being conducted by the grand jury to determine whether an oiler to bribe a housing commissioner, in violation of N. J. S. A. 2A:93-6, had been made.

It is also argued that since the court in Branzburg stated that is was powerless to erect any bar to state courts construing their own constitutions so as to recognize a newspaperman’s privilege, either qualified or absolute, we should construe N. J. Const., Art. I, par. 6 to include an absolute or qualified privilege for newspapermen for the reasons expressed in the dissenting opinions filed in Branzburg. No decisions of our courts are cited in support of this proposition. The only privilege from nondisclosure by a newspaperman in this State is set forth in Evidence Rule 27, enacted'by the Legislature in 1960 (N. J. S. A. 2A:84A-21). We are satisfied that the granting of such privileges is a matter for the Legislature and not for the courts.

Finally, appellant argues that Judge Meanor lacked jurisdiction to enter the order under review because the ■ sole issue on the return of the order to show cause was whether appellant was guilty of criminal contempt. He contends that a proceeding to compel him to answer the questions or be committed until he did so, brought pursuant to R. 1 :10—5, could only be heard and determined by Judge Giuliano who issued the order to show cause.

We find no merit in appellant’s contentions. The record indicates that the State did not seek to punish appellant for criminal contempt in a proceeding under B. 1:10-2 but to compel compliance with the order to answer the questions propounded before the grand jury. Such a proceeding has been held to constitute civil contempt, Shillitani v. United States, 384 U. S. 364, 86 S. Ct. 1531, 16 L. Ed. 2d 622 (1966), and is provided for under R. 1:10-5. See also In re Contempt of Carton, 48 N. J. 9 (1966), where the court stated, “Confinement terminable upon defendant’s compliance is usually the hallmark of a civil proceeding.” (at 23).

We do not read R. 1:10-5 to provide that the judge who issued the order to show cause alone has power to hear and determine the issues raised in such a proceeding. As assignment judge, Judge Giuliano could properly assign the matter to another judge.

We have carefully considered the points raised in the brief filed by the amicus curiae, all of which support appellant’s contentions. We find none of the points to be persuasive.

The order under review is affirmed.

      The questions propounded to the witness were:
      1. Sir. Bridge, would you please tell us whether Mrs. Beatty provided a description of the unknown man?
      2. Did Mrs. Beatty provide you with specific acts of harassment and threats other than those outlined in the newspaper article?
      3. Within the framework of this: “A man walked into my office and offered me $10,000 if I would vote for ‘their’ choice for executive director,” did Mrs. Beatty indicate who their choice for executive director was?
      4. Mr. Bridge, in addition to that which is contained in the article, what else did Mrs. Beatty say? Bid she say it was a tall man, a white man, a black man, a heavy man, a shortman?
      5. Mr. Bridge, did Mrs. Beatty indicate when, in fact, the bribe offer took place?


text:
    STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT, v. MATTHEW J. HALE, JR., DEFENDANT-APPELLANT.
    Superior Court of New Jersey Appellate Division
    Submitted September 11, 1972
    Decided September 19, 1972.
    .Before Judges Coldestek, Leonabd and Halpebn.

      Mr. George H. Barbour, attorney for appellant.

      Mr. George F. Kugler, Jr., Attorney. General of New Jersey, attorney for respondent (Mr. Fred H. Eumpf, Deputy Attorney General, of counsel and on the brief).
   Per Curiam.

The judgment is affirmed essentially for the reasons expressed by Judge Martino, 116 N. J. Super. 106 (Law Div. 1971).


author: Kolovsky, J. A. D.

text:
    TOWN OF SECAUCUS, RESPONDENT-APPELLANT, v. DAMSIL, INC., PETITIONER-RESPONDENT, AND DIVISION OF TAX APPEALS, DEPARTMENT OF THE TREASURY, STATE OF NEW JERSEY, RESPONDENT.
    Superior Court of New Jersey Appellate Division
    Argued April 18, 1972
    Reargued September 12, 1972
    Decided September 21, 1972.

      Before Judges Labkecque, Kolovskt and Matthews.

      Mr. Leo Rosenblum argued the cause for appellant.

      Mr. J oseph Gordon argued the cause for respondent Damsil, Inc. (Messrs. Gordon and Kanengiser, attorneys).

      Mr. Joseph M. Olay ton, Jr., Deputy Attorney General, appeared for Mr. George E. Kugler, Jr., Attorney General, who had filed a brief as amicus curiae (Mr. Morton I. Greenlerg, Assistant Attorney General, on the brief).
   The opinion of the court was delivered by

Kolovsky, J. A. D.

The Town of Secaucus appeals from a judgment of the Division of Tax Appeals reducing the 1968 assessment of petitioner’s property, Lots 1-2 in Block 66-D, from $92,000 to $35,500.

The property, consisting of approximately 2acres, fronts 447.90 feet on State Highway 3 and extends from the Grace Street ramp to the Hackensack Eiver. It had been transferred to petitioner, Damsil, Inc., by an affiliated corporation which had purchased it from the town at a public sale held on December 29, 1966.

The property was at that time advertised for sale and sold subject not only to “such a state of facts as an accurate survey may disclose [and] zoning and building restrictions, if any” but also subject to “tidelands or riparian rights which might be claimed by the State of New Jersey.” The successful bid at the public sale, which “was well advertised and attended,” was $35,500.

At the hearing before the Division the town’s expert, relying on four comparative sales, expressed the opinion that the market value of the property as of October 1, 1967 was $90,400. He deemed the status of the title to be of no concern, stating that he did not know whether the State of New Jersey had an interest in the property or not.

Petitioner’s expert acknowledged that if the property “were not subject to a so-called tideland claim by the State of New Jersey,” the “assessment [$92,000] would be [a] quite accurate” statement of its value as of October 1, 1967. However, he was of the view that the cloud on the title could not be disregarded, particularly because petitioner since its purchase of the property had been unsuccessful in its efforts to get a quitclaim deed from the State, and that the property should be assessed at what he deemed to be its market value, the $35,500 price paid at the public sale, concluding in his report, which was marked in evidence:

I am of the opinion that subject property was purchased in the Marketplace. That a cloud on the title did and still does exist. That title insurance will not, at this time, be written on subject property thus preventing the immediate improvement of this land. That, in fact, the only right that the present owners have is to hold the land, pay its taxes and hope that at some point in the future, clear title may be obtained allowing for the eventual improvement of the land.
Comparable land sales in the area have not been used in this report because of the unique nature of the title of subject land.
I am of the opinion that the present Market Value of subject property is not in excess of the Purchase Price of December 29, 1966, inasmuch as the limited right existed at the time of purchase and has not in any way changed for the better at this date. Therefore, it is my opinion that the present assessment of $92,000 should be reduced to the original Purchase Price of $35,500.

The Division found that “based upon comparative sales the property has a true value of $90,000” but that nevertheless the “bona fide armslength sale” of the premises for $35,500 should be deemed controlling, saying:

One of the best tests as to value is what a willing buyer would pay a willing seller for the land. In' the instant case we have a clear cut sale that fits this test namely, the sale from the respondent for $35,500. It is also equally clear that if the premises were to be sold as of Oct. 1, 1967, the assessment date, that the owner could not have sold the property for a larger price.
I find the true value of the property to be $35,500.

The Division erred. While it is true, as it said, that “one of the best tests as to value is what a willing buyer would pay a willing seller for the land” — in the words of the governing statute, N. J. S. A. 54:4—23, the price the property “would sell for at a fair and bona fido sale by private contract” on the preceding October 1 — what the statute refers to is the sales price of the land, including all interests therein, not the sales price of the purported owner’s title in a ease where, as here, there is a cloud on that title.

As this court said in In re Appeal of Neptune Tp., 86 N. J. Super. 492 (App. Div. 1965):

The law requires an assessment of the value, not of the owner’s title, but of the land; the assessed value represents the value of all interests in the land. Stack v. Hoboken, 45 N. J. Super. 294, 300 (App. Div. 1957). [at 499]

Here both sides concede that the “value of all interests in the land” is $90,000. The sale for $35,500 does not meet the stated test; it was a sale only of the owner’s title, subject to such rights as the State might have.

The difference between $90,000, the conceded value if there were not a cloud on title, and the sales price of $35,500 undoubtedly represents the buyer’s estimate of the cost to it of eliminating, either through purchase or litigation, the outstanding adverse claim to title. It is understandable that a purchaser will insist on a discount from the true value of property if he buys a doubtful title, but the fact that he does so affords no justification for applying a discount in a tax valuation ease. Such sale at a discount is entitled to no evidential weight in ascertaining what “a willing buyer would pay a willing seller” for all interests in the land. Cf. Rek Investment Co. v. Newark, 80 N. J. Super. 552, 560 (App. Div. 1963).

Nor is it of any relevant significance that the sale was one subject to outstanding rights of the State rather than those of a private party. Petitioner does not contend that any part of the property is in fact owned by the State and hence exempt from taxation under N. J. S. A. 54:4-3.3. Cf. State, Winants, Pros. v. Jersey City, 42 N. J. L. 349 (Sup. Ct. 1880); State v. Jersey City, 25 N. J. L. 525 (Sup. Ct. 1856); State (Bear, Pros.) v. Camden, 48 A. 538 (Sup. Ct. 1901); State, Morris Canal and Banking Co., Pros. v. Haight, Collector, 35 N. J. L. 178, 184 (Sup. Ct. 1871), aff’d 36 N. J. L. 471 (E. & A. 1873).

The issue of exemption from taxation was not presented by the petition filed and is not in this case. The sole issue presented is the value of the entire tract, all of which petitioner says it owns.

The Division should have fixed the assessment at the amount which it found to be the true value based upon comparable sales, $90,000.

The judgment is reversed and the cause remanded to the Division of Tax Appeals for entry of a judgment fixing the 1968 assessment of the property involved at $90,000.


author: Kole, J. C. C.

text:
    SIDNEY GLASER, DIRECTOR OF DIVISION OF TAXATION, STATE OF NEW JERSEY, PLAINTIFF, v. PATRICK DOWNES, JR., d/b/a ROUTE 3 ESSO, DEFENDANT.
    Superior Court of New Jersey Chancery Division
    Decided August 22, 1972.

      Mr. Harry Haushalter, Deputy Attorney General, for plaintiff (Mr. George F. Kugler, Jr., Attorney General of Yew Jersey, attorney).

      Mr. Howard 8tern for the defendant (Messrs. Shavick, Stern, Schotz, Steiger and Groland, attorneys).
   Kole, J. C. C.

(temporarily assigned). The Director of the Division of Taxation of the State of Yew Jersey is seeking a permanent injunction against defendant prohibiting his distribution of more than one S. & H. or Plaid Trading Stamp for each ten cents of motor fuel purchased at defendant’s Esso service station. It is conceded that defendant has been issuing three such trading stamps for each ten cents of fuel purchased.

The State contends that under Sperry & Hutchinson Co. v. Margetts, 25 N. J. Super. 568 (Ch. Div. 1953), aff’d 15 N.J. 203 (1954), the distribution of more than one trading stamp for each ten cents of motor fuel purchased violates N. J. S. A. 56:6-2(e) since it constitutes a “rebate, allowance, concession or benefit” permitting unlawfully the obtaining of motor fuel “from a retail dealer below the posted price or at a net price lower than the posted price applicable at the time of the sale.” It claims that Margetts sets forth the limit beyond which the issuance of trading stamps becomes such an illegal rebate, allowance, concession or benefit.

In Margetts the transaction before the court involved the issuance of trading stamps at the rate of one stamp for each ten cents of motor fuel purchased. The court reasoned that such stamps constituted a cash discount in the amount of 2.08% on every purchase and defined a cash discount as “a term of payment merely, not a price adjustment; it is a mode of financing, not a reduction in the price.” It stated that a cash discount is a financial inducement to the customer to pay bills on or before the date specified in a sales invoice, a reward for prompt payment (usually 1% or 2% if the bill is paid in ten days) and, therefore, a nonoperating item rather than a deduction from the sales price.

The State argues alternatively, as follows:

(1) Since Margetts involved what the court considered a little better than a 2% cash discount, a trade practice long established, the giving of trading stamps in excess of one for each ten cents purchased of motor fuel violates such established trade practice. Accordingly, it is argued, it ceases to be a mere cash discount and becomes a rebate prohibited by the statute.

(2) The cash discount theory of Margetts should be reexamined because, in fact, it was based on an erroneous economic concept, there being no true cash discount involved at the retail level.

Taking up the State’s second argument first, there is ample evidence in this case from the expert witnesses for both the State and the defendant indicating that, at least under present economic theory, the cash discount principle is inapplicable to retail sales and is truly only applicable to sales from a manufacturer to a wholesaler or retailer, or from a wholesaler or distributor to a retailer. The experts indicate that these are the only situations where credit is extended and where it is beneficial to the seller, in exchange for prompt payment of bills, to afford the purchaser a 1% to 2% cash discount. They testified that at a retail gasoline station there is really no trade incentive to the retailer to give a cash discount by way of trading stamps or otherwise, since the purchaser is always paying cash at the time of purchase. Their testimony would also support a finding that there is no real relationship between a cash discount and the very flexible discount rate that member banks pay from time to time to the Federal Reserve Bank for moneys, borrowed. There is also evidence which would substantiate a finding that one stamp now represents a 2J^%-3% “cash discount,” (assuming it is such a discount) and that such stamps are used to stimulate business — i. e., as a promotional or incentive device to bring in more business in places in which they are given. As in Margetbs, this percentage is based on the value of the merchandise which may be obtained therefor by way of redemption at the stamp centers. The cash redemption value , of each stamp, redeemable by the trade stamp company, is one mill —• or $1.20 for a book of 1200 stamps.

It may very well be, as the State contends, that the theory of Hargetts should be reconsidered in the light of the evidence in this case and that, therefore, the giving of even one trading stamp for ten cents of motor fuel should be considered illegal under the statutory provision as a rebate. But such a re-evaluation of Margetbs cannot be made by a trial court; it is bound by the Supreme Court decision in that case. Russ v. Metropolitan Life Ins. Co., 112 N. J. Super. 265, 284 (Law Div. 1970). Moreover, the constitutionality of the statutory provision here involved was later upheld in Fried v. Kervick, 34 N. J. 68 (1961), and at that time the Supreme Court, in effect, reaffirmed its decision in Margetis. It stated that the ban on rebates and discounts from the posted price since Margetis had not proved as successful as was expected and that this lack of success might be due to the discussion in the Chancery Division opinion in Margetis casting doubt on the constitutionality of that enactment. It indicated that “removal of those doubts may provide the panacea” (at 83). Additionally, the Legislature appears to have acquiesced in the Margetis holding that trading stamps should not be considered unlawful rebates under a later statute involving the regulation of pharmacists. See Supermarkets Gen. Corp. v. Sills, 93 N. J. Super. 326, 333 (Ch. Div. 1966) involving L. 1965, c. 120 (N. J. S. A. 45:14-12, subd. f).

Obviously the hoped for panacea has not been provided by bolding N. J. S. A. 56:6-2(e) constitutional, since the evidence in this case indicates that retail price wars in the gasoline industry continue by way of giveaways and other devices, as well as by the giving of more than single trading stamps.

Under the circumstances, as far as the State’s contentions are concerned, the court is limited to determining whether the giving of more than a single trading stamp is a violation of the statute. Issuing a single trading stamp for each ten cents of motor fuel purchased is legal, according to Margeits.

Defendant argues that he instituted the triple stamp practice in order to meet competition of gasoline stations in his area, some of which were selling at a lower price than normally established, and others of which were involved in giveaways of prizes or various commodities, thereby impairing defendant’s competitive position. He contends that Margeits is not limited to the issuance of single trading stamps, but rather holds that trading stamps per se represent a cash discount which is permissible under the statute, and accordingly, any number of trading stamps may be given without constituting a violation of the statute.

Defendant further contends that if Margetis stands for the position that only single trading stamps may be given, he is being unlawfully discriminated against by the State. In support of this contention he claims that the State is not precluding his competitors from giveaways and other competitive devices equally destructive of the purpose of the statute herein involved — namely, to prevent gasoline retail price wars and unfair or fraudulent sales practices. Fried v. Kervick, supra, 34 N. J. at 79, 81.

Indeed, the regulations of the Division of Taxation, Motor Fuels Tax Bureau (New Jersey Administrative Code 18:19-2.8(a)) provide that no motor fuel retail dealer shall give away anything of value when such giveaway is conditioned upon the purchase of motor fuel and would have the tendency to produce sharp and drastic price reductions, create price wars, or foster instability throughout the industry. Any such giveaway in connection with so-called anniversaries, grand openings, or similar occasions, is prohibited. The regulation itself, however, does not preclude a giveaway which is not connected with the purchase of motor fuel. The Attorney General has advised the court that the Director of the Division of Taxation now interprets this regulation in accordance with the rationale of Judge Mintz’s opinion in United Stations of N. J. v. Getty Oil Co., 102 N. J. Super. 459 (Ch. Div. 1968), aff’d Del Spina v. Getty Oil Co., 54 N. J. 150 (1969), so as to preclude as well giveaways or gifts not conditioned on the purchase of motor fuel. It would appear that this interpretation should now be incorporated as part of the regulation if this is the Director’s position in order that all gasoline stations know of the change in view and policy of enforcement. See N. J. S. A. 56:6-6.

Additionally, it may be necessary that the regulations bo reviewed and revised to prohibit other existing or reasonably foreseeable competitive devices by gasoline retailers which violate the statutory provision and its purposes. One such device disclosed by the evidence is card-punching, a practice pursuant to which after a certain number of purchases and resulting punching of a customer’s card by the retailer the customer is given bonus trade stamps. Otherwise, there may very well be a constitutional problem of equal protection. See Southern Burlington County NAACP v. Tp. of Mount Laurel, 119 N. J. Super. 164 (Law Div. 1972); The Teagen Company, et al. v. Borough of Bergenfield, 119 N. J. Super. 212 (Law Div. 1972). However, if the kinds of acts prohibited are set forth in reasonably clear fashion or are otherwise within the statutory ban, discretionary determinations at the state level as to the extent of enforcement of the various kinds of prohibited acts do not necessarily involve a matter of constitutional dimension. The State has substantial leeway in this area. See Camden County v. PennmuTcen Sewerage Auth., 15 N. J. 456, 469 (1954); Nordco, Inc. v. State, 43 N. J. Super. 277, 288 (App. Div. 1957); United States v. Hercules, Inc., 335 F. Supp. 102 (D. C. Kans. 1971); Fried v. Kervick, supra, 34 N. J. at 74, 75. Cf. Hoy v. Capelli, 48 N. J. 81 (1966).

I find nothing in the evidence which would in any way warrant a finding that either the State’s enforcement policy or its endeavor to enjoin the trade stamp practice of defendant denies defendant equal protection of the laws under either the Federal or State Constitutions. This finding assumes that the State’s position is, as it must be, that (1) giveaways or gifts, whether or not connected with the purchase of motor fuel, (2) bonus trading stamps via card-punching or any substantially similar device, and (3) as hereinafter indicated, the giving of items such as postage stamps, are illegal under the statutory provision here involved.

One other issue raised by defendant relating to matters other than the legality of giving more than one trading stamp for each ten cents of motor fuel must be disposed of. The parties agree that fair trade contracts are no longer enforced in the gasoline industry, even though an amendment to the general fair trade statute (L. 1938, c. 165) which would cover the industry was enacted the same day as the statutory provision here involved. Defendant argues that since gasoline is no longer fair-traded, N. J. S. A. 56:6-2(e) does not apply — i. e., that it was intended to apply only in conjunction with enforcement of the Fair Trade Act. This contention is without merit.

In Fried v. Kervick, supra, the Supreme Court recognized that the instant provision may be “complementary to or as fortifying the fair trade act”; that “they both stem from legislative concern about unfair competition and unfair trade practices; [and that] 94.44% of all gasoline sold at retail is subject to fair trade contracts and therefore subject to the fair trade act.” However, the court further staled that “even if the history of the gasoline industry shows * * * that breach of such contracts causes an evil of greater impact upon the public welfare and thus might be deemed to justify additional price control in aid of the fair trade act, we prefer to treat the presently assailed enactment as an individual piece of legislation. That approach seems advisable because N. J. S. A. 56:6—2(e) (and the remainder of the act as well) applies not only to fair traded gasoline but also to that sold without fair trade contracts.” (34 N. J. at 75-76).

The remaining question is whether the giving by defendant of more than one trading stamp for each ten cents purchase of motor fuel violates N. J. S. A. 56:6-2(e) by constituting an illegal rebate, allowance, concession or benefit, thereby unlawfully permitting motor fuel to be obtained from a retailer below the posted price or at a net price lower than the posted price applicable at the time of sale. The answer must be in the affirmative.

Margetts in effect recognized what it considered a longstanding trade practice in validating the use of single trading stamps under the statute here involved. That long-standing practice was one permitting a discount of in the area of 2% on every purchase for cash. But the court did not intend, and in view of the purpose of the statute as outlined in Kervick, should not be deemed to have intended, a carte Manche approval of the giving of trading stamps generally, irrespective of the number distributed with each purchase. If the number of stamps issued with a purchase of motor fuel substantially exceeds the 2.08% cash discount standard allowed in Margetts — for example, in excess of 3% — , it violates the spirit and purpose of the provision here involved and the statute of which it is a part. Under the evidence in this case I find that giving more than one trading stamp for each purchase of ten cents of motor fuel violates that cash discount standard and, accordingly, is illegal. I find further that defendant’s distribution of triple stamps results in a cash discount in excess of 6% and thus violates N. J. S. A. 56 :6-2(e).

Permitting more than single trading stamps involves a substantial reduction in the posted price of the motor fuel at the time of sale. Margetts does not hold that trading stamps per se represent a cash discount not covered by the statutory prohibitions against rebates, allowances, concessions or benefits resulting in prices below the posted price. The rationale of Margetts is simply that the giving of one such stamp resulting in the customary or traditional approximately 2% cash discount to the purchaser is not banned by the language or purpose of N. J. S. A. 56:6—2(e), which is aimed at preventing price wars and fraudulent and unfair practices in the retailing of motor fuel. Thus, the court there said:

* * * the cash discount [of approximately 2%] * * * does not in any real sense work an inequality of price within the intendment of subdivision (e). Rather, it has reference to the terms of the sale, making for price parity in respect of all retail sales, either for cash or on credit. The true cash discount of approximately 2% according to common practice, bears no relation to the object and policy of the law. It is not a trade discount nor a rebate or concession not concerned with the value of the sales related to the time and terms of payment.* * * The avow-ed purpose of this statutory regulation is the prevention, in the public interest, of fraudulent and unfair practices in the retailing of motor fuel. But there is no suggestion in the enactment itself of a design to outlaw the true cash discount as a means to this end. Indeed, its omission from the category of forbidden acts and conduct contained in subdivision (e) makes reasonably clear an intention contra * * we cannot assume from the nature of the expressed policy that the Legislature had in view the interdiction of this looll established and commonly known trade praetioe of a discount for cash, available to all alike. [15 N. J. at 208-209; emphasis supplied]

There is abundant evidence in this case, and I find that the use of more than one trade stamp for each ten cents purchase of gasoline is a competitive weapon to attract sales and is a type of device leading to the price wars and unfair sales practices by dealers selling gasoline to the con-mming public which the statute here involved was designed to preclude. Fried v. Kervick, supra, 34 N. J. at 78, 81; Kingsley v. Miller, 90 N. J. Super. 9 (App. Div. 1965): United Stations of N. J. v. Getty Oil Co., 102 N. J. Super. 459 (Ch. Div. 1968), aff’d o.b. Del Spina v. Getty Oil Co., 54 N. J. 150 (1969). See Supermarkets Gen. Corp. v. Sills, 93 N. J. Super. 326, 350 (Ch. Div. 1966). See also, Rubbermaid, Inc. v. Claber Distributing Co. of Cleveland, 3 Ohio Misc. 39, 205 N. E. 2d 410 (C. P. 1965); Safeway Stores v. Oklahoma Retail Grocers Ass’n, 322 P. 2d 179 (Okla. Sup. Ct. 1957), aff’d 360 U. S. 334, 79 S. Ct. 1196, 3 L. Ed. 2d 1280 (1959); State of Minnesota v. National Food Stores, Inc., 1960 Trade Cas. § 69, 792 at 77, 178 (Minn. D. Ct.); Trade Commission v. Bush, 123 Utah 302, 259 P. 2d 304, 306 (Utah Sup. Ct. 1953).

I find, further, that the use of triple stamps by this defendant, allegedly to meet competition of other dealers engaged in giveaways and similar practices, has resulted in substantially reduced gallonage and earnings to other dealers in his competitive area and, in turn, has caused them or some of them to engage in similar or other sales practices which tend to undermine the stability of the retail gasoline industry. As a result, there is a substantial erosion of the statutory purpose and a fostering of the very c-vils the statute intended to prevent.

In Kingsley v. Miller, supra, the court upheld the conviction of a gasoline retailer who gave a customer the option of double stamps or two cents off the posted price, where, in fact, the customer accepted two cents off the price. It held that the two cents represented a rebate prohibited by the statute. Under the facts of that case, the two cents rebate represented a discount of over 6% from the purchase price; the double stamps would have represented about a 5% discount from that price.

In Supermarkets Gen. Corp. v. Sills, supra, Judge Mintz held constitutional a statute (L. 1965, c. 120; N. J. S. A. 45:14-12) which permitted the State Board of Pharmacy to refuse an application for examination or suspend or revoke the certificate of a registered pharmacist for “grossly unprofessional conduct.” Among other things, such conduct included “the distribution of premiums or rebates of any kind whatsoever in connection with the sale of drugs and medications provided, however, that trading stamps and similar devices shall not be considered rebates for the purpose of this chapter.” (Emphasis suppled). With respect to the equal protection issue raised by reason of the statutory distinction between premiums or rebates on the one hand and trading stamps on the other, the court followed the holding of Margeits that such stamps were not rebates and represented a cash discount rather than a price adjustment. It then said:

Similarly, in the instant case the Legislature, in permitting the use of trading stamps as opposed to rehates or premium devices, apparently was distinguishing between a form of cash discount and what otherwise would comprise premiums or inducements to buy.
It was urged that the statute in its present form would not prohibit a pharmacist from giving “double or triple stamps” on prescription items, thereby frustrating the intent of the Legislature. If, however, a pharmacist issued trading stamps in excess of the normal discount for cash, such practice conceivably would be in violation of the letter and spirit of chapter 120. I conclude that the quoted provision * * does not contravene the Kqual Protection Clauses * * *. [93 N. J. Super, at 348-349; emphasis supplied]

In my view the objective oí achieving the broad purpose of N. J. S. A. 56:6-2(e), as well as the balance of the statute of which it is a part, requires that Hargetls be read as permitting no more than single trading stamps—i. e., the normal discount for cash. It also compels the conclusion that the issuance of more than one trading stamp with the purchase of ten cents of motor fuel contravenes the statutory provision. See United Stations of N. J. v. Getty Oil Co., supra, 102 N. J. Super, at 472-473, 475.

In support of a more liberal construction of Hargetts, it is pointed out that a penal action may he maintained for a statutory violation; and that, notwithstanding Hargetts’ having been in existence for 15 years, the Director has been relying on verbal warnings by investigators to retailers, instead of adopting a regulation, as to the illegality of multiple trading stamps. Hence, it is said, fairness requires that Hargetts be interpreted as permitting the issuance of any number of trading stamps.

The contention that mere verbal warnings, rather than a regulation or other written communications to all retailers, are insufficient to sustain a penal action under the statute is sound. The present proceeding, however, is for an injunction. In any event, the notice problem will be taken care of by the Director’s following the requirements relating thereto set forth below. Moreover, merely because a penalty may also be sought for violation of a regulatory statute such as N. J. S. A. 56:6—2(e) “does not prevent a court from reading the statute in relation to the mischief and evil sought to be suppressed. * * * While a penal statute is not to be extended by implication * * *, its clear implication and intendement is not to be denied. [H]or is a construction of a penal statute that will aid in its evasion to be favored.” Kingsley v. Miller, supra, 90 N. J. Super. at 15-16. As indicated, in my view the purpose of the statutory provision here involved is furthered by an interpretation of Margetts which limits the issuance of trading stamps to one stamp for each ten cents of motor fuel purchased; a contrary construction I find will result, and in fact has resulted, in the kind of trade evil the statute intended to prohibit.

It has been contended, in support of giving a broader interpretation to Margetts, that economic reality requires that the discount rate be permitted to be flexible, since what may be deemed an excessive rate at one time may be realistic at another. Reliance is placed on the member bank discount rate of the Federal Reserve Bank of New York, which was 1)4% in April 1954 when Margetts was decided, and is now much higher.

I find, however, from the expert evidence in the present ease, that there is in fact no relationship between the cash discount discussed in Margetts and the discount rate that member banks pay from time to time to the Federal Reserve Bank for moneys borrowed. The cash discount is a financial inducement to pay promptly and is customarily and inflexibly approximately in the area of 2%. The discount or interest rates that banks pay to the Federal Reserve Bank for borrowings have an entirely different purpose which requires flexibility.

At the hearing it developed that at least one retailer gave postage stamps, instead of trading stamps, with purchases of motor fuel. The question has arisen as to whether the issuance of such postage stamps is legal. It is said that since a trading stamp may be redeemed for merchandise or cash (even though the cash is in a lesser amount than the value of the merchandise) and a postage stamp can also be redeemed for cash or the service of the postal department secured, any distinction between postage and trading stamps under Margetts would be invidious and untenable.

I am unable to accept this argument. Margetts involved trading stamps and, in view of the purpose of the statute, must be limited not only to such stamps but also to allowing the issuance of only single trading stamps as already stated. Postage stamps, irrespective of the percentage of discount from the purchase price they involve, in my opinion, are tantamount to the cash rebate or concession held illegal in Kingsley v. Miller, supra.

There is no doubt that defendant has habitually violated the statutory provision and policy here involved by the issuance of triple trading stamps. Plaintiff, therefore, is entitled to a permanent injunction under the statute restraining defendant from giving more than one trading stamp for the purchase of ten cents of motor fuel. N. J. S. A. 56 :6-4 (e); Hoffman v. Garden State Farms, Inc., 76 N. J. Super. 189, 200—201 (Ch. Div. 1962); Securities & Exchange Common v. Northeastern Financial Corporation, 268 F.Supp. 412, 414 (D. N. J. 1967). See also, United Stations of N. J. v. Kingsley, supra; United Stations of N. J. v. Getty Oil Co., supra.

However, as already indicated, the evidence shows two other devices presently in use in defendant’s competitive area and elsewhere which plainly fall within the prohibitions of N. J. S. A. 56:6-2(e) and constitute at least equally destructive competitive practices in the retail gasoline industry: (1) giveaways, whether or not connected with the purchase of motor fuel, and (2) the issuance of bonus stamps in connection with the practice of cardpuuching or any substantially similar practice. In addition, in my view, the giving of postage stamps with a purchase of motor fuel violates the statute.

Fairness not only to this defendant but to all gasoline retailers in the State requires that all of these practices be publicly declared and held illegal. See United Stations of N. J. v. Getty Oil Co., supra, 102 N. J. Super, at 473-474. Of course, the extent to which and the manner in which these various specific prohibitions — excessive trading stamps, giveaways, cardpunching, the issuance of postage stamps — are enforced are matters left to the State’s discretion, depending in large measure on what it considers the most effective method of effectuating the statutory policy within the limits of available enforcement personnel.

In anjr event, the Director must give gasoline retailers throughout the State ample written notice of the illegality of each of these competitive devices. I leave to his discretion whether he takes this action by the adoption of appropriate regulations or the giving in some fashion of adequate written notice to all of the gasoline retailers operating in this State of the conclusions reached in this opinion.

A permanent injunction will issue against defendant’s giving more than single trading stamps, as hereinbefore stated, effective 15 days after the aforesaid notice has been given.

      See Hogue v. Kroger Company, 213 Tenn. 365, 373 S. W. 2d 714 (Sup. Ct. 1963); Colgate-Palmolive Company v. Elm Farm Foods Co., 337 Mass. 221, 141 N. E. 2d 861, 866 (Sup. Jud. Ct. 1958); Colgate-Palmolive Company v. Max Dichter & Sons, Inc., 142 F. Supp. 545 (D. Mass. 1956). See also, Note, 105 U. Pa. L. Rev. 242, 257 (1956).

        Inganamort v. Fort Lee, 120 N. J. Super. 286 (Ch. Div. 1972), is not to the contrary. There the trial court found substantial factors distinguishing the case before it from the Supreme Court case which it was claimed had already decided the issue involved. Here there are no such factors. In this case the court would be required to reject the economic theory and the holding of Margetts that actually a trading stamp is a cash discount—a mode of financing—, rather than a rebate or price reduction at the retail level.

        United Stations concerned another section of the statute (N. J. S. A. 56:6-2(f)) here involved prohibiting retail dealers from using lotteries, prizes, punch-boards or other games of chance, “in connection with the sale of motor fuels.” The court ruled that giveaway contests are violative of this section whether or not a purchase of motor fuel was required to participate therein. It reasoned that the basic purpose of the enactment—to regulate competitive practices in the motor fuel industry by seeking to discourage “such competitive devices of temptation”—was served by an interprei ation that the game of chance was given “in connection with sale of motor fuels” even though an actual purchase was not necessary to obtain the game.

      The mere reduction of price, shown by the evidence in this case as a competitive device engaged in by some retailers, as long as it is not below the posted price, however, does not violate the section here involved. Nevertheless, the extent to which, if at all, it involves pressure by the gasoline supplier on the retailer thus to compete either with or without compensating him fully for the price reduction, it conceivably might be legally assailable by the appropriate state agency or others under applicable law. Similarly, other competitive pressures by suppliers on retailers, if unlawful, may call for judicial redress. Again, what appears to be possibly deceptive price cutting practices indicated by the evidence (such as a large sign on the retailer’s premises stating “2 cents off” without giving the price from which the reduction is made) may constitute fraudulent sales practices against which an attack may be made under applicable law other than N. J. S. A. 56:8-2(e). See, e. g., N. J. S. A. 56:6-2(a)-(d); 56:6-22; Fried v. Kervick, supra; United Stations of N. J. v. Kingsley, 99 N. J. Super. 574, 583 (Ch. Div. 1968); Shell Oil Co. v. Marinello, 120 N. J. Super. 357 (Law Div. 1972).

      The general Fair Trade Act is to be found in A. J. S. A. 56 :4-3 et seq.

        N. J. S. A. 56:6-3 permits the imposition of a maximum fine of $200 and a maximum suspension of defendant’s license for 30 days for a violation of the section here involved.


author: Botter, J. S. C.

text:
    SALESIAN SOCIETY, PLAINTIFF v. FORMIGLI CORPORATION, EDWARD REIHL COMPANY, INC., AND WILLIAM REIHL AND EILEEN REIHL WOJTECKI, INDIVIDUALLY AS THE LAST OFFICERS AND DIRECTORS OF EDWARD REIHL COMPANY, INC., A DISSOLVED CORPORATION, DEFENDANTS.
    Superior Court of New Jersey Law Division
    Decided July 27, 1972.

      Mr. Prospera DeBona and Mr. Robert P. Grabowski for plaintiff (Messrs. Dittmar, DeBona, Goldberg, Johnson, Byrne & Donnelly, attorneys).

      Mr. John IF. Reinman, for defendant Formigli Corporation (Messrs. Bennett & Bennett, attorneys).

      Mr. Edward R. Schwartz and Mr. Frank R. Oinquina for defendants Edward Keihl Company, Inc. and Eileen Keihl Wojtecki (Messrs. Schwartz and Andolino, attorneys).
   Botter, J. S. C.

Defendants and plaintiff have moved for summary judgment to determine whether this action is barred by N. J. S. A. 2A:14—1.1; L. 1967, c. 59. Under this statute no action may he brought against contractors, architects and the like grounded in contract, tort or otherwise, to recover damages for deficiencies or defects in the design, planning, supervision, or construction of an improvement to real properly after ten years from the date when the services were rendered or the construction performed. On July 19, 1972, our Supreme Court upheld the constitutionality of this statute. Rosenberg v. North Bergen Tp., 61 N. J. 190 (1972).

Plaintiff, Salesian Society, is a religious corporation. In 1956 or 1957 plaintiff contracted with Edward Reihl Co., Inc. (Keihl) for the construction of a large building in Newton, New Jersey, at the site of Don Bosco College. Construction commenced in July 1957 and the building was completed and occupied on May 3, 1958.

Plaintiff asserts that the Keihl company was paid $519,000 for the construction work, of which approximately $108,000 was paid to defendant Formigli Corporation, a subcontractor, for its role in designing, fabricating and installing concrete beams supporting the walls and roof of the structure. If the ease were tried, Formigli would dispute that it designed the beams, and both Formigli and Keihl would contend that all construction was done in accordance with plans and specifications submitted by plaintiff. However, for the purpose of this motion, all facts alleged by plaintiff were accepted as true.

Plaintiff asserts that in early 1969 water leaks began to appear in the building. In April 1969 plaintiff contracted for the repair of leaks around window frames in the dormitory section at a cost of $59,000. Plaintiff asserts that in the course of that repair work, in April and May 1969, it was discovered that the water leaks were related to serious cracks in the concrete beams supporting the building. Plaintiff thereafter engaged an engineer and architect to study the problem. In February 1970 plaintiff received a report that the structure was unsound and dangerous. A second study was commissioned, and a similar report was received in June 1970. Accordingly, the building was shut down and the September 1970 class of students was transferred to a location in Massachusetts. Thereafter, on May 27, 1971 this action was commenced, approximately 13 years after the building had been completed and occupied and four years after N. J. S. A. 2A:14-1.1 became effective. By then, specifically in 1969, the Reihl corporation had been dissolved.

Defendants contend that this action is expressly proscribed by N. J. S. A. 2A:14-1.1, which is as follows:

No action whether in contract, in tort, or otherwise to recover damages for any deficiency in the design, planning, supervision or construction of an improvement to real property, or for any injury to property, real or personal, or for an injury to the person, or for bodily injury or wrongful death, arising out of the defective and unsafe condition of an improvement to real property, nor any action for contribution or indemnity for damages sustained on account of such injury, shall be brought against any person performing or furnishing the design, planning, supervision of construction or construction of such improvement to real property, more than 10 years after the performance or furnishing or such services and construction. This limitation shall not apply to any person in actual possession and control as owner, tenant, or otherwise, of the improvement at the time the defective and unsafe condition of such improvement constitutes the proximate cause of the injury or damage for which the action is brought.

Plaintiff hag attacked the constitutionality of the statute and has asserted also that, in any event, it does not apply to this action because (a) the statute, by the terms of its second sentence, does “not apply” to an owner in actual possession and control; (b) this statute should be interpreted to apply prospectively only, to construction or services performed after its effective date, namely, May 18, 1967; (c) the defects were unknown and un disco ver able prior to the spring of 1969 and the “discovery rule” should except plaintiff from the operation of the statute; and (d) the claim is grounded in breach of warranty and strict liability in tort, and is therefore not affected by the statute.

The constitutional infirmities charged here by plaintiff are similar to those urged in Rosenberg v. North Bergen Tp., supra. In that case (although not raised before me in the trial court on the motion to dismiss) a broad constitutional attack was raised, namely, that the law was arbitrary, violated equal protection and due process rights, and created an immunity for a special class in violation of fundamental law. It was argued that it contravenes traditional notions of fair play and the broad public policy principles underlying the “discovery rule” to cut off a cause of action before it is discovered.

As stated above, the Supreme Court upheld the constitutionality of the statute. While acknowledging the desirablitiy of affording a remedy in certain cases by extending the period of limitations through the “discovery” rule, the court also recognized the right of the Legislature to set a terminal date for claims that might otherwise threaten with liability a given class of persons for an unlimited period of time. The court held that the statute is not a statute of limitations which fixes a time period for the commencement of an action after it accrues. Instead, the statute prevents “from ever arising” a cause of action against members of the protected class at a given point of time. The court said:

“Tlie injured party lias literally no cause of action. The harm that has been done is damnum absque injuria—a wrong for which the law affords no redress. The function of the statute is thus rather to define substantive rights than to alter or modify a remedy. The Legislature is entirely at liberty to enact new laws or abolish old ones as long as no vested right is disturbed.”

For these reasons I must reject also, the one constitutional attack made here which was not presented in Rosenberg, namely, that Art. IV, Sec. VII, § 5 of the New Jersey Constitution is violated because this statute is, in effect, an amendment to the statute of limitations embraced in N. J. S. A. 2A:14-1 without that law being fully set forth in the Act under review.

Two of plaintiff’s contentions in this case require an interpretation of the statute. The first contention is that plaintiff’s action is excepted from the operation of the statute because of the last sentence which reads:

This limitation shall not apply to any person in actual possession and control as owner, tenant, or otherwise, of the improvement at the time the defective and unsafe condition of such improvement constitutes the XDroximate cause of the injury or damage for which the action is brought.

The phrase, “this limitation shall not apply to” an owner or tenant in possession, is ambiguous. In Rosenberg it was argued that this phrase makes the statute void for vagueness, since it refers either to claims of an owner in possession or claims against an owner in possession. In deciding which was intended by the Legislature, one might seek an interpretation that avoids a contraction of common law rights, since the statute has a substantive effect. However, this canon of construction is of no help, because in either case substantive rights will be cut off, either the rights of owners in possession to sue architects, designers and contractors, or the rights of members of the public to sue owners or tenants in possession for injuries due to deficiencies in design, construction or supervision performed by them more than ten years before an action is brought. In my opinion, the Legislature, by this phrase, intended to preserve causes of action against “any person in actual possession and control as owner, tenant, or otherwise, of the improvement at the time” injury or damage is caused by defective design or construction. This is the construction given to the statute in Gilliam v. Admiral Corporation, 111 N. J. Super. 310, 314 (Law Div. 1910). See also, Wiggins v. Proctor & Schwartz, Inc., 330 F. Supp. 350, 352 (D. C. Va. 1911).

In the course of passage the words, “in contract, in tort, or otherwise,” were added to a previous bill, Senate 252 (1966), which did not become law, although the language remained the same in the law enacted in 1961. By this phrase the Legislature expressed a clear intent to deprive an owner of contract claims against architects and contractors, after ten years. The phrase must have been aimed primarily at owners, because it is they who would have a contract claim for deficiencies in design or construction. A third party, such as an invitee injured by a defect in the premises, is likely to have a tort claim against an owner or tenant in possession and control, but not a contract claim against an architect or builder. It makes little sense to take a contract claim away from an owner in the first sentence of the act and then restore it to him, if he is in possession and control, by the second sentence. Clearly, the intent was to deprive the owner in possession and control from asserting the ten-year period as a defense to claims by third parties. This conclusion is bolstered by the statutory provision precluding claims for contribution or indemnity. It is the third party who has a claim against an owner, but the owner’s claim for indemnity or contribution, as well as his direct contract or tort claim against an architect or builder, are barred.

Some 30 states have adopted similar statutes between 1964 and 1969, and others since. See Comment, “Limitation of Action Statutes for Architects and Builders—Blueprint for Non-action,” 18 Catholic U. L. Rev. 361 (1969). In some of these states statutes were adopted using the phrase, “this limitation shall not apply to a person in actual possession and control as owner, tenant or otherwise * * Miss. Code Ann. § 730.5 (Supp. 1968); N. H. Rev. Stat. Ann. § 508:4-b (1968); N. C. Gen. Stat. § 1-50(5); Ohio Rev. Code Ann. § 2305.13.1 (Supp. 1968); Utah Code Ann. § 78-12-25.5 (Supp. 1967); Wisc. Stat. Ann. § 893.155 (1966) . Most of the states preserve claims against owners or tenants in possession by clearer language. The phrase most commonly used is, “this limitation shall not be asserted by way of defense by any person in actual possession and control of the improvement as owner, tenant or otherwise at the time a deficiency constitutes the proximate cause of the injury or death for which it is proposed to bring an action.” Alaska Stat. § 09.10.055 (Supp. 1968); Cal. Civ. Pro. Code § 337.1 (West Supp. 1968); Ga. Code Ann. §§ 3-1006 to 3-1009 (Supp. 1968); Idaho Code Ann. § 5-341 (Supp. 1967); Ind. Ann. Stat. §§ 2-639 to 2-642, 10 1971, 34-4-20-1 to 34-4-20-4 (Supp. 1967); Ky. Rev. Stat. § 413.135 (Supp. 1968); N. D. Cent. Code § 28-01-44 (Supp. 1967); Okla. Stat. Ann., Title 12, § 109 (Supp. 1968); Pa. Stat. Ann. Title 12, § 65.1 (Supp. 1969); S. D. Laws Ann. § 15-2-9 (1966); Wash. Rev. Code Ann. § 4.16.300-4.16.320 (Supp. 1968). Similar language, namely, “this limitation shall not be applied in favor of any person in actual possession and control as owner, tenant or otherwise,” was used in the Minnesota statute. Minn. Stat. Ann. § 541.051 (Supp. 1968) . Finally, perhaps the clearest expression is used in the Nevada statute, namely “where an action * * * is brought against a person in actual possession or control as owner, tenant or otherwise * * * the limitation * * * shall not be a defense for such person.” Nev. Rev. Stat. § 11.305 (1967) . Similar language, clearly indicating the limitation "shall not apply to actions against” an owner or tenant in actual possession, is found in Mich. Comp. Laws Ann. § 600.5839 (1968) and Va. Code Ann. § 8-34.3 (Supp. 1966).

That the intent was to preserve causes of actions against owners and tenants in possession and control was made clear in hearings on proposed legislation for the District of Columbia. “Hearing 7 on H. R. 6537, H. R. 6678 and H. R. 11544 before Subconrm. No. 1 of the House Comm, on the District of Columbia,” 90th Cong., 1st Sess. 5, 11, 24, 29 (1967). These views were summarized in Comment, 18 Catholic U. L. Rev., supra, at 384, as follows:

3. The injured party retains his remedy against the owner after the statutory period. With the passage of time, the probability increases that improper maintenance, rather than faulty design or construction, is the proximate cause of injury. Thus, some reasonable time limitation for suit is a fair compromise, and statistical data show that 84.3 percent of all claims against architects and builders would be brought within four years.

Exceptions to this pattern of legislation are the Florida and Louisiana statutes. In Louisiana the limitation applies to every claim, “whether brought by the owner or by any other person.” La. Rev. Stat. Ann. § 9:2772 (1965). In Florida, an anomalous statute goes the other way by providing, “Nothing in this act shall affect the limitation of actions by an owner or tenant in possession, but shall apply only to third parties.”

In my opinion the legislative intent was to insulate contractors, architects, planners and designers from all claims, whether in tort or contract or by way of contribution or indemnity, by owners, tenants or third persons after ten years. What the Legislature intended to preserve was the right to make a claim against a person “in actual possession or control as owner, tenant or otherwise” at the time of the injury. The net effect is that potential liability for dangerous conditions of premises is left on the owner or other person in possession if injury is caused by circumstances that normally give rise to a cause of action. See Handelman v. Cox, 39 N. J. 95, 106, 111 (1963); Krug v. Wanner, 28 N. J. 174 (1958); Brody v. Albert Lifson & Sons, 17 N. J. 383 (1955); Zentz v. Toop, 92 N. J. Super. 105, 111 (App. Div. 1966), aff'd 50 N. J. 250 (1967); Restatement, Torts 2d, § 343 (1965). The legislative disposition was to exclude from liability persons, such as architects and contractors, who have been long out of possession of the property and long without the right or duty to make inspections and repairs of conditions that may be discovered during the ten-year period.

Plaintiff also contends that the statute should be given a prospective application only as to construction or services performed after its effective date, May 18, 1967. Normally, a statute having a substantive effect is given a prospective application unless a contrary legislative intent is clearly expressed. Nickell v. Gall, 49 N. J. 186, 189 (1967); Kopczynski v. Camden County, 2 N. J. 419, 424 (1949). Here, the Legislature provided that no action "shall be brought * * * more than 10 years after the performance or furnishing of such services and construction.” Clearly, the statute should be read prospectively to apply only to actions brought after its effective date. A problem may be presented by actions for damage discovered a short time before the ten-year period has run, but which are not brought until shortly after that time has passed. Some states have provided a grace period to meet that problem. For example, where the injury or damage has occurred in the last year or two of the period, the injured party is still allowed to sue within one or two years after the date of injury. The Alaska, California, Georgia, Indiana, Kentucky, North Dakota, South Dakota, Minnesota and Nevada statutes, supra, all contain provisions along these lines. The present case, however, is not one in which the damage was discovered just before the ten year period elapsed, and this problem, therefore, need not be confronted.

To say that the Legislature meant to apply the act only to construction completed after its effective date, May 18, 1967, would keep open for ten years, for example, an action for damage due to defective construction completed on or after May 18, 1967. This means that the statute would bar an action for the first time on May 18, 1977. That bar would apply only to construction completed on or after May 18, 1967. Such an interpretation would mean that claims for damage against contractors and architects of construction completed before May 18, 1967 would be left open for an unlimited period of time, except as governed by existing statutes of limitations. Obviously, such an interpretation would have prevented the dismissals of the actions in Rosenberg v. North Bergen Tp., supra, and Gilliam v. Admiral Corporation, supra. In my opinion the Legislature did not intend the statute to bar only actions which are tiled after May 17, 1977. The statute does apply prospectively, however, to all actions commenced after its effective date in 1967, including this action. In this sense the statute has prevented a cause of action from arising for damage discovered long after the alleged breach of contract or tort was committed, in 1957 or 1958, at the time of construction. By thus limiting the “discovery” rules which our courts have developed since then, beginning with Fernandi v. Strully, 35 N. J. 434 (1961), plaintiff is actually in no worse position than when the work was contracted and completed. In fact, at that time the “completed and accepted” rule might also have applied as a bar to this action. See Totten v. Gruzen, 52 N. J. 202 (1968). There is no claim here that any express contract provision prevents the rights of plaintiff from being cut off by statutes of limitation or other rule of law.

Accordingly, the motions of defendants are granted; the motion of plaintiff is denied, and the action is dismissed.


author: Simpson, J. C. C.

text:
    STATE OF NEW JERSEY, PLAINTIFF, v. ANDREW D. NICOL, DEFENDANT.
    Superior Court of New Jersey Law Division
    Decided August 30, 1972.

      Mr. Adam Lawrence, Assistant Prosecutor, Bergen County, for plaintiff (George F. Kugler, Jr., Attorney General of New Jersey, attorney).

      Mr. James A. Major II for defendant (Messrs. Major <& Major, attorneys).
   Simpson, J. C. C.

(temporarily assigned). Defendant moves to dismiss an indictment charging him with violation of N. J. S. A. 2A:151-41, carrying a pistol or revolver ■without a permit. The indictment arose out of an incident that occurred while defendant was serving a subpoena, in connection with a civil action, ttpon one Malvern Burroughs. An altercation had taken place and cross-complaints were filed charging disorderly persons offenses of assault and battery. Burroughs was also charged with contempt of court. Although the details of the incident are not germane to the present inquiry, and there was a factual dispute concerning the appearance of the gun, this occurrence is an example of the dangers of misuse and accidental use when such weapons are carried. Siccardi v. State, 59 N. J. 545 (1971); Reilly v. State, 59 N. J. 559 (1971).

For purposes of this motion, the prosecutor and defendant’s counsel stipulated the following facts:

1. That on November 12, 1971 defendant Andrew D. Nicol was a constable of the Borough of River Edge, Bergen County, New Jersey.

2. On that date defendant had a revolver in his possession.

3. Defendant did not have a permit for the revolver.

4. On the occasion in question defendant was engaged in the process of serving a subpoena upon one Malvern Burroughs in Oakland, New Jersey, in connection with a civil suit then pending in the Superior Court of New Jersey, Law Division, Bergen County, in which suit Alsan Realty Co. was plaintiff, and M. Burroughs & Son, Inc. was defendant.

5. The subpoena was issued by Donald Horowitz, attorney for plaintiff.

6. At the time and place in question defendant was not engaged in the performance of any duties for the Borough of River Edge.

7. In 1967 defendant had applied to Judge Hole for a permit to carry a revolver, and such permit was issued.

8. In 1968 defendant had applied to Judge Arnold for a permit to carry a revolver, and such permit was issued.

9. In 1969 defendant had applied to Judge Hole for a permit to carry a revolver, and such permit was issued.

10. In 1970 an application was made by defendant to Judge Kole for a permit to carry a revolver. A question then arose as to the necessity of defendant having a permit, and his application was then withdrawn.

11. On November 13, 1971, and since 1959, defendant was a member in good standing of the New Jersey Detective Agency, organized on December 33, 1870 and chartered April 4, 1871 under L. 1871, e. 457.

I

N. J. S. A. 3A:151-41 provides, in pertinent part, that with certain exceptions no one shall carry pistols or revolvers without a permit. Nicol did not have a permit. He relies on the exception in N. J. S. A. 3A:151-43 subd. f which provides that N. J. S. A. 3A :151-41 is not applicable to

Any jailer, constable, railway police, or any other peace officer, when in discharge of his duties.

At the time of the occurrence defendant was not discharging his duties as a constable of the Borough of River Edge. Instead, he was serving a subpoena for an attorney in connection with a civil action, as anyone over the age of 18 may do pursuant to B. 1:9-3. Some sections of N. J. S. A. 3A:151—43 permit certain persons, such as United States marshals and prosecutor’s detectives, to carry weapons at all times without permits. Other sections, such as those applicable to court attendants and members of the armed forces, limit the exception to periods of time by phrases such as “while in the performance of his duties” and “when on duty.” As cited above, the exception only applies to a constable “when in discharge of his duties,” and in the context of the overall provisions of N. J. S. A. 3A:151-43 there can be no doubt as to the plain meaning of these words.

Under the stipulated facts defendant was carrying a revolver during a period of nonconstabulary duties. Accordingly, the indictment may not be quashed on this ground. In the event Nicol was en route to performance of constabulary duties at the time he was serving the subpoena, a different question might be presented, but the stipulation of facts does not cover this possibility.

II

At the time in question, it was also stipulated that defendant was a member in good standing of the New Jersey Detective Agency. This organization was incorporated under L. 1871, c. 457, and section 5 thereof provides:

That the members of said agency shall have and possess the same powers and authority that constables and policemen have by law in the several cities, townships and counties, in which they may act in all criminal matters, and that it shall be lawful for them to serve any criminal process which constables and sheriffs may serve.

The 1871 act incorporating the New Jersey Detective Association has an unusual history. L. 1938, c. 214 purported to repeal L. 1871, c. 457. The purported repealer, however, was held null and void for the reasons set forth in In re Miller, 122 N. J. L. 176 (Sup. Ct. 1939).

In any event, nothing in N. J. S. A. 15:4— 1 et seq. pertaining to detective associations, or in N. J. S. A. 45:19—8 et seq. pertaining to private detectives, purports to exempt private detectives or members of detective associations from the permit requirements of N. J. S. A. 2A:151-41 et seq.

Even if the above-cited section 5 of the 1871 act incorporating the New Jersey Detective Association was deemed to give its members, such as Nicol, the broadest rights of “policemen” {e. g., to carry weapons pursuant to N. J. S. A. 2A:151-43, subd. d), such authority by the very terms of this ancient legislation is limited to acting in criminal matters and serving criminal process. Again, the stipulation of facts does not cover the possibility of defendant being en route to any such duty at the time of the occurrence giving rise to the present litigation, so that no opinion is expressed thereon.

Eor the foregoing reasons, the motion to quash the indictment is denied.


text:
    STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT, v. JACQUELINE STEWART ET AL, DEFENDANT-APPELLANT.
    Superior Court of New Jersey Appellate Division
    Argued September 12, 1972
    Decided September 21, 1972.
    Before Judges Labkecque, Kolovsky and Matthews.

      Mr. Richard Aloysius Walsh, Designated Attorney, argued the cause for appellant (Mr. Stanley C. Van Ness, Public Defender, attorney).

      Mr. Ralph J. Jabbour, Assistant Prosecutor, argued the cause for respondent (Mr. Joseph P. Lordi, Essex County Prosecutor, attorney).
   Per Curiam.

Defendant appeals, on leave granted, from an order denying her motion “challenging the array of the petit jury panel on the ground that the petit juror’s minimum age qualification of 21 years as set forth in [N. J. S. A.] 2A:69-1 is unconstitutional.”

On appeal defendant, who is 19 years of age, argues that “the exclusion of 18 to 21 year olds from prospective jury selection and service denies [her] the right to trial by a jury of her peers” and “is an invidious discrimination * * * repugnant to the equal protection clause of the Fourteenth Amendment.” We find no merit in defendant’s contentions.

N. J. S. A. 2A.-69-1 sets forth the requisite qualifications of a juror, including the requirement that he or she be “over 21 and under 75 years of age.” The constitutional power of the State to provide such age qualifications for jurors is clear. See Carter v. Jury Commission of Greene County, 396 U. S. 320, 90 S. Ct. 518, 525, 24 L. Ed. 2d 549 (1970), in which the court said:

It has long been accepted that the Constitution does not forbid the States to prescribe relevant qualifications for their jurors. The States remain free to confine the selection to citizens, to persons meeting specified qualifications of age and educational attainment, and to those possessing good intelligence, sound judgment, and fair character, [at 332, 90 S. Ct. at 525]

Although defendant contends that “the 18 to 21 year old age group constitutes a recognizable political, economic and social group of the community” whose exclusion from jury duty is unconstitutional, her argument therefor is unpersuasive and she cites no case so holding. The reported cases are to the contrary, each rejecting contentions identical with those advanced by defendant. See, e. g., United States v. McVean, 436 F. 2d 1120, 1122 (5 Cir. 1971), cert. den. 404 U. S. 822, 92 S. Ct. 45, 30 L. Ed. 2d 50 (1971); United States v. Gargan, 314 F. Supp. 414, 417 (W. D. Wis. 1970); People v. Hoiland, 22 Cal. App. 3d 530, 99 Cal. Rptr. 523 (Ct. App. 1971).

We note that the question here argued will soon be moot since by L. 1972, c. 81, effective January 1, 1973, the Legislature has extended to persons 18 years of age and older, among other things, the right to “serve on juries.”

The order denying the challenge to the array is affirmed.


text:
    STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT, v. JOHN CONNOLLY, DEFENDANT-APPELLANT.
    Superior Court of New Jersey Appellate Division
    Argued September 12, 1972
    Decided September 22, 1972.

      Before Judges Labrecque, Kolovsky and Matthews.

      Mr. Harry Kay argued the cause for appellant.

      Mr. Michael H. Stieber, Assistant Prosecutor, argued the cause for respondent {Mr. Joseph P. Jjordi, Essex County Prosecutor, attorney; Mr. David N. Dubrow, Assistant Prosecutor, of counsel; Mr. Theodore W. Daunno, Legal Assistant, on the brief).
   Per Curiam.

By a four-count indictment defendant John Connolly was charged with (1) acting as a messenger, cleric or copyist where a lottery business was being transacted on March 16, 1971 (N. J. S. A. 2A:121-3 (a)), (2) on March 17, 1971, (3) on March 18, 1971, and (4) possession of lottery slips on March 24-, 1971 (N. J. S. A. 2A:121-3 (b)). At the conclusion of the testimony the fourth count was dismissed by the court and the jury returned a verdict of guilty as to each of the first three counts. Defendant was sentenced to concurrent terms of four months in the Essex County Corrections Center on each count and fined $500 on the first count. His subsequent motion for a new trial was denied.

Defendant raises six points: (1) the trial judge should have disqualified himself because his son was an assistant prosecutor of Essex County; (2) it was error to permit an amendment of the indictment and to allow testimony of crimes not coming within the ambit of the indictment; (3) the trial judge erroneously granted the prosecutor’s motion to sequester certain defense witnesses; (4) the charge was erroneous; (5) the verdict was contrary to the weight of the evidence, and (6) it was error to deny the motion to set aside the verdict and grant a new trial. We have reviewed the record in the light of these contentions and find them to be without merit.

Initially, we find that the evidence adduced on the part of the State adequately supports the guilty verdicts returned by the jury. Accordingly, the denial of defendant’s motion for a new trial on the ground that they were contrary to the weight of the evidence was proper. R. 2:10-1; State v. Fleckenstein, 60 N. J. Super. 399, 408-409 (App. Div. 1960), certif. den. 33 N. J. 109 (1960).

Defendant urges that the failure of the trial judge to disqualify himself pursuant to B. 1:12-1 (b) mandates a new trial. By this rule a judge is required to disqualify himself on his own motion if he “is by blood or marriage the first cousin of or is more closely related to any attorney in the action. This proscription shall extend to the partners, employers, employees or office associates of any such attorney except where the Chief Justice for good cause otherwise permits.”

There is no substantial dispute as to the facts. The case was assigned to the trial judge on August 9, 1971; pretrial motions were thereafter disposed of by him and the trial was begun on October 18, 1971. Some two weeks before the trial the judge’s son was appointed and sworn in as an assistant prosecutor of Essex County. At the trial there was no motion that the judge disqualify himself because of that fact. When the issue was raised for the first time on defendant’s motion for a new trial defendant made it clear that he was not contending that the presentation of the case or the conduct of the court had been influenced in any way by the challenged relationship. Wholly aside, it appears clear from an affidavit filed with the court that the judge’s son never participated in any way in the preparation of the case or tin; conduct of the trial. However, it is defendant’s contention that despite the lack of any resulting bias or prejudice the judge’s failure to literally comply with R. 1:12-1 (b) requires reversal.

We are in accord that the cited rule required the trial judge to disqualify himself. The judge’s son was, at least, an office associate of the attorney who tried the case for the prosecutor. However, in the absence of an objection or a motion for disqualification, the question remains whether his failure to disqualify himself calls for a reversal. We are not convinced that it does. Every error does not call for a new trial. Cf. State v. Macon, 57 N. J. 325, 338 (1971). The purpose of an objection is to alert the court to the asserted error so that it may be corrected promptly and the ends of justice may thereby be better served. While here the rule calls for action by the trial judge oil his own motion, where he, apparently through inadvertence, omits to act, such omission, in the absence of an objection or a motion to disqualify (see N. J. S. A. 2A:15-50), should not result in a reversal absent a showing that defendant was thereby prejudiced. Here, we are convinced that he was not. Tht! trial of the factual issues was by a jury rather than the court and the issue of defendant’s guilt was submitted to the jury in a charge to which defendant made no objection. Further, the possibility of any connection of the judge’s son with defendant’s prosecution was so extremely remote, if not altogether absent, as to negate any claim of unfairness.

The cases cited by defendant, Sebolt v. National Bank of New Jersey, 140 N. J. Eq. 440 (E. & A. 1947); State v. Muraski, 6 N. J. Super. 36 (App. Div. 1949), and State v. Deutsch, 34 N. J. 190 (1961), are factually inapposite in that in each the issues were resolved by the court sitting without a jury. Further, in Sebolt the master to whom the accounting had been referred had been counsel for the complainants “in this very cause.” In Muraski the magistrate had actually been the victim of the defendant’s driving and in Deutsch the judge was a brother of the prosecutor, and the assistant prosecutor opposing defendant’s motion was also the prosecutor’s law partner.

We likewise find defendant’s challenge to the ruling amending two counts of the indictment to be without merit. Since the fourth count was dismissed by the court, defendant could not have been prejudiced by the amendment to that count. The amendment to the first count did no more than delete “8 Main Street” as the location in West Orange where the offense was alleged to have occurred on March 16, 1971. It was clearly an amendment as to form rather than substance. B. 3 :7-4. Defendant had previously been advised in the bill of particulars furnished by the prosecutor that the offense charged in the first count had taken place at - 442 Valley Road, rather than 8 Main Street, West Orange. Undoubtedly by reason of this his counsel declined the court’s offer of a continuance to better prepare to meet the issue. We are convinced that defendant suffered no prejudice as the result of the amendment.

Defendant also challenges the receipt of testimony as to the defendant’s alleged activities when he was under surveillance on March 11, 12, 15 and 19, 1971. We hold that the allowance of such testimony did not amount to an abuse of the discretion vested in the trial judge. Testimony as to what the witnesses observed on those dates was admissible for the limited purposes set forth in the court’s charge. State v. Lanzo, 44 N. J. 560, 566 (1965); State v. Gattling, 95 N. J. Super. 103, 110 (App. Div. 1967), certif. den. 50 N. J. 91 (1968). See also New Jersey Evidence Rule 55.

The ruling on the motion to sequester witnesses was a matter committed to the sound discretion of the trial judge. State v. DiModica, 73 N. J. Super. 1 (App. Div. 1962), aff’d 40 N. J. 404 (1963). The sound exercise of discretion ordinarilly calls for the granting of such a motion. State v. Williams, 29 N. J. 27, 46 (1959). The granting of the prosecutor’s motion here did not amount to an abuse of discretion. Further, we are convinced that defendant suffered no prejudice as a result of the ruling.

We have examined the court’s charge and note the absence of any objection thereto. We are therefore restricted to determining whether the asserted deficiencies therein qualify as plain error. R. 1:7-2; R. 2:10-2. Our conclusion is that they do not. Considered in its entirety, the charge clearly instructed the jury as to the issues before it and the controlling legal principles by which it was to be guided. State v. Laws, 50 N. J. 159, 176 (1967), cert. den. 393 U. S. 971, 89 S. Ct. 408, 21 L. Ed. 2d 384 (1968). It is fair to infer from defendant’s failure to object that, in the context of the trial, the claimed error was of no moment. State v. Macon, supra, 57 N. J. at 333. We specifically find that the portion of the charge directed to the deletion of the fourth count and to testimony as to occurrences on days other than those set forth in the indictment was proper and sufficiently alerted the jury to the limited use which could be made of the latter testimony.

From our review of the record we are satisfied that defendant received a fair trial. Whether considered separately or in the aggregate, we find no error, much less plain error in the points raised by him.

Affirmed.