author: Per Curiam.

text:
    R. H. GOVAN. PLAINTIFF-RESPONDENT, v. TRADE BANK & TRUST CO., AS ADMINISTRATOR OF THE ESTATE OF WILLIAM HONG, ALSO KNOWN AS HONG SOOK, DECEASED, DEFENDANT-APPELLANT.
    Superior Court of New Jersey-Appellate Division
    Argued February 2, 1970
    Decided March 17, 1970.

      Before Judges Goldaiahh, Lewis and Matthews

      Mr. Irving Siegler argued the cause for appellant (Messrs. Siegler & Siegler, attorneys).

      Mr. Robert J. Maloof argued the cause for respondent (Messrs. Hein, Smith, Mooney <& Berezin, attorneys; Mr. Seymour A. Smith, of counsel).
   Per Curiam.

Defendant, administrator of the estate of William Hong, appeals from (1) a judgment of the Law Division in favor of plaintiff in an action to recover the proceeds of a promissory note, made by decedent, in the amount of $25,000, with interest from the date of its making, February 7, 1961, and (2) an interlocutory order denying its motion to dismiss the complaint and/or vacate the service of process. Defendant was served by registered mail pursuant to R. R. 4:4r-4(j) [now R. 4:4-4(e)].

Plaintiff, a longtime resident of New Jersey with substantial business interests still in this State, was a close friend of decedent, a New York resident. Sometime after plaintiff had retired to South Carolina, decedent telephoned Mm to discuss the prospects of a $25,000 loan for the purpose of financing a restaurant venture. On plaintiff’s next visit to New Jersey the two parties met in the business office of plaintiff’s brother in Hoboken to discuss the loan and negotiate the final arrangements, xlfter talking by telephone to his wife, plaintiff notified his brother (who was his partner) to advance the funds upon decedent’s request.

On February 7, 1961 decedent came to the brother’s Hoboken office to pick up the money. Plaintiff’s brother, acting for plaintiff, drew a check for $25,000 from a joint account, and decedent then signed a demand promissory note. Decedent died during February 1967 without having paid any interest or principal on the note.

Plaintiff instituted this action in October 1967 against decedent’s estate for repayment of the loan. Prior to filing an answer defendant moved to dismiss the complaint and vacate the process on the grounds that the court lacked jurisdiction over it and over the subject matter, and that the action was barred by the six-year statute of limitations. Both motions were denied. The matter was thereafter pretried and tried, resulting in judgment for the plaintiff.

On this appeal defendant contends that (1) the trial judge erred in denying its motion to set aside process on the ground of lack of personal jurisdiction; (2) the action was barred by the statute of limitations, and (3) the evidence was insufficient to establish consideration for the note.

Since the decision of the Supreme Court of the United States in International Shoe v. State of Washington, 326 U. S. 310, 66 S. Ct. 154, 90 L. Ed. 95 (1945), courts have embarked on a general trend of expanding the contours of traditional concepts of judicial jurisdictional power. Concededly, this trend has been less sweeping in the area of commercial contracts than in torts. The general standard of due process set forth in International Shoe rests on a determination as to whether there exists such “minimum contracts” between defendant and the forum as not to offend the “traditional notions of fair play and substantial justice.” 326 U. S., at 316, 66 S. Ct., at 158. In the area of contracts it has been held “sufficient for purposes of due process that the suit was based on a contract which had substantial connection with that State.” McGee v. International Life Ins. Co., 355 U. S. 220, 223, 78 S. Ct. 199, 201, 2 L. Ed. 2d 223 (1957). It has also been said to be “essential in each case that there be some act by which the defendant purposefully avails itself of the privilege of conducting activities within the forum State, thus invoking the benefits and protections of its laws.” Hanson v. Denckla, 357 U. S. 235, 253, 78 S. Ct. 1228, 1240, 2 L. Ed. 2d 1283 (1958). See also, Higgins v. American Society of Clinical Pathologists, 94 N. J. Super. 243, 248-249 (App. Div. 1967), rev’d on other grounds, 51 N. J. 191 (1968). In Higgins this court, in examining the extra-territorial power of courts, adopted three basic criteria for the just exercise of such jurisdiction: (1) defendant must have done some act or consummated some transaction within the foruin; (2) the cause of action must have arisen out of defendant’s activities within the forum, and (3) a general standard of consonance with “fair play” and “substantial justice,” which is somewhat akin to the tests for the application of the doctrine of forum non conveniens.

Applying the standards just mentioned, it is readily apparent to us that the facts in this case support jurisdiction of our courts over defendant. This action, although involving two nonresidents, is based upon a promissory note, negotiated, executed and payable at a bank within this jurisdiction. Indeed, this State is in fact the only state that has any substantial connections with the disputed transaction. Compare DeLear v. Rozel Packing Corp., 95 N. J. Super. 344 (App. Div. 1967).

N. J. S. A. 2A:14-1 establishes a general six-year statute of limitations for actions on a promissory note. Defendant argues that since an action on a demand note accrues from the date of delivery of the instrument, De Raismes v. De Raismes, 70 N. J. Law 15, 18-19 (Sup. Ct. 1903), aff’d 71 N. J. Law 680 (E. & A. 1905), and Denville Amusement Co., Inc. v. Fogelson, 84 N. J. Super. 164, 169 (App. Div. 1964), the instant action is out of time and barred.

However, N. J. S. A. 2A:14-22 provides, in part:

If any person against whom there is any of the causes of action specified in sections 2A:14-1 to 2A:14-5 and 2A:14-8, or if any surety against whom there is a cause of action specified in any of the sections of article 2 of this chapter, is not a resident of this state when such cause of action accrues, or removes from this state after the accrual thereof and before the expiration of the times limited in said sections, or if any corporation or corporate surety not organized under the laws of this state, against whom there is such a cause of action, is not represented in this state by any person or officer upon whom summons or other original process may be served, when such cause of action accrues or at any time before the expiration of the times so limited, the time or times during ^ohich such person or surety is not residing within this state or such corporation or corporate surety is not so represented within this state shall not he computed as part of the periods of time withm which such an action is required to he commenced hy the section. The person entitled to any such action may commence the same after the accrual of the cause therefor, wtiihn the period of time limited therefor by said section, exclusive of such time or times of non residence or non-representation. [Emphasis added]

The clear intent of the provisions of the tolling statute is that they operate in favor of New Jersey residents or of plaintiffs whose causes of action accrue in this State. Beardsley v. Southmayd, 15 N. J. Law 171, 177-178 (Sup. Ct. 1835); Zwillenberg v. Post, 293 F. 2d 199, 200 (3 Cir. 1961); Marsh v. Davis, 99 N. J. Super. 130, 135 (Law Div. 1968). It is the place of accrual of the cause of action which is determinative in order that the tolling statute be invoked. Under the facts of this case it is clear that plaintiff is entitled to the benefit of these tolling provisions. The cause of action on a demand note, the type of note involved here, arises immediately upon its execution and delivery. Agens v. Agens, 50 N. J. Eq. 566, 568 (Ch. 1892). Clearly, plaintiff’s cause of action against decedent accrued in this State on February 7, 1961.

Defendant finally contends that the evidence adduced at trial was insufficient as a matter of law to support a finding of payment of consideration to decedent.

At trial plaintiff and his brother testified as to the background, negotiation and execution of the note. The signed note was introduced into evidence. However, plaintiff was unable to produce the original cancelled check, cashed by and paid to decedent, because, it was explained, decedent had himself borrowed the instrument in order to convince the New York liquor authorities of the source of his financing; the check was never returned. A photostat of the can-celled check was introduced and attested to by a member of the payor bank’s accounting department, but only the facing side had been photographed, and so no endorsement was evident. (This defect has been corrected in defendant’s appendix.) Defendant contends that oral testimony and circumstantial evidence of payment of consideration were so improbable as to properly be rejected by the finder of fact, citing In re Perrone’s Estate, 5 N. J. 514 (1950).

However, R. S. 7:2-24 (substantially similar to the superseding N. J. S. A. 12A:3-307(2)) provided: “Every negotiable instrument is deemed prima facie to be issued for a valuable consideration; and every person whose signature appears thereon to have become a party for value.” See Trustees System Co. of Newark v. Lisena, 106 N. J. Law 549 (E. & A. 1930); Federal Deposit Ins. Corp. v. Miller, 130 N. J. Law 626, 628 (E. & A. 1943); cf. Clayton v. Clayton, 125 N. J. Law 537 (Sup. Ct. 1937), aff’d o.b. 127 N. J. L. 605 (E. & A. 1942); In re Broderson’s Estate, 112 N. J. Eq. 532, 536 (Prerog. Ct. 1933).

The burden of proof was clearly on defendant to show affirmatively lack of consideration, rather than on plaintiff to prove its existence. R. S. 7:2-28 (substantially similar to superseding N. J. S. A. 12A:3-408) provided that “Absence or failure of consideration is a matter of defense as against any person not a holder in due course.” See also, First National Bank of Philadelphia v. Stoneley, 111 N. J. Law 519, 523 (E. & A. 1933); Appelget v. Van Hise, 44 N. J. Super. 507 (Ch. Div. 1957). Thus, in addition to plaintiffs’s proofs, the statutory presumption ran in his favor and the burden was on defendant to rebut it.

Our review of the record leads us to conclude that the trial judge’s finding of fact as to the payment of consideration was based on sufficient credible evidence. State v. Johnson, 42 N. J. 146, 162 (1964).

Affirmed.


source: Caselaw Access Project

author: Labrecque, J. A. D. L. N.

license: Public Domain

text:
    STATE OF NEW JERSEY, COMPLAINANT-RESPONDENT, IN THE INTEREST OF L. N., JUVENILE APPELLANT.
    Superior Court of New Jersey Appellate Division
    Argued February 24, 1970

    Decided March 12, 1970.

      Before Judges Kilkenny, Labrecque and Leonard.

      Mr. Stanley 0. Van Ness, Public Defender, argued the cause for appellant L. N. (Mr. Bichará Newman, Deputy Public Defender, of counsel and on the brief).

      Mr. Frederic Shanger, Assistant Prosecutor, argued the cause for respondent (Mr. Leo Kaplowitz, Union County Prosecutor, attorney).
   The opinion of the court was delivered by

Labrecque, J. A. D. L. N.

appeals from an adjudication of delinquency entered in Union County Juvenile and Domestic Eolations Court. He received a suspended sentence to the State Home for Boys.

The complaint charged the juvenile defendant, then 15 years of age, with violating N. J. S. A. 2A:4-14 by sniffing Carbona, a cleaning fluid, on April 19, 1968. At the trial it was brought out that when two members of the Union Township Police Department, responding to a call, came upon defendant and a companion, defendant was sitting with his hands cupped between his knees, his head buried in a handkerchief which he was holding. When asked what they were doing, the two boys replied, “nothing.” When defendant dropped the handkerchief one of the officers picked it up and found that it gave off an odor which he described as resembling “cleaning fluids or vapors from airplane glue, lacquer thinners, things of that sort.” The other officer described the smell as “Carbona or carbon tetrachloride; its a fire extinguisher fluid.” The officers observed that defendant’s companion had an open pocket in which there was a bottle. On request he turned the bottle over to them. It bore a label indicating that it was Carbona, a cleaning fluid. Detective Mason of the Union County Prosecutor’s office, who had studied drug use, testified as to the toxic qualities of the Carbona and its danger to health when inhaled.

Defendant was represented by counsel at the hearing. He denied that he was sniffing the cleaning fluid, stating that he was just wiping “some land of a spot” off his handkerchief with Carhona he had obtained from the bottle which his companion had. On cross-examination he stated that they had gone down to the store to bny it and that although his companion had bought the Carbona, “I was gonna use it to get somethin’ off my pants.”

The trial judge filed written findings of fact and conclusions of law. At the time the hearing was concluded the juvenile was already serving a sentence at the State Home for Boys. The basis for his presence there does not appear in the record but we note there was another charge pending against him at the time the present hearing was begun, that of idly roaming the streets on April 7, 1968 in violation of the township’s curfew ordinance.

Defendant challenges the adjudication on the grounds that his motions to dismiss were erroneously denied and he was denied due process at the trial. He also challenges the constitutionality of sections (i) and (m) of N. J. S. A. 2A:4-14.

Defendant urged in the court below that in order to justify a finding of juvenile delinquency under N. J. S. A. 2A:4-14 it was necessary that he be found guilty of two of the offenses referred to therein. To the extent here relevant the statute provides as follows:

Juvenile delinquency is hereby defined as the commission by a child under 18 years of age.
(1) of any act which when committed by a person of the age of 18 years or over would constitute:
a. A felony, high misdemeanor, misdemeanor, or other offense, or
b. The violation of any penal law or municipal ordinance, or
c. Any act or offense for which he could be prosecuted in the method partaking of the nature of a criminal action or proceeding, or
d. Being a disorderly person, or (2) of the following acts:
e. Habitual vagrancy, or
f. Incorrigibility, or
g. Immorality, or
h. Knowingly associating with thieves or vicious or immoral persons, or
i. Growing up in idleness or delinquency, or
j. Knowingly visiting gambling places, or patronizing other places or establishments, his admission to which constitutes a violation of law, or
k. Idly roaming the streets at night, or
l. Habitual truancy from school, or
m. Deportment endangering the morals, health or general welfare of said child.

We interpret the statute as containing two sections, the first referring to acts which if committed by an adult would have constituted offenses of the type there set forth, and the second, embracing subsections (e) to (m), inclusive, referring to acts which are generally considered by the community as early steps towards a career of lawbreaking. We hold that a finding that the juvenile has been guilty of any one of the violations referred to in section (2) would support an adjudication of juvenile delinquency. Here the court found that there had been a violation of both subsections (m) and (i).

We are satisfied that defendant’s motion for dismissal at the conclusion of the first day’s hearing was properly denied. The State had not closed its case but was given leave, to which counsel for the juvenile consented, to call an expert as to the effects of the inhalation of Carbona. Later, at the conclusion of the State’s case, the proofs presented a fact question and the motion for dismissal was properly denied.

The testimony of Detective Mason was properly received and considered by the court. The reasons presently urged by defendant in support of Ms objection to Ms testimony went to its weight rather than its admissibility. See State in Interest of L. B., 99 N. J. Super. 589, 605 (J. & D. R. C. 1968). Carbona is a well-known cleaning substance and Mason was not required to have made a chemical analysis of it in order to testify that breathing it was dangerous to health. Under subsection (m) it was only necessary to establish that the conduct of the juvenile endangered his health or general welfare. Proof that his health had actually been affected by what the police officers observed on the day in question was not a prerequisite to a finding of guilt. Uor was it necessary to establish the length of time that defendant had been sniffing Carbona.

We likewise find no merit to defendant’s contention that the failure to give him adequate notice of the charge against him amounted to a denial of due process. Since it was only necessary to charge the juvenile with wrongful conduct, the complaint need not be drawn with the same exactitude as a criminal complaint. State in Interest of L. B., supra, at 594. As noted, the charge was a violation of N. J. S. A. 2A:4-14. Although there was some colloquy (initiated by defendant’s attorney) during the first day of trial with respect to a possible violation of N. J. S. A. 2A:170-25.11, a section of the glue sniffing statute, as affording a basis for a finding of juvenile delinquency, it was made clear to defendant and his attorney on the next trial day that the only charge being pressed was sniffing Carbona, alleged to be a violation of N. J. S. A. 2A:4-14. The motion for dismissal at the close of the case against him was posited upon the asserted lack of any evidence to establish violation of any of the subsections of the statute. We hold that there was substantial evidence in the record to support a finding that he was guilty of violating subsection (m) by engaging in conduct detrimental to his health, morals or general welfare. We need not determine whether the proofs also supported the finding that he was growing up in idleness or delinquency in violation of subsection (i).

Defendant challenges the constitutionality of subsections (i) and (m) of N. J. S. A. 2A:4-14 on the ground of vagueness, both on their face and in their application to him. He has cited no case, and we know of none, in which statutes of this type containing wording similar to that found in subsections (i) and (m) have been held to be unconstitutional as violating due process by reason of vagueness. Statutes setting up juvenile systems of correction have been uniformly upheld. Petition of Morin, 95 N. H. 518, 68 A. 2d 668 (Sup. Ct. 1949); Cinque v. Boyd, 99 Conn. 70, 121 A. 678 (Sup. Ct. Err. 1923); State v. Mattiello, 4 Conn. Cir. 55, 225 A. 2d 507 (App. Div. 1966), certif. den. 225 A. 2d 201 (1966), cert. granted 391 U. S. 963, 88 S. Ct. 2037, 20 L. Ed. 2d 876 (1968), appeal dismissed 395 U. S. 209, 89 S. Ct. 1767, 23 L. Ed. 2d 212 (1969); Lindsay v. Lindsay, 257 Ill. 328, 100 N. E. 892, 45 (Sup. Ct. 1913); Com v. Fisher, 213 Pa. 48, 62 A. 198 (Sup. Ct. 1905); United States ex rel. Yonick v. Briggs, 266 F. 434 (W. D. Pa. 1920); Ex Parte Januszewski, 196 F. 123 (S. D. Ohio 1911). Many carried wording closely akin or substantially similar to that of our own statute. Their construction and applicability appear to have posed no difficulty. See Annotations, 45 A. L. R. 1533 (1926) and 85 A. L. R. 1099 (1933).

While conceding that many jurisdictions have upheld the constitutionality of similar statutes in the past, defendant urges that In re Gault, 387 U. S. 1, 87 S. Ct. 1428, 18 L. Ed. 2d 527 (1967), has changed the picture and that such statutes are now open to constitutional doubt and are to be tested by the same rules as are applicable to criminal proceedings. We disagree.

We are satisfied that the Supreme Court did not intend In re Gault to undermine the basic philosophy, idealism and purposes of juvenile courts. Commonwealth v. Johnson, 211 Pa. Super. 62, 234 A. 2d 9 (Super. Ct. 1967). The juvenile court proceeding is not the trial of a child charged with a crime but is mercifully designed to save him from such an ordeal in the future. State v. Monahan, 15 N. J. 34, 37 (1954), cert. den. 348 U. S. 889, 75 S. Ct. 210, 99 L. Ed. 698 (1954). It has been said to be designed to make men out of errant boys. State, in the Interest of Carlo, 48 N. J. 224, 244 (1966) (concurring opinion Weintraub, C. J.); State v. Tuddles, 38 N. J. 565, 571-73 (1962). The State as parens patriae has a duty to see to it that a minor does not live a life of delinquency. In re State in Interest of S. I., 68 N. J. Super. 598, 604 (J. & D. R. Ct. 1961). In general, the determination of what activities involve danger that a child will become a hazard to himself or to society rests with the Legislature, and its policies may not be interfered with by us simply because we may disagree with their wisdom. State v. Monahan, supra, at 46.

Beyond this, there is a presumption of constitutionality in favor of a statute and it remains our duty to construe it so as to Tender it constitutional if it is reasonably susceptible of such interpretation. St. John The Baptist, etc., Church of Perth Amboy v. Gengor, 121 N. J. Eq. 349, 353 (E. & A. 1937); Daly v. Daly, 21 N. J. 599, 604 (1956); Williams v. Smith, 94 N. J. Super. 341, 346 (App. Div. 1967), aff’d. 51 N. J. 161 (1968).

We find nothing in Gault which would justify our setting at naught the Legislature’s delineation of conduct on the part of juveniles which, because of its threat to the child’s welfare or to society, would constitute juvenile delinquency, by reason of its asserted vagueness. Gault dealt with procedural due process and held that the juvenile was entitled to (1) adequate notice of the charges, (2) the right to counsel, (3) the right to confront and cross-examine witnesses and (4) the right against self-incrimination. None of those rights were denied defendant here.

We find neither State in the Interest of Carlo, supra, at 234-235 nor State in Interest of W. O., 100 N. J. Super. 358 (App. Div. 1968), to be apposite. In the former the juvenile was held entitled to the constitutional safeguard of voluntariness in connection with the use of his alleged confession, while in the latter he was held entitled to the procedural tool of sequestration of witnesses. Likewise, in State in Interest of L. B., supra, it was held that the juvenile court could entertain a motion by the juvenile to suppress evidence allegedly obtained by an unlawful search and seizure. The philosophy of our juvenile court system is aimed at rehabilitation through reformation and education in order to restore a delinquent youth to a position of responsible citizenship. State v. Tuddles, supra, at 571. In the context of that philosophy we hold that subsections (i) and (m) of section (2) of N. J. S. A. 2A:4-14 did not violate due process by reason of their asserted vagueness. We likewise hold that there was no violation of due process in their application to defendant. On the contrary, he was fully and clearly advised as to the specific nature of the action on his part which was alleged to have been in violation of N. J. S. A. 2A:4-14.

Affirmed.


author: Leonard, J. A. D.,

text:
    KATHERINE B. JACOBS, PLAINTIFF-APPELLANT AND CROSS-RESPONDENT, v. SAMUEL W. JACOBS, DEFENDANT-RESPONDENT AND CROSS-APPELLANT.
    Superior C'ourt of New Jersey Appellate Division
    Argued January 12, 1970
    Decided March 19, 1970.

      Before Judges Kilkenny, Labrecque and Leonard.

      Mr. Albert G. Besser argued the cause for appellant (Messrs. Hannoch,, Weisman, Stern and Besser, attorneys; Mr. Ij. Robert Lieb, on the brief).

      Mr. Marvin H. Gladstone argued the cause for respondent (Messrs. Shedd, Gladstone & Kronenberg, attorneys).
   The opinion of the court was delivered by

Leonard, J. A. D.,

In this matrimonial action plaintiff wife appeals from a judgment dismissing her complaint for separate maintenance and granting defendant a divorce on his counterclaim predicated upon simple desertion ■—■ her willful refusal to have sexual relations. Plaintiff also appeals from the award of a $7500 counsel fee to her attorneys, asserting it to be inadequate. Defendant cross-appeals from those portions of the judgment awarding support to his children and assessing the above counsel fee to plaintiff’s present attorneys and a fee of $500 to her former attorney.

The parties were married on December 21, 1946. Two children were born, Ronald in 1952 and Mark in 1954. Between 1950 and 1952 defendant started a business, Boulevard Steel Company, in which plaintiff was given an interest. Shortly thereafter their business and social acquaintance, I. B. Steinberg, was made a one-third partner in Boulevard. In 1955 the parties purchased a home in Tenafly, Yew Jersey. Although the business apparently prospered during the next few years, the marriage did not. Ultimately, on July 1, 1964 defendant moved out of the marital residence.

On June 30, 1965 plaintiff filed a complaint for separate maintenance. Therein she enumerated many acts of indignity and cruelty allegedly committed by defendant. However, the basis of her cause of action was that defendant had abandoned her and had thereafter refused and neglected to properly support her and the children. Defendant filed an answer and a two-count counterclaim for divorce. The first count of the counterclaim alleged that plaintiff had been guilty of desertion by willfully and obstinately refusing to have sexual intercourse with him since July 1, 1963 and for a period of two years thereafter. The second count charged her with extreme cruelty.

Trial of the case (excluding many pretrial motions) consumed 22 separate days protracted over a 10-month period. Each party testified. In addition, each called numerous witnesses, among whom were accountants, psychiatrists, friends, relatives and business associates. All were examined at great length on both direct and cross-examination.

Following the hearings the court filed a written “statement of facts and conclusions of law.” Therein, among other things, it found that the proofs demonstrated that plaintiff was guilty of simple desertion in that, commencing on July 1, 1963 and for a period of two years thereafter, she persistently and willfully refused to indulge in normal sexual relations with defendant; that defendant’s conduct to plaintiff did not constitute extreme cruelty and that his act in leaving the home was not acquiescence in her desertion. Further, the court stated that upon the evidence adduced “defendant was not required to stay and suffer the indignities offered him and to submit to further insult as well as injury.” Thereupon, judgment was entered dismissing plaintiff’s complaint for separate maintenance and awarding defendant a divorce on his counterclaim on the ground of simple desertion. The second count of his counterclaim, which charged extreme cruelty, was dismissed. Plaintiff’s motion for a new trial was denied.

Plaintiff first contends that the trial court erred in finding that plaintiff deserted defendant. In support of this position she offers a number of arguments against the validity of the court’s holding which related to her “persistent and unjustified refusal * * * to indulge in normal sexual relations for two years.” Before considering these, we note that it is not disputed that the continuous unjustifiable withholding of sexual relations against the will of the other spouse for the statutory two-year period will give rise to a cause of action fox divorce on the ground of desertion. Pope v. Pope, 44 N. J. Super. 483, 487 (App. Div. 1957); Kirk v. Kirk, 39 N. J. Super. 341 (App. Div. 1956); Munger v. Hunger, 130 N. J. Eq. 279, 282 (E. & A. 1941).

Plaintiff first argues that there is no corroborative proof for the finding that she refused to have sexual relations or that this refusal commenced on ox about July 1, 1963 and lasted for two years thereafter. The court found corroboration not only from the testimony of specific witnesses but also from the surrounding circumstances shown by the totality of the evidence adduced. After considering all the proofs, the court concluded that defendant’s testimony was given in “a most forthright and open manner” and, to the contrary, plaintiff’s testimony was “unworthy of belief.”

Defendant testified that the last occasion upon which plaintiff permitted him to have relations with her was on or prior to July 1, 1963; that at no time thereafter would she respond to his sexual advances, and that she refused his request for sexual intercourse at all times thereafter. Plaintiff, in her extensive testimony, never denied defendant’s testimony on this issue, and the absence of this denial was noted by the court as an affirmance of the facts testified to by him. Helen Goldenberg, plaintiff’s best friend and a witness for her, testified that at a reconciliation meeting held late in 1963, at which she was present, defendant said that they didn’t live as man and wife and that plaintiff replied that “she was afraid to have any relations with Sam” and further admitted that this situation had existed from four to six months prior to that meeting. Plaintiff’s sister, Mildred Binder Olkan, testified that in the spring of 1963, while she was living at the home of the parties, she overheard arguments between them relating to plaintiff’s refusal to have intercourse. Additionally, although Dr. Herman Alpert, plaintiff’s psychiatrist, did not specifically testify that plaintiff told him that she had ceased to have intercourse with defendant, that fact is reasonably infer-able from his testimony.

It cannot be denied that in these cases there must be corroboration of the testimony of the one spouse that the other willfully avoided conjugal intercourse. Crowell v. Crowell, 33 N. J. Super. 272, 276 (App. Div. 1954). However, it is well recognized that corroborative proof of this kind of complaint is difficult and it is for this reason that the hearsay restrictions are relaxed to permit easier access to the truth. Pope v. Pope, supra, 44 N. J. Super., at 487. Consequently, unusually heavy reliance must ordinarily be placed upon the capacity of the trial judge, observing and hearing the witnesses, to determine whether the entire picture carries with it a moral conviction that can be sensed from all the surrounding circumstances. Id. at 488. See also Franklin v. Franklin, 140 N. J. Eq. 127, 129 (E. & A. 1947); Haskell v. Haskell, 99 N. J. Eq. 399, 402 (E. & A. 1926). The trial judge, upon a consideration of all the testimony and after observing and hearing the witnesses and weighing their credibility, found that the entire picture did carry with it a moral conviction, that could be sensed from the testimony of witnesses as well as from all the surrounding circumstances, that plaintiff willfully, continually and obstinately and without justification refused to have sexual intercourse with defendant from July 1, 1963 to July 1, 1965. This factual finding and the determination that it was sufficiently corroborated is more than reasonably supported by the credible evidence in the record. Thus, we hold this argument to be without merit.

Plaintiff next asserts that refusal of one spouse to engage in sexual intercourse for less than the statutory two-year desertion period does not justify the aggrieved spouse’s departure from the matrimonial abode. She argues that if he departs for this reason, before the running of the two years, he cannot obtain a divorce on the ground of desertion. Thus, plaintiff’s position is that defendant’s leaving on July 1, 1964 tolled the running of the two-year period, and consequently the court erred in awarding him a divorce on the ground of a desertion which commenced on July 1, 1963 and continued until July 1, 1965.

Plaintiff, in support of this assertion, relies upon Pierson v. Pierson, 119 N. J. Eq. 19 (E. & A. 1935); Lammertz v. Lammertz, 59 N. J. Eq. 649 (E. & A. 1899), and Reid v. Reid, 21 N. J. Eq. 331 (Ch. 1871). All of these cases are inapposite.

In Pierson v. Pierson, supra, the complainant wife refused to have sexual relations with her husband because he was seeing another woman; she found contraceptives in his pocket and they had continual disagreements as to money matters. Complainant wanted her husband to leave and not come back. After about four months he did leave. Thereafter, when she filed an action for separate maintenance he counterclaimed for a divorce upon the basis of desertion ■—her refusal to have sexual relations with him. The court, in denying him this relief, said:

He does not claim that he was justified in leaving his home on the ground that his wife was guilty of a matrimonial offense other than her refusal to have sexual intercourse, but this refusal had continued * * * a period of about four months. Until and unless it had continued for a period of two years, the complainant would not have been guilty of a matrimonial offense justifying the defendant’s separation from her. He cannot maintain that it would have so continued had he remained in the home. 1-Ie has failed to establish * * * that the complainant deserted him on May 4, 1931, and that ever since that time her desertion has been willful, continued, and obstinate. Assuming that she was the deserter as of May 4, 1931, because of her refusal of sexual intercourse, such desertion was neither willful nor obstinate over a period of two years [119 N. J. Eq. at 23].

However, this conclusión was based upon the court’s determination that defendant’s conduct contributed substantially to the disagreement between the parties; that after he left the home he did not make such just advances as he should have made, and he did not establish that if he had made them, they would have been unsuccessful in securing a reconciliation. Id. at 22.

In Lammertz v. Lammertz, supra, defendant wife, left the home of her husband and remained away more than two years, during which she made no overture for a return. In defending against her husband’s divorce action based upon desertion she asserted that she left because her husband had left her bed and slept in another room for months before she departed. The court found that this did not justify her departure. However, again this conclusion was based upon the fact that she at no time expressed her willingness to return and she left little hope that she would do so. Thus, the court found her desertion to be obstinate and conferred upon her husband a right to divorce. Id. at 650.

In Reid v. Reid, supra, defendant husband admitted that he had left his house more than two years before plaintiff instituted her divorce action. However, in his answer, and by way of recrimination, he assorted that for a year before his desertion she refused marital intercourse with him. The court stated that although the refusal of marital intercourse without sufficient reason is a wrong and cannot be justified, nevertheless, it is not sufficient to justify desertion on any other unlawful marital dereliction on the part of the party aggrieved. Again, the court in reaching this conclusion noted that defendant left his house with the intention of never going back while plaintiff was there and that he never offered to take her back or provide her a home. Id. at 332-333.

In no one of the above cases did the court specifically hold that the leaving of the matrimonial abode by the aggrieved spouse before the expiration of the two-year statutory desertion period, per se, tolls the running of the remaining portion of the desertion period and bars that spouse from securing a divorce on the ground of desertion.

To the contrary, in Stieglitz v. Stieglitz, 92 N. J. Eq. 292, 294 (E. & A. 1920), the court said: “Eor the husband in the present case was at liberty to abandon his wife after Iona fide and repeated trials to have sexual intercourse with her and her refusal to permit him.” Likewise, in Haskell v. Haskell, supra, 99 N. J. Eq. 399, the husband sued the wife for divorce on the ground of desertion-—her refusal to have marital relations with him. The court granted him a divorce even though his proofs indicated that he left his wife only years after her refusal had commenced. The court found that the husband had endeavored to reason with his wife in regard to the marital rights and that in each instance she rejected him. Further, it noted that at the time he left “his physical and mental condition had become such as to compel him to do so.” At 401.

Thus, from a reading of the above-cited cases, we hold that where one spouse charges the other with willful refusal to have sexual relations, the fact that the aggrieved party leaves the marital abode before the expiration of the two-year desertion period does not per se toll the remaining portion of the period. Rather, such leaving by the aggrieved party is a fact which should be considered together with all the other facts and circumstances in resolving whether the desertion was willful and obstinate during the entire two years, or whether the leaving by the aggrieved spouse converted the situation into one that was consensual. In resolving this question, inquiry must be made as to whether the aggrieved spouse, following his departure, continued to make Iona fide efforts for reconciliation.

In the instant case the court found, and it is reasonably supported by the evidence, that defendant continuously for the entire period of two years, both before and after his departure, personally and through intermediaries, made numerous bona fide advances to plaintiff tor reconciliation and for the resumption of a husband-wife relationship. However, these all “fell on deaf ears” and were of no avail.

Further, the court, based upon plaintiff’s actions, concluded that she was “hostile, mean, cruel and despotic” to defendant and that she was guilty of “opprobrious” conduct. Although the court’s “statements of facts and conclusions of law” do not contain an express finding that plaintiff was guilty of “extreme cruelty,” that conclusion is nevertheless vividly implicit therein. No contrary inference arises because of the court’s dismissal of the second count of defendant’s counterclaim. This was done, not upon the merits, but rather “[i]n view of the affirmative relief granted defendant on the first count * * In any event, in modern understanding, a total rejection of sexual intercourse constitutes grounds for divorce predicated upon extreme cruelty. Goldstein v. Goldstein, 97 N. J. Super. 534, 535 (Ch. Div. 1967); Melia v. Melia, 94 N. J. Super. 47, 51 (Ch. Div. 1967).

For all of the reasons stated, and in light of all of the facts and circumstances here present, we find that defendant was justified in leaving the marital abode on July 1, 1964, and his leaving did not toll the running of the two-year desertion period. Therefore, the trial court properly determined that defendant was entitled to a divorce on the ground of desertion predicated upon plaintiff’s unjustified and willful refusal to have sexual relations with him for the two-year period from July 1, 1963 to July 1, 1965. Likewise, this conclusion merited the dismissal of plaintiff’s action for separate maintenance.

We have considered all the other points raised by plaintiff on her appeal and by defendant on his cross-appeal and find that they all lack merit. We conclude that the trial court did not mistakenly exercise its discretion in making the following orders: a counsel fee of $7500 to plaintiff’s present counsel and a fee of $500 to her former counsel; an award of $50 a week for the support and maintenance of each of the two infant children, and directing defendant to pay, among other things, interest, amortization payments, taxes, insurance premium on the home, and the other items set forth in paragraph (f) of the judgment.

Next, we consider the application of plaintiff’s counsel for fees on this appeal. They seek $17,000 plus costs in the amount of $6844.69. They have previously received $7500 from defendant in accord with the trial court’s mandate. Plaintiff personally paid them an additional $3000 trial fee. They have been awarded an additional $1000 for post-judgments applications which defendant has paid. Also, they have received as appellate fees from plaintiff’s friends and relatives the sum of $10,000.

Under all these circumstances, and in the light of the outcome of this appeal, we direct defendant to pay plaintiff’s counsel the sum of $3500 on account of appellate fees and $3500 on account of appellate costs. This allowance is made without prejudice to counsels’ right to charge plaintiff, in accordance with their agreement with her, such additional reasonable fees as may be warranted by their services on her behalf on this appeal.

Judgment affirmed.


author: Matthews, J. A. D.

text:
    STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT, v. DONALD HINES, DEFENDANT-APPELLANT.
    Superior Court of New Jersey Appellate Division
    Argued February 2, 1970
    Decided March 20, 1970.

      Before Judges Goldmann, Lewis and Matthews.

      Mr. Claude J. Winter, Assistant Deputy Public Defender, argued the cause for appellant (Mr. Stanley C. Van Ness, Public Defender, attorney).

      'Mr. Myron H. Gottlieb, Assistant Prosecutor, argued the cause for respondent (Mr. Arthur J. Sills, Attorney General, by Mr. Maurice Denbo, Deputy Attorney General, assigned Burlington County Prosecutor, attorney).
   The opinion of the court was delivered by

Matthews, J. A. D.

Defendant appeals from judgments of conviction for conspiracy to steal (N. J. S. A. 2A:98-1) and for being an habitual criminal (N. J. S. A. 2A:85—12). Each conviction resulted after a separate jury trial.

Defendant was orginally charged in seven indictments with murder (1-240-66); conspiracy to commit murder (1-242-66 and 1-243-66); conspiracy to commit robbery (1-244-66 and 1-245-66); carrying a concealed deadly weapon (1-241-66); and receiving stolen property (1-246-66). After the State had opened, the trial judge, on defendant’s motion, dismissed • 1-243-66, conspiracy to kill, and 1-245-66, conspiracy to steal, on the ground that the State’s theory did not support a charge that defendant on two distinct occasions unlawfully conspired to kill, and on two others conspired to steal. The trial judge thereupon amended the remaining conspiracy indictments, 1-242-66 and 1-244-66, conspiracy to kill and steal, respectively, to reflect his finding that only one continuing conspiracy to kill and one to steal allegedly had occurred. After the State had entered its case, the trial judge directed that verdicts of not guilty be entered in favor of defendant on indictments 1-241-66 (carrying a concealed deadly weapon) and 1-246-66 (receiving stolen property). Thus, only the charges contained in indictments 1-240-66 (murder), 1-242-66 as amended (conspiracy to murder), and 1-244-66 as amended (conspiracy to commit robbery), were submitted to the jury. As noted, the jury found defendant guilty of conspiracy to commit robbery. He was acquitted of the charges contained in the other two indictments.

After conviction of defendant on the conspiracy charge, the prosecutor prepared an accusation charging defendant as being an habitual offender under N. J. S. A. 2A:85-12. The accusation charged defendant with seven prior convictions, as follows:

(a) Larceny, Illinois, September 25, 1947;
(b) Burglary, Larceny and Conspiracy to Commit Burglary, Pennsylvania, October 28, 1952;
(c) Prison Breach, Pennsylvania, October 28, 1952;
(d) Theft from Interstate Commerce, U. S3. District Court (Pa.), J anuary 28, 1966 ;
(e) Interstate Transportation of Stolen Motor Vehicle, U. S. District Court (Pa.), January 28, 1966;
(f) Theft from Interstate Shipment, U. S. District Court (Pa.) January 2S, 1966; and
(g) Possessing and Transporting Goods Stolen from Interstate Shipment, U. S. District Court (Pa.) January 28, 1966.

The accusation also included the conviction returned under indictment I—244-66.

After the accusation was moved for trial, the trial judge struck the allegations contained in paragraph (c) since the equivalent to prison breach, escape (N. J. S. A. 2A:104-6), is not a high misdemeanor in this State; the allegation of paragraph (d) for failure to meet the $200 limitation of N. J. S. A. 2A:119-2; the allegation of paragraph (e) because the comparable offense, bringing stolen property into this State (N. J. S. A. 2A:119-9), is merely a misdemeanor; and the allegation of paragraph (f). Trial was therefore held on paragraphs (a), (b) and (g) and the recent conviction for conspiracy. The trial judge ruled as a matter of law that these convictions were equivalent to high misdemeanor violations under the laws of this State. The jury was given questions of identity, i. e., whether Hines was the same person convicted of the three foreign offenses, and also the question of whether there were prior convictions. The jury returned a guilty verdict and defendant was subsequently sentenced to life imprisonment.

Defendant is represented on this appeal by the Public Defender. He urges two grounds for reversal: (a) that defendant’s attorney’s conduct denied him effective assistance of counsel at trial — this having allegedly occurred during the habitual criminal trial; and (b) that one of the prior convictions considered in the habitual offender trial was not the equivalent of a high misdemeanor under our law. In addition, defendant has filed an extensive supplemental brief, pro se, raising seven additional points for reversal, five of which go to the conspiracy conviction and two of which go to the habitual offender conviction.

We do not agree with the first contention advanced by the Public Defender. Trial counsel vigorously presented defendant’s case. We fail to see how the remarks made by him in the course of his opening statement, specifically those relating to him having been assigned, prejudiced defendant to the extent of depriving him of a fair trial— especially in light of the trial judge’s immediate observation to the effect that both defense counsel and the prosecutor were in the same sense assigned. The circumstances presented in the record here may readily be distinguished from those found in State v. Woodard, 102 N. J. Super. 419 (App. Div. 1968), certif. den. 53 N. J. 64 (1968), cert. den. 395 U. S. 938, 89 S. Ct. 2004, 23 L. Ed. 2d 453 (1969) and State v. Reddick, 76 N. J. Super. 347 (App. Div. 1962). We find that defendant received a very able defense. The test is, did he receive a fair trial? We find that he did.

The Public Defender next argues that the prior Pennsylvania conviction contained in the habitual criminal accusation (par. (b), above) was improperly submitted to the jury for consideration. The Pennsylvania statute in question, P. L. 872, § 807, read as of the time of the offense in October 1952, 18 P. S. § 4807, that: “Whoever commits larceny, is guilty of felony, and shall, upon conviction thereof, be sentenced * * Our statute, N. J. S. A. 2A:119-2, provided that any person who steals money, goods, chattels or other personal property of another is guilty of a misdemeanor, if the price or value of such property was under $50 and, if over $50 such person is guilty of a high misdemeanor. Defendant’s argument, essentially, is that if one merely looks at the statute, the Pennsylvania offense could possibly have been no more than a mere misdemeanor, and so could not be considered under N. J. S. A. 2A:85-12.

The Public Defender relies on People v. Gailhard, 278 App. Div. 712, 103 N. Y. S. 2d 203 (App. Div. 1951), where defendant was sentenced as a fourth offender, one of the convictions relied upon being under the same Pennsylvania statute. The Appellate Division reversed because of a prior decision of the Court of Appeals in People v. Olah, 300 N. Y. 96, 89 N. E. 2d 329, 19 A. L. R. 2d 219 (Ct. App. 1949). In Olah the court had refused to consider a Pennsylvania indictment which recited that the value of the items stolen by defendant was over $200 and, therefore, clearly came within the New York felony statute. Instead, it referred only to the statute which, as noted, contained no monetary minimum. Other New York decisions to the same effect are People v. Gifford, 2 A. D. 2d 642, 151 N. Y. S. 2d 982 (App. Div. 1956) and People v. French, 5 A. D. 2d 852, 171 N. Y. S. 2d 471 (App. Div. 1958).

The approach to this problem by the New York courts must be contrasted with that of the courts of California where the court looks at the entire record in determining the quality of the prior offense. The Pennsylvania larceny statute, under consideration here, was involved in People v. Pace, 2 Cal. App. 2d 464, 38 P. 2d 202 (D. Ct. App. 1934), where the court, relying upon the indictment which gave the value of the stolon goods as $10, held the prior Pennsylvania conviction not applicable. To the same effect, see In re Thompson, 72 Cal. App. 2d 747, 165 P. 2d 533 (D. Ct. App. 1946); People v. Houston, 88 Cal. App. 2d 11, 198 P. 2d 53 (D. Ct. App. 1948); Ex parte Mead, 92 Cal. App. 2d 536, 206 P. 2d 1091 (D. Ct. App. 1949).

We are inclined to follow the approach taken by the California courts. The proper test under N. J. S. A. 2A:85-12 is not what the provisions of the foreign statute are, but rather, whether the offense committed in the foreign jurisdiction would be a high misdemeanor if it had been committed in this State. In order to meet that test, the entire record of conviction in the foreign jurisdiction must be reviewed. The Pennsylvania indictment shows that the value of the goods stolen by defendant was $564. We conclude, therefore, that the trial judge correctly held that the jury could consider the Pennsylvania conviction.

We consider now various arguments raised by defendant in his pro se brief. First, he contends that it was prejudicial for the trial judge to have allowed a joint trial of the seven indictments pending against him, and therefore he was denied due process. As we have noted heretofore, only three of those indictments actually went to the jury for determination. It is clear that all of the indictments involved charged offenses which were based on “2 or more acts or transactions connected together or constituting parts of a common scheme or plan.” R. R. 3 :4-7 and 3 :5-6 (R. 3:7-6 and 3:15-1). Whether joinder is prejudicial in a given case is resolved by determining whether the jury would likely be unable to comply with the trial judge’s instructions. In short, could the jury arrive at a determination on each charge irrespective of the evidence concerning guilt on other charges? State v. Manney, 26 N. J. 362 (1968). Our reading of the entire trial record satisfies us that the jury not only could, but did comply with the trial judge’s instructions. The evidence adduced at trial by the State strongly implicated defendant in the conspiracy to rob. Proof as to the other two charges required the drawing of inferences which the jury refused to draw. We find no prejudice.

Our observations in answering defendant’s first argument, also serve to answer his next argument that the verdict of the jury was contrary to the weight of the evidence.

Next, defendant argues that he was denied due process of law and subjected to double jeopardy when the court allowed the jury to consider both the conspiracy to murder and conspiracy to rob indictments along with the murder indictment, because the State knew that defendant was not the actual murderer. We fail to find any legal substance to this argument, much less merit.

Error is also claimed because of the trial judge’s partial denial of the defense motion to sequester the prosecution witnesses, in that he permitted the chief of county detectives to sit at counsel table with the prosecutor during the trial. There was a “sound basis” for permitting him to remain at the counsel table. State v. Di Modica, 40 N. J. 404 (1963). The trial judge gave sound reasons for this exception to total sequestration. The chief was a necessary trial aide because of his knowledge and preparation of the case; he was fully aware of all aspects of the case prior to trial. We note, also, that the chief’s testimony was already on the record and could not be altered without being impeached. We fail to find any basis for determining that defendant was prejudiced by this partial sequestration— and he has offered none to us in his brief.

The argument next made, that defendant was never convicted of the crime with which he was charged (conspiracy to commit robbery), but of conspiracy to steal, we find to be frivolous. It is sufficient to observe that the indictment (I-214-66) charged defendant with having conspired with others “feloniously and forceably to take, steal and carry away from the person * * (Emphasis added).

Defendant also raises one argument with respect to his conviction under the habitual offender statute. He claims that “the action of the trial court in altering the accusation for habitual criminal deprived [him] of a fair trial, due process and equal protection under law and was fatal to the extent of causing the court to lose jurisdiction to proceed with the trial on the altered accusation.” This claim arises out of the action of the trial judge striking the words ifby bailee” in paragraph (a) of the accusation charging defendant with being an habitual criminal. In 1947 defendant had been indicted in the State of Illinois in a two-count indictment charging him, in the first count, with larceny by a bailee (the equivalent of embezzlement in this State, N. J. S. A. 2A:102-5—a misdemeanor), and in the second count, with larceny. The value of the goods taken (which were the same) under both counts exceeded $7,000. Thus, the second count charged defendant with the crime of grand larceny, N. J. S. A. 2A:119-2 (a)—a high misdemeanor. Defendant pleaded guilty, and the record of conviction contained in an exemplified copy thereof, introduced at trial, discloses that “defendant Donald Hines * * * withdraws his plea of Not Guilty, heretofore entered to the indictment in this cause and for a plea thereto say that he is guilty of Larceny, in manner and form as charged in the indictment, in this cause.” (Emphasis added). Defendant’s argument is that the Illinois conviction actually amounted to a conviction for a misdemeanor since he pleaded in that state to the crime- of larceny as set forth in the indictment which embraced a crime equivalent to merely a misdemeanor in this State.

There are two difficulties with defendant’s argument. Eirst, the exemplified copy of the judgment of conviction shows clearly that it was the second count which . was pleaded to and not the first—this because no copy of the first count is included in the exemplified copy of the conviction furnished. Second, it is clear that the judgment of conviction in Illinois refers specifically to the fact that he pleaded guilty “of larceny, value of property $565.00.” While the judgment continues in stating “in the manner and form as charged in the indictment,” an unstrained reading of that judgment requires us to refer to the second count of the indictment wherein he was charged with the crime of larceny and not with the crime of larceny as a bailee. This conclusion we find to be implicit in the judgment of sentence.

Defendant finally contends that he was denied the effective assistance of counsel on this appeal. We suppose this argument is advanced by defendant because the Public Defender did not incorporate all of defendant’s pro se arguments in his own brief. We find defendant’s claim to be baseless. It should be clear írom a reading of this opinion that the only arguments advanced on defendant’s behalf which had any legal basis were those advanced by the Public Defender.

The judgments of conviction are affirmed.


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

text:
    STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT, v. WELLS WALTER FLOWERS, DEFENDANT-APPELLANT.
    Superior Court of New Jersey Appellate Division
    Argued March 10, 1970
    Decided March 20, 1970.

      Before Judges Goldmanh, Lewis and Matthews.

      Mrs. Rosemary K. Reavey, Assistant Deputy Public Defender, argued the cause for appellant (Mr. Stanley C. Van Ness, Public Defender, attorney).

      Mr. George T. Dougherty, Deputy Attorney General, argued the cause for respondent {Mr. George F. Kugler, Jr., Attorney General, attorney).

      Mr. Gerard J. DiNicola, Salem County Prosecutor, disqualified himself.
   Goldmann, S. J. A. D.

Defendant appeals from a denial of post-conviction relief in the Law Division.

Defendant had pleaded guilty to a charge of armed robbery and was sentenced to consecutive State Prison terms totalling 12-16 years. Following an unsuccessful application for reconsideration of sentence, he filed a petition for post-conviction relief, claiming that the sentence was manifestly excessive. The judge who had imposed sentence also conducted the hearing. He refused to disqualify himself and denied the petition.

Defendant contends that (1) the trial judge should not have presided at the hearing on post-conviction relief and (2) the sentence, although within the statutory maximum, was so manifestly excessive as to exceed the limits of discretion.

Our rules are silent as to the selection of the judge who is to hear an application for post-conviction relief. They merely provide that the application be filed in the county where defendant was convicted. See R. 3 :22-1 et seq., formerly R. R. 3 :10A-1 et seq.

Defendant argues that a sentencing judge is unlikely to reverse himself. The judge below, having imposed sentence and having once denied defendant’s informal request to reconsider, should therefore have disqualified himself, presumably because his original judgment would mar his later impartiality.

While there are circumstances in which it would be of questionable propriety for a trial judge to preside at later proceedings, this certainly cannot be stated as a general rule. Whether a judge should disqualify himself must, in the first instance, be left to his sound discretion. We consider this the most practical and realistic approach. See the report of the A. B. A. Advisory Committee on Sentencing and Review, “Standards Relating to Post-Conviction Remedies,” § 1.4, at 30-31 (1967); National Conference of Commissioners of Uniform State Laws, “Uniform Post-Conviction Procedure (2d rev. 1966), § 7.

Eundamental to any consideration of possible judicial disqualification is a showing of prejudice or potential bias. The record before us will not support such a contention. There was no trial below and thus no testimony that might influence the judge. The presentence report is not alleged to have been incorrect or misleading, or even to have been misinterpreted.

Defendant also claims that his sentence was manifestly excessive and therefore amounted to an abuse of judicial discretion. We are aware of our power to review and reduce a sentence whenever the interests of justice so require. State v. Laws, 51 N. J. 494, 509-510 (1968). Before an appellate tribunal will overturn a sentence a defendant must make a clear showing of abuse of discretion. Defendant here has not done so. The imposition of consecutive rather than concurrent sentences for armed robbery was, of course, proper. N. J. S. A. 2A:151-5; State v. Jacques, 99 N. J. Super. 230 (App. Div. 1968), aff’d 52 N. J. 481 (1968), cert. den. 395 U. S. 985, 89 S. Ct. 2138, 23 L. Ed. 2d 774 (1969).

Affirmed.


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

text:
    IN THE MATTER OF THE MERCER COUNTY PROBATION DEPARTMENT.
    Superior Court of New Jersey Appellate Division
    Argued March 16, 1970
    Decided March 20, 1970.

      Before Judges Goldmahn, Lewis and Matthews.

      Mr. Peter Bless, Jr., argued the cause for appellant.

      Mr. Stephen Shillman, Assistant Attorney General, argued the cause as amicus curiae (Mr. Arthur J. Sills, Attorney General, attorney; Mrs. Priscilla Bead Ghenoweth, Deputy Attorney General, on the brief).

      Mr. Harvey L. Stern filed a statement in lieu of brief on behalf of respondent Mercer County.
   Goldmann, P. J. A. D.

The notice of appeal in this case was filed on behalf of the “Probation Officers of the Mercer County Probation Department.” No individuals are named, and there is nothing to suggest that they appeal as an organized unit. We nonetheless proceed directly to deal with the matter on the merits.

This appeal is addressed to an “order” of Judge Moore who, on behalf of the judges of the Mercer County Court, ordered certain changes in the reimbursement to be paid probation officers for the use of their cars for Probation Department business.

Mercer County at one time had a policy of providing its probation officers with county automobiles for use in the course of their work. In January 1965 the officers were notified that they would henceforth be obliged to provide their own vehicles, on which it was required there be certain minimum insurance coverage. A subsequent memorandum added that they would receive 9^ a mile to offset their operating costs and $30-$40 annually to offset the additional insurance costs, although it appears that this figure was later raised to $100. In early 1969 there were discussions concerning a modification of the existing procedure. By what was captioned a County Court “order,” Judge Moore directed that after May 1, 1969 probation officers would receive 12$ a mile for the use of their automobiles, or a minimum of $20 a month, whichever was greater. No separate provision was made for additional insurance costs.

The probation officers claim that this directive was a valid court order and hence appealable. Substantively, they urge that their terms of employment were unilaterally altered, in violation of Civil Service regulations and the statutory grants of power. Alternatively, it is argued that the new payment schedule is invalid for failing to provide for fair and adequate reimbursement of expenses incurred in the course of employment.

Appellants first point out that the power to appoint probation officers is vested solely in the County Court judges. N. J. S. A. 2A:168-5. Further, N. J. S. A. 2A:168-8 authorizes the judges to fix officers’ salaries and to provide for their “necessary and reasonable expenses.” Essentially, appellants contend that since the directives relating to working conditions made pursuant to statute “mandate a given course of action,” they are valid court orders, the violations of which are punishable by contempt proceedings. Accordingly, appellants argue that they have a right of appeal from the administrative “order” issued below.

The Attorney General concedes that the county judges are appellants’ “employers.” He argues that the so-called “order” was simply an administrative directive, not part of any formal proceedings, and thus not properly appealable to this court. In other words, there is not a justiciable question before us for resolution. We agree.

Appeals from the County Court may be taken as of right only from a “final judgment.” R. 2:2-3 (a)(1), formerly R. R. 2:2-1(b). It would be incongruous to argue that an administrative directive, although made in the form of a court order, dealing with internal working conditions of the judicial system and not as part of any formal proceedings, can be adjudged a “final judgment” as regards appealability. Cf. State ex rel. Richardson v. Clarke County, 186 Wash. 79, 56 P. 2d 1023, 1025 (Sup. Ct. 1936). Further, it might be noted that N. J. S. A. 2A:168-5 provides that the hiring of probation officers shall be in the form of a written “order of appointment” by the county judge, but it can hardly be urged with any semblance of plausibility that such an “order” would be appealable. In sum, the directive, although expressed as a court order, was clearly only an administrative directive and not appealable under R. 2:2-3 (a)(1).

It may be observed that earlier cases dealing with the appointment and working conditions of probation officers were first directed to the Department of Civil Service or its predecessor, and not to the Appellate Division. This was the appropriate route for appellants to follow. See generally, Vanderwart v. Dept. of Civil Service, 19 N. J. 341 (1955); Falcey v. Civil Service Comm’n., 16 N. J. 117 (1954): Walsh v. Dept. of Civil Service, 32 N. J. Super. 39 (App. Div. 1954).

In view of the above, we need not address ourselves to the secondary question raised by appellants with regard to the reimbursement of actual expenses incurred in the use of their cars for probation office business.

Appeal dismissed.


author: Lewis, J. A. D.

text:
    GIRARD ACCEPTANCE CORPORATION, PLAINTIFF-RESPONDENT, v. JOHN L. BOYLE AND MARGARET E. BOYLE, HIS WIFE, DEFENDANTS-APPELLANTS.
    Superior Court of New Jersey Appellate Division
    Argued February 2, 1970
    Decided March 25, 1970.

      Before Judges Goldmann, Lewis and Matthews.

      Mr. William C. Levine argued the cause for appellants {Mr. David H. Dugan, III, Director Camden Regional Legal Services, Inc., attorney; Mr. Leonard H. Wallach, Assistant Director, of counsel).

      Mr. Abraham Greenberg argued the cause for respondent {Messrs. Greenberg, Shmerelson & Greenberg, attorneys).
   The opinion of the court was delivered by

Lewis, J. A. D.

Defendants John and Margaret Boyle appeal from a dismissal of their answer and counterclaim in a foreclosure action, and from the final judgment of the Chancery Division rendered in favor of plaintiff Girard Acceptance Corporation (herein Girard).

We recite only the alleged facts pertinent to the issues on appeal. On March 2, 1967 defendant-husband (herein Boyle) visited Robin Eord, an automobile dealer in Pennsylvania, and traded his 1966 Volkswagen bus for a 1966 Eord station wagon. The selling price of the Eord was $3395, on account of which Boyle was allowed a trade-in value of $1745 for the Volkswagen. What he still owed on the Volkswagen exceeded the trade-in allowance by $286. The cost of the new vehicle, including the item of $286, taxes, insurance, interest and financing charges, totaled $5603.52.

In consummating the transaction Boyle signed a number of papers, including (a) a bailment lease-security agreement in favor of Bobin Ford which concluded with 24 small-print paragraphs, some with subdivisions, at the end of which agreement is a separate printed form of “assignment without recourse” to Girard; (b) a judgment confession note of $5603.52 payable to Girard; (c) a one-page, 12-line printed “indenture,” which purported to further secure to Girard the stated indebtedness, “according to a certain note or obligation bearing even date herewith,” by a mortgage on defendants’ residence described therein as “Premises 780 Devenney Drive, Bellmawr, F. J.,” and (d) a “Declaration of Fo Set-off Covering Assignment of Lease for Motor Vehicles” to Bobin Ford, on the reverse side of which is written “Our payments are 116.74 per month for 48 mos. for which we are signing a mortgage to be recorded.”

Mrs. Boyle was not with her husband at Bobin Ford’s on March 2. She testified that on the following day, while her husband was at work, “someone” came to their home in Bellmawr, F. J., and presented papers to her and she signed them. In her pretrial depositions she testified:

Q. Bid you know that you were signing a mortgage on your home?
A. No, I didn’t, never.
* ■>' 5> Í¡S * * *
Q. Bid you indicate that you signed because your husband had already signed?
A. Yes.
Q. Y'ou didn’t read them because you were in a hurry, you were busy?
A. That’s right.

After making five monthly payments, defendants defaulted and their Ford station wagon was repossessed. It was sold for $1409.09, which when credited with an advanced life insurance premium and unearned interest refunds resulted in a balance of $3083 allegedly due and owing under the executed instruments.

On June 18, 1968 Girard, having unsuccessfully demanded payment of that balance, instituted an action in the Chancery Division to foreclose its mortgage on defendants’ home. The Camden Regional Legal Services, Inc., representing defendants, filed an answer raising nine affirmative defenses and a counterclaim seeking (1) rescission of the transaction, (2) cancellation of the mortgage, (3) $5,000 punitive damages for fraud, (4) $5,000 compensatory damages for mental and physical pain and suffering, and (5) declaratory relief.

In a collateral proceeding pending in the Camden County District Court, Robin Pord sued John Boyle for $366.84 representing an overpayment to Affiliated Pinance Corporation with respect to prior financing of the Volkswagen bus, which amount was allegedly remitted in error to Boyle instead of Robin Pord. Defendants’ motion to transfer that litigation to the Chancery Division for consolidation with the foreclosure action was denied on November 12, 1968. We note that Robin Pord is not a party in the Chancery proceeding.

Girard, based on the depositions of defendants, moved to dismiss the answer and the counterclaim, and to submit proof as to the amount due on its mortgage “for the purpose of entering final judgment on foreclosure.” The hearing on that motion was concluded with the statement:

The Court recognizes that the Department of Legal Services perhaps are within their complete right to file the type blunderbuss answer and counterclaim which they seemed to think is proper in response to this type of matter, but on a complete review of the pleadings that have been filed and the deposition that’s been taken, this Court grants the motion of the plaintiff.

A concordant order was entered.

Subsequently, on the filing of an affidavit as to the amount due, final judgment was entered on April 21, 1969 which, adjudged “that plaintiff is entitled to have the sum of $3083.00 together with lawful interest from March 14, 1969, its costs of this suit, to be taxed, including a counsel fee of $94.49, raised and paid out of the mortgaged premises described in the said complaint.” Execution, however, was stayed pending defendants’ appeal to this court.

Here, they raise nine points: (1) the trial court erred in dismissing their answer and counterclaim; (2) it was a judicial abuse of discretion to deny their motion to transfer and consolidate the county district court action; (3) final judgment was entered without the required notice to defendants; (4) the Pennsylvania note and mortgage to a Pennsylvania corporation were not enforceable by plaintiff, a New Jersey corporation; (5) Girard is not a holder in due course; (6) Girard, at the time of the transaction in question, was not licensed under the Secondary Mortgage Loan Act of this State; (7) the provisions of that act and its attendant regulations were violated; (8) that act is retroactively applicable, and (9) failure of the trial court to take oral testimony at the hearing on defendants’ motions was reversible error.

The crucial issues in this case are (1) the validity of the several documents that were executed; (2) was there any fraud, misrepresentation or overreaching by Eobin Ford at the inception of its transaction with defendants, and (3) whether Girard is a holder in due course. We are satisfied that, if the defendants had properly pleaded, presented and argued their case before the Chancery Division, all meritorious issues would have been adequately and expeditiously considered.

The success of litigation does not depend upon the number of conceivable issues that can be raised. Eandom prolixity and the assertion of ill-conceived claims only smother the critical issues that should be brought to light. “A pleading is not a vehicle for publishing one’s opinion.” Meyers v. Huschle Bros., 75 N. Y. S. 2d 350, 353 (Sup. Ct. Part I), aff’d 75 N. Y. S. 2d 354 (App. Div. 1947). When pleadings confuse “they make not light but darkness visible.” In short, the rubric in Shipman’s Common-Law Pleading (2d ed. 1895), § 354, at 472, “Surplusage is to be avoided,” is certainly no less sound today than it was in the 19th century. Cf. Johnson v. Savings, & c., Trust Co., 107 N. J. Eq. 547, 550 (Ch. 1931), aff’d 110 N. J. Eq. 466 (E. & A. 1932).

The basic question before us is whether the pleadings raised issues of fact that should be determined only after a plenary hearing. We have been put to unnecessary labor on this appeal because the record before ns is confusing, inept and inadequate. We found it necessary to require the production of the complete record of the pretrial proceedings and all original exhibits.

Upon an examination of the mortgage indenture, we find on the reverse side thereof an acknowledgment, dated March 2, 1967, by a notary public of Philadelphia County, Pennsylvania, stating that “John L. Boyle and Margaret E. Boyle” appeared before him, that he was satisfied that they were “the grantor (s) mentioned in the above mortgage,” and that “having first made known to them the contents thereof they acknowledged that they signed, sealed and delivered the same as their voluntary act and deed.” Since Mrs. Boyle was not with her husband in Pennsylvania on March 2 when he executed the sundry instruments, there is serious doubt as to whether she ever acknowledged the execution of the real estate mortgage, which may lend credence to her testimony that she did not know she had signed such a document encumbering her home.

Moreover, it appears from the supplemental material submitted at this court’s request that the payments incident to the Volkswagen bus were approximately “$60.00 per month” for 36 months. This is significant in light of Boyle’s deposition:

Q. Now, in what is labeled here as your third affirmative defense, in Paragraph 1 you have said in order to induce the defendants to consummate the transaction the plaintiff and Robin ford made false and fraudulent representations to the defendants, meaning you and your wife.
What false and fraudulent representations did Itobin Ford make to you?
A. Well, they told me the payments on the car I bought from them would be the same as the payments I was paying on the Volkswagen that I traded in.

The bare bones of the challenged transaction is that defendants obtained possession of a new car under a Pennsylvania form of an agreement which purported to be a lease from Eobin Ford that required monthly payments of $116. They defaulted after five months and lost possession of the vehicle to Girard who now claims $3,084 under a mortgage lien on their home. Whether they were the victims of fraud, misrepresentation or inequitable overreaching should be resolved after the taking of pertinent testimony.

Although the trial court may decide a motion exclusively upon the pleadings, depositions, affidavits and exhibits, it should not do so when they reveal a genuine issue as to material facts, but should instead exercise its discretionary power to take oral testimony. Tancredi v. Tancredi, 101 N. J. Super. 259, 262 (App. Div. 1968); see Romano v. Maglio, 41 N. J. Super 561, 573 (App. Div.), certif. den. 22 N. J. 574 (1956), cert. den. 353 U. S. 923, 77 S. Ct. 682, 1 L. Ed. 2d 720 (1957) ; First National Bank of Freehold v. Viviani, 60 N. J. Super. 221, 225 (App. Div. 1960). Accordingly, we are constrained to remand for that purpose.

Having thus concluded, we need not discuss the remaining points raised on appeal other than to make these observations: (1) Although Unico v. Owen, 50 N. J. 101 (1967), is factually distinguishable, the broad principles of law therein enunciated with respect to holders in due course are not necessarily limited to the facts of that case. See also HIMC Investment Co. v. Siciliano, 103 N. J. Super. 27, 36-37 (Law Div. 1968), and N. J. S. A. 12A:3-306. Note generally the article by Professor Philip Shuchman, “Profit on Default: An Archival Study of Automobile Repossession and Resale,” 22 Stanford L. Rev. 20 (1969). (2) Defendants’ arguments as to the controlling effect of the Secondary Mortgage Loan Act, N. J. S. A. 17:11A-1 et seq., in the instant circumstances, are without merit. (3) Any uncertainty as to the real parties in interest should be clarified by appropriate amendments to the pleadings.

Reversed and remanded for further proceedings consistent with this opinion.


text:
    IN THE MATTER OF THE PETITION OF NEW JERSEY NATURAL GAS COMPANY TO HAVE RELE, INC. AND/OR REDI-FLO CORPORATION OF NEW JERSEY, ADJUDGED A PUBLIC UTILITY.
    Superior Court of New Jersey Appellate Division
    Argued November 10, 1969
    Decided March 26, 1970.

      Before Judges Goldman», Lewis and Matthews.

      Mr. Robert N. Wilentz argued the cause for appellants Rele, Inc. and Redi-Plo Corporation of New Jersey (Messrs. Wilentz, Goldman & Spitzer, attorneys).

      Mr. Sidney M. Schreiber argued the cause for respondent New Jersey Natural Gas Company (Messrs. Schreiber & Lancaster, attorneys).

      Mr. William Gural, Deputy Attorney General, appeared but did not argue for respondent Board of Public Utility Commissioners {Mr. Arthur J. Sills, Attorney General, attorney) .
   The opinion of the court was delivered by

Goldmann, P. J. A. D.

Rele, Inc. and Redi-Plo Corporation of New Jersey appeal from a determination of the Board of Public Utility Commissioners (Board) that they are subject to the jurisdiction of the Board in that they fall within the definition of a public utility and the requirements for jurisdiction set out in N. J. S. A. 48:2-13.

New Jersey Natural Gas Company filed a petition with the Board praying that Rele be declared a public utility by virtue of its distribution of oil from a central tank through a pipeline distribution system in a housing development known as Holiday City, located in Dover Township, and that it be made to comply with such provisions of Title 48, “Public Utilities,” and Board rules and regulations as might be applicable. An answer was filed by RediFlo admitting that it was a New Jersey corporation “engaged in the business of distributing oil from a central tank through a pipeline distribution system to the owners of private homes in [Holiday City] and that its pipeline distribution system is located in part under land which is now or may become public streets.” The answer denied that Redi-Plo was a public utility.

At the hearing before the Board the petition was amended to include Redi-Plo as a respondent, the same allegations being made against it as had been asserted against Eele. The amended petition sought an adjudication that either company or both be adjudged a public utility. The answer was then amended so that it was equally applicable to both companies.

The evidence adduced before the Board consisted primarily of stipulated facts, documentary evidence and the testimony of the president of Hovsons, Inc., the developer of Holiday City.

Eele and Eedi-Plo are related New Jersey corporations, engaged in the retail distribution of fuel oil to homes through a central pipeline system. They operate a single system of this typo in the Holiday Giü subdivision in Dover Township. The installation consists of two 20,000-gallon storage tanks, a pumping station and a network of distribution mains in the streets, connecting with service lines running to the individual homes. Fuel consumption in each home is monitored and recorded by a meter located on the service connection for each house. Eele owned the entire distribution system until February 1968. After that date all the facilities were owned by Eedi-Flo, with Eele continuing to manage and operate the system itself.

Holiday City is a planned retirement community consisting of one-family, duplex and quad units. The first two phases of the development contemplated some 1,530 residences. In addition, there are two adjoining tracts consisting of 24 acres which Hovsons, Inc. may develop in the future. The development was promoted in the usual maimer by constructing model homes and by advertising in the New York metropolitan area. Hovsons would submit to prospective purchasers an estimate of living costs, including the cost of fuel oil. As of July 15, 1968, the date of the Board hearing, Hovsons had sold some 1,300 homes, and 950 families were already living in Holiday City. Every purchaser had entered into a form agreement, described hereinafter, to purchase oil from Eele.

In March 1965, while the Holiday City project was in the preliminary stages of development, Rele (the predecessor of Redi-Flo) entered into an agreement with Hovsons whereby it was given the “sole and exclusive right and privilege to install, maintain and operate a pipe line fuel oil distribution system (including meters, storage tanks, oil transmission lines, valves, and all other components and auxiliary equipment)” in Holiday City. Hovsons agreed to sell Rele a lot in the development for the installation, maintenance and operation of its fuel oil storage tanks, buildings, mains, feeder lines and other equipment. Hovsons further agreed to grant Rele such easements and rights of way throughout the tract as might be necessary for the installation, maintenance and operation of the system, including the streets intended to be dedicated to public use. In addition, Hovsons agreed that easements from the streets to the several residences would be reserved in favor of Rele at the time of sale of the houses.

The agreement also provided that the developer would use its best efforts to induce prospective homeowners to connect to the system. For this promotional effort Rele initially agreed to pay Hovsons $130 for each customer. (A supplemental contract covering the second phase of the Holiday City development provided that Hovsons would receive 2^ a gallon for all oil sold to customers over a 25-year period, instead of the $130 payment which related to the first phase of the development.) If Hovsons obtained less than 99% of the homeowners for Rele, it agreed to pay Rele $75 for each home that did not tie into the system. Rele was to furnish all advertising literature to promote the system, Hovsons agreeing to have its salesmen learn about the system’s benefits. Rele paid Hovsons $9,000 for brochures naming the system to be installed in Holiday City.

A significant provision of the Hovsons-Rele agreement was Hovsons’ covenant that “no other system for distribution of fuel oil, heat, or other form of energy or fuel used to heat buildings shall be introduced or permitted within the Tract for promotional or advertising purposes.”

After Hovsons had conveyed a lot in the development to Rele, Rele proceeded to obtain a building permit for the erection of its oil storage tanks and pumping station. Distribution mains were installed in the streets which would later be dedicated to the public. The meters installed in the Holiday City houses were inspected by the New Jersey Bureau of Weights and Measures. The system went into operation in September 1965.

Rele entered into a separate agreement on a year-to-year basis with each consumer in the development by which it agreed to install its system to furnish fuel oil to the heating plant of each dwelling and to supply the meter. The contract guaranteed that the price charged for fuel oil would not exceed the year’s average retail price charged in the local market by major suppliers. Rele was to notify the consumer on June 1 of each year as to the price which would prevail for the year following. The homeowner could either pay each month, by reading his meter and computing the bill, or budget the estimated annual bill over a 12-month period and pay equal monthly installments. Meters would be read as of May 31 each year and the adjustment, if any, made between the parties as of that date.

Rele reserved the right to terminate the consumer’s contract, in which case, if the consumer was without fault, it agreed to install at its own expense a 275-gallon fuel oil tank, together with the facilities necessary to give the consumer a fully operative independent fuel oil system. The homeowner had the right to terminate upon 60 days’ notice, in which event he would be responsible for installing his own tank.

Of the 950 families that had moved into Holiday City as of the date of the Board hearing, all but 9, who subsequently desired to use electricity for heating or hot water, had connected to the Rele-Bedi-Flo system. Thus, the system serviced 99% of the homes.

We note that Rele is a New Jersey corporation whose purposes, as stated in its certificate of incorporation issued in 1953, are quite general. Redi-Elo^s charter, issued in 1965, authorizes it, among other things, to “own, manage, maintain and operate, plants, buildings, structures, works, mains, pipes, pipelines and pipeline systems,” and to “market, distribute, transport and handle petroleum products, at retail and wholesale.”

Sometime after New Jersey Natural Gas Company filed its petition with the Board, Public Service Electric and Gas Company sought to intervene in the proceedings. While no formal order allowing intervention was issued, the company was represented in and notified of all subsequent proceedings. Following a brief hearing at which, as noted, most of the facts were stipulated and the testimony of Hovsons’ president taken, and the subsequent filing of briefs, the Board determined that Rele and Redi-Flo were public utilities subject to its jurisdiction. They were ordered to comply with all the public utility statutes, Title 48, including those requiring the filing of a tariff. This appeal ensued, and pending its determination we ordered (all parties consenting) that the decision and order of the Board be stayed.

N. J. S. A. 48:2-13 provides, in pertinent part:

The board shall have general supervision and regulation of and jurisdiction and control over all public utilities as hereinafter in this section defined and their property, property rights, equipment, facilities and franchises so far as may be necessary for the purpose of carrying out the provisions of this Title.
The term “xxublic utility” shall include every corporation * * * that now or hereafter may own, operate, manage or control within this State any railroad, street railway, traction railway, autobus, canal, exxxress subway, pipeline, gas, electric light, heat, power, water, oil, sewer, telephone or telegraph system, plant or equipment for public use, under privileges granted or hereafter to be granted by this State or by any political subdivision thereof. [Emphasis added]

Rele and Redi-Flo concede the literal applicability of the statute, and they admit that the tests ordinarily used to determine what is a public utility probably fit them “like a glove.” However, they inveigh against a literal reading of the statute or a mechanical application of tests which they consider irrelevant in the context of this case. In essence, they contend that there is no “locked-in consumer group,” and therefore no need “to protect consumers from over-reaching, or poor service from a supplier of a necessity in a monopolistic position, because there is no monopolistic position.” We shall refer to this argument shortly, in the meantime addressing ourselves to the requirements of N. J. S. A. 48:2—13.

The definition of “public utility,” as including any corporation which owns, operates, manages or controls within New Jersey any oil system, plant or equipment, in clearest fashion covers Redi-Elo, which owns the Holiday City fuel oil system, and Eele, which operates that system, provided the other statutory prerequisites are met. N. J. S. A. 48:2-13 sets out two criteria for the proper exercise of jurisdiction by the Board of Public Utility Commissioners, namely, (1) whether the system, plant or equipment is operated “for public use” and (2) whether this is done under privileges granted by the State or any of its political subdivisions.

In Lewandoski v. Brookwood Musconetcong River, etc., Ass’n, 37 N. J. 433 (1962), the Supreme Court reviewed a Board determination that a particular water distribution system was a public utility. The system was set up, operated and managed by an incorporated non-profit association of lot owners in a residential development, for the benefit of those who purchased lots in the development and the purchasers of lots in adjoining lands that the developer might acquire. The court held (at 445-446) that whether the water system was operated “for public use” depended on “the character and extent of the use,” and not on the formal structuring of the operation. The Association’s water system was held to be a public utility since it supplied “a broad group of consumers”; the fact that the supplier was under no obligation to supply water to the general public or any portion thereof was immaterial with respect to the jurisdiction of the Board. By contracting with the developer, the Association had created a water system, for the benefit of its potential members, i. e., future purchasers of lots, including not only those in the existing development but also those who might buy in any adjoining property the developer acquired.

While the Lewandoski court emphasized the importance of a regular water supply as such, its conclusory discussion with regard to the characterization of operations for “public use” is clearly in point; in fact, the factual pattern is not too dissimilar from that in the present case, albeit the systems are different. The “character and extent” of the use — a direct supply of fuel oil from a central point — is clearly to service virtually all persons who bought or will buy houses in Holiday City. In light of the Lewandoski reasoning and holding, we find more than sufficient evidence in the record to support the Board’s determination that Rele and Redi-Elo are maintaining and operating their system for “public use.”

The second statutory prerequisite to a finding of jurisdiction in the Board is a determination that the operations were conducted under “privileges granted * * * by this State or by any political subdivision thereof.” This provision has been broadly construed, and it is apparent that a “privilege” is not limited to franchises. As the court in Lewandoski pointed out (at 447), N. J. S. A. 48:2-13 does not provide that the “privileges” must be franchised in order to make the water supplier subject to Board jurisdiction. Cf. N. J. S. A. 48:2-14. “Privileges,” said the court, may take various forms. Eor example, it has been held sufficient to satisfy this requirement that the utility be incorporated under the Few Jersey Corporation Act; that it is privileged to carry on business in this State, and that it thereby enjoy certain tax advantages. Acquacka nonk Water Co. v. Board of Public Utility Commissioners, 97 N. J. L. 366, 370-371 (Sup. Ct. 1922), aff’d sub nom. East Jersey Water Co. v. Board of Public Utility Commissioners, 98 N. J. L. 449 (E. & A. 1923) ; and see Lewandoski, at 448. In this connection, it is appropriate to refer to the powers granted Eedi-Flo in its certificate of incorporation, mentioned above. Moreover, like the water mains in Lewandoski, so here, the fueJ oil distribution system runs under streets in the development which shall be or have already been dedicated as public streets — a privilege enjoyed from the municipality. Although minor, note should also be taken of the fact that the meters which measure the flow of fuel oil are inspected by the State Bureau of Weights and Measures. See N. J. S. A. 51:9-2. We therefore conclude that the Board was correct in determining that the Eele-Bedi-Elo operations were conducted under privileges granted by the State and by the municipality.

To paraphrase what was said in Lewandoski (at 449), the companies in question are within the spirit and letter of the State: they are the owner and operator of a fuel oil pipeline system constructed in a large real estate development for the purpose of fulfilling assurances to purchasers of homes that oil will bo supplied for heating and other purposes. They are therefore subject to the jurisdiction of the Board, whose supervision and control will provide a most effective method of providing homeowners in Holiday City with a safe and adequate supply of oil at reasonable rates.

Although N. J. S. A. 48:2-13 expressly and clearly embraces a fuel oil pipeline distribution system of the kind herein described, defendants would add a new test which nowhere appears in the statute, namely, that there must be a locked-in consumer group receiving a necessity of life through a monopolistic supplier. Not only does this approach contravene the statute, but defendants, in our view, meet their own test. Eele and Kedi-Flo have the exclusive right to distribute oil from their central tanks through an underground pipeline distribution system in Holiday City. This right is expressly provided for in paragraph 2 of the original agreement of March 1965 between Rele and Hovsons. Only Rele (and now Redi-Elo) has been granted the necessary easements and rights of way by the developer. Hovsons would not permit New Jersey Natural Gas Company to run its mains in the streets when developing the area because what the company had to offer the developer was not comparable to what it got from Rele. The consumer was, to all intents and purposes, effectively ‘locked-in.” True, a homeowner had the option, upon 60 days’ written notice, to discontinue using the fuel oil distribution system, in which case the supplier could remove all of its equipment, reserving the right to leave its pipes underground and its facilities in the consumer’s residence. In the event of such a termination not caused by the failure of the supplier to comply with the terms of its agreement with the consumer or default thereunder, the cost of installing an independent fuel storage system and such other appurtenances which might be necessary, was to be borne by the consumer.

The fact is that of all the 1,300 homes sold in Holiday City, every consumer entered into an oil contract with Rele (Redi-Flo). It was to Hovsons’ advantage to see to it that every home purchaser tied into the system, for it received $130 for each house in the first tract and 2^ a gallon for oil sold over a 25-year period in the second tract. If Hovsons was not successful in getting at least 99% of its purchasers to tie into the system, it was subject to a penalty provision. Of the 950 purchasers up to the time of the Board hearing, it is significant that only 9 had opted to change over to electricity.

Rele and Redi-Flo argue that they are not monopolistic. In the measure that a Holiday City homeowner may elect to change over to some other source of supply, such as tank delivery or electricity, that is so. But the same would be true of homeowners in a development using electricity or natural gas. Those using electricity might choose to use fuel oil or gas. Those using gas for heat and hot water could change over to electricity or fuel oil or even bottled gas. Could it reasonably be argued that an electric company or a natural gas company—both considered public utilities—could claim that they were not within N. J. S. A. 48:2-13 because they fell short of being monopolistic ?

Eele and Eedi-Elo pose the question of whether the conventional tests for determining what is a public utility “have become so embedded in our law that, because of them, a statute designed to protect consumers from utilities can be used to protect utilities at the expense of consumers.” The question is one that should, more properly, be addressed to the Legislature which has carried over the inclusion of oil systems in the 1911 definition of a “public utility” (L. 1911, c. 195, § 15) into N. J. S. A. 48:2-13. All the consumer protective measures which the companies say should be applied to a public utility are appropriate to them. To quote from their brief, they “must not increase prices unreasonably,” “must not discriminate,” “must not provide anything other than good service” because of “the factual dependence of the consumer on that one supplier.” (This last observation assumes that the homeowner may not change over to some other source of supply, such as electricity or tank delivery.)

We cannot ignore the language of N. J. S. A. 48:2-13. To accept the argument advanced by Eele and Redi-Flo would render the reference to “oil * * * system” nugatory.

Defendants attempt to bolster their position by asserting that each class of public utility is treated separately in Title 48. This was not so when the Public Utility Act was originally enacted in 1911. It was only after the Public Utility Act was completely revised that there was a grouping of laws dealing with particular utilities.

The companies also argue that since they are not subject to the gross receipts tax under N. J. S. A. 54:30A-54, as are some utilities, that the Legislature did uot intend that they fall within Title 48. But then, a number of public utilities are not included in that statute—for instance, telephone and telegraph systems, railroads and autobusses. Cf. N. J. S. A. 54:13-11(d), imposing a corporate franchise tax on oil or pipeline companies.

The determination and order of the Board of Public Utility Commissioners is affirmed.