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

text:
    STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT, v. CHARLES W. GILLESPIE, DEFENDANT-APPELLANT.
    Superior Court of New Jersey Appellate Division
    Argued September 18, 1967
    Decided January 12, 1968.

      Before Judges Conford, Collester and Labrecque.

      Mr. George K. Meier, Jr. argued the cause for appellant.

      Mr. Archibald Kreiger, Assistant Prosecutor, argued the cause for respondent (Mr. John G. Thevos, Passaic County Prosecutor, attorney).
   The opinion of the court was delivered by

Conford, S. J. A. D.

Defendant appeals from a conviction of driving a motor vehicle under the influence of intoxicating liquor (N. J. S. A. 39:4-50) in the Passaic County Court following an appeal to that court on the transcript made before the Municipal Court where there had been an initial conviction. The defendant was fined $200 plus $25 costs and his driver’s license was revoked for two years. Under the statute, a first-time offender is subject to a fine of between $200 and $500 or imprisonment for a term of between 30 days and three months, or both, in the discretion of the judge, and to a mandatory revocation of his driver’s license for two years. Subsequent offenses are punishable by a mandatory three months jail sentence and ten years’ revocation.

A number of questions, constitutional and otherwise, were raised in the county court and here. It should be noted at the outset that the formal charge against defendant fixes the place of alleged violation at “Parking Lot, 140 Hepburn Rd. [Clifton].”

I.

At the time in question, May 8, 1966, the defendant resided in an apartment house at 140 Hepburn Rd., Clifton. Supplemental testimony taken before the county court on a remand at our direction establishes that the owner and operator of the apartment house also maintained a parking garage with two indoor levels and a roof parking area. As of May 8, 1966 the indoor levels were open only to tenants, but the rooftop, where this offense allegedly occurred, was open not only to tenants, but visitors, tradesmen and anyone else having occasion to be at the property. Even persons having no business there were not impeded from parking on the rooftop prior to July 1, 1966 when a gate was installed excluding those with no business at the premises.

On the basis of the foregoing proofs the county court found the rooftop garage area to be as of May 8, 1966 a “quasi-public” place and within the purpose and object of the statute as to places where driving under the influence is intended to be proscribed.

In State v. Sisti, 62 N. J. Super. 84 (App. Div. 1960) we held the act was not designed to limit the field of its prohibition to public highways and included the general parking area made available for customers of a private business concern — a shopping center. Defendant argues that the factual situations there and here are not analogous. We do not agree. Except in terms of the number of vehicles potentially involved, we do not regard this case as distinguishable in principle from Sisti. The operation of a motor vehicle while under the influence of intoxicating liquor in a gwasi-public place involves extraordinary danger of injury to the driver or other members of the public or damage to their property, just as does driving in that condition on a public highway.

II

Defendant’s major contention is that he was convicted illegally because of the introduction before both trial courts against him of admissions in police custody to, and as a result of interrogation by, a police officer and an examining police physician without the prerequisite warnings and waiver of rights required by Miranda v. State of Arizona, 384 U. S 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).

Defendant did not testify in his own defense. The pertinent proofs are as follows.

At approximately 7:30 p.m. on the evening of May 8, 1966 Mr. Koubek, a tenant at the apartment house, noticed from his patio a ear having difficulty getting into a parking place on the parking roof. A grey Buick sedan was attempting to park immediately adjacent to his own car. As he continued his observation, from a distance of 150 feet, he saw and heard his car bumped by the Buick, whereupon he started downstairs, calling the superintendent to come out with him. "When he got to the parking area Koubek saw defendant looking at the damage to Koubek’s car. At this point defendant was either entirely out of the Buick or was just getting out. In the course of their conversation defendant acknowledged to Koubek that the Buick belonged to him and said: “Look at the damage to my car and I don’t know how I got any of them.”

Clifton Police Officer Sembertovich testified he was detailed to the scene of “an accident” at 7:40 p.m. that day and went to the premises. He saw defendant leaning against the Buick. Koubek told him defendant had struck his car and defendant denied it. The officer concluded that defendant’s car had struck Koubek’s by examining the location of damage and paint scrapes on the vehicles. Somewhere in the course of his investigation the officer conducted an interrogation of defendant and arrested him for drunken driving, but the transcript unfortunately makes it impossible to determine just how much of the interrogation preceded the arrest. The significant testimony of the officer is as follows:

“Q. What then occurred [after inspecting the damage] ? A. I then asked Hr. Gillespie what had occurred. He said he didn’t know. T asked him for his driver’s license and registration. He was fumbling with his wallet and could not produce them. Then I asked Mr. Koubek what happened. His statement is on the report, your Honor. I asked Mr. Gillespie to walk a line that was in the road. He could not do so. He staggered and stumbled from side to side. He had to lean against the cars, and he needed support. I then told Mr. Gillespie I am placing him under arrest while driving under the influence of alcohol, due to Mr. Koubek’s statement.
Q. Officer, did you ask Mr. Gillespie if he had been driving? A. Yes, I did. He said he had been driving. He said he drove from New York. He thought he was still in New York.
Q. Would you describe the defendant’s appearance at the scene of this accident? A. Well, his eyes were bloodshot and he had a very strong odor of alcohol on his breath. As I stated, he was staggering and could not support himself without aid from the police truck or the other vehicles in the immediate area.
Q. Will you describe his speech at the scene of the accident? A. It was slurred. It was difficult to understand.”

On cross-examination, the officer also testified responsively that defendant said “he had tried to park his car in the parking lot, but he couldn’t make it.”

The officer testified that after the arrest defendant was placed in the police van for the trip to headquarters and at that time he informed defendant 'die had a right to refuse to answer all questions that were put to him and that he was entitled to a lawyer.” At headquarters, he took defendant to the examination room. Defendant then asked, “When can I get a lawyer?” He was told, “any time he wants to.” Defendant asked that a lawyer be called, but upon the officer’s asking for the telephone number, defendant said he did not know the name of the lawyer — only that he was in New York. At that point Dr. Gerow, the police examining physician, began his examination of defendant in the officer’s presence.

Dr. Gerow testified that when the defendant was brought into the examining room, he “was swaying, staggering, falling against the wall and furniture * * * he kept falling.” He told the defendant who he was and said if the defendant had his own lawyer and doctor he could refuse any tests or questions. Defendant did not respond to that. He gave his age (49), weight (190) and occupation (consulting engineer). The doctor had defendant sign his name for comparison with his driver’s license and found it “very poor.” On interrogation, defendant said he was driving his car when arrested; had had four drinks of scotch, but couldn’t say when. He had not been to a doctor recently, was not under medication, had no physical disability in driving a car, or otherwise, or history of illness. However, he said he had a right leg three-quarters of an inch shorter than the left and that he walked with a limp. He said he knew he was being examined for sobriety. When asked whether he would submit to a blood test, the defendant stated he wanted first to consult with a lawyer, and at that point the doctor ceased his examinations and observations.

The doctor’s observations of the defendant were stated as follows:

“A. He had a very strong alcoholic odor. His face was flushed, clothes were orderly. His attitude, he was very talkative. His eyes were watery, marked bloodshot. Pupils were dilated. Balance, wobbly, staggering. Walking was swaying, staggering. He needed constant help to keep from falling. Turning around was swaying and staggering and stumbling. Speech was confused, and talking was a little difficult at times to understand.”

On objection at that point the court [magistrate] ruled it would not admit in evidence any interrogation after the request for a lawyer last mentioned, but would admit any observations of the defendant’s condition before or after. The doctor gave it as his opinion that the defendant was at the time under the influence of intoxicating liquor — “under the extreme effects of alcohol * * * ability to drive [was] impossible * * *. [T]he limp had nothing to do with defendant’s swaying, staggering and falling.”

After denial of a motion to dismiss on grounds of insufficiency of proof and that the place was a private area, defendant’s brother John Gillespie testified for the defense that defendant drove to his home (Cedar Grove) at 5:00 p.m. on the date indicated. He was soon after served a drink of liquor of 1%~2 ounces with water and another an hour later. He knew of no other drink taken by defendant.

A Dr. Brill testified that he examined defendant several weeks after the occurrence and took a history from the defendant of having had four drinks of scotch on May 8, the first at 1:00 p.m. and the last three at 4:45 p.m., 5:45 p.m., and 6:45 p.m. respectively. He drove from his brother’s home to his own, arriving at 7:30 p.m., and having had no difficulty except in parking at the apartment. Dr. Brill took defendant’s blood pressure, and found it to be 138/98, the systolic (lower) figure being “dangerous.” The redness of defendant’s face could be “discoid lupus,” not related to inebriation. On the basis of a hypothetical question mentioning only 2 drinks of liquor plus the staggering, erratic speech, and other observations of the State’s witnesses, his opinion was that on the date and time in question the defendant was not under the influence of liquor but was having a fleeting cerebral incident described as a “cerebral ischemic attack.” Prime reliance was placed on the blood pressure reading. The liquor consumed (assuming 2 ounces per drink), as against the time lapse, defendant’s weight and the strength (proof) of the liquor would produce as of 7:30 p.m. a blood alcohol content of between 0.044% and 0.028%. If the defendant had had four drinks, as he admitted to Dr. Brill, his estimate would be between 0.078% and 0.062%, “well below the level for intoxication.”

The county court held, on the basis of dictum in State v. Zucconi, 93 N. J. Super. 380 (App. Div. 1967), affirmed on other grounds after the decision below in this case, 50 N. J. 361 (1967), that the rule of Miranda, supra, is not applicable in motor vehicle violation cases. In Zucconi we stressed the fact that the offense there involved — careless driving — carried potential imprisonment of only 10 days and that the punishment imposed was only a fine. (Id., at 388, 392). While we expressed the opinion that Miranda should not apply in motor vehicle cases as a class, definitive resolution of the issue was averted both by us and the Supreme Court in view of the facts that the case was tried before the decision in Miranda and that the interrogation was not conducted in circumstances of police custody of the defendant.

Before considering whether Miranda is applicable at all to drunken driving, with its potential of three months’ imprisonment upon conviction, we have the preliminary difficulty here as to whether the interrogation by the police officer developing the admission of driving took place before or after the arrest. The Miranda rule begins to operate when an individual is taken “into custody or otherwise deprived of his freedom of action in any significant way” (384 U. S. 436, 444, 86 S. Ct. 1602). We think arrest, even on the street, meets that criterion. But we shall not pursue the issue of custody since the only admission then made and constitutionally privileged under Miranda would be as to the fact of driving, and we will show and hold hereinafter that this, if error, was harmless beyond a reasonable doubt.

There is no question but that, given the applicability of Miranda, the admissions of driving and of consumption of four drinks to the police doctor at the police station in the presence of the arresting officer were made while under custodial interrogation. The warnings given were obviously insufficient and there was no satisfactory proof of waiver of rights by the defendant, particularly in the light of the fact that he first told the police officer he wanted a lawyer. (384 U. S., at 475, 479, 86 S. Ct., at 1602).

However, the potential application of Miranda is irrelevant to any non-testimonial conduct or utterances of the defendant here adduced in evidence through the police officer and the police doctor such as his general appearance, odor of alcohol, manner of speaking and of walking and as to his handwriting being tested. Neither the privilege against self-incrimination nor the right to counsel was invaded by the use at trial of the evidence thus elicited. Schmerber v. State of California, 384 U. S. 757, 86 S. Ct. 1826, 16 L. Ed. 2d 908 (1966) (sustaining the constitutionality of the involuntary taking of blood for incriminatory testing from the body of a suspect in a drunken driving case).

We thus arrive at the substantive question whether custodial interrogation of an arrestee on charges of drunken driving punishable on conviction by sanctions including a three months jail term is within the requirements for warning and waiver of Miranda. We refer to our extended discussion of the broad principles relevant thereto in minor criminal offenses and quasi-penal infractions such as the generality of motor vehicle violations as set forth in State v. Zucconi, supra (93 N. J. Super., at 384-391). We basically adhere to those views. See also State v. Smith, 181 Neb. 846, 152 N. W. 2d 16, 21 (Sup. Ct. 1967); People v. Bliss, 53 Misc. 2d 472, 278 N. Y. S. 2d 732 (Co. Ct. 1967). But see State v. Meunier, 126 Vt. 176, 224 A. 2d 922 (Sup. Ct. Vt. 1966).

In David v. Strelecki, 97 N. J. Super. 360 (App. Div. 1967) , we found it unnecessary to decide the issue there raised — whether Miranda applied in relation to an administrative proceeding concerning a motor vehicle offense potentially involving suspension of driving privileges (97 N. J. Super., at 371-2) — but one member of the Part which decided that case, in dissenting, took the negative position on the issue, pointing out that the proceedings “involved no custodial sanctions whatsoever — * * *.” (Id., at 381).

The implications from most of such meager authority as now exists on the general subject seem to point to the substantiality of the potential penal incarceration for the offense as the most weighty criterion of applicability of Miranda. State v. Zucconi, supra; David v. Strelecki, supra; Lung v. State, 420 P. 2d 158 (Okla. Ct. Cr. App. 1966) (unauthorized use of motor vehicle; 3 years imprisonment); People v. Letterio, 16 N. Y. 2d 307, 266 N. 7. S. 2d 368, 213 N. E. 2d 670 (Ct. App. 1965) (Bergan, J., concurring, 213 N. E. 2d, at 672; and Desmond, C. J., dissenting, at 674: “We express no new idea when we urge that, where imprisonment threatens, constitutional guarantees as to counsel must apply to ‘non-serious’ as 'well as ‘serious’ offenses.”). Cf. State v. Davis, 108 N. H. 45, 226 A. 2d 873 (Sup. Ct. 1967); State v. Corrigan, 4 Conn. Cir. 190, 228 A. 2d 568 (Cir. Ct. App. Div. 1966); Dixson v. State, 54 Misc. 2d 100, 281 N. Y. S. 2d 912 (Ct. Cl. 1967).

Of peripheral relevance is State v. Laird, 25 N. J. 298 (1957). Defendant had been fined for drunken driving; the court later learned of a prior offense and sought to re-sentence defendant as a second offender. This was held impermissible because “the proceeding concerns a punitive offense, gwasi-criminal in nature; and there is the same regard here as in strictly criminal cases for the essential civil rights and liberties designed to secure the individual against arbitrary action.” (at 302.) Accord: State v. Francis, 67 N. J. Super. 377, 381 (App. Div. 1961) : “Proceedings under the reckless driving section of the Motor Vehicle Act * * * are quasi-criminal in nature. The basic rights of a defendant as charged are entitled to the same protection as are normally accorded one accused of a criminal offense. * * * [T]he plea of double jeopardy is, in a proper factual setting available to a defendant charged with multiple offenses under the Motor Vehicle Act.” The right to a speedy trial is another of those “basic rights” of one charged with a motor vehicle violation. State v. Hulsizer, 42 N. J. Super. 224, 228 (App. Div. 1956) (drunken driving prosecution).

Also meriting a place on the credit side of the balance sheet in favor of applying the Miranda rule in drunken driving cases in this State is the impairment of judgment bearing upon protection of one’s rights often apt to be present in persons taken into custody on this charge. Cf. David v. Strelecki, supra (97 N. J. Super., at 370).

The many considerations, mostly of a practical nature, pointing the other way, and particularly those related to the frequency of such prosecutions and the difficulties of mobilizing counsel quickly for those arrestees unable to afford them, are common to the general category of motor vehicle offenses, and the pertinent discussion in State v. Zucconi, State v. Smith, and People v. Letterio, all supra, need not be here repeated. See also City of Columbus v. Hayes, 9 Ohio App. 2d 38, 222 N. E. 2d 829, 830 (Ct. Ap. 1967) which, without discussion, strangely held the penalty for drunken driving (which it did not mention) “not now such as to bring this case within constitutional limitations on custodial interrogation.”

The issue is close and weighty. If we can avoid deciding it here, the Supreme Court not having spoken, we should. We have decided to take no definitive position on the point since we are perfectly clear that any adverse proofs by way of admissions by the defendant to either the arresting police officer or the police doctor were harmless error beyond a reasonable doubt. Chapman v. State of California, 386 U. S. 18, 87 S. Ct. 824, 17 L. Ed. 2d 705 (1967).

The two predicates for liability are: (1) that defendant drove the car at the parking garage; (2) that at the time he was under the influence of intoxicating liquor.

(1) Putting to one side the defendant’s admissions to the police officials that he was driving, it is virtually impossible to repel the inference from the testimony of the witness Koubek and the objective attendant circumstances, including the paint and damage marks on the two cars, that defendant was operating his Buick in trying to back into the parking space. His car had been moving and there is not the remotest contention that the driver could have been anyone other than defendant. Further, the defense witnesses Gillespie and Dr. Brill gave testimony that defendant drove to his apartment house at about 7:30 p.m.

(2) As to the issue concerning defendant’s intoxicated condition, defendant’s statement to Dr. Gerow that he had had four drinks during the afternoon can be discarded without affecting the damning effect of all the other evidence bearing upon his condition in view of his having given the same information as to the four drinks to Dr. Brill, which the latter put into evidence as part of his testimony as to the history given him by the defendant as to his activities the afternoon and early evening of the date of the alleged offense. Thus, even without the statement to Dr. Gerow, there was no respectable hypothesis for a finding of innocence on the issue of intoxication in the light of the other proofs concerning the observations made by the officer and Dr. Gerow, all of which were, as seen above, free from the taint of Miranda even were it applicable in this case. Dr. Brill’s defensive testimony was in our view speculative to the extreme and almost totally lacking in probative force, and we are confident that this was the reason the county court did not even advert to it in its oral conclusions of guilt.

In sum, we are satisfied beyond a reasonable doubt that defendant’s inculpatory admissions to Officer Sembertovich and Dr. Gerow were harmless if not properly admissible under Miranda because they played no material part in his conviction of the offense charged.

III.

Defendant argues that all the incriminatory evidence, testimonial admissions and otherwise, elicited from him after his arrest and trip to the police station, was illegal as the fruit of an illegal arrest. This is founded upon the premise that the offense (driving under the influence) does not .amount to a crime punishable by more than one year in state prison; hence the arrest could be lawfully effected without a warrant (there was none here) only if committed in the officer’s presence. State v. Boyle, 42 N. J. 334, 349 (1964). It cannot be denied that defendant did not drive in the presence of the arresting officer. The argument gains strength from the fact that the section of the motor vehicle act providing for arrest without warrant by law enforcement officers for violations of chapter 4 of title 39 of the annotated statutes (which includes drunken driving) is expressly limited to violations in the presence of the officer. N. J. S. A. 39 :5-25.

We agree with the defendant’s position to the extent of the assertion that the incriminating observations of defendant’s condition and behavior after his arrest at the police station were events so immediate upon and consequential to his arrest as to warrant characterization thereof as the fruit of the arrest, within the meaning of Wong Sun v. United States, 371 U. S. 471, 83 S. Ct. 407, 9 L. Ed. 2d 441 (1963). Cf. State v. Hodgson, 44 N. J. 151 (1965).

Moreover, we reject as without merit the State’s position that defendant waived any quality of illegality of the evidence under the foregoing circumstances by virtue of his having appealed to the county court. R. R. 3:10-10 (b) has no such effect in relation to errors of federal constitutional magnitude. A contention based upon the Fourth Amendment is here implicated.

However, we conclude that notwithstanding the technical invalidity of the arrest, the subsequent enforced subjection of the defendant to examination for intoxication was justified as an emergency measure to assure the State against loss of evidence of defendant’s guilt of an offense which, although not graded a crime, is of a kind which poses an extremely grave menace to the public safety and welfare.

Had the police officer refrained from immediate apprehension and subjection of defendant to physical examination, in order to accommodate the requirement that he first procure an arrest warrant, defendant might have absented himself until a time when his symptoms of inebriation were gone or had become minimal. Just as in Schmerber v. State of California, supra, where the involuntary taking for testing of the blood of an arrested suspect of drunken driving was sustained as an emergency measure notwithstanding the court was not satisfied that the act could be justified as a search incidental to an arrest, “[t]he officer in the present case * * might reasonably have believed that he was confronted with an emergency, in which the delay necessary to obtain a warrant, under the circumstances, threatened The destruction of evidence.’” (Id., 384 U. S., at 770, 86 S. Ct., at 1835). What in Schmerber was thus held, for emergency reasons, a justified transgression beyond the normal scope of a search incident to an arrest, is by unexceptionable analogy here authoritative to justify a forced examination of a person reasonably believed to be under the influence of intoxicating liquor notwithstanding the absence of a technical foundation for an arrest, as such. It does not appear that defendant was confined any longer than was necessary to conduct the examination. The totality of circumstances made the seizure “reasonable.” Cf. State v. Boykins, 50 N. J. 73, 78 (1967).

There is of course nothing new about the “emergency” or “necessitous circumstances” exception to the ordinary prerequisites for a valid search or seizure under the Fourth Amendment. Warden, Maryland Penitentiary v. Hayden, 387 U. S. 294, 87 S. Ct. 1642, 18 L. Ed. 2d 782 (1967); State v. Gosser, 50 N. J. 438, at 447-448 (1967); State v. Macri, 39 N. J. 250, 254 (1963); State v. Naturile, 83 N. J. Super. 563, 568 (App. Div. 1964).

IY.

Defendant’s final contention, that the testimony of John Gillespie and Dr. Brill required an acquittal, is frivolous.

Judgment affirmed.

        N. J. S. A. 39:4-50.1 provides that in a prosecution for drunken driving, a reading of 0.05% or less creates a presumption of not being under the influence; between 0.05% and 0.15% creates no presumption either way but may be considered along with the other evidence; and 0.15% or more creates a presumption of being under the influence.

       The penalty happens to be a fine up to $500 and imprisonment of not less than three days nor more than six months. Page’s Ohio Rev. Code Annot. (1965) Secs. 4511.19, 4511.99(b).

       The arrest was valid under California state law (384 U. S., at 768, n. 12, 86 S. Ct., at 1826).


source: Caselaw Access Project

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

license: Public Domain

text:
    CITY OF BAYONNE, A MUNICIPAL CORPORATION OF THE STATE OF NEW JERSEY, THE BOARD OF EDUCATION OF THE CITY OF BAYONNE AND THE BOARD OF SCHOOL ESTIMATE OF THE CITY OF BAYONNE, PETITIONERS-APPELLANTS, v. CARL L. MARBURGER, COMMISSIONER, DEPARTMENT OF EDUCATION OF THE STATE OF NEW JERSEY, RESPONDENT-RESPONDENT.
    Superior Court of New Jersey Appellate Division
    Argued March 11, 1968
    Decided March 18, 1968.

      Before Judges Goldmann, Kilkenny and Carton.

      Mr. James P. Dugan argued the cause for appellant City of Bayonne.

      Mr. John J. Pagano argued the cause for appellants Board of Education and Board of School Estimate.

      Mr. Stephen G. Weiss, Deputy Attorney General, argued the cause for respondent (Mr. Arthur J. Sills, Attorney General of New Jersey, attorney).
   The opinion of the court was delivered by

Goldmann, S. J. A. D.

This is an appeal from a determination of the State Board of Education (State Board) unanimously affirming the decision of the Commissioner of Education (Commissioner) denying the request of the Bayonne School District (Bayonne) that it be permitted to raise its local share” under the School Building Aid Law, N. J. S. 18A :58-20 et seq., formerly N. J. S. A. 18:10-29.49 et seq., by the issuance of bonds. The sole issue presented is whether Bayonne may raise its local share in the manner it proposes rather than by a tax levy. We hold it may not.

Acting upon the statutorily prescribed formula, N. J. S. 18A-58-23 (formerly N. J. S. A. 18:10-29.52, as amended), the New Jersey Department of Education computed the capital foundation program for Bayonne for the 1968-69 school year to be $398,655. Of this amount Bayonne was required, under N. J. S. 18A:58-24(a) (formerly N. J. S. A. 18:10-29.53(a), as amended) to raise the sum of $258,957 as its local share. The State, in turn, would then contribute the balance of $139,698 as the maximum state building aid available. In January 1968 Bayonne informed Assistant Commissioner of Education Kilpatrick that it intended to raise its local share by issuing bonds in lien of taxation.

Bayonne had a year earlier requested permission to utilize this alternative procedure for the 1967-68 school year. At that time Assistant Commissioner Kilpatrick twice informed the attorney for the Bayonne Board of Education that Bayonne’s local share had to be raised by taxation; a proposed bond issue would not qualify Bayonne for state building aid under the capital foundation program. The City of Bayonne thereafter raised its local share for the 1967-68 school year by taxation.

When Bayonne renewed its bond issue proposal in January 1968, Assistant Commissioner Kilpatrick again advised that the school district would not qualify for receipt of the $139, 698 in state aid unless it raised its local share of $258,957 by taxation. His letter gave a more detailed explanation of the Department’s view of the unsoundness of Bayonne’s request :

“Since 195G, when the State School Building Aid Act was enacted, the Division of Business and Finance has uniformly required school districts to raise their annual local fair share only by means of an annual tax levy. The Division has never considered the Act as permitting any alternative method. Indeed, to my knowledge, no school district has ever sought eligibility for building aid on any other basis, nor objected to the Division’s interpretation.
In my opinion, the plain meaning and intent of the State School Building Aid Act required the annual local fair share to be raised by a tax levy, As you know, school districts, under the Act, must annually establish a capital foundation program. This procedure, based as it is upon an annual budget concept, does not reasonably permit inclusion of non-revenue receipt items such as bonds or notes. These non-revenue items, of course, would not be compatible with the annual budget concept of the capital foundation program. If such items could be included then, at the time of the payment of the debt, itself, there would be created a further eligibility for state building aid even though the total amount of the debt would already have provided an eligibility in a previous year. In my opinion the legislature intended no such anomaly.
In essence, it has been, and continues to be my belief that the legislation establishing the state school building aid procedure contemplates a yearly partnership between the state and local school districts, each of which are called upon to annually provide, through tax sources, for the ensuing school year capital foundation program. This procedure for an equal, annual tax effort does not envision the introduction of nonrevenue receipt items such as bonds or notes to establish eligibility. While I appreciate that municipalities may prefer to maintain a stable tax rate, I do not believe that the alternative which is apparently contemplated is permissible under existing law.”

Bayonne then requested the Commissioner to review that determination, and its officials were accorded the opportunity of presenting their contentions to him. On February 2, 1968 he wrote the local school board stating that he concurred in the Assistant Commissioner’s determination. He, too, noted that non-revenue receipt items, such as bonds or notes, did not accord with the concept projected in the School Building Aid Law. He said that:

“If the device here proposed [a school bond issue] were permissible, the net result would be that the State would pay State building aid twice on the same amount of local fair share: first, on a local fair share raised by a bond issue, and second, on the annual payments of interest and principal on the same bonds. The Commissioner can find no justification in the statutes for such double payment. The statutes cannot be construed to produce an anomalous result.”

In other words, were Bayonne to issue bonds in order to raise its 1968-69 school year local share, it would not only qualify for the state school building aid contribution for that school year but, in addition, would be incurring an indebtedness whose annual debt service payments would establish an additional eligibility under the School Building Aid Law.

Bayonne appealed the Commissioner’s determination to the State Board which, as noted, unanimously affirmed his action.

Examination of the School Building Aid Law establishes the soundness of the administrative determination here under review.

The school building aid concept was first enacted into law by L. 1956, c. 8 (N. J. S. A. 18:10-29.49 et seq.), whose title pointed out its essential purpose:

“An Act to authorize the payment of State grants-in-aid to certain school districts, for school facilities, and requiring the State Treasurer to maintain capital reserve funds for the administration of such grants-in-aid and through monies applicable thereto, supplementing Title 18 [“Education”] of the Revised Statutes.”

The Statement to the bill (Senate Bill 2) read:

“The purpose of this bill is to carry out the essential recommendations of the Eighth Report of the Commission on State Tax Policy. It provides for the accumulation of capital reserve funds at the option of school districts, and for State aid applicable to such reserves and to debt service and capital outlay expenditures.”

The Eighth Report of the Commission on State Taz Policy (May 1955), to which the Statement referred, was devoted ezclusively to the subject of “Einancing School Buildings in New Jersey.” In that report the Commission, after pointing out the urgency of school building needs in many parts of the State, said that the time had come “when the financing of capital requirements should be planned in an orderly way and at a minimum cost to the state and its local school districts, if we are to avoid recurring emergencies as new school facilities become necessary.” The Commission made two basic proposals, only the first of which concerns us here:

“First: Establish an annual capital foundation program at a level calculated to spread the cost of modest, but adequate, school facilities over the useful life of those facilities and provide for state-local sharing of the capital foundation program costs according to the taxable resources of local school districts in the same manner as presently provided in the sharing of current operating foundation-program costs [N. J. S. 18A:58-1 et seq., formerly N. J. S. A. 18:10-29.30 et seq.]” (page VII; italics ours)

In its summary of the capital foundation program, where the proposal just quoted was repeated, the Commission went on to explain that

“The local fair share tax rate for the support of the capital and current foundation programs shall be increased from the 5 mills to 5.5 mills per dollar of full valuation of taxable property in the school district (from 50 cents to 55 cents per $100) as equalized by the State Division of Taxation.” (at page X; italics ours)

It is entirely clear from the above, as well as chapter II (“A Plan of Action”) of the Commission’s Eighth Report (at pages 13 through 21), that what the Commission proposed was a uniform, annual local tax effort that would provide a constant annual response to capital requirements.

It was in direct response to the Eighth Report that the State Building Aid Law (L. 1956, c. 8) was passed the following year. That act clearly reflected the concept of an annual tax effort by the State and by local school districts. The new “capital foundation program” was expressly defined as “the amount annually determined pursuant to section 4 of this act.” N. J. S. A. 18:10-29.50. Section 4 (N. J. S. A. 18:10-29.52) provided that

“The capital foundation program shall be computed annually for each school district as the sum of the amount approximated by or for the school district in eaeh school budget or in a municipal budget for purposes of capital outlay, debt service and net addition to its capital reserve fund, but not exceeding $30.00 per pupil in average daily enrollment.” (Italics ours)

(Section 4 presently appears as N. J. S. 18A:58-23, the last part of the quoted section now reading “* * * for purposes of (1) debt service, (2) capital outlay and (3) net addition to its capital reserve fund, but not exceeding $45.00 per pupil in resident enrollment.”)

Section 5 (a) of the act (N. J. S. A. 18:10-29.53, now N. J. S. 18A:58-24) prescribed the formula by which the school district’s local share was to be determined, the remainder constituting the district’s building aid allowance to be contributed by the State:

“ (a) There shall be deducted from the amount of the capital foundation program of each district a local share equal to $0.05 per $100.00 (% mill per $1.00) upon the equalized full valuation of the taxing district or districts within the school district, as certified by the Director of the State Division of Taxation to the Commissioner pursuant to law, for the year in which the calculation is required to he made. The remainder shall constitute the district’s building aid allowance.”

(By amendment, the $0.05 has been changed to $0.075 per $100, or 3/4 mills per $1.)

The “building aid allowance” or State’s share, mentioned in section 5(a), was defined, in section 2 of the 1956 act, as an allowance to be computed and determined annually in accordance with the act. See N. J. S. A. 18:10-29.50, now N. J. S. 18A :58-21. And section 10 (N. J. S. A. 18:10-29.58, now N. J. S. 18A:58-29) directed that the Commissioner of Education make a determination on or before November 15 in each year of the maximum building aid allowance available to each school district, and estimate the amount the State would have to appropriate to carry out the provisions of the act for the succeeding school year. He was to make such determination and estimate upon the basis of the average daily enrollment (now resident enrollment) of the district, and determine the local fair share for the current calendar year. He was then promptly to certify to each school district the maximum building aid allowance so determined, that the school district might include the amount certified in its next ensuing school budget as anticipated revenue (see N. J. S. A. 18:10-29.59, now N. J. S. 18A:58-30). All sums so received or set aside for a board of education or municipality were to be applied “first, to debt service on bonds issued by such board of education or municipality for school purposes; secondly, to capital outlay for school purposes; and lastly, to addition to the capital reserve fund of such school district.” N. J. S. A. 18:10-29.59, now N. J. S. 18A:58-30.

It is immediately apparent that the School Building Aid Law is founded upon principles of annual financing: the “capital foundation program” is the sum of three annual appropriations; the “local share” is computed annually on the basis of the equalized full valuation of the taxing district or districts within the school district; the “building aid allowance” is to be incorporated into the annual budget as anticipated revenue for the next school year, and the funds when received are to be applied annually for certain designated purposes. As Bayonne was informed by the Assistant Commissioner and the Commissioner of Education, the use of non-revenue receipt items such as bonds is incompatible with the annual budget concept — an interpretation finding complete support in the legislative history of the act, based as it was upon the Eighth Report of the State Tax Policy Commission.

We therefore conclude that the “local share” is an appropriation which must be raised by taxation.

The matter may be viewed in yet another light. N. J. S. 18A-2A-5 (formerly R. S. 18:6-66), applicable to municipalities like the City of Bayonne, provides that “projects for which bonds may be issued * * * shall be as follows”: (1) the acquisition or construction of buildings and the improvement of their sites; (2) the reconstruction, remodeling, alteration, enlargement, or addition to or major repair of buildings and the improvement of their sites; (3) the acquisition and improvement of lands for school purposes, and (4) the purchase of furniture, equipment and apparatus for school purposes. See, also, N. J. S. 18A:24— 61, which provides for the issuance of renewal or refunding bonds. What Bayonne seeks to do here is to issue bonds so that it may obtain state school building aid, a purpose not authorized by the sections of the Education Act just cited. The fact that Bayonne intends to use the state funds in projects for which bonds could be issued is of no moment; the intervening step (application for and receipt of state aid under the School Building Aid Law) has taken the proposed bond issue outside the strict limits of the statute.

Accordingly, the determination of the State Board of Education is affirmed.


author: Lewis, J. A. D.

text:
    FRANK BOVE AND JOSEPHINE BOVE, HIS WIFE, PLAINTIFFS-APPELLANTS, v. BOARD OF ADJUSTMENT OF THE BOROUGH OF EMERSON, DEFENDANT-RESPONDENT.
    Superior Court of New Jersey Appellate Division
    Argued January 15, 1968
    Decided March 20, 1968.

      Before Judges Gaulkin, Lewis and Kolovsky.

      Mr. Kent A. Losche argued the cause for appellants (Messrs. Contant & Contant, attorneys).

      Mr. John P. Markey argued the cause for respondent.
   The opinion of the court was delivered by

Lewis, J. A. D.

In this proceeding in lieu of prerogative writs, the Law Division refused to set aside a determination of the Board of Adjustment of the Borough of Emerson denying plaintiffs’ application for a variance to erect a dwelling house on an undersized parcel of land. Plaintiffs appeal.

They are the owners of four contiguous lots at the southeast corner of High Street and Jefferson Avenue, having a frontage on High Street of 106.62 feet, with a depth of 100 feet and a total area of 10,662 square feet. These lots are situate in Block 307 in a residential zone of the borough and were originally known as lots 36, 37, 38 and 39 (herein referred to by those lot numbers). They are also described as lots 7, 8, 9 and 10, respectively, on the Tax Assessment Map of 1959, and collectively as lot 7 on the revised 1960 Tax Assessment Map.

Interior lots 36 and 37 (total frontage 50 feet), upon which plaintiffs have located their home, were acquired by them in 1939. In 1949 they bought the corner lot 39 which has a frontage of 31.62 feet, and thereafter, in 1953, they procured the adjoining interior lot 38, having a frontage of 25 feet. When lot 39 was purchased the municipal zoning ordinance required a frontage of 60 feet for corner lots. The present zoning ordinance, enacted in 1959, provides for a minimum corner lot frontage of 85 feet with a total area of 8500 square feet, and retains the minimum 75-foot frontage for interior lots which prevailed at the time lot 38 was acquired.

In 1967 plaintiffs applied for a variance under N. J. S. A. 40:55-39 (c) to erect a single family dwelling upon lots 38 and 39 (total frontage 56.62 feet). At the hearing before the Board of Adjustment plaintiff Prank Bove testified that these lots were purchased with the intention of building a house thereon and, unless a variance were granted, they “will be a dead piece of ground.” He stated, “* * * and I kill myself cutting the lawn and buying grass seed. After all, I want to try to get something out of it.”

The board found specifically that the parcel of four lots had a frontage of 106 feet and it appears as one individual homesite without any artificial or natural indication of division; the grass, shrubs and trees “and some ornamentation” thereon are part of the general landscaping of the plot on which the house is located; the two lots in controversy have been used since 1955 as an integral part of the home-site; for an eight block distance there is only one property on High Street with a house on a 50-foot lot, two on lot frontages of 75 feet, and the rest on lots with frontages of between 80 feet and 169 feet; and the character of the homes on High Street is different from that of the intersecting streets.

In its resolution denying plaintiffs’ application the board declared that the granting of the requested variance would create additional substandard lots; would make it “almost impossible to maintain the present standards and prevent a flood of other applications to subdivide lots for economic gain”; the applicants have not shown any hardship that would warrant the variance; and

“It is the further judgment of this Board, after weighing the integrity of this street, the character, size and frontage of lots, that the granting of this variance would be inconsistent with the maintenance of the area and would be substantially detrimental to the public good and would substantially impair the intent and purpose of the zoning ordinances and the plan of the Borough of Emerson.”

The trial court found that the presumption of validity which attaches to the board’s action had not been overcome.

Plaintiffs, in their brief on appeal, stress an observation made by the Law Division in its opinion that “there is a great deal of confusion in the law and the appellate decisions are not always clear when Burke v. Spring Lake Board of Adjustment, 52 N. J. Super. 498 (App. Div. 1958), shall be applied,” and they argue if the Burlce decision “is valid, the ownership of adjoining property would not be relevant.” We do not attribute such a broad and inflexible interpretation to our holding in that case.

There, the plaintiff property owner, in 1946, purchased contiguous lots 16 and 17 (each having a 50-foot frontage) and, in 1952, erected a dwelling house on lot 17 which conformed with the then local zoning ordinance. Lot 16 remained a vacant lot. An amendment to the zoning ordinance was adopted in 1957, increasing the frontage requirement to 100 feet. The following year plaintiff applied to the Board of Adjustment for an “undue hardship” variance in order to construct a dwelling on lot 16. The board denied the application and we affirmed the judgment of the Law Division which reversed the action of the board.

The facts in that litigation plainly supported a right to a variance. As stated in our opinion, plaintiff purchased the property prior to the zoning amendment and at a time when she honestly and justifiably believed she would be able to build on lot 16. We also noted that the trial judge inspected the premises in the company of counsel, and found:

“The physical character of the entire block on both sides of the street and the surrounding area is built up with homes situate on 50 foot frontage lots except the lots adjoining Lot 16 to the west which are not owned by this plaintiff and which are undeveloped.” 52 N. J. Super., at p. 501.

Plaintiffs urge that the economic value of their vacant land should not be destroyed by the denial of a variance and for that proposition refer us to Demoss v. Watchung, 137 N. J. L. 503 (Sup. Ct. 1948); Rodee v. Lee, 14 N. J. Super. 188 (Law Div. 1951); Griffin Const. Corp. v. Bd. of Adjust. of Teaneck, 85 N. J. Super. 472 (App. Div. 1964), certification denied 44 N. J. 408 (1965). Note also, Kryscnski v. Shenkin, 53 N. J. Super. 590, 598 (App. Div. 1959), certification denied 29 N. J. 465 (1959); Mischiara v. Bd. of Adjustment of Piscataway Tp., 77 N. J Super. 288, 292-293 (Law Div. 1962). See generally Cunningham, “Control of Land Use in New Jersey by Means of Zoning,” 14 Rutgers L. Rev. 37, 85 (1959).

The distinguishing factual complex in each of those cited cases renders them inapplicable. By way of illustration, a brief discussion of Griffin may be helpful. In that controversy the locus in quo was a plot of land 40' x 100' (originally laid out as two 20-foot lots) acquired by one Parenti in 1926 as a single parcel free from minimum area or dimensional zoning restrictions. It remained such an entity through the subsequent chain of title and, in 1961, it was purchased by Griffin. The Board of Adjustment denied a variance to build a dwelling thereon and the Law Division also decided adversely to the applicant. On appeal we entered a judgment of reversal. In our decision we emphasized the pronouncement of the Supreme Court in Wilson v. Mountainside, 42 N. J. 426, 452-453 (1964), that if a prior owner of property would be entitled to a variance “that right is not lost to a purchaser simply because he bought with knowledge of the zoning regulation involved,” as such a “situation is not within the realm of the self-created hardship which will generally bar relief.” The Wilson case, read in light of an excerpt from 2 Rathkopf, Law of Zoning and Planning (3d ed. 1960), c. 48, p. 48-20, was then declared to mean:

“* * * where an original owner would be entitled to a variance under a specific set of facts, any successor in title is ordinarily also entitled to such a variance, providing that no owner in the chain of-title since the adoption of the zoning restriction has done anything to create the condition for which relief by variance is sought.” (Emphasis supplied). 85 N. J. Super., at p. 477.

Here plaintiffs lawfully constructed their dwelling on a 50-foot lot. However, after the municipality had upgraded the residential restrictions they purchased adjoining lots, which were substantially undersized for building purposes, incorporated and maintained them for 13 years as part and parcel of their homesite property and thus conformed it to the current zoning regulations. Now they seek a variance which in effect would subdivide their premises into two nonconforming parcels.

In our analysis of the record sub judice we are guided by principles of zoning law and procedure which are firmly embedded in our jurisprudence. Each case should rest upon its own merits. Ardolino v. Florham Park Board of Adjustment, 24 N. J. 94, 107 (1957). To restrict, rather than to increase, nonconforming uses is the spirit of our zoning laws. Betts v. Bd. of Adjustment of Linden, 72 N. J. Super. 213, 218 (App. Div. 1962), citing Beirn v. Morris, 14 N. J. 529, 536 (1954) and Speakman v. Mayor and Council of North Plainfield, 8 N. J. 250, 257-258 (1951). It is basic that a landowner seeking a variance on the ground of undue hardship must establish the existence of the statutory criteria for relief under N. J. S. A. 40:55-39(c). Bierce v. Gross, 47 N. J. Super. 148, 157 (App. Div. 1957); Betts v. Bd. of Adjustment of Linden, supra, 72 N. J. Super., at p. 218; Holman v. Bd. of Adjustment, Norwood, 78 N. J. Super. 74, 81 (App. Div. 1963); Toutphoeus v. Joy, 81 N. J. Super. 526, 535 (App. Div. 1963).

The rationale of our statutory scheme respecting local zoning is that the Board of Adjustment is charged with the responsibility of applying expert discretion to matters coming within its cognizance and that interference by an appellate court is permissible only for redress against arbitrary, capricious or unreasonable action. Kramer v. Bd. of Adjust., Sea Girt, 45 N. J. 268, 285 (1965); Ardolino v. Florham Park Board of Adjustment, supra, 24 N. J., at p. 105; Rexon v. Bd. of Adjustment, Haddonfield, 10 N. J. 1, 7 (1952); Schmidt v. Board of Adjustment, Newark, 9 N. J. 405, 423 (1952). As a reviewing court we may not exercise anew the jurisdiction of the administrative agency. Ibid. “This philosophy is even more cogently applicable to a ease where we review a denial of a variance than where we review a grant, for generally speaking more is to be feared from a breakdown of a zoning plan by ill-advised grants of variances than by refusals thereof.” Cummins v. Bd. of Adjustment of Bor. of Leonia, 39 N. J. Super. 452, 460 (App. Div. 1956), certification denied 21 N. J. 550 (1956); Mahler v. Borough of Fair Lawn, 94 N. J. Super. 173, 186 (App. Div. 1967).

As stated in Kramer v. Bd. of Adjust., Sea Girt, supra, 45 N. J., at p. 296, public bodies because of their peculiar knowledge of local conditions must be allowed wide latitude in their delegated discretion. See also Booth v. Bd. of Adjust., Rockaway Tp., 50 N. J. 302, 306 (1967). Furthermore, there is attached to a decision of the board a presumption of correctness, fairness and proper motive and the burden of proving otherwise is on the party attacking it. Kramer v. Bd. of Adjust., Sea Girt, supra, 45 N. J., at p. 285; Ardolino v. Florham Park Board of Adjustment, supra, 24 N. J., at p. 105; Yahnel v. Bd. of Adjust, of Jamesburg, 79 N. J. Super. 509, 517 (App. Div. 1963), certification denied 41 N. J. 116 (1963); Holman v. Bd. of Adjustment, Norwood, supra, 78 N. J. Super., at p. 79.

We are convinced from our study of the record that the action of the Board of Adjustment was not arbitrary, capricious or in manifest abuse of its discretionary authority and that the trial court properly entered judgment in favor of the municipal defendant.

We do not rule on plaintiffs’- claim that the action of the board was voidable because one of its members allegedly had an interest in the outcome of the proceedings since that point was raised for the first time on appeal. It is noticed in passing,'however, that the board member in'question was disqualified on the motion of plaintiffs’ attorney,' and .was not present when'the remaining four board members deliberated and voted unanimously against a variance.' Note, Piggott v. Borough of Hopewell, 22 N. J. Super. 106, 112 (Law Div. 1952); McNamara v. Saddle River, 60 N. J. Super. 367, 378-379 (Law Div. 1960), affirmed 64 N. J. Super. 426 (App. Div. 1960). Compare Cobble Close Farm v. Bd. of Adjustment, Middletown Tp., 10 N. J. 442, 454-455 (1952). Judgment affirmed.


author: Pee Curiam.

text:
    VINCENT S. MAC DONALD, PETITIONER-RESPONDENT, v. HUDSON BUS TRANSPORTATION CO., INC., A CORPORATION, RESPONDENT-APPELLANT.
    Superior Court of New Jersey Appellate Division
    Argued March 11, 1968
    Decided March 21, 1968.

      Before Judges Gabledst, Lewis and Kolovsky.

      Mr. Isidor Kalisch argued the cause for respondent-appellant.

      Mr. Aaron Gordon argued the cause for petitioner-respondent.
   Pee Curiam.

MacDonald was awarded workmen’s compensation. His employer, Hudson Bus Transportation Co., Inc., appealed to the County Court. The County Court affirmed, saying in its opinion :

“The Judge of Compensation, on the facts in this case, could clearly have concluded, as he did, that the strain of petitioner’s work on November 29, 1964, caused or accelerated his present condition and thus gave rise to compensability.
“The scope of review is whether the findings could reasonably have been reached on sufficient credible evidence present in the record considering proofs as a whole with due regard to the opportunity of the one hearing the case to judge credibility’. Hebrank v. Parsons, 88 N. J. Super. 406 (1965).”

The employer contends the County Court did not understand that its duty was to weigh the evidence anew and therefore we should make independent findings of fact ourselves or remand the case to the County Court to do so.

We agree that the County Court misconceived the scope of its review. Close v. Kordulak Bros., 44 N. J. 589 (1965) changed the scope of review in workmen’s compensation eases only in the Appellate Division and in the Supreme Court. Hebrank v. Parsons, Brinckerhoff, Hall & MacDonald, 88 N. J. Super. 406 (App. Div. 1965), relied upon by the County Court, followed Close v. Kordulak Bros, and dealt with the scope of review in the Appellate Division. Neither Close nor Hebrank nor any other case has affected the duty of the County Court to weigh the evidence and state its reasoned conclusions thereon, even though the trial de novo before the County Court is upon the record of the testimony before the Judge of Compensation. That duty has not been lessened. Close, supra, 44 N. J., at p. 598.

As was pointed out in Russo v. United States Trucking Corp., 26 N. J. 430, 433 (1958), before the Workmen’s Compensation Bureau was established compensation claims were initiated in the Courts of Common Pleas and decided upon testimony there presented. In 1918, when the Bureau was established, review of the Bureau’s decisions was provided for by trial de novo in the Courts of Common Pleas, not on the record as now but upon “a full rehearing of the testimony of the witnesses” which, of course, meant a completely new evaluation of the testimony, including credibility. (Russo, p. 433). In 1921 the Legislature provided for the present method of review, by trial de novo upon the record instead of with live witnesses, but the obligation remained upon the Common Pleas and is now upon the County Court to weigh the evidence anew. R. R. 5:2-5 requires the County Court to state its own findings of facts and its own reasons for its conclusions. Where the credibility of a particular witness is in question, the County Court should take into consideration the evaluation of that credibility by the Judge of Compensation because he heard and saw the witnesses, but even then the County Court is not bound by such evaluation. Cf. Congleton v. Pura-Tex Stone Corp., 53 N. J. Super. 282, 287-288 (App. Div. 1958). In every other respect the County Court must bring its own new mind to the weighing of the testimony uninfluenced by the opinion and conclusions of the Judge of Compensation. Folsom v. Magna Manufacturing Co., 14 N. J. Super. 363, 367 (App. Div. 1951); Augustin v. Bank Building and Equipment Corporation, 41 N. J. Super. 187, 191-192 (Cty. Ct. 1956), affirmed 44 N. J. Super. 242 (App. Div. 1957); Congleton v. Pura-Tex Stone Corp., supra.

The excerpt from the opinion, quoted above, shows that the County Court may have been influenced by his mistaken view of the scope of the review required of him. Therefore, we remand the case to the County Court for appropriate findings of fact and conclusions of law in accordance with R. R. 5:2-5 and this opinion, to be filed by April 15th. We retain jurisdiction.


author: Labrecque, J. A. D.

text:
    GLADYS KRUVANT, PLAINTIFF-RESPONDENT, v. NORMAN S. KRUVANT, DEFENDANT-APPELLANT.
    Superior Court of New Jersey Appellate Division
    Argued October 23, 1967
    Decided March 18, 1968.

      Before Judges Conford, Collester and Labrecque.

      Mr. Ronald G. Targan argued the cause for appellant (Messrs. Schechner and Targan, attorneys; Mr. Ralph Neibart of counsel).

      Mr. Richard L. Amster argued the cause for respondent.
   The opinion of the court was delivered by

Labrecque, J. A. D.

Defendant Norman S. Kruvant appeals from two orders of the Chancery Division reopening and modifying the provisions for the support of his son, Michael Kruvant, as contained in the judgment nisi for divorce in this cause.

Plaintiff and defendant were married in Newark, New Jersey, on February 12, 1939. Three children were born of the marriage, Michael (born July 4, 1941), Ronald and Arni Beth. A judgment nisi awarding plaintiff a divorce on the ground of desertion was entered on April 29, 1958 and became final on July 30, 1958 (Docket No. M-2359 — 57). Both parties thereafter remarried. Plaintiff now resides with her new husband and her daughter Arni Beth in Maplewood, New Jersey, while defendant resides with his new wife and her two children of a prior marriage, in North Miami, Florida.

The judgment nisi adopted an agreement between the parties which provided that the wife was to have custody of the three children and to receive weekly payments of support for the children and herself. If she remarried, the children’s payments were to be increased by 20%. The payments were to continue even if defendant predeceased the children. To the extent here pertinent, the agreement also provided that payments for the children were to continue until “they and each of them have reached maturity as recognized in New Jersey and [are no longer] entitled to receive support from parent.” They were to continue “notwithstanding any independent income that said * * * child may receive from any source whatsoever.” There was also a provision that plaintiff and each child of the marriage “shall have the opportunity * * * to be enabled to put aside as savings any moneys to protect said * * * infant children against any unforeseen and unhappy emergency” and that the provisions in the agreement were “in addition to and notwithstanding any separate income received by the wife and said children.”

Defendant interpreted the agreement as permitting the termination of payments under the judgment nisi as each child reached the age of 21. When Michael and Ronald attained that age, he discontinued the payments even though he “voluntarily” continued to aid each financially.

On September 12, 1966, plaintiff filed her present motion to reopen the judgment in the divorce action to modify the provisions for the support of Michael, who was then 25 years old, and to compel reimbursement to her for monies already expended in his behalf. In her moving affidavit she alleged that he suffered from an emotional illness or mental disorder which had pre-existed the divorce and had continued during his minority. It had become so bad during the 1963-65 period that it had been necessary to summon the East Orange Police (Michael was then living there) on six occasions, two of which resulted in his hospitalization. She also alleged that he had required “constant psychiatric treatment” and had been at one time hospitalized at the Carrier Clinic, a private mental institution located at Belle Mead, N. J.

It was further alleged that by the latter part of 1965 Michael had withdrawn from all interpersonal relationships, had lost weight and was suffering from depression and blackout spells. He had been unable to complete his college education or obtain employment and generally demonstrated an inability to function normally in society. She thereupon arranged for Michael’s hospitalization at the Institute of Living, an internationally recognized private psychiatric institution at Hartford, Connecticut, where he had been a patient from December 8, 1965 until the date of her moving papers (he continued there through December 1966). The basic eost of maintenance and treatment there was $245 per week and plaintiff had expended a total of $12,821.12 for that purpose up to December 1, 1966.

She alleged that she had been advised by the Institute’s staff that the type of individualized treatment that Michael’s condition required was not available at State or county psychiatric institutions. The diagnosis was “depression reaction in a passive-aggressive personality, passive dependent type.” In September 1966, the psychiatrist-in-chief there reported that:

“Michael Kruvant has a history of withdrawal from interpersonal relationships, inability to complete his college education or to obtain gainful employment, depression and an apparently severe character-ologie problem involving overuse of medication. He continues to manifest this type of adaptation although in a somewhat improved manner as compared to the time of his admission.”

It was his opinion that if Michael were to leave the hospital at that time he would be unable to function either in a college or occupational setting.

Plaintiff alleged that at the time of Michael’s hospitalization she had sought defendant’s assistance in financing his hospitalization, through defendant’s former attorney. It is not claimed that defendant approved, or even that he personally knew that Michael was being hospitalized. She alleges that it had been suggested on defendant’s behalf, as an alternative, that Michael would be better off in a State operated mental institution such as Overbrook Hospital in Cedar Grove and an offer had been made on his behalf to arrange for Michael’s admission there.

In the absence of financial aid from defendant, plaintiff averred that, although she had managed up to then to pay for Michael’s hospitalization at the Institute through personal funds and by borrowing from other sources (including the bank accounts and bonds of Michael, Ronald and Arnie Beth), she was no longer able to carry the burden.

At the time of the hearing on the motion Michael was scheduled for release from the Institute and was to be treated thereafter on an outpatient basis, thus substantially reducing the cost of his care. At the oral argument we were advised that he was no longer under treatment.

Almost simultaneously with the present motion plaintiff instituted a separate action in the Chancery Division seeking the same relief upon substantially the same allegations. At the hearing on the motion counsel for plaintiff offered to consolidate the latter action with the motion, but this offer was not accepted by the trial judge and he proceeded on the motion alone. However, he commented:

“If the case goes on appeal and the Appellate Division or Supreme Court should decide I was wrong on going on the Notice of Motion, I am sure they will take up the Complaint just as if it had been carried through on the same testimony.”

The motion to reopen was heard on the affidavits of the parties, supplemented by the testimony of defendant as to his assets and that of Dr. Samuel Martin, a psychiatrist connected with the Essex County Probation Department. The latter testified that Michael could be adequately treated at Overbrook but conceded that care at the Institute would be better. The motion was resisted on the grounds, substantially, that (1) defendant was no longer obligated to maintain his adult son, (2) if such obligation existed, it could not be enforced in the present proceedings and (3) he should not be required to pay for Michael’s care in the Institute at $245 a week when adequate care was available at Overbrook at $68.74 a week.

In a letter opinion dated December 7, 1966 the trial judge found defendant financially able to pay and directed him to assume the cost of Michael’s hospitalization at the Institute from December 1, 1966 onward. He subsequently concluded that both plaintiff and defendant were liable for the cost of Michael’s care up to December 1, 1966 and directed that plaintiff be reimbursed by defendant for one-half of the amount already paid by her for that purpose. Concomitant judgments were entered from which the present appeals were taken.

In essence, the issues presented are:

(1) May the divorced father of an adult child be required as a matter of common law to contribute to the hospitalization and custodial care of such child brought about by mental illness which pre-existed the child’s attainment of his majority?

(2) May an obligation of that nature, under the particular facts here presented, be enforced in the present proceedings to modify the provisions for support embodied in the judgment nisi?

(3) If the answer to (2) is in the negative, may such relief be granted in the absence of a plenary hearing ?

(4) Assuming that it may, do the facts support the orders appealed from?

We proceed to their consideration in that order.

I

It is clear that if Michael had been confined to a public institution for the insane or feeble-minded or found eligible for public welfare payments, defendant could have been required to contribute to his care. In the former situation N. J. S. A. 30:4-60 and 66 authorize proceedings to compel the father of an insane child to contribute to his care and R. S. 30:4-176 makes similar provision for an indigent feeble-minded child. Likewise R. S. 44:1-140 makes the father and mother of a child not able to work responsible for his maintenance where the child is likely to become a public charge. Here the issue is whether defendant may be required as a matter of common law to contribute to Michael’s support by way of medical care in the absence of his confinement in a public institution or his becoming a public charge.

We find no New Jersey precedent which is dispositive of the issue. The trial judge found Dept. of Mental Hygiene, State of Calif. v. Judd, 45 N. J. 46 (1965) and Cohen v. Cohen, 6 N. J. Super. 26 (App. Div. 1949) to be relevant.

In Judd, the California Department of Mental Hygiene sued in the Sussex County Juvenile and Domestic Relations Court under the Uniform Reciprocal Enforcement of Support Act (see N. J. S. 2A:4-30.1 et seq.) to compel Judd, a New Jersey resident, to contribute to the maintenance of his adult mentally ill son, Arthur, in public institutions in California. A judgment holding him liable was certified by the Supreme Court. Since an intervening California decision had declared the statute on which California’s claim for contribution was based to be unconstitutional, thus precluding any such action against a California resident, the court held that it could not be maintained against Judd, a New Jersey resident. In response to a suggestion that the pleadings in the case be molded to set forth a cause of action under any applicable New Jersey law holding a parent liable, the court pointed out that the common law in New Jersey recognized the general absence of liability on the part of parents for the maintenance of their adult children and found there was no necessity to pursue the issue of Judd’s liability further because “assuming that New Jersey would, independently of its statutes [such as N. J. S. A. 30:4-60 and 66] and under appropriate circumstances, recognize a common law responsibility on the part of a parent to maintain an adult child,” it was unnecessary to recognize it under the circumstances presented.

In Cohen v. Cohen the divorce decree had provided that the wife retain custody of their only child, then six years of age, and that the husband pay $5 a week for the latter’s support. Seven years thereafter the wife sought an increase in the weekly payments, based primarily upon the former husband’s more prosperous condition. The increase was allowed and the husband appealed. Although the proceedings had been brought under R. S. 2:50-37 (now N. J. S. 2A :34-23), the court was not called upon to determine whether the father’s obligation of support would continue beyond the date on which his daughter attained her majority. However, Judge Bigelow noted in his opinion:

“Ordinarily, the obligation of the parent to support ends when the child reaches full age, although it might continue indefinitely if the ehild were crippled or unable to support himself. In many cases, the obligation terminates when the child is around 18 years. Ames v. Ames, 4 N. J. Eq. 171 (Pennington, C., 1842) ; Snover v. Snover, 13 N. J. Eq. 261 (Green, C., 1861) ; 1 Blacks, Gom. 449. It is probably safe to say that when the family situation is such that, had there been no divorce or separation, the child would have gone to work and become self-supporting before attaining age 21, tbe duty of the parents under the statute likewise terminates while the child is still a minor. On the other hand, in a family where a college education would seem normal, and where the child shows scholastic aptitude and one or other of the parents is well able financially to pay the expense of such an education, we have no doubt the court could order the payment.” (at p. 30) (Emphasis added.)

We are satisfied that the emphasized portion of the cited opinion is in accord with the weight of authority in other jurisdictions, at least as a matter of common law. See Annotations, “Adult Child-Support,” 1 A. L. R. 2d 910, 921 (1948) and “Child Support Decree-Modification,” 89 A. L. R. 2d 7, 90 (1963).

The facts sub judice somewhat resemble those in Wells v. Wells, 227 N. C. 614, 44 S. E. 2d 31, 1 A. L. R. 2d 905 (Sup. Ct. 1947) where the wife sought to recover for expenses incurred by her in the maintenance of her son who was, prior to and since attaining his majority, mentally and physically incapable of earning a livelihood. In holding that “the complaint set forth a cause of action against her husband, from whom she was living separate and apart, the court held:

“Ordinarily a child, in the eyes of the law, is in a condition to provide for his own maintenance when he has reached the age of .twenty one years, that is, has attained the status of majority. That ¡age was arbitrarily fixed at common law for the termination of the child’s minority, and the attainment of Ms majority, and the rule has remained in force throughout the United States. 27 Am. Jur. 748, Infants 5. However, as stated by Fullerton, J., in Springstun v. Springstun, 131 Wash. 109, 229 P. 14, 15, 40 A. L. R. 595, ‘Majority or minority is a status, rather than a fixed or vested right * * * the rule was arbitrary in the sense that it was one of convenience and necessity, as distinguished from a substantive rule of law.’
Therefore, if a child be so defective in mind or in body as to be incapable of providing his own maintenance when he reaches the age of twenty one years, the rule does not remove the disability and has no application to the status of the child.
Moreover, the child may have the same need of support, care and maintenance after reaching that age as before. If so, does the obligation of the father to provide necessary support to such child terminate at that time? The dictates of humanity, which the law follows, answer ‘No.’ ”

Additional cases so holding are collated in Borchert v. Borchert, 185 Md. 586, 45 A. 2d 463, 162 A. L. R. 1078 (Ct. App. 1946) where the court found:

“* * * it must be concluded, in view of the many decisions so holding, that there is now a tendency in this country, whether based upon local statutes or upon a modem judicial expansion of the common law, to recognize a duty imposed upon a parent to support his incapacitated child. Among the cases discussing the subject are Cromwell v. Benjamin, Sup. 1863, 41 Barb. N. Y. 558: Alger v. Miller, 56 Barb. 227; Matter of VanDenburgh, 178 App. Div. 237, 164 N. Y. S. 966; Brown v. Ramsay, Sup., 1860, 29 N. J. L. 117; Breuer v. Dowden, 207, Ky. 12, 268 S. W. 541, 42 A. L. R. 146; Crain v. Mallone, 130 Ky. 125, 113 S. W. 67, 22 L. R. A., N. S., 1165, 132 Am. St. Rep. 355; Rowell v. Town of Vershire, 62 Vt. 405, 19 A. 990, 8 L. R. A. 708; Schultz v. Western Farm Tractor Co., 111 Wash. 351, 190 P. 1007, 14 A. L. R. 514; Halsted v. Halsted, 228 App. Div. 298, 239 N. Y. S. 422: Freestate v. Freestate, 244 Ill. App. 166; Rife v. Rife, 272 Ill. App. 404, 39 Am. Jur., ‘Parent and Child’, pars. 68 and 69, pp. 710 and 711; Plaster v. Plaster, 47 Ill. 290; Howard v. United States, D. C. E. D. Ky., 2 F. 2d 170.”

The court determined, however, that the Maryland statute under which the proceeding had been brought was not sufficiently broad to confer jurisdiction to grant the relief sought. See also Commonwealth ex rel. O’Malley v. O’Malley, 105 Pa. Super. 232, 161 A. 883 (Super. Ct. 1932); Commonwealth ex rel. Nicholson v. Groff, 169 Pa. Super. 12, 82 A. 2d 536 (Super. Ct. 1951) and Commonwealth v. Wingert, 173 Pa. Super. 613, 98 A. 2d 203 (Super. Ct. 1953).

Prom onr consideration of the foregoing we conclude that where, as here alleged, an adult son of a divorced husband becomes so disabled as to be incapable of maintaining himself because of a mental illness or emotional disorder which pre-existed his attaining his majority, the husband may be required at the suit of the wife to contribute to the cost of his necessary care and maintenance. Wells v. Wells, supra; 67 C. J. S. Parent and Child § 17, p. 704 (1950); 39 Am. Jur., Parent and Child, § 69, p. 710 (1942); cf. Brown v. Ramsay, 29 N. J. L. 117, 120 (Sup. Ct. 1860); Wood v. Morris & Co., 2 N. J. Misc. 1010, 126 A. 434 (Sup. Ct. 1924); Cohen v. Cohen, supra. See also Halsted v. Halsted, 228 App. Div. 298, 239 N. Y. S. 422 (1930); Breuer v. Dowden, 207 Ky. 12, 268 S. W. 541, 42 A. L. R. 146 (Ct App. 1925); Gaydos v. Domabyl, 301 Pa. 523, 152 A. 549, 554 (Sup. Ct. 1930).

In such an action the issue is the extent, if any, to which the husband should be required to contribute to the necessary care and maintenance of the disabled child. Subject to the rule stated in the paragraph below, his contribution should be “geared” to the fair cost of such care as the condition of the child’s health renders necessary. The mere fact that the mother has elected, without the father’s consent, to contract for care of a particular type which she considers to be necessary does not make it so. In determining the amount the father is to pay, the test is not whether the care for which she had contracted was the best care available but whether it was reasonably a necessity, having in mind the child’s condition and the financial resources of all persons responsible.

As was here recognized by the trial judge in his second letter opinion, both father and mother are liable for the care of their child. Bruguier v. Bruguier, 12 N. J. Super. 350, 353 (Ch. Div. 1951). Further, in the case of an adult child his own resources should first be applied to the cost of his care. Thus the father should be required to contribute only such portion of the reasonable cost of the child’s necessary care as the court finds to be equitable and just after giving due consideration to the income and the assets of the child, his mother and father. Cf. Mowery v. Mowery, 38 N. J. Super. 92, 100 (App. Div. 1955), certif. denied 20 N. J. 307 (1956).

II

Defendant urges that the relief here granted exceeded the court’s jurisdiction since N. J. S. 2A:34-23, on which the challenged orders were based, should be interpreted to refer to support for minor children only, citing Mowery v. Mowery, supra; Slep v. Slep, 43 N. J. Super. 538 (Ch. Div. 1957); Werner v. Werner, 7 N. J. Super. 229 (App. Div. 1950), and Roth v. Roth, 10 N. J. Super. 406 (Ch. Div. 1950). While the court in each of the cited eases held that the statute there in question conferred jurisdiction on the Chancery Division, in suits for divorce or maintenance, to make allowances for minor children, none of them dealt with the issue of whether the obligation of support would automatically terminate when the minor came of age in the event he was then so disabled as to be incapable of self-support.

The statute, N. J. S. 2A :34^23, has been interpreted as authorizing support for such time as the nature of the case and the circumstances of the parties render suitable and proper. Werner v. Werner, supra, 7 N. J. Super., at p. 230. It contemplates support for the children of divorced parents who, but for the divorce, would have continued to be entitled to the support of their father. It stems from the presumed inability of such children, by reason of their minority, to provide for themselves. Children who are unable to care for themselves because of their minority are no less entitled to the court’s solicitude when they continue to suffer, after they have attained their majority, from a physical or mental disability which continues to render them incapable of self-support. Normal instincts of humanity and plain common sense would seem to dictate that in such cases the statutory obligation of the parent should not automatically terminate at age 21, but should continue until the need no longer exists. 67 C. J. S. Parent and Child § 17, p. 704 (1950); 39 Am. Jur., Parent and Child, § 40, p. 645, § 69, p. 710 (1942). However, we do not believe that the Legislature in enacting N. J. S. 2A:34-23 intended to confer jurisdiction upon the court to compel a husband or wife to support a child suffering from a disability which did not exist at the time of his attaining his majority but came about some time later.

Nowhere in the moving papers before us does plaintiff allege that Michael was at the time of attaining his majority incapable of self-support because of his emotional illness. Although her initial affidavit indicates that the “onset” of Michael’s trouble occurred when he was 15 years of age, the “severe emotional distress and complete blackouts which disabled him from functioning normally in society” did not occur until the latter part of 1965, when he was 24. Prior to that time and after attaining his majority Michael had not been living at home but had his own apartment. He also appears to have taken a trip to Europe, had at least two jobs and attended a variety of schools after he became 21. We are therefore satisfied and hold that, on the basis of the record presently before us, the court was without statutory jurisdiction to reopen and modify the judgment nisi for the purpose of enforcing defendant’s alleged obligation to contribute to Michael’s care. Once defendant’s liability under the judgment had been terminated (here when he became 21 and was not then disabled), it could not be restored. 67 C. J. S. Parent and Child § 17, p. 704 (1950); 24 Am. Jur., Divorce and Separation, § 832, p. 943 (1966); Annotation, “Divorce-Support of Adult Child,” 162 A. L. R. 1084, 1090 (1946). Any obligation arising thereafter could be asserted only in a separate action. See Van Tinker v. Van Tinker, 38 Wash. 2d 390, 229 P. 2d 333, 334—335 (Sup. Ct. 1951). In such action Michael, as well as his father and mother, should be represented.

IIUI

In view of the foregoing, we are in agreement with defendant’s challenge to the procedural inadequacy of the hearing afforded him, even if considered in the context of a common law action to compel him to contribute to Michael’s care. The issues posed by the application were separate from those involved in the original divorce case and entirely new to the court. Considerations of due process, as well as the spirit of the rules, called for a plenary trial rather than a hearing on affidavits. Cf. Testut v. Testut, 32 N. J. Super. 95, 102 (App. Div. 1954). We are satisfied that the omission to afford defendant a trial on oral proofs placed him at a substantial disadvantage and has left us with a wholly inadequate factual record. The proofs consist of plaintiff’s affidavits (which contain much of a conclusory nature), defendant’s affidavit, the testimony of defendant as to his income and assets and some testimony by Dr. Martin (who had never treated Michael and had only seen him once). The trial judge relied upon an unverified letter from a doctor at the Institute of Living as to Michael’s diagnosis. There were inadequate proofs and no findings as to the financial resources of either Michael or plaintiff. No facts were adduced and no reasons advanced to explain the inconsistency between the judge’s holding that defendant was liable only for one-half the amount plaintiff had expended for Michael’s care prior to December 1, 1966 and his order that defendant pay the entire cost of such care from December 1 onward.

In view of the foregoing it would be entirely inappropriate to attempt on this appeal to determine the merits of this controversy, whether it be considered as based upon the prior divorce suit or the presently pending common law action. The pending common law action should go forward and be determined in accordance with the principles heretofore stated unless plaintiff elects to amend her motion in the matrimonial cause to allege and attempt to prove facts establishing the jurisdictional requirements discussed above.

We find it unnecessary to pass upon the remaining points raised.

Reversed. No costs.


author: Collester, J. A. D.

text:
    STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT, v. GERALD SCHENK, DEFENDANT-APPELLANT.
    Superior Court of New Jersey Appellate Division
    Argued March 11, 1968
    Decided March 22, 1968.

      Before Judges Conford, Collester and Labrecque.

      Mrs. Esther Strum Frankel argued the cause for appellant (Messrs. Frankel & Frankel, attorneys).

      Mr. Rushton E. Ridgway, Assistant County Prosecutor, argued the cause for respondent (Mr. Joseph Tuso, County Prosecutor, attorney).
   The opinion of the court was delivered by

Collester, J. A. D.

Defendant Gerald Schenk appeals from a conviction, following a jury trial, on an indictment for arson which charged that on August 27, 1965 he did “willfully, maliciously and feloniously burn the dwelling house of William Roberts * * * contrary to the provisions of N. J. S. 2A :89-1.”

The State contended at the trial that shortly after 1 a.m:. on the aforsesaid date defendant set fire to the dwelling house at 507 Cherry Street in Yineland occupied by William Roberts, his wife Irene, their child Tina, and Mrs. Roberts’ child Wayne. Defendant was the father of Wayne. The State’s theory was that after the Roberts family had retired for the night defendant cut an opening in the screen of a living room window and set the fire by either tossing or placing pieces of lighted newspaper in the room. The motive for the crime was alleged to be defendant’s bitterness caused by Mrs. Roberts’ refusal to let him see his child.

Mrs. Roberts testified that at about 1 a.m. on August 27 she heard a crashing noise downstairs in the house. She awakened her husband and when they reached the lower floor they saw a fire burning in the area of the living room window. Roberts quickly extinguished it with glasses of water and telephoned the police.

Mrs. Roberts testified that she looked out of the window and saw defendant going towards his car which was parked on the street. She screamed to her husband, “It was Jerry.” Roberts testified that he saw the car being driven away and that shortly thereafter, he again saw it being driven past the house. He again telephoned the police giving them defendant’s name and a description of the car. Roberts’ testimony concerning the observation of the defendant’s car was corroborated by Anthony Mennone, a next door neighbor.

Police Officer Pitts testified that at 1:25 a.m., he responded to a radio call to go to the Roberts’ home because someone had thrown a firebomb into the house. While driving there he saw defendant’s car speeding east on Cherry Street. He took up pursuit and stopped the car. He thereafter turned over the custody of defendant to another police officer who had responded to his call for assistance. Pitts said he found a torn newspaper in defendant’s car, and that thereafter he drove to the Roberts’ house to investigate the damage caused by the fire. He said pieces of a burned newspaper were found in the debris.

Defendant denied that he committed the crime charged in the indictment. He testified that he had received a telephone call from Mrs. Roberts during the day inviting him to call at her house after 10 p.m. that evening to see his son after her husband had left for work. He said he went there at about 11 p.m. but was refused admittance by Mrs. Roberts who said that her husband was out but was expected to return in a short time. He said he then drove away and a short time later was stopped and arrested by the police. Defendant’s testimony was corroborated by Judith Taylor, a friend of his, who said that at defendant’s request she had followed him in her car to the Roberts’ house that evening, had observed him talking to Mrs. Roberts, and thereafter saw him drive away.

Mrs. Roberts denied that she had telephoned defendant as he alleged and both she and her husband denied that defendant had called at their home that evening to see his son.

Defendant first contends that the State failed to prove that the dwelling house had been burned — an essential element required to justify a conviction of arson under N. J. S. 2A:89-1. He alleges that at best the evidence showed only a burning of personal property which is not proscribed under the statute on which the indictment was based.

N. J. S. 2A:89-1 in pertinent part defines arson as follows:

“Any person who willfully or maliciously burns or consents to the burning of a dwelling house * * * by means whereof a dwelling house shall be burnt * * * is guilty of arson * *

Under the statute and at common law there must be an actual burning of the dwelling house to constitute the crime of arson, although it is not necessary that the building be wholly consumed, or even seriously damaged. If any part, however small, is consumed it is sufficient. State v. Morris, 98 N. J. L. 621, 625 (Sup. Ct. 1923), affirmed 99 N. J. L. 526 (E. & A. 1924); O’Daniel v. State, 188 Ind. 477, 123 N. E. 241, 242 (1919); Curtis, The Law of Arson (1936), § 82, pp. 99-101. See also annotation, “Arson— Burning as Element,” 1 A. L. R. 1163, 1166, and 5 Am. Jur. 2d (1962), Arson and Related Offenses, § 1 el seq. The statute which is based on the common law crime of arson is not violated by the burning of personal property contained in the building if no part of the structure is damaged. Gurtis, Law of Arson, supra, § 85, p. 104. The burning of goods and chattels is a crime proscribed by another statute, N. J. S. 2A :89-5, of which defendant was not charged in the indictment.

A house is not burned within the meaning of an accusation of arson when it is merely scorched, or smoked, or discolored by heat. Curtis, Law of Arson, supra, § 83, p. 101; State v. Pisano, 107 Conn. 630, 141 A. 660, 661 (Sup. Ct. of Er. 1927); Woolsey v. State, 30 Tex. App. 346, 17 S. W. 546, 547 (Ct. App. 1891); and see 2 Wharton’s Criminal Law and Procedure (1957), § 392, p. 7. The offense is committed if as a result of burning any part of the wooden structure is charred or if the fiber or texture of the wood is altered or destroyed. Curtis, Law of Arson, supra, § 83, p. 101; State v. Pisano, supra, and see Annotation, “Arson—Burning as Element,” 1 A. L. R., supra, pp. 1166-1170.

In the instant case defendant emphasizes that Mrs. Roberts testified that while the fiberglass window curtains, children’s books, and parts of an end table and rug were burned, no part of the window sill and frame were burned. However, the record indicates that Mr. Roberts twice testified that the floor woodwork was starting to smolder at the base of the radiator. Officer Pitts said he “found charred debris on top of the radiator and also on the floor, part of the rug was burned, and the baseboard and the floor were also damaged.” “Smolder” is defined in Webster’s New International Dictionary (3d ed. 1958) as “To burn and smoke without flame; to waste away by a slow and suppressed combustion.”

We are satisfied that there was sufficient evidence for a jury to conclude that a part of the building itself had been burned.

Defendant next contends that the court’s charge was erroneous and prejudicial. His claim is based on the court’s comment in its charge concerning the testimony given by the State’s witnesses. The court said:

“Now, if you believe what he [Officer Pitts] says, that there was charring of the window sill, charring of the floorboard or the sill board, charring of the rug, charring of the books and others, I charge you not that it says this defendant is guilty of doing it, but I charge you that you do not have any labors to determine whether it’s arson, because I charge you absolutely, positively it is arson, but that has nothing to do with this defendant, even though it’s minimal, if you believe beyond a reasonable doubt what the state’s witnesses have testified to as to the gravity. Now, this has nothing to do with innocence or guilt, but if you believe the testimony on the part of the state’s witnesses, don’t labor the question whether it’s $10 or 2000, if you believe beyond a reasonable doubt that the charring was as they stated, don’t labor the point whether it is or isn’t arson, I charge you it’s arson.”

At the conclusion of the charge defendant’s trial counsel objected on the ground that the question of whether the crime of arson had been committed was a matter for the determination of the jury and not the trial court. The court thereupon recharged the jury as follows:

“THE COURT: * * * I have charged you and I recharge you, if you find as a fact, if you believe the witnesses, and I have no recollection of it being controverted, if you believe the witnesses that were produced by the state beyond a reasonable doubt that there was charring of the woodwork under the window sill, charring of the baseboard, charring of the rug, and charring or burning of the other instruments, if you believe that I charge you again that you are not to labor whether it amounts to $10, as someone has said in their closing, or $10,000, I charge you if you believe those facts beyond a reasonable doubt don’t go any further to determine whether it was minimal, whether it is or isn’t arson, I charge you it’s arson.
MR.. HOROWITZ: Are you charging the defendant committed the crime?
THE COURT: I told them innumerable times this has nothing to do with the defendant, this in no way says the defendant is guilty or innocent of the crime, just it is a question of don’t have to labor that point if you believe that part. The next thing you have to labor is whether this defendant is innocent or guilty, and I have given you sufficient charge on that basis.”

Thereafter defendant’s counsel repeated his previous objection to the charge. He further contended that the trial court had misstated the evidence adduced at the trial.

On appeal defendant again argues that the court misstated the evidence and usurped the function of the jury by telling them that the crime of arson had been committed. He further contends that the court did not clearly outline for the jury the essential elements of the crime of arson applicable to this case and failed to explain the legal significance of “charring” as used in the charge.

We address our attention to what we believe is the most important question in this case. Was the jury misled by the court’s charge ?

In State v. Butler, 27 N. J. 560, 595 (1958), the court held that a trial judge has a mandatory duty to instruct the jury as to the fundamental principles of law which control a case and that among such principles is the definition of the crime. It said that the criminal law cannot be administered justly or efficiently if the jury is allowed to speculate as to what conduct the law intended to proscribe by a specified crime. It further said that the trial judge’s duty is not affected by the failure of a defendant to request that it be discharged and that whether said failure would constitute plain error would depend upon the circumstances of the particular case.

In the instant case at the beginning of its charge, the trial court correctly instructed the jury that to justify a conviction of arson under N. J. S. 2A:89-1 there must be proof of an actual burning of the dwelling house to constitute the offense, and that if any part of the building, however small, is consumed by the fire it is sufficient.

However, the court never instructed the jury that the burning of the personal property contained in the dwelling house, i. e., rug, books, and table and curtains, did not constitute the crime of arson under N. J. S. 2A:89-1. Instead, as set forth in the quoted portions of the charge above, it implicitly indicated that the burning of such articles could constitute the crime of arson. Moreover, the court failed to explain to the jury that “charring” as used in the charge means to reduce wood to charcoal by burning. (See 6A Words and Phrases, “Char” (1966), p. 236, and the cases cited therein.) We also note, parenthetically, that while the trial court indicated to the jury that the State’s witnesses had testified that there was a charring of the window sill and the “sill board,” the record does not support such statement.

In our opinion, the failure of the court to instruct the jury that the burning of the personal property did not constitute the crime of arson under N. J. S. 2A:89-1, the implication to the contrary contained in the court’s charge, and the court’s failure to define the meaning of “charring” once it had used that term in the charge, was misleading to the jury to the prejudice of the defendant. Under the instructions given by the court, a jury of laymen could well have concluded that the burning of the personal property alone was sufficient to justify a verdict finding defendant guilty of the crime of arson.

Under the circumstances of this case, where evidence that the dwelling house had been burned depended primarily on the statement of one witness that the woodwork was “starting to smolder” and there was considerable evidence of the burning of personal property, we are convinced that the court’s charge so adversely affected the substantial rights of the defendant as to constitute prejudicial error and require a reversal of the conviction. While the defendant did not at the trial specifically object to the references in the charge to the charring of the personal property or to the court’s failure to charge that the burning of personal property would not violate the statute, we are nevertheless satisfied that plain error was committed. R. R. 1:5-1 (a).

In view of the foregoing, we deem it unnecessary to consider the remaining points urged for reversal.

The judgment of conviction is reversed and the ease is remanded for a new trial.