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

text:
    HENRY S. HAINES AND RICHARD J. LIPPINCOTT, PLAINTIFFS-RESPONDENTS, v. BURLINGTON COUNTY BRIDGE COMMISSION, A PUBLIC BODY CORPORATE OF NEW JERSEY, ET AL., DEFENDANTS-APPELLANTS.
    Superior Court of New Jersey Appellate Division
    Argued December 13, 1948
    Decided January 10, 1949.

      Before Judges Jacobs, Eastwood and Bigelow.

      Mr. Robert L. Hood argued the cause for the defendants-appellants (Mr. Thomas D. Begley, attorney).

      Mr. Milton B. Conford argued the cause for the plaintiffs-respondents (Messrs. John A. Matthews, and James M. Davis, Jr., attorneys).
   The opinion of the court was delivered by

Jacobs, S. J. A. D.

The. defendants appeal from an order for restraint pendente lite entered in the Law Division on November 4, 1948, and from an order appointing a custodial receiver entered in the Law Division on November 15, 1948.

The Legislative Background

The defendant Tacony-Palmyra Bridge Company was incorporated in 1926 under Chapter 247 of the Laws of 1925 (R. S. 48:5-13 et seq.) and constructed a bridge across the Delaware River from Palmyra, New Jersey, to Tacony, Pennsylvania, which was completed in 1929. The defendant Burlington-Bristol Bridge Company was incorporated under the same Act in 1928 and constructed a bridge across the Delaware River from Burlington, New Jersey, to Bristol, Pennsylvania, which was completed in 1931. When the bridges were built the Statute provided that New Jersey, acting in conjunction with any adjoining State or municipality thereof, would have the right to acquire them at and after the expiration of five years from the date of completion at a cost formula therein prescribed and that at the end of fifty years they would revert to the State without cost. See R. S. 48:5-22; R. S. 48:5-24. Plaintiffs allege that under this formula the bridges -could have been acquired in 1948-by New Jersey, acting in conjunction with Pennsylvania, for approximately $5,420,000.00. Pertinent Federal laws authorizing the construction of the bridges likewise provided that ,they could be acquired by New Jersey or Pennsylvania, -or political subdivisions thereof adjoining the bridges, by purchase or condemnation in accordance with State law and that if they were so acquired after twenty years compensation therefor would be limited to the cost formula therein set forth. See 44 Stat. Part 2, pp. 588, 1024. Plaintiffs, allege that the Tacony-Palmyra Bridge would become subject to the Federal formula in 1949, that the Burlington-Bristol Bridge would become subject thereto in 1951, and that both bridges would be available thereunder in 1951 to New Jersey and Burlington County at an aggregate cost approximating $5,-000,000.00.

By legislation adopted in 1934 and revised in 1946 (P. L. 1946 c. 318; R. S. 27:19-26 et seq.) every County, acting through its Board of Chosen Freeholders, was authorized to create a Bridge Commission with authority to acquire bridges, with the consent of the adjoining State where -the 'bridges extended therein, and with the approval of the Board, to issue bonds secured by the tolls or other income from the operation of the bridges. In 1948 this legislation was amended to eliminate the express provision for the consent -of the adjoining State and to provide that bonds issued by the Bridge Commission would be lawful trust investments. See R. S. 27:19-28; R. S. 27:19-32.2.

By -Chapter 401 -of the Laws of 1947 the Legislature amended the Statute under which the Tacony-Palmyra Bridge Company and the Burlington-Bristol Bridge Company were incorporated. The amendment authorized sale of the bridges and stated that any successor to a bridge company shall have all of its rights, privileges and franchises and be subject to all of its statutory restrictions and limitations, provided, however, that if the successor is a Bridge Commission then the Commission’s right to charge tolls shall cease forty-five years after the opening of the bridge and in consideration thereof the bridge shall not “be subject to acquisition 'by, or be subject to becoming the property of, any State or States', municipality or municipalities” under the terms of the Statute and that the right of the Commission in the bridge shall be perpetual. Plaintiffs allege that this amendment enabled a County to organize a Bridge Commission, have it “acquire a privately owned bridge for any price” and thereby, in effect, terminate the rights of the State and Burlington County to acquire the bridge under the formulas prescribed in the pre-existing State and Federal legislation as well as the reversionary right of the State under R. S. 48:5-24 to obtain the bridge free of cost at the expiration of fifty years. Plaintiffs contend that the amendment, as applied to the transactions hereinafter described, constituted “donations of state and county property rights” in favor of private interests in violation of Paragraphs 19 and 20 of Article I of the 1844 Constitution embodied in Article VIII, Section 3, Paragraphs 2 and 3 of the 1947 Constitution. They also contend that it embraces an object not expressed in its title in violation of Article IV, Section 7, Paragraph 4 of the 1844 Constitution embodied in Article IV, Section 7, Paragraph 4 of the 1947 Constitution, and that it grants exclusive privileges to private corporations in violation of Article IV, Section 7, Paragraph 11 of the 1844 Constitution embodied in Article IV, Section 7, Paragraph 9 of the 1947 Constitution.

The Transactions Under Attack

We come now to a general description of the pértinent transactions as alleged by the plaintiffs and as outlined in the papers submitted on their behalf. Prior to October, 1948, defendants Clifford R. Powell and others acquired the stock of Burlington-Bristol Bridge Company. Thereafter, they proceeded with various steps which were calculated to and did result in the acquisition by the Burlington-Bristol Bridge Company of the stock of the Tacony-Palmyra Bridge Company, the creation of the defendant, Burlington County Bridge Commission by the defendant, Board of .Chosen Freeholders of the County of Burlington, on October 22, 1948, followed on the same day by the. Bridge Commission’s purchase of the stock of the Burlington-Bristol Bridge Company for the sum of $12,000,000.00, its issuance of bonds in the sum of $12,400,000.00, the election of the three members of the Bridge Commission as officers and directors of the Burlington-Bristol Bridge Company and the Tacony-Palmyra Bridge Company, the dissolution of the companies and the transfer of their property to the Bridge Commission. Plaintiffs allege that the members of the Board of Freeholders and the members of 'the Bridge Commission in taking the above steps, “were acting not in the exercise of their own endeavor, judgment and volition, but under the improper influence, direction, control and solicitation of the defendant, Clifford R. Powell, who exercised influence in the selection of said Bridge Commissioners by the Board of Chosen Freeholders of Burlington County, acting not only on his own behalf, but on behalf and with the full knowledge of the other defendant stockholders of the Burlington-Bristol Bridge Company”, that the transactions were completed without notice and with such haste as to render impossible “any fair consideration of the legality, business merits, public policy or prudence” thereof, and that in connection therewith the defendant, Clifford R. Powell and other individual defendants committed acts of fraud for their own private gain. Plaintiffs further allege that the acquisition by the Bridge Commission of the corporate stock of the Burlington-Bristol Bridge Company was in violation of Article I, Paragraph 19 of the Constitution of 1844 embodied in Article VIII, Section 3, Paragraph 2 of the Constitution of 1947, which prohibits any County from becoming the owner directly or indirectly of any corporate stock and that it resulted from a fraudulent conspiracy which induced the Bridge Commission, with the approval of the Board of Freeholders, to acquire the corporate stock and ultimately the bridges without any bargaining, without regard to their availability at an early date at a cost substantially below the price paid, without knowledge of ■the material facts, and without the exercise of independent judgment.

In their complaint as amended and further amended, plaintiffs, as taxpayers and citizens of the County of Burlington, seek comprehensive relief including declarations that P. L. 1947 c. 401 and the resolutions of the Board of Freeholders and the Bridge Commission relating to the acquisition of the bridges are null and void; rescission of the contracts relating to the acquisition by the Bridge Commission of the stock or property of the Burlington-Bristol Bridge Company and the TaconyPalmyra Bridge Company; money judgment in favor of the County of Burlington and against defendant Clifford R. Powell and others for damages resulting from 'the alleged fraudulent conspiracy; an injunction against all acts in furtherance of the resolutions of the Bridge Commission purchasing interests in the ’Burlington-Bristol Bridge Company or the TaconyPalmyra Bridge Company or in their bridges; and the appointment of a custodial receiver. On October 26, 1948, four days after the acquisition of the bridges by the Bridge Commission, plaintiffs obtained an ad interim restraint from the Law Division which was followed by the order for restraint pendente lite. Within the 'terms of the restraint the Bridge Commission is operating the bridges, the tolls which it receives are being maintained within the State, subject only to their use in the actual operation and maintenance of the bridges, and there has been no further distribution or negotiation of the bonds issued by it. The Law Division’s subsequent order dated November 15, 1948, appointed a custodial receiver, transferred the operation of the bridges to him, and directed that he restore toll charges which had been reduced by the Commission prior to the filing of the plaintiffs’ complaint but this order was stayed pending appeal and the custodial receiver never took possession.

Following the entry of the orders under appeal, 'the Attorney General submitted to the Governor of New Jersey a report with respect to the acquisition of the bridges by the Bridge Commission and thereafter an information and complaint against the defendants herein and others was filed by the Governor and Attorney General in the Chancery Division of the Superior Court. On November 23, 1948, plaintiffs filed their further amended complaint in the Law Division. The defendants contend that we are not at liberty ¡to consider the plaintiffs’ further amended complaint or, indeed, any of the occurrences subsequent to the entry of the orders appealed from. It may well be doubted whether, in view of the public nature of the proceeding and the important issues presented, justice would be served by disregarding events which have admittedly occurred during the pendency of the appeal. In any event, if the subsequent events would alter our conclusions, the proper procedure presumably would not be dismissal, as defendants contend, but rather a remand to the Law Division. However, this need not be pursued since we are» satisfied that our determinations may rest on the papers before the Law Division at the 'time its interlocutory orders were entered, and that, although they may be strengthened, they would not otherwise be affected by the subsequent occurrences.

Bearing in mind that we do not now have before us the ultimate merits of the controversy which must await full trial and adjudication, and that the only question before us is whether the. interlocutory orders restraining the defendants pendente Ike and appointing a custodial receiver should be permitted to stand pending such trial and adjudication, we have no present occasion to consider the appellants’ contentions other than the following: (1) that the plaintiffs as taxpayers and citizens have no standing to maintain this proceeding; (2) that no restraint pendente lite should have issued in view of the doubts on the ultimate merits; (3) that no custodial receiver should have been appointed; and (4) that plaintiffs are es-topped from seeking relief.

1.

The Standing of the Plaintiffs as Taxpayers and Citizens

The defendants contend that plaintiffs as taxpayers and citizens of the County of Burlington do not have a sufficient interest to sustain their standing as plaintiffs and in support they rely mainly upon the fact that the bridges will' be paid for entirely out of tolls and that plaintiffs and other taxpayers and citizens will not have their tax burden increased. On the other hand, the plaintiffs contend that they have a sufficient standing as taxpayers and citizens of Burlington County without any showing of private pecuniary harm although they do allege that the prospective users of the bridges, including plaintiffs, will be subjected to the burden of repaying $12,000,000.00 in tolls whereas the State or County could have obtained the bridges through legal proceedings which “would have made it necessary for them to pay only $5,000,000.00 in tolls”. They urge that since their complaint encompasses what under former practice would have been separate Prerogative Writ and Chancery proceedings they may rely on the authorities which have heretofore sustained taxpayers’ suits at Law (see Ferry v. Williams, 41 N. J. L. 332 (Sup. Ct. 1879) ) and in Chancery (McKinley v. Freeholders of Union County, 29 N. J. Eq. 164-(Ch. 1878); Crampton v. Zabriskie, 101 U. S. 601, 25 L. Ed. 1070 (1880) ).

The standing of taxpayers and citizens, under appropriate circumstances and without any showing of increased tax burden, to maintain proceedings seeking to remedy wrongful acts of public officials has long been recognized in our State. Thus, in Ferry v. Williams, supra, Mr. Justice Dixon pointed out (at p. 337) that, “our courts have exercised a large discretion in annulling the illegal acts of municipal bodies and officers, and compelling the performance of their public duties at the instance of citizens and taxpayers who were not otherwise interested in the controversy than was the rest of the community”, and cited (at p. 338) “instances of interference by the courts with official action affecting only public rights at the suit of private persons, where questions of taxation were not at all concerned, or were so remote from the matters complained of as not to be noticed in the decision.” Cf. Tube Reducing Corporation v. Unemployment Compensation Commission, 1 N. J. 177, 62 Atl. 2d 473, 475 (Sup. Ct. 1948). In Oliver v. Jersey City, 63 N. J. L. 96, 98 (Sup. Ct. 1899) (rev’d. on other grounds in 63 N. J. L. 634 (E. & A. 1899) ) the-court, in sustaining the standing of a taxpayer to attack official action without any showing of injury except as a member of the public using the highway, stated that it could find “no. consistent rule of law nor any reason of wise public policy” which would deny relief “when the citizen at his own expense, and at the risk of burdensome costs, seeks to intervene for the purpose of averting imminent injury to the public of which he is a part.” Similarly, in the more recent decision of Gimbel v. Peabody, 114 N. J. L. 574 (Sup. Ct. 1935) the court sustained the. standing of a taxpayer to prosecute a proceeding to set aside a municipal lease of lands for use in the operation of a greyhound racing track in violation -of the Constitution despite the absence of any showing that the taxpayer would suffer any pecuniary loss or be in anywise affected except as a member of the general public.

Broad and wholesome recognition of taxpayers’ suits as an effective means for restraining official misconduct is found not only in our own State but in other States throughout the country. See Simpson, Fifty Years of American Equity, 50 Harv. Law Rev. 171, 231 (1936) and the authorities cited in Note on “Taxpayers Suits as a Means of Controlling the Expenditure of Public Funds”, 50 Harv. Law Rev. 1276, 1281 (1937). In Miller v. Milford, 224 Iowa 753, 276 N. W. 826, 114 A. L. R. 1423 (Sup. Ct. 1937) the court in sustaining an action by taxpayers and citizens to set aside a contract for the construction of a municipal lighting plant, to be paid for by revenues from consumers and not by taxation, disposed of a contention, analogous to that made by the defendants here, in the following pertinent language:

“The excessive cost of the plant, which consumers must pay, would postpone the time the city would obtain title to the plant. It cannot be said that consumers would not be benefited by an earlier acquisition of ownership of the plant, free from debt, and the fixing of rates based on a debt free plant. The securing of the plant at the lowest price possible through the mandatory requirements of the statute is of substantial interest to the citizens of the town. If appellants’ contention were sustained, no recourse could be had to the courts for relief from void, extravagant, ultra vires action of the city council, because there would be no one who had authority to institute the suit to prevent a public wrong, except the state in certain circumstances. The public welfare requires that such right be lodged in the citizens of a community.”

We are satisfied that within the cited authorities and upon sound reason the plaintiffs’ standing should be sustained. They raise constitutional questions and make serious charges of official misconduct affecting the public interest. Plaintiffs instituted their action with dispatch ’thereby aiding in maintaining the status quo and although the Governor and Attorney General subsequently filed a related information and complaint, they have not evidenced any desire that plaintiffs be displaced in this proceeding. On the contrary, the Attorney General appeared before the Law Division in support of plaintiffs’ restraint pendente lite. Considering all of these circumstances and the interlocutory stage of the proceeding, it seems clear that the interests of complete and effective justice to the public as well as the parties require that the defendants’ efforts to dismiss the proceeding, on the ground that the plaintiffs have no standing, should fail.

2.

The Restraint Pendente Lite

The Law Division’s order for restraint pendente lite maintained the status quo as it existed at the filing of the plaintiffs’ complaint; it prevented further steps in pursuance of the transactions under attack and transference out of the State of income from the operation of the bridges; and, in practical effect, prevented further distribution of the bonds to persons who might claim to be bona fide purchasers. It thus served, insofar as possible, to prevent impairment of the subject matter of the litigation and accomplished this without interference with the operation of the bridges in. regular course by the Bridge Commission. Indeed, at the argument counsel for the defendants conceded that the restraint pendente lite has. thus far caused them no substantial harm. Nevertheless, they assert that the plaintiffs’ rights are at least doubtful and that the restraint pendente lite must, therefore, be denied. In advancing this contention defendants have made the assumption that the Law Division’s restraint pendente lite is to be treated as a preliminary injunction (Rule 3:65) governed generally by Chancery precedents (Citizens Coach Company v. Camden Horse Railroad Company, 29 N. J. Eq. 299 (E. & A. 1878) ) rather than a supersedeas (Rule 3:81-5) governed generally by Prerogative Writ precedents (Hunt v. Lambertville, 46 N. J. L. 59 (Sup. Ct. 1884) ). Even if their assumption is correct, their contention is without merit. See Christiansen v. Local 680, 127 N. J. Eq. 215, 219 (E. & A. 1940) where Mr. Justice Heher speaking for the 'Court of Errors and Appeals set forth the applicable Chancery principles, pointing out that the power to issue a restraint pendente lite “is exercised whenever necessary to subserve the ends of justice”, that “justice is not served if the subject-matter of the litigation is destroyed or substantially impaired during the pendency of the suit” and that “doubt of the validity of the complainants’ asserted cause of action is, therefore, not an adequate reason for refusing to maintain the subject of litigation in statu quo pending a definitive settlement of the right on final hearing”. See also Imperial Trust Co. v. Magazine Repeating Razor Co., 138 N. J. Eq. 20, 26 (Ch. 1946); Hodge v. The Cuba Co., 142 N. J. Eq. 340, 348 (Ch. 1948); Tracy v. Tracy, 140 N. J. Eq. 496, 502 (E. A &. 1947). Cf. Ferraiuolo v. Manno, 1 N. J. 105, 62 Atl. 2d 141 (Sup. Ct. 1948). In view of the danger of impairment of the subject matter of the litigation and the admitted absence of substantial harm to the defendants, there can be no adequate reason for disturbing, at this time, the Law Division’s restraint pendente lite.

3.

The Custodial Receiver

Plaintiffs contend that in addition to the restraint pendente Ute, the appointment of the custodial receiver was necessary for preservation of the subject matter pending trial. They concede that the restraint pendente lite has been effective and that there is no present evidence to indicate that the bridge properties are not being maintained properly or are in anywise in jeopardy. They urge, however, that the continued operation of the bridges by. the Bridge Commission pending trial might ultimately give rise to an estoppel against plain-tiffs. There is nothing before us which affords reasonable basis for the suggestion that the operation by the Bridge Commission within the limits of the -court’s restraint might create a stronger basis for an alleged estoppel than would the operation of the bridges, in the same fashion, by the court’s receiver. Plaintiffs stress the fact that the receiver was ordered to restore certain tolls which had been reduced by the Bridge Commission prior to the filing of plaintiffs’ complaint. However, plaintiffs have not at any time made any independent application to the Law Division to have the Bridge Commission reinstate the original tolls; they are at liberty to make such application if they deem this relief essential or appropriate.

In support of their position that the appointment of the custodial receiver should be vacated, the defendants urge, in the first place, that the plaintiffs have made no showing of danger to the bridge properties sufficient to justify the extraordinary displacement of the Bridge Commission in favor of a receiver. Cf. Orshefsky v. Mechanics Trust Co., 120 N. J. Eq. 527, 532 (Ch. 1936). In the second place, they urge that even if there had been such a showing this Court would have no power to appoint a receiver for a public body. Cf. Depew v. Venice Drainage Dist., 158 La. 1099, 105 So. 78 (1925) with Broadhurst v. Board of Commissioners, 195 N. C. 439, 142 S. E. 477 (1928). However, this issue of power need not be determined at this time. Assuming that such judicial authority does exist considerations implicit in the doctrine of separation of powers dictate that it be exercised at the instance of taxpayers only upon a strong showing of compelling urgency. In the light of the evidence before us and the continued effectiveness of the restraint pendente lite, we are satisfied that plaintiffs have made no such showing.

4.

The Alleged Estoppel of Plaintiffs

The final contention is that plaintiffs are barred from seeking the relief prayed for in their complaint. This contention is evidently rested on the position that the bonds of the Bridge Commission are complete on their face, were issued pursuant to a statutory provision (P. L. 1946 c. 318, R. S. 27:19-32.1) embodying a covenant by the State of New Jersey, and the Commission and the plaintiffs are, therefore, “estopped from contesting the validity of those bonds, or from taking any steps or actions to prevent bona fide holders from recovering the principal and interest.” The common law doctrine of estoppel to attack the validity of municipal bonds is more limited in our State than appellants assert. See Hudson v. Inhabitants of Winslow, 35 N. J. L. 437, 443 (Sup. Ct. 1872); Mutual Benefit Life Ins. Co. v. Elisabeth, 42 N. J. L. 235, 245 (Sup. Ct. 1880); Read v. Atlantic City, 49 N. J. L. 558, 564 (Sup. Ct. 1887) aff’d 50 N. J. L. 665 (E. & A. 1888). In any event, the estoppel when applicable, benefits only bona fide purchasers of the bonds. See Dillon, Municipal Corporations (5th Ed. 1911) Sec. 930, p. 1473. No bondholders are before us on the appeal and we are not in any position to determine now whether there will be any bona fide purchasers for value. Indeed, the only appellants are the Bridge Commission and its members, the Board of Freeholders and its members, and the two bridge companies; presumably none of these appellants is in a position to assert the alleged superior rights of bondholders or others. The appellants’ allegations of estoppel, together with their allegations that plaintiffs will not be entitled to all of the relief they seek without joinder of all participating parties and restoration of the entire status quo ante, must, with the other issues on the ultimate merits, await adjudication after full trial and are not properly available at this time.

The order dated November 4, 1948, for restraint pendente lite is affirmed; and the order dated November 15, 1948, for appointment of custodial receiver is vacated without prejudice to application for restoration by the Bridge Commission of the tolls at the rates charged immediately prior to October 22, 1948.


source: Caselaw Access Project

author: Donges, J. A. D.

license: Public Domain

text:
    PATSY AGRESTA, PLAINTIFF-RESPONDENT, v. WESTERN ELECTRIC COMPANY, DEFENDANT-APPELLANT.
    Superior Court of New Jersey Appellate Division
    Argued November 8, 1948
    Decided January 12, 1949.

      Before Judges McGeehan, Donges and Colie.

      Mr. Arthur F. Mead, argued the cause for defendant-appellant (Messrs. Cox & Walburg, attorneys).

      Mr. Hyman H. Bernstein, argued the cause for plaintiff-respondent (Mr. Allan A. Horowitz, attorney).
   The opinion of the court was delivered by

Donges, J. A. D.

This matter is before us on certiorari, allowed to review a determination of the Hudson County Court of Common Pleas, on appeal from the Workmen’s Compensation Bureau, that Plaintiff-Respondent suffered a compensable injury of 100 per cent.

The Workmen’s Compensation Bureau, at an informal hearing, estimated permanent disability as 60% of total. On formal hearing, the Deputy Commissioner estimated the disability as 50% of 'total. As stated above, the Hudson County Court of Common Pleas estimated the disability as 100% of total.

There is no dispute that respondent suffered a compensable injury, arising out of and in the course of his employment by appellant. The accident occurred on August 17, 1943 at 'the plant of appellant at Kearny, New Jersey. Respondent had been in appellant’s employ for about a month and a half before the accident. He was discharged from the United States Army on April, 2, 1943, because of over age, being 44 years of age. There is no question of his health being good at the time of the accident.

On the day of the accident he had been working on a sand blasting machine. He was directed by his foreman to leave that work and take up the work of lifting -boxes weighing approximately 75 pounds. While lifting one of the boxes he was compelled to cease work because of a severe pain in the back. He was promptly treated at the employer’s hospital, and after x-rays were taken, he was taken to his home in an automobile. The next day he was taken in an ambulance to St. Barnabas Hospital, in Newark. He remained there for 38 days, until September 25th, 1943, when he was taken home. He returned to the hospital on October 10, 1943, but, in the meantime, he was taken to the hospital by a nurse three times a week. He remained in the hospital until December 21, 1943, a period of about ten weeks. On March 10, 1944, he entered the Jersey City Medical Center, where a spinal operation was performed by Dr. H. C. Benjamin, a bone specialist. Eight inches of bone was taken from respondent’s right leg and, as shown by x-rays taken by Dr. William A. Maver, and as described by him, “they show evidence of a bone inlay in the lumbar spine that extends from the level of the second lumbar vertebra to the second sacral segment on the right side, and from about the level of the fourth lumbar vertebra to the sacrum on the left side.”

Thereafter respondent was put in a oast and left the hospital on August 11th, 1944. He returned to the hospital several times between August 11th, 1944, and April, 1945. There is no dispute that a serious condition exists and that respondent is unable to do any laborous work. Appellant contends that he is able to do light and sedentary work, such as running an elevator, a watchman or sweeper.

The medical testimony was in conflict. Five medical doctors testified for respondent. The testimony of three was that respondent was 100% disabled. The other two were witnesses as to x-ray pictures and psychiatry. The appellant produced three physicians, but their testimony was not persuasive, and, as noted by the County Judge in his opinion, not one of the three doctors who performed the operations and actually treated respondent for the appellant, namely, Doctors Marquis, Benjamin and Stockfisch, was produced as a witness by the appellant without adequate explanation. It may, therefore, be inferred that their testimony would not be as favorable to appellant as desired.

Upon consideration of all of the testimony, clearly indicating a lack of ability to perform any work of the character for which he is fitted, and, by reason of the pain, inability to get about in a normal way, and his highly nervous condition, it must be found, and we do find that presently respondent is unfit to work and that he is suffering 100% of total disability.

The judgment of the Hudson County Court is affirmed, with costs.


text:
    WILLIAM L. ARONSON, PLAINTIFF-APPELLANT, v. EDWIN J. BURNS AND HON. WILLIAM S. CARPENTER, PRESIDENT OF THE CIVIL SERVICE COMMISSION OF THE STATE OF NEW JERSEY, DEFENDANTS-RESPONDENTS.
    Superior Court of New Jersey Appellate Division
    Argued November 22, 1948
    Decided January 13, 1949.
    Before Judges McGeehan, Donges and Colie.

      Mr. Howard K. Shaw, argued the cause for plaintiff-appellant (Mr. James A. Waldron, attorney,).

      Mr. Crawford Jamieson, argued the cause for defendant-respondent Burns.

      Mr. Walter D. Van Riper, Attorney General, for defendant-respondent Civil Service Commission.

      Mr. John W. Griggs, Deputy Attorney General, argued the cause for defendant-respondent Civil Service Commission.
   The opinion of the court was delivered by

Donges, J. A. D.

Certiorari was allowed to review an order made by the Civil Service Commission of the State of New Jersey, on or about May 4, 1948, ordering that respondent Edwin J. Burns be restored to the position of Identification Officer at the State Prison in Trenton, New Jersey, and that appellant William L. Aronson be removed therefrom.

Plaintiff-appellant was employed as a Clerk-Stenographer in the New Jersey State Prison in February, 1928, and worked in the office of the Identification Officer; in 1931, he took a competitive examination for Identification Officer and was duly certified by the Civil Service Commission; in 1941, one Joseph H. Hand, holding the position as Identification Officer died; in August, 1941, respondent Burns was transferred from the State Police Department to the Identification Bureau at the State Prison, in charge thereof; on July 20, 1942, appellant Aronson was inducted into the United States Army; in September, 1942, an examination was held for the position, and, as a result of such examination, Burns was appointed to the position and performed the duties thereof; on the return of appellant from Military service in 1945, he protested to the Civil Service Commission that his rights as a veteran had been violated and that he was entitled to take an examination for the position, whereupon the Commission ordered an examination for the position be held on October 1, 1945; both Aronson and Burns objected to the holding of such examination, and sought a hearing on the question of their respective rights; such hearing was held, and it was suggested that a new position of Assistant Identification Officer be created and that Aronson be assigned thereto. There is dispute as to whether Aronson suggested such procedure or whether it resulted from a suggestion of an Examiner of the Civil Service Commission. In.any event the minutes of the Commission under date of January 25, 1945, record the following:

“Voted, that the position filled by Mr. Burns be reclassified as Identification Officer with a salary range of $3360-$3960, and that filled by Mr. Aronson as Assistant Identification Officer with a salary range of $3000-$3600, both effective January 1, 1946.” Subsequently, the Legislature having made no appropriation for the position as Assistant Identification Officer for 1947-1948, the office was declared abolished, and Burns was removed and Aronson was put in the position. The Commission on May 4, 1948, on application of Burns, restored Burns to the position and placed Aronson on the “re-employment list to remain thereon until a vacancy occurs in the State Prison or elsewhere in the State ser.vice.” The Commission held that, inasmuch as two positions had been created and Aronson occupied the one that was abolished, he was not entitled to be promoted, and Burns deposed, but that Burns was entitled to remain in the place.

Aronson bases his right upon his status as a veteran.

We conclude, however, that his rights must be determined upon the status of the parties by reason of their conduct in accepting and occupying the respective positions without objection. His conduct was clearly an unequivocal, intentional relinquishment of a claimed right to the existing position. Until the position was abolished by failure of appropriation therefor, appellant continued to occupy the position for approximately eighteen months and thereby waived his right to the other position and is now estopped'from claiming right thereto.

The judgment of the Civil Service Commission restoring Burns to the position of Identification Officer is accordingly affirmed.


author: Colie, J. A. D.

text:
    PAULINE HEYMAN, PLAINTIFF-APPELLANT, v. HARRY HEYMAN, DEFENDANT-RESPONDENT.
    Superior Court of New Jersey Appellate Division
    Argued December 20, 1948
    Decided January 24, 1949.
    Before Judges McGeehan, Donges and Colie.

      Mr. E. Gustave Greenwald argued the cause for plaintiff-appellant.

      Mr. Charles Handler argued the cause for defendant-respondent.
   The opinion of the court was delivered by

Colie, J. A. D.

Plaintiff brought suit for separate maintenance and defendant counterclaimed for divorce upon the ground of desertion. After hearing a .judgment was entered dismissing the suit for -separate maintenance and granting the divorce. The plaintiff appeals.

The parties were married in 1917 and lived together until the latter part of 1944 when a controversy arose respecting financial matters which engendered ill feeling upon the part of the wife. It became -so intense that plaintiff refused to permit the defendant to sleep in the same room and thereafter he -slept in another room. This is -corroborated by the fact that thereafter a daughter slept in the same.bed with her mother. Without going into details, it suffices to say that the evidence supports the defendant’s efforts to effect a reconciliation. Essentially the question is one of fact and to are clearly of the opinion that the plaintiff, enraged over the financial situation, -vented her spleen by a denial of -cohabitation. We concur in the finding of the court below that the defendant had established a -cause of action for desertion and that the maintenance action was properly di-smi-ssed since the plaintiff failed to show -that -the defendant separated from her and refused to maintain -and provide for her without justifiable cause.

The judgment is affirmed with costs.


author: Bigelow, J. A. D.

text:
    FIDELITY CHEMICAL PRODUCTS CORP., A CORPORATION OF THE STATE OF NEW JERSEY, PLAINTIFF-APPELLANT, v. MADELEINE RUBINO, DEFENDANT-RESPONDENT.
    Superior Court of New Jersey Appellate Division
    Argued January 3, 1949
    Decided January 24, 1949.

      Before Judges Jacobs, Eastwood and Bigelow.

      Mr. Aaron Harder argued the cause for plaintiff-appellant (Mr. Herman H. Singer, attorney).

      Mr. Arthur Slavitt argued the cause for defendant-respondent (Messrs. Slavitt & Slavitt, attorneys).
   The opinion of the court was delivered by

Bigelow, J. A. D.

The bill was filed 'by the vendee for specific performance of a contract for the sale of land. The vendor answered, admitting all the allegations of the bill and counterclaimed for cancellation on the ground of mistake. The Chancery Division entered judgment for defendant pursuant to the prayer of the counterclaim, and the plaintiff appeals.

The premises which are the subject of the litigation are a large vacant plot in Belleville, bounded on the north by the Greenwood Lake Branch of the Erie Railroad, on the east by land belonging to the National Grain Yeast Co., and on the south by the Glasby Manufacturing Company. The premises do not abut any highway but a right-of-way running from the southeast corner of the property across the Glasby lot, gives access to Montgomery Street. The Yeast Company’s land is a 32-foot strip that extends southerly from the Greenwood Lake Branch, along the east line of the tract in question and along the right-of-way over the Glasby lot, to somewhere beyond Montgomery Street. Through the centre of this strip runs a railroad track or siding, giving the Yeast Company rail connection.

The contract in suit contains this clause: “It is also understood that the property has a right of siding from the tracks of the Greenwood Lake Railroad adjoining the said right-of-way over the Glasby Mfg. Co.” Both parties construe this clause as a covenant to convey, appurtenant to the land, a certain right. Plaintiff says it is a right to load and unload freight cars on that part of the Yeast Company’s siding adjoining Glasby, and to use the siding (in common with the Yeast Company) as a connection with the Erie; while defendant says it is only a right to build and use a new siding along the 32-foot strip, parallel with the existing siding. The parties agree that defendant has no right or title at all to the siding, or to the 32-f.oot ribbon of land on which it is located. The complainant asks abatement of the purchase price for the defendant’s inability to convey an interest in the existing siding. Defendant alleges that she thought she owned the westerly half of the 32-foot strip and could convey a right to construct a siding thereon, and this is the mistake on account of which she sought and obtained cancellation. Plaintiff admits that the defendant, Miss Rubino, mistakenly believed that her title ran to the centre line of the 32-foot strip, but denies that her mistake occurred despite the exercise of ordinary care. The proofs fully support this position of plaintiff.

The deed from the town described the lot conveyed as the premises “known as lot 12, block 590, on the Tax Assessment Map,” etc. It is the theory of counsel for defendant that this map shows lot 12 to be bounded on the east by the centre line of the 32-foot strip and that defendant saw the map and assumed that it correctly showed her easterly line. Actually, the map indicates the Yeast Company land by three parallel lines, the centre line and the two outside lines. Inspection of it would leave any reasonably cautious person in doubt which line was the easterly boundary of lot 12 and would lead him to make inquiry of the person using the railroad track and a search of the title records. It does not appear that defendant, or any agent of hers, took these elementary precautions. Neither defendant’s own testimony nor that of her witnesses shows that she used any care.

We have been referred to no case in which a vendor has obtained cancellation of his contract on the ground that he was led to enter into the contract by his mistaken belief that he owned all the land and estate mentioned in the contract. But assuming there may be cases of that nature in which the special circumstances require that cancellation should be granted, the instant case is not one of them. Equity will not relieve from the consequences of a unilateral mistake arising from a failure to exercise reasonable care. Dillett v. Kemble, 25 N. J. Eq. 66 (Runyon, C., 1874,). The counterclaim should have been dismissed.

We turn to plaintiff’s case on the bill of complaint. Specific performance was denied for the reason — in addition to the mistake — that an abatement of the purchase price would cause great hardship to the defendant and be unconscionable. But when the court announced this view of an abatement, plaintiff offered to pay the full purchase price for the land, reserving its right of appeal on the question of abatement. We are satisfied that plaintiff was at least entitled to specific performance on those terms.

Abatement depends on the phrase in the contract, “a right of siding,” the interpretation of which is disputed. The expression is not common, or its meaning obvious. But the parties must have intended that in addition to the land within the bounds of Lot No. 12, there was other land, or else the existing siding, over which some right would be granted. Defendant’s contention that the “right of siding” was only a right to construct a siding on Lot No. 12 itself, cannot be accepted, for without mention of a siding the buyer could lay railroad tracks anywhere on the lot. We are convinced that plaintiff’s interpretation of the term is correct. In order to have specific performance, the contract must be reasonably certain. But the court may look into the surrounding circumstances as an aid in ascertaining the meaning of the terms employed. Jersey City v. Jersey City Water Supply Co., 93 N. J. Eq. 620 (E. & A. 1922). If the meaning can thus be made reasonably definite, specific performance will not be denied on the ground of uncertainty. McKinney v. Muir, 136 N. J. Eq. 486; affirmed 137 N. J. Eq. 583 (1946).

The scanty facts before us do not indicate that an abatement of the price would cause hardship to defendant. The deed from the town to defendant was dated December 20, 1946. She paid the town $2,000 for the land. Seventeen days later she agreed to sell to plaintiff for $7,500. The plaintiff sought an abatement of $3,350 to $4,400, leaving defendant a profit of 50 to 100 percent on her investment. The proofs do not show the value Lot No. 12 has without the appurtenant right to use the siding, or how much such a right would add to the land value, or any other data which could be the basis for determining the amount of an abatement of the purchase price. The cause will have to be returned to the Chancery Division to take further proofs and to render such judgment as may appear to be equitable and may not be inconsistent with the views above expressed. To that end, the decree is reversed.


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    FLORA SHEPHARD COLE, PETITIONER-APPELLANT, v. BRUNSWICK LEATHER GOODS CORPORATION, RESPONDENT-DEFENDANT.
    Superior Court of New Jersey Appellate Division
    Argued November 8, 1948
    Decided January 26, 1949.

      Before Judges McGeehan, Donges and Colie.

      Mr. Theodore Strong argued the cause for prosecutor (Messrs. Strong & Strong, attorneys).

      Mr. G. Dixon Speakman argued the cause for respondent-defendant (Messrs. Toner, Speakman & Crowley, attorneys).
   The opinion of the court was delivered by

Colie, J. A. D.

This matter is before the court by the service upon attorneys of respondent on June 29, 1948 of a notice “that on Tuesday, the 5th day of October, 1948 * * * we shall apply to the Supreme Court of New Jersey, Part Two, * * * for a Writ of Certiorari to review the Order of Affirmance filed in the above entitled cause on the 12th day of March, 1947, by the Common Pleas Court of Middlesex County, in the appeal from the Determination of Facts and Rule for Judgment of the Workmen’s Compensation Bureau of New Jersey, made on the 7th day of March, 1946.”

We note the fact that'the notice is returnable on a date subsequent to September 15, 1948 before Part Two of the former Supreme Court which ceased to exist on the date last mentioned. We also note the fact that there is no power in an Appellate Division of the Superior Court to allow a writ of certiorari or to initiate any procedure in lieu of prerogative writs. Cf. Rule 3 :81 — 1 et seq.

The judgment sought to be reviewed was entered on March 12, 1947. No application for a writ of certiorari was made either to a single Justice of the former Supreme Court or to the Court en banc. We take judicial notice of the fact that a single Justice was available up to September 15, 1948 and that the Supreme Court en banc was available at the May Term 1948 and three terms prior thereto for that purpose.

R. S. 2:81-2 provides that “No writ of certiorari shall be allowed to review any judgment, order or proceeding entered or obtained in any court of record unless it is issued within eighteen months after the entering or obtaining the same or within such other time as is specifically provided by law.” Under this statute, the right to review depends upon the •issuance of a writ of certiorari within eighteen months after the entering of the judgment below, which, in this case, would be on or before September 12, 1948. The right to review was lost when no writ of certiorari issued within the said period. The change in the court system as of September 15, 1948 gave, no new life to any right of review that had expired before that date.

Application denied with costs.


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    SIDNEY KELNER, INDIVIDUALLY AND TRADING AS ESSKAY CREDIT HOUSE, PLAINTIFF-RESPONDENT, v. HARRY LEE, DEFENDANT-APPELLANT.
    Superior Court of New Jersey Appellate Division
    Argued January 3, 1949
    Decided January 31, 1949.

      Before Judges McGeehan, Donges and Colie.

      Mr. Samuel H. Nelson, argued the cause for defendant-appellant (Messrs. Bressel & Reuben, attorneys).
    Mr. Benjamin Arons, argued the cause for plaintiff-respondent.
   The opinion of the court was delivered by

Donges, J. A. D.

Plaintiff recovered a judgment against defendant in the trial court for $73.39 — the balance -of the price of a coat purchased by defendant’s wife. The wife was not a party to the suit. The -case was tried without a jury, and without a stenographer.

It was alleged, -on plaintiff’s behalf, that “the said defendant was the husband of Marilyn Lee, who purchased said coat as agent and wife of the said defendant, which purchase consisted of a necessity for which the said defendant is responsible” (paragraph 2 of the State of Demand).

In his specification of defenses, defendant stated that at the time of the alleged sale he and his wife were living in a state of “open and permanent separation”, that the sale was made-on the sole credit of the wife, that the merchandise was not a necessity, and that there was -no agency on the part of the wife to bind him. And he denied all knowledge of the sale.

The testimony at the trial was apparently very -scant. Despite the clear warning to plaintiff (contained in the specification of defenses) that he should be adequately prepared to meet the questions of (1) separation of the defendant and his wife, (2) non-necessary nature of the merchandise, and (3) sale on the sole credit of the wife, the plaintiff produced no witness but himself. He put his account in evidence showing the amount due, and testified to the sale and delivery of the coat to the wife on December 27, 1946. On cross-examination he admitted that he had not dealt with defendant and that at the time of the sale he did not know whether defendant and his wife were living together or not.

Defendant testified that he married his wife on November 2, 1946; that they lived at the home of her parents until December 7, 1946, on which date, at the insistence of the wife, and without fault on his -part, the separation occurred; that after the separation he paid $25.00 per week to his wife (until the following March) ; and that he never had any dealings whatsoever with plaintiff.

Recalled to the stand after defendant had testified, plaintiff stated that in the month of January, 1947 he met defendant at the home of the latter’s wife. Defendant, recalled, testified that he had never met plaintiff, and that he (defendant) had not been at his wife’s home after the separation on December 7, 1946.

Proof of the separation of defendant and his wife, at the time of the sale in question, stands unchallenged unless plaintiff’s statement that he met defendant at the wife’s home sometime in January, 1947 can be said to be a challenge. At most, the testimony of plaintiff and of defendant are in balance as to the alleged meeting in January, 1947. Even so, however, it leaves defendant’s testimony of separation from his wife at the time of the sale (December 27, 1946) uncontradicted. Likewise defendant’s testimony that after the separation he supported his wife by the payment of $25.00 per week is uncontradicted.

In our opinion, the fact of separation at the time of sale was established. In such circumstances “the presumption is against the authority of the wife to bind the husband by her contract. Under such circumstances the general rule is that the husband is not liable.” Vusler v. Cox, 53 N. J. Law 516, 518. In the cited case the court noted two exceptions to the general rule, “the first of which is where husband and wife separate ■and live in a state of separation by mutual consent, without any provision for her maintenance or means of her own for her support; the other, where the wife leaves her husband under the stress of his misconduct of such a character as in law is regarded as a justifiable cause for the wife’s quitting her husband’s society. In such cases, the presumption being against the liability of the husband for the wife’s contract, the burden of proof is upon the party seeking to enforce against him a liability for her contract. He must show affirmatively the special circumstances which shall fix the responsibility on the husband in order to establish his cause of action.”

In the instant case it affirmatively appears, on the one hand, that the husband was supporting his wife; and, on the other hand, plaintiff has completely failed to carry the burden of bringing his claim within either exception to the general rule. Even if the fact of separation were in doubt here, the husband’s duty to support, or to supply, necessities, was satisfied by one performance of that duty. The opinion of the Court of Errors and Appeals, written by Mr. Chief Justice Gummere, in McCreery & Co. v. Martin, 84 N. J. Law 626, states at page 628: “This duty which the law imposes upon the husband, and which he must discharge to the extent of his ability, is satisfied by a single performance. In other words, having once performed it, the law does not impose upon him the obligation of duplicating that performance. When he has supplied his wife with those necessaries which their station in life and his financial standing entitle her to have at his hands, or has furnished her with moneys sufficient to enable her to purchase them for herself, he is under no obligation to pay bills incurred by her for what would have been necessaries if he had not already supplied her therewith, but which are not, in fact, such, because of the precedent supply.”

We conclude that the judgment should be reversed.


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    WYNDHAM CONSTRUCTION CO., PLAINTIFF-APPELLANT, v. THE BOARD OF ADJUSTMENT OF THE TOWNSHIP OF TEANECK, AND TOWNSHIP OF TEANECK, DEFENDANTS-RESPONDENTS.
    Superior Court of New Jersey Appellate Division
    Argued January 3, 1949
    Decided February 1, 1949.

      Before Judges McGeehan, Donges and Colie.

      Mr. Ralph W. Chandless argued the cause for plaintiff-appellant (Mr. George I. Marcus, attorney).

      Mr. Donald M. Waesche argued the cause for defendants-respondents.
   The opinion of the court was delivered by

Colie, J. A. D.

This matter is before the court on a writ of certiorari allowed, prior to September 15, 1948, to review an order of the Board of Adjustment of Teaneck denying the appeal of Wyndham Construction Co. for a variance from the zoning ordinance.

Plaintiff erected a group of apartment houses at the corner of Sterling Place and Red Road in Teaneck. Subsequently he planned to have one of the apartment houses contain seven apartments. The building permit for this was refused as it did not conform to Section 1-&-3 of the zoning ordinance which provided: “That no building in a row or group shall exceed three stories or 45 feet in height or contain dwellings for more than six families.” An appeal to the Board of Adjustment was denied.

Plaintiff first attacks the ordinance as prohibiting it from making lawful use of its property. This point is not available on this appeal since it is not comprehended within the reasons filed. Next it is said that the Board of Adjustment had no jurisdiction to deny a variance. This argument is wholly without merit as a reading of R. S. 40:55 — 39 clearly indicates. Lastly it is said that the action complained of was arbitrary and capricious. We find as a fact that no unnecessary hardship resulted from a literal enforcement of the ordinance.

The order under review is affirmed with costs.


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    ELIZABETH SIBLEY, DORA DAVIS, DOROTHY SIMMONS AND CALLIE RANDALL, PLAINTIFFS-RESPONDENTS, v. CITY SERVICE TRANSIT COMPANY, A CORPORATION, DEFENDANT-APPELLANT.
    Superior Court of New Jersey Appellate Division
    Argued January 3, 1949
    Decided January 27, 1949.

      Before Judges Jacobs, Eastwood and Bigelow.

      Mr. John A. Laird argued the cause for the plaintiffs-respondents (Samuel H. Berln, attorney).

      Mr. Verling C. Enteman argued the cause for the defendant-appellant (Messrs. McCarter, English & Studer and Norman L. Gill, attorneys).
   The opinion of the court was delivered by

Bigelow, J. A. D.

The plaintiffs were employees of the United States Government at the Picatinny Arsenal near Dover, working from 4 P. M. to midnight. They all resided in Newark and commuted to and from work by bus. The night of February 27, 1943, the plaintiffs, with other Arsenal employees, started for Newark in a bus operated by the defendant company. When they had gone only a few miles and were still 20 or 25 miles from Newark, a rear wheel fell off the bus, so that it could proceed no farther. This occurred in the open country, not near any house, and at about 1 A. M., in a night that was bitterly cold. The bus driver seems to have made his way down the road to some place where he was able to communicate by telephone with the manager of the bus line. He was told that another bus would be sent to pick up the passengers. However, no more is heard of the relief bus; the defendant did not attempt to prove that it ever left the garage. After the telephone conversation, the driver returned to the broken down bus, where all the passengers were waiting. He started the motor in the effort to provide a little heat. After a while, — probably between 2 and 2:30 A. M., — a Government bus, operated by a civilian employee of the War Department, arrived at the scene of the breakdown. Someone had appealed to the Arsenal for aid,— just who did so is not clear. Perhaps some of the passengers (other than the plaintiffs) or the bus operator, or someone at the garage of the defendant company in Newark. At any rate, the defendant’s bus driver and all the passengers entered the Government bus and started again for Newark. But, on the way, in Montclair the bus suddenly left the roadway, mounted the curb and crashed into a wall. In this accident, the plaintiffs received serious injuries, on account of which they brought this action. The jury returned a verdict in their favor and the defendant appeals from the judgment.

The defendant vigorously denies that it was the operator of the first bus, the one in which plaintiffs left the Arsenal. But the jury found otherwise upon ample evidence.

The defendant also objects to a portion of the charge.' The court informed the jury that they might consider whether the accident — the one that occurred in Montclair— was such as, in the ordinary course of events, does not happen or may be prevented if the chauffeur uses proper care. The court further charged that if the jury were satisfied by the proofs -that such was the character of the accident, they might infer negligence unless the defendant had proved that due care was exercised. Defendant correctly states that the rule of res ipsa loquitur does not apply where the plaintiff proves the cause of the accident. But -the happening now under consideration is unexplained. Did the steering gear break, or the bus skid, or the driver fail to observe a curve in the road, or what did happen that caused the bus to crash into the wall? Since the proofs give no answer, the charge in this respect was proper. MacKenzie v. Oakley, 94 N. J. L. 66 (Sup. Ct. 1919).

The principal question is whether the defendant is liable for the injuries suffered by plaintiffs, although it was not the operator of the second bus and the driver thereof was not its employee.

The defendant was a common carrier of passengers, operating a bus- line under the regulation of the Public Utility Commission. R. S. 48:4-1 et seq. The law is settled that if such a carrier engages a third party to perform wholly or in part its obligation to transport its passengers to their destination, it becomes liable for any injury caused them by the negligence of the third party or his servants. Barrow S. S. Co. v. Kane, 88 F. 197 (C. C. A. 2nd, 1898); Frank Marts Coach Co. v. Hudson Bus etc. Co., 23 N. J. Misc. 342 (Ackerson, J. 1945). But the rule as so stated may not apply in the present, instance, because the proofs do not show that defendant or anyone empowered to act for it, procured the Army bus to take plaintiffs on to Newark, — or at least defendant so interprets the proofs.

The liability of defendant springs from the high degree of care which it owes its passengers and from its obligation to carry them safely to the destination which had been agreed upon. Pennsylvania Co. v. Roy, 102 U. S. 451, 26 L. Ed. 141; Dwinelle v. N. Y. C. & H. R. Co., 120 N. Y. 117, 24 N. E. 319. It cannot avoid responsibility either by contracting with a third party or by failing to act in an emergency such as arose in this case. The defendant is equally liable, whether it procured the Army to rescue the plaintiffs, or whether, upon learning that its bus was disabled on the highway, it left the plaintiffs to freeze and took no effective measures for their help. Of course, if defendant had provided a relief bus or arranged other suitable means for carrying the plaintiffs to Newark, the plaintiffs could not have rejected these means in favor of the Army bus, and still hold the defendant liable. But defendant failed to act and plaintiffs, having waited an hour or an hour and a half in the broken down bus, properly accepted the Army’s help. We are satisfied defendant is answerable for the negligence of the driver of the Army conveyance.

Judgment affirmed.


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    ANN-MARIE JAMES, EDNA D. HUBBELL, AND STEWART HARRY JAMES, JR., APPELLANTS, v. DAISYBELLE WENDEHACK, RESPONDENT.
    Superior Court of New Jersey Appellate Division
    Argued January 3, 1949
    Decided January 28, 1949.

      Before Judges Jacobs, Eastwood and Bigelow.

      Mr. Milton H. Goldberger and Mr. Leo Yanoff argued the cause for the appellants (Messrs. Gross, Blumberg, Mehler and Goldberger, attorneys).

      Mr. Ward J. Herbert argued the cause for the respondent (Messrs. McCarter, English and Studer, attorneys).
   The opinion of the court was delivered by

Jacobs, S. J. A. D.

This is an appeal from a judgment of the Essex County Orphans’ Court denying probate of the will of 'Clifford C. Wendehack, deceased, on the ground that it had been signed by the testator after the attesting witnesses had affixed their signatures.

The testator was an architect residing in the Town of Montclair and having his office in the City of New York. His will was executed on May 29, 1947, at his office and in the presence of his secretary Mrs. Ann-Marie James, his employee Mr. Gilbert Oliver, and Mrs. Marie T. Keil, a friend of Mrs. James. The will bears the testator’s signature, -a complete attestation clause, and the signatures of Mr. Oliver and Mrs. Keil as attesting witnesses. It provides for specific legacies, including $5,000.00 to the testator’s sister, appellant Edna Dorothea Hub-bell, $5,000.00 to Betty Nolan of Warwick, New York, $5,000.-00 to appellant Mrs. Ann-Marie James, and $2500.00 .to her son, ■appellant Stewart Harry James, Jr., bequeaths his business to Mrs. James with provisions relative to the division of profits therefrom amongst his wife, Daisybelle Wendehaek, his employees, and Mrs. James, bequeaths the residue of his estate to his wife, and designates his wife, Mrs. James and a trust officer of the Chase National Bank, as executors.

The will was not prepared by counsel but was drafted by the testator and typed by Mrs. James. Nevertheless, it is in proper form and the attack thereon by the testator’s widow is pressed on the sole ground that although .the signatures of the testator and the attesting witnesses were affixed at the same time and place, as part of the same transaction, the attesting witnesses allegedly signed the will before the testator affixed his signature. If this fact is sufficiently established then under our Statute of Wills (R. S. 3:2-3) as construed in the leading case of Lacey v. Dobbs, 63 N. J. Eq. 325 (E. & A. 1901) the will is invalid. The appellants contend that Lacey v. Dobbs is a hypertechnical construction which frustrates the testator’s intention without justifiable public purpose (37 Yale L. J. 1003 (1928) ): that it has been discarded in many other jurisdictions (1 Page on Wills (1941) Sec. 372); and that it should be confined and deemed inapplicable where, as here, the testator made oral acknowledgment that the will was his in the presence of the attesting witnesses immediately after all of the signatures had been affixed.

The doctrine of Lacey v. Dobbs is so firmly embedded in our law of Wills that to question it,' in the language of Mr. Justice Holmes, “would be to lay hands on the Ark of the Covenant”. (Springer v. Government of the Philippine Islands, 277 U. S. 189, 211). It imposes the fixed and certain rule that everything required to be done by the testator must precede the subscription of the testamentary witnesses; if the rule is not complied with the will is invalid and the mere fact that the testator -subsequently acknowledged it as his will has no legal significance. See In Re Sutterlin, 99 N. J. Eq. 363 (E. & 4- 1926).

We come now to the factual issue of whether the testator signed the will before or after the -attesting witnesses. Mrs. Keil testified explicitly -that the testator first signed the will and that thereafter -she and Mr. Oliver, the other attesting witness-, affixed their signatures. To attack her credibility, New York cpunsel for the testator’s widow testified that Mrs. Keil -had m-ade an earlier statement to the -contrary. Mr. Oliver testified that the attesting witnesses affixed their signatures before the te-stator signed -the will. To attack his credibility and disinterest, appellants point out that although -he had voluntarily conferred with the widow’s -counsel -he had refused to confer with -counsel for -the proponents of the will, th-at he appeared during the hearing in the Orphans’ Court with his own counsel, and that -there were discrepancies in his testimony and a failure of recollection on most issues other than the order in which the will was signed. Mrs. James, who was the only other person -present at the execution of the will, corroborated Mrs. Keil’s testimony that the test-ator first signed -the will and that the attesting witnesses thereafter affixed their signatures.

With due regard to the finding of the trial judge and his opportunity to judge the credibility of the- witnesses, we have concluded from our examination of the testimony that it preponderates in favor of the finding tha-t the test-ator first executed the will and that the -attesting witnesses signed it thereafter. In -any event, such doubts a-s might be raised -because of Mr. Oliver’s testimony are dispelled by the weight to be given to the attestation clause. Although our courts h-ave, from -time to time, used varying language -as' to -the exact force of the attestation clause (see S Wigmore, Evidence (3d Ed. 1940) Sec. 1511 p. 335; they have, since early times, recognized that sound public policy requires that a will bearing the signature of the testator and the signatures of the attesting witnesses with a complete attestation clause should not be upset for alleged deficiency in its execution except upon clear evidence. See Allaire v. Allaire, 37 N. J. L. 312, 325 (Sup. Ct. 1875) aff’d, 39 N. J. L. 113 (E. & A. 1876); Tappen v. Davidson, 27 N. J. Eq. 459, 461 (Prerog. Ct. 1876). In In Re Seymour’s Will, 114 Atl. 799, 800 (N. J. Prerog. Ct. 1921), not reported in the New Jersey Reports, Vice Ordinary Foster, in finding that a will bearing proper attestation clause had been properly executed despite testimony to the contrary from the attesting witnesses, pointed out that a perfect attestation clause “affords protection from defective memories and poor or imperfect recollection, as well as against intentional forgetfulness and deliberate misrepresentation of the facts. It preserves in permanent form a record of the facts attending the execution of the will, and, as it is prima facie evidence of the facts stated therein, the burden is upon the caveator to show by clear and convincing proof that the facts thus stated are not true.” More recent language by the Court of Errors and Appeals is of similar import. See e. g. In Re Lazzati, 131 N. J. Eq. 54, 56) (E. & A. 1942) where Mr. Justice Porter stated that, “where there is a perfect attestation clause a will should not be denied probate without the strongest evidence to rebut the presumption of validity of which the attestation clause is a most important element of proof.” See also In Re Wherry, 131 N. J. Eq. 505, 507 (E. & A. 1942).

We are satisfied from our examination of all of the testimony that the evidence relied upon in support of the attack on the execution of the will falls far short of the proof which the authorities require to establish that the testator’s will, bearing a complete attestation clause in proper form, was not signed by him and the attesting witnesses in lawful order. Accordingly, the judgment of the Orphans’ Court is reversed with direction that the will be admitted to probate.


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    THE STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT, v. HAIM NAJJAR, DEFENDANT-APPELLANT.
    Superior Court of New Jersey Appellate Division
    Argued January 17, 1949
    Decided February 3, 1949.

      Before Judges Jacobs, Eastwood and Bigelow.

      Mr. Joseph Weintraub argued the cause for the defendant-appellant (Messrs. McGlynn, Weintraub and Stein, attorneys).

      Mr. Walter C. Winne, County Prosecutor, Bergen County, argued the cause for the plaintiff-respondent.
   The opinion of the court was delivered by

Jacobs, S. J. A. D.

This is an appeal from a judgment of conviction for bigamy entered in the Bergen County Court of Special Sessions.

Prior to August, 1946, the defendant Haim Najjar lived with his wife and three children in the State of New York. On August 6, 1946, he obtained a decree in Mexico, purporting to divorce him from his wife. He was never in Mexico but had arranged by mail for an appearance by an attorney in Mexico. His wife was never in Mexico nor did she authorize or enter any appearance. The decree contains no recital or adjudication on the subject of domicil; on the contrary, it simply states that the husband submitted to the court’s jurisdiction and was represented by an attorney, that the grounds for his action were incompatibility of temperament and cruel treatment, that his wife was ordered served by publication because her whereabouts were unknown and that she was granted “three days to answer the complaint”.

On September 4, 1946, the defendant married Mina Mintzeles at Hackensack, Bergen County, New Jersey. As a result of this marriage he was indicted for bigamy and upon his request and execution of waiver he was tried before the trial judge without a jury. At the trial the defendant testified that his attorney had advised him that although his home State of New York would not recognize his Mexican decree, New Jersey would and that although he still had doubts on the subject these were dispelled when the clerk in Hackensack issued a marriage license with knowledge of his Mexican decree. The trial judge found him guilty and the defendant appeals from the resulting judgment of conviction urging (1) that since New Jersey is not the domiciliary State of the parties it may not inquire into the validity of the Mexican decree; (2) that the New Jersey bigamy statute should be construed'as inapplicable where the marriage is between non-residents and follows a decree of any court having general divorce jurisdiction; and (3) that the defendant should have been acquitted on the ground that he had no criminal intent.

Domicil, as the jurisdictional basis for divorce, is universally recognized in all of our States and throughout the English-speaking world. Without .it no State may properly decree a divorce; with it any State, whether it be the original domiciliary State or a newly acquired domiciliary State, such as Florida, Nevada, or elsewhere, may decree a divorce which will be entitled to recognition everywhere under the full faith and credit clause. See Williams v. North Carolina (I), 317 U. S. 287 (1942), However, the jurisdictional finding of domicil by the newly acquired domiciliary State may still be questioned (Williams v. North Carolina (II), 325 U. S. 226 [1945) ), at least where it was not made in a proceeding in which both parties appeared and participated, (Sherrer v. Sherrer, 334 U. S. 343 (1948) ).

The Mexican decree, which admittedly is not entitled to the protection afforded to judgments of courts of our sister States by the full faith and credit clause, is not based upon a jurisdictional finding of domicil. Although there is no proof before us, the parties have assumed that it is valid within the of Mexico, 2 Law and Contemporary Problems, p. 310 (1935). Mexico, 2 Law and Contemporary Problems, p. 310 (1935). Be that as it may’ it has no extraterritorial effect and should receive no recognition here. Reik v. Reik, 109 N. J. Eq. 615 (Ch. 1932) aff’d 112 N. J. Eq. 234 (E. & A. 1933); Newton v. Newton, 13 N. J. Misc. 613 (Ch. 1935); Greenspan v. Greenspan, 19 N. J. Misc. 153 (Ch. 1941). Indeed, such a divorce has recently been described as a nullity “from which no rights of any kind may spring”. See Caldwell v. Caldwell, 298 N. Y. 146, 81 N. E. 2d 60 (1948) and comment in 62 Harv. L. Rev. 131, 132 (1948) that the “case indicates that New York will treat mail-order divorces as complete nullities, although other divorces void for want of jurisdiction are often given some force”. But compare Weise v. Hughes, 1 N. J. Super. 104, 62 A. 2d 695 (App. Div. 1948). Whether one favors strict or liberal divorces it seems clear that the moral standards of our community require unequivocal rejection of the suggestion that mail order divorces may have some validity within our borders.

1.

Appellant’s first contention is that even though New York, as his domiciliary State, would disregard his Mexican decree, New Jersey, as a non-domiciliary State, has no sufficient -interest to question it, citing Floyd v. Floyd, 95 N. J. Eq. 661 (E. & A. 1924) and Greensaft v. Greensaft, 120 N. J. Eq. 208 (E. & A. 1936). In Sherman v. Federal Security Agency, 166 F. 2d 451 (C. C. A. 3d 1948) the court, after pointing out that the cited cases were direct attacks on foreign divorces by non-residents where New Jersey had no interest in the marital status of the parties, soundly concluded that they have no application to a proceeding properly within New Jersey’s jurisdiction where the attack on the foreign divorce arises in the course thereof. Cf. Fried v. Fried, 99 N. J. Eq. 106 (Ch. 1926); Payne v. Payne, 2 N. J. Super. 270, 72 N. J. L. J. 1 (Ch. Div. 1948). See Smith v. Smith, 72 Ohio App. 203, 50 N. E. 2d 889 (1943). Accepting appellant’s contention that New Jersey had no interest in his marital status at the time he obtained his Mexican decree, it nevertheless has, at all times, a vital and legitimate public interest in the enforcement of its laws relating to bigamy. In furtherance of that interest appellant’s prosecution resulted, and in the course thereof, the trial judge properly was called upon to pass on the issue of whether appellant had a divorce decree from a “court having cognizance thereof” within the express statutory exclusion. We are convinced that the trial judge’s action in holding that the Mexican decree was utterly void and did not satisfy the statute was entirely correct.

2.

Appellant next urges that the bigamy statute (R. Y. 2:113-1) be narrowly construed and that it be deemed inapplicable to non-residents who marry here. We find no reason of policy and nothing in the statutory language which lends support. Appellant then suggests that the statute be construed to compel the court to recognize a divorce decree of lesser quality than one generally entitled to full faith and credit. All that need be stated in this connection is that a reading of the statute, which is basically similar to bigamy statutes in other States, discloses a definite legislative intent and its adequate expression; a person who remarries within this State on the basis of a divorce decree which New Jersey recognizes, under the principles hereinbefore expressed, as made by a court having jurisdiction to grant it, is not guilty of bigamy; a person who remarries within this State on the basis of a divorce decree which New Jersey does not so recognize, at least where the decree lacks even colorable validity, as does the appellants, is guilty of bigamy.

3.

Appellant’s final contention is that he acted in good faith and in the belief that his Mexican divorce was valid and that the statute should be construed to afford him a defense on the basis of lack of guilty knowledge. Since we are dealing with a statutory offense, the question is entirely one of statutory construction. See Halsted v. State, 41 N. J. L. 552 (E. & A. 1879); State v. Kuehnle, 85 N. J. L. 220 (E. & A. 1913). The statute first declares in absolute terms that a spouse who remarries while the other is living is guilty of bigamy and then lists four exclusions based on certain circumstances including divorce, without any mention of good faith or guilty knowledge. In many other States bigamy statutes of similar import have been construed to afford no defense to a defendant who, in good faith, married on the basis of an invalid divorce. See State v. Long,-Del.-, 59 A. 2d 545 (Gen. Sess. 1948), where the court recently collected the pertinent authorities, saying:

“We find the overwhelming weight of authority to be that in a prosecution for bigamy, under enactments containing exceptions in favor of persons who have been lawfully divorced, a bona fide belief that a legal divorce has been granted affords the accused no defense, the reason being that the Legislature having fixed the exceptions the Courts cannot extend them to persons who have not been, but who in good faith believed they have been, lawfully divorced. Further, if the pretended decree of divorce upon which the person relies is in fact illegal and void because made by a Court having no jurisdiction, it affords no protection against the consequences of a second marriage whatever may have been the defendant’s motive or his belief in respect to the validity of the decree, since his mistake or ignorance, if any, was one of law and not of fact. His case is one to which the maxim ‘ignoranti juris non excusat’ applies.”

See State v. Goonan, 89 N. H. 528, 3 A. 2d 105 (1938). Cf. State v. Pruser, 127 N. J. L. 97, 101 (Sup. Ct. 1941).

Appellant points to the harshness which may result from a comprehensive ruling that criminal intent is not an essential ingredient of bigamy and.refers to an illustrative instance in which a wife remarries after having been erroneously advised by the War Department that her husband has been killed in action. There the wife’s conduct is induced by factual error and reasonable belief that she had the right to remarry; determination as to whether she would be guilty of bigamy may be deferred until a case involving her prosecution is presented. In the appellant’s case, he did not proceed on the 'basis of any factual error; on the contrary, he knew all the facts and his remarriage was in purported reliance on a decree legally void and generally known to be worthless. Cf. Caldwell v. Caldwell, supra, where the New York Court of Appeals noted that, “the legal profession and, indeed, the general public now recognize the valueless character of mail order divorces”. Without expressing any opinion as to the availability, in situations not before us, of a defense resting upon the alleged absence of criminal intent, we are satisfied that in the light of the uncontroverted facts presented to the trial judge he properly found that the appellant had committed the crime of bigamy.

The judgment of conviction is affirmed.


text:
    WLADYSLAW BALINSKI, PLAINTIFF-RESPONDENT, v. A. CAPONE & SONS, INC., DEFENDANT-APPELLANT.
    Superior Court of New Jersey Appellate Division
    Argued December 20, 1948
    Decided February 4, 1949.

      Before Judges McGeehan, Donges and Colie.

      Mr. John W. Ockford argued the cause for defendant-appellant (Mr. Mario M. Polcari, attorney).

      Mr. Abraham J. Slurzberg argued the cause for plaintiff-respondent (Mr. Maurice M. Krivit, attorney).
   The opinion of the court was delivered by

Colie, J. A. D.

Plaintiff instituted suit against the defendant to recover damages to the house owned by plaintiff and his wife as tenants by the entirety. The complaint was grounded on negligence and the evidence adduced by plaintiff sought to establish that the defendant had deviated from “standard blasting methods.” Motions for nonsuit and the direction of a verdict for defendant were denied and the cause submitted to the jury which returned a verdict for plaintiff in the sum of $2750. From the judgment entered thereon this appeal is taken.

Defendant asserts that the judgment should be reversed because of the failure to join both tenants by the entirety as parties plaintiff. This point may not be raised on appeal since no motion was made based on an alleged non-joinder. However that may be, it has been held that trespass is a possessory action, and that one in possession may maintain an action without showing title in the damaged property. Todd v. Jackson, 26 N. J. L. 525 (E. & A. 1857). The next ground urged for reversal is addressed to the asserted illegality and incompetence of the testimony of the expert witness produced by the plaintiff. This alleged error will not be considered on appeal in the absence of an exception to any ruling of the court with reference thereto, the judgment having been entered prior to September 15, 1948. Leonard's of Plainfield v. Dybas, 130 Id. 135 (Sup. Ct. 1943).

Points one and four assert that the court erred in failing to grant the defendant’s motions for non-suit and direction of a verdict. The case was tried upon the theory of negligence in deviating from standard blasting methods. James Bowen, a professional engineer with twenty-five years’ experience in engineering and construction and who both studied and had experience in explosives, testified he knew and had familiarized himself with “standard blasting methods.” His examination then proceeded as follows:

“Q. Would you say that if that were done according to standard method of blasting that would have happened? A. It would not.”
“Q. If standard blasting were adhered to, would this condition that you saw have resulted? A. No, sir.
“By the Court:
“Q. How could it be avoided, Mr. Bowen? A. By lighter blasts and proper drilling before the blast was set off.
“Q. By proper drilling do you mean deeper drilling? A. Xes, and closer drilling, and drilling in the right place.”

Louis Capone, the general manager and treasurer of the defendant corporation, testified that he had been in the business of excavating and rock blasting contractor for about thirty years. He testified as follows:

“Being that we were so close to this house, we were on very light charges. * * * In order to remove the rock that we were up against, we had to drill six feet of hole in the solid rock * * * six foot deep holes in solid rock; and in order to got this out right, we would have to drill two holes in an area of six feet within four feet apart. * * * On Tonnele Avenue we were eight feet away from the house, and at that time we started line drilling the rock— every six or seven inches you put a hole, so that it would take any vibration away from the house.”

On rebuttal, the plaintiff recalled Mr. Bowen to the stand and he was examined as follows:

“Q. In your opinion, when you are contiguous to a house such as the Balinski’s at this excavation, was that the proper method to use? A. No, sir.
“Q. Tell us what, in your opinion, the proper method is to use. A. It should be dug every six inches apart, on a line.
“Q. And then what? A. And then drill in, so if the rock is big, not to break it off at one time.”

The testimony of Mr. Bowen that lighter charges and line drilling six inches apart so as not to break off too large pieces at one time, coupled with the testimony of Mr. Capone of line drilling “six or seven inches” apart and the latter’s failure to testify as to the size of the pieces of rock blasted out at one time, was some evidence of deviation from standard, albeit slight. In Whitla v. Ippolito, 102 N. J. L. 354 (E. & A. 1926) it was stated that while a contractor has a legal right to blast in performing his contract, he must do so with due regard to the rights of others nearby and that if negligent in not using recognized and available methods, and damages result, he is liable therefor.

The judgment is affirmed with costs.


text:
    LOUIS CASSINARI, APPELLANT, v. CITY OF UNION CITY IN THE COUNTY OF HUDSON, FRANK MOLINO AND ANTHONY TROYER, RESPONDENTS.
    Superior Court of New Jersey Appellate Division
    Argued January 31, 1949
    Decided February 10, 1949.

      Before Judges Jacobs, Eastwood and Bigelow.

      Mr. Nicholas S. Schloeder argued the cause for the appellant.

      Mr. Fred Eichmann and Mr. Thomas P. Nolan argued the cause for the respondents.
   The opinion of the court was delivered by

Jacobs, S. J. A. D.

This matter is before the court pursuant to a writ of certiorari allowed by the former Supreme Court to review an amendment of Union City’s zoning ordinance.

The zoning ordinance was adopted in 1930. It established residence, business and industrial districts within the city’s territorial limits and included New York Avenue from Eighth Street through Twenty-Sixth Street within a residence district. In January, 1947, the individual respondents Frank Molino and Anthony Troyer purchased a vacant lot 50 feet by 60 feet located at the southeast corner of New York Avenue and Twelfth Street for the purpose of erecting a gasoline service station thereon. They obtained a building permit which was revoked shortly after its issuance evidently because the proposed use would have been in direct violation of the provisions of the ordinance. On June 19, 1947, they obtained the passage of an amendment to the ordinance which reclassified their 50 by 60 foot lot from residence to business purposes. As a result, all of the nearby properties are still within a residence district and their property appears on the zoning map as an isolated business tract surrounded on all sides by a residence district. Many property owners in the vicinity objected to the amendment prior to its passage and the appellant, who owns and lives in a dwelling house within twenty-five feet of the proposed gasoline service station, now urges that its enactment was an invalid attempt at “spot zoning”.

New York Avenue from Eighth Street through Twelfth Street contains many stores used for various business purposes. These are non-conforming uses which were in existence prior to the adoption of the ordinance in 1930. Dwelling houses are interspersed between the stores and dwelling apartments are located above them. The neighborhood has remained substantially unchanged since the adoption of the ordinance.

In support of the amendment the City asserts that it considered that the entire neighborhood was business in character, that it believed that its original zoning for residential purpose “was erroneously done” and that “hardship would be done to the owners of the property in question if they were not permitted to use this property for business purposes”. There is no explanation offered as to why, if these views were entertained, it did not rezone the whole area but merely sought to transfer the single lot to a business zone while retaining all of the surrounding property in a residence zone.

Although municipalities have power to adopt zoning regulations by ordinance, the regulations must be in accordance with a comprehensive plan designed to promote specified statutory purposes relating generally to the health, safety and welfare of the community. R. S. 40:55-32; Crow v. Westfield, 136 N. J. L. 363, 365 (Sup. Ct. 1948). Similarly, zoning districts may be created by ordinance and may be enlarged or otherwise altered by amendment thereof, (Taylor v. Hackensack, 137 N. J. L. 139, 141 (Sup. Ct. 1948) ) provided always that the action is in reasonable fulfillment of the statutory policies. Appley v. Bernards Township, 128 N. J. L. 195 (Sup. Ct. 1942) aff’d 129 N. J. L. 73 (E. & A. 1942). If an exception or variance from the restrictions applicable to a district is sought because of undue hardship or related statutory-ground (R. S. 40:55-39 last amended in P. L. 1948, c. 305) proceedings may be had before the Board of Adjustment which acts g-itowi-judidally in accordance with prescribed standards. Brandon v. Montclair, 124 N. J. L. 135 (Sup. Ct. 1940) aff’d 125 N. J. L. 367 (E. & A. 1940).

In the instant matter the individual respondents chose not to seek an exception or variance before the Board of Adjustment and the City chose not to enlarge a business zone by inclusion of an adjacent area which it now states has at all times been predominately 'business in character and was erroneously excluded from the nearest business z.one when the original zoning ordinance was adopted. On the contrary, the City retained the zoning residence restrictions with respect to everyone’s property except that purchased by the individual respondents. The City’s action was not part of any comprehensive plan, was in nowise calculated to achieve the statutory objectives, and resulted in the circumvention of the functions of the Board of Adjustment and in unwarranted discrimination in favor of the individual respondents. If the amendment were permitted to stand the individual respondents’ property would be the only one on New York Avenue in the entire area from Eighth Street through Twenty-Sixth Street which would be available for all of the various uses permitted in business districts ; all other properties within the area, though similarly situated, would be confined to their use as dwellings or if they were non-conforming uses to a restricted continuation thereof. R. S. 40:55-48. Such arbitrary discrimination has been consistently struck down by our courts. See Appley v. Bernards Township, supra, where Mr. Justice Heher, in setting aside an amendment to a zoning ordinance, said:

“It is fundamental in zoning under the police power that lands in like situation are to be classified alike. Arbitrary discrimination is inadmissible. The action must be grounded in reason and judgment based upon the policy of the statute. It must be in accordance with law or it is capricious. The amendment flouts the mandate of the statute that zoning rules and regulations shall be made with ‘reasonable consideration’ to the ‘character of the district and its peculiar suitability for particular uses,’ the maintenance of property values, and the devotion of land in the municipality to its ‘most appropriate use.’ While factually dissimilar, the general principle was applied in Guaranty Construction Co. v. Bloomfield, 11 N. J. Mis. R. 613; Linden Methodist Episcopal Church v. Linden, supra [113 N. J. L. 188]; Mulleady v. Trenton, 9 Id. 1102.”

Like principles have recently been expressed in other jurisdictions in cases where, as here, “spot zoning” resulting in arbitrary discrimination has been attempted. See DeBlasiis v. Bartell, 143 Pa.Super. 485, 18 A. 2d 478, 484 (1941); Smith v. Board of Appeals, 313 Mass. 622, 48 N. E. 2d 620 (1943); Page v. City of Portland, 178 Ore. 632, 165 P.2d 280 (1946); Polk v. Axton, 306 Ky. 498, 208 S. W. 2d 497 (1948).

Since we are satisfied that the amendment must be nullified for the reasons expressed, we need not consider other contentions advanced on behalf of the appellant.

The amendment dated-June 19, 1947, is set aside.