author: Carton, J. A. D. Kolovsky, J. A. D.

text:
    PAUL J. SALVATORE, PLAINTIFF-APPELLANT, v. HARRY W. TRACE AND ETHEL Z. TRACE, DEFENDANTS-RESPONDENTS.
    Superior Court of New Jersey Appellate Division
    Argued June 9. 1969
    Decided August 27, 1969.
    Kolovsky, J. A. D., dissented.

      Before Judges Goldmann, Kolovsky and Carton.

      Mr. Edward J. Brady argued the cause for appellant.

      Mr. James J. Gasby, Jr. argued the cause for respondents {Mr. Vinceni L. Gallaher, attorney).
   The opinion of the court was delivered by

Carton, J. A. D.

Plaintiff-buyer brought this action against defendants for specific performance of a realty contract. In the alternative, he sought damages for breach of the contract of sale. After a trial without a jury, the court dismissed his action and granted defendants’ counterclaim for rescission of the contract. Plaintiff appeals.

Defendants, the owners of certain lands in Gloucester Township, entered into a written contract on August 30, 1967 to sell to plaintiff a portion of those lands, designated in the contract as Lots 13 to 19, inclusive, on a certain map, and

[i]n addition a piece of ground of at least 25 foot frontage on Oak Avenue being part of the premises owned and occupied by the Sellers. The depth to be at least the minimum requirement by the Burough [sic] or Township ordinances * * ®.

The agreed price was $3500 of which $25 was paid as a downpayment, with the balance payable at the time of settlement. The contract provided that “Settlement shall be made on or before the 8th day of December A.D. 1967, said time to be of the essence of this Agreement, unless extended by mutual consent in writing endorsed hereon.”

By the terms of the contract, the sellers were obliged to convey the property free and clear of all liens, encumbrances and easements (with certain specific exceptions not here pertinent). The contract further provided that “the title to the herein described lot or piece of ground shall be good and marketable or such as will be insured by any reputable Title Insurance Company in the City of Philadelphia, or the adjacent counties, at the regular rates.”

The numbered lots fronted on Huntington Street, and part of the rear of the property abutted Oak Avenue, both of which were paper streets shown on the map. The provision relating to the additional 25 feet was apparently included in the agreement for the purpose of providing the purchaser with additional access to Oak Avenue.

The contract made no reference to any subdivision approval that might be required to convey the property, nor as to who was to obtain it. Nor is the record entirely clear as to what steps were taken by plaintiff or defendants to obtain the subdivision approval, but it is clear that defendants knew a subdivision was necessary before good title could be conveyed to the purchaser, and, in fact, a subdivision plan was submitted to the planning board by them or with their assent. It also seems clear that the proposed subdivision came before the board on three separate occasions, at the first of which it was not considered at all because no one appeared to make the formal presentation. On the second occasion the board refused to approve it in the form submitted; but, at the third meeting, the board finally approved it in its revised form.

Sometime after the contract was executed, plaintiff retained an engineer to prepare a subdivision map. Defendant Harry W. Trace testified that before the map was sub' mitted he examined it, went over the information with the engineer as to the dimensions of the property to be conveyed, and then affixed his signature on the face of the map. The township planning board indicated, apparently informally, that it would not approve the proposed subdivision in the form submitted because the subject realty, including the 25-foot frontage on Oak Avenue, would have the effect of creating a small parcel isolated from the rest of the Trace property.

Mr. Trace testified that plaintiff, after learning that the subdivision had not been approved, came to his home and became “hot under the collar,” accusing Trace of having “fouled up the subdivision approval.” However, Trace agreed to resubmit the subdivision for approval. lie testified: “I tried to please the man so that we could push it through for him, so that he could get the ground, yes, sir.” A conference took place between defendants, the engineer and plaintiff at which it was agreed that the frontage on the additional piece on Oak Avenue would be increased to 31.29 feet. Trace further testified that plaintiff and the surveyor came to his home and “wanted to know if they couldn’t have a few more feet on Oak Avenue, of which my wife and I agreed to, so that we could have it passed for him.”

The subdivision map was accordingly revised on that basis and resubmitted to the township planning board, which approved it on November 28, 1967. The map bears the following certification by Mr. Trace: “It is hereby certified that the lands subdivided by this map are owned by title of record and that consent to the approval of said map is given.”

The map was then sent to the township committee, which approved it three days later, on December 1. On December 5 the township engineer affixed his certification that the subdivision complied with the applicable statutes and ordinances. The map was then sent to the county planning board for approval.

Neither party tendered performance on December 8, plaintiff’s testimony being that he did not attend the closing because Mr. Trace had told him a few days earlier that he had not yet gotten clear title. According to plaintiff, the reason was that the county planning board approval had not yet been given.

Although it is not clear that county board approval was required before good title could be delivered (See N. J. S. A. 40:55-1.18 and N. J. S. A. 40:27-7), defendants also assumed that such approval was necessary. This assumption evidently originated with the title company which, having been requested by the buyer to issue a title policy, had made a report of title to him. A letter from the planning director of the county planning board (which, incidentally, did not approve the subdivision until January 18, 1968) to the title company, a copy of which was sent to the secretary of the township planning board, indicates that the map was referred to the county board before filing, for a determination whether the proposed subdivision would adversely affect drainage conditions on a county highway.

Trace’s explanation as to why the settlement did not take place on December 8 shows that he was under the same impression as plaintiff:

Q. Were you able to give good title on December 8th, 3967?
A. There wíis no place to make settlement.
Q. Were you able to convey to Mr. Salvatore good title which would remove tlie sub-division exception that was on the report of title?
A. I didn’t care to do so.
Q. You didn’t care to do so; why was that?
A. Because the agreement called for the settlement on that particular date.
Q. I am talking about that particular date, December tile 8th, 3967, you were not able (o give him a deed which would give him clear title and have the title company remove exception No. 8 calling for approval by the proper authorities concerning the sub-division; isn’t that right?
A. Yes, sir.

Nothing further occurred until December 13 when plaintiff telephoned Trace. Trace referred him to his attorney, whom he had consulted for the first time that day. On the following day, defendants’ attorney wrote plaintiff a letter purporting to confirm a telephone conversation with him earlier that day to the effect that the Traces were terminating the contract “because settlement was not made on the date called for under the terms of the agreement.” A check of $25 representing return of the deposit was enclosed.

On January 4, 1968 plaintiff’s attorney wrote defendants’ attorney informing him that the buyer had been ready, and was ready at all times, to perform his part of the agreement, and in a separate letter of the same date, gave notice that settlement was scheduled for January 15, 1968. Defendants made no response and did not attend the closing scheduled for January 15.

The trial judge, in ruling in defendants’ favor, held that the reference to the 25-foot strip in the contract rendered it too indefinite to be enforceable and that the deficiency was not remedied by Trace’s certification on the subdivision map that he owned the lands and consented to the map’s approval. He also ruled that the buyer was not entitled to recover because he had not sought out defendants to close title on December 8, 1967, the contract having specified that time was to be of the essence.

We conclude that neither of these grounds constituted a sufficient basis for dismissal of the complaint.

The rule is well settled that specific performance will not be decreed unless the terms of the contract are expressed in such fashion that the court can determine, with reasonable certainty, the duties of each party and the conditions under which performance is due. Kirsch v. Zubalsky, 139 N. J. Eq. 22 (Ch. 1946). See Restatement, Contracts, § 370, at 673 (1932). This rule applies where the contract involves the sale of realty, in which ease there must be an adequate description of the premises to be conveyed.

We agree that the contract reference to “a piece of ground of at least 25 foot frontage on Oak Avenue” lacked definiteness and standing alone could not be enforced. When the planning board informally refused to approve the map in the form first submitted because it would leave a small piece of land in isolation, the parties met the engineer and agreed to the revised 31.29 foot frontage on Oak Street required to meet planning board approval. The subdivision map was revised accordingly. The map bears, not only the signature of Trace to the certification, but also notations on it specifically designating the lands to be retained by the sellers and those to be conveyed to the purchaser-plaintiff. Trace admittedly was authorized to act for his wife in taking this action.

When Trace certified on the subdivision map that he owned the land and consented to approval of the map, any indefiniteness in the contract was eliminated by supplying a definite and precise description of the land to be sold. The contract and subdivision map must be read together and so read they clearly express the intention of the parties as to the lands to be conveyed. See 4 Williston, Contracts (3 ed. 1961), § 583, at 145.

We turn now to the question whether plaintiff should be denied relief because time was made of the essence in the contract. Ordinarily, equity does not regard time as of the essence of an agreement. When a certain period of time is stipulated in the contract for its completion, or for execution of any of its terms, equity treats the provision as formal rather than essential. Delay, unless willful or unreasonably long or prejudicial to the other party, is not of itself a reason for denying the relief of specific performance. See 4 Pomeroy, Equity Jurisprudence (5 ed. 1941), § 1408, at 1054.

The parties to an agreement may properly provide, however, as they did in the present case, that the time fixed in the contract for performance shall be of the essence. Such agreement will be given effect if it clearly so provides. See Stamato v. Agamie, 24 N. J. 309, 315 (1957).

But even where the contract explieity stipulates that time shall be of the essence, the parties may nevertheless later waive that provision by their conduct. See 6 Williston, Contracts (3 ed. 1962), § 856,

Where time of performance is of the essence of the contract, n party who does any act inconsistent with the supposition that lie continues to hold the other party to Ms part of the agreement will bo taken to have waived it altogether. When a specific time is fixed for the performance of a contract and is of the essence of the contract and it is not performed by that time, but the parties proceed with the performance of it after that time, the right to suddenly insist upon a forfeiture tor failure to perform within the specified time will be deemed to have been war* ed and tile time for performance will be deemed to have been extended for a reasonable time, (at 232).

Conduct may operate as a waiver even though, as here, the subject contract involves realty, and, moreover, provides that the date fixed for the settlement could be extended only “by mutual consent in writing endorsed hereon.” Despite such language a non-written modification in the form of a waiver is not violative of the Statute of Frauds. See 2 Corbin, Contracts (1950), § 310,

Waiver of conditions and estoppel to assert them are subjects that are fully considered in dealing with contracts quite independently of the Statute of Frauds * * *. [Tjhere is nothing in the Statute of Frauds to prevent them from being fully operative in the usual way. (at 115).

Here there can be no question that defendants, by their own conduct, waived any right that they may have had to insist upon completion of the contract by the original date specified in the contract, as revealed by their own testimony and without regard to that of the plaintiff or other witnesses. Consequently, the issue upon which the case turns does not depend upon any assessment of credibility by the trial judge. Subdivision approval of the planning board and the township committee had finally been achieved after the delay necessitated by the revision of the map after the first submission. The engineer had certified that the map complied with applicable statutes and ordinances. All parties including the title company, were obviously awaiting notice of the approval of the county planning board assumed to be necessary so that they could fix the actual date for the closing. Both parties were still collaborating on the eve of that performance date in an effort to effectuate their mutual desire to consummate the sale. It was in every sense an on-going transaction. To allow defendants, under these circumstances, to terminate the contract, to plaintiff’s detriment, because the settlement was not made on or before December 8, would produce an unconscionable result.

Defendant Trace conceded he was not prepared to deliver the deed on December 8 because of his inability to remove the title company exception which was thought to include county planning board approval. Since the transaction was not ready to be consummated and both parties were acting on that premise, there was no reason for plaintiff to seek out defendants at their home or elsewhere in order to tender the balance of the purchase price. Indeed, both defendants admitted that they had not even made arrangements to have the deed prepared. Harry Trace’s response to the inquiry as to why he had not prepared the deed is extremely significant:

I thought when the settlement was to come up, we would get the deed made up then, when the settlement was dne, we thought we would get the deed then.

That response demonstrates that he expected further steps in the transaction to take place before the closing could be consummated and that he had no intention of holding plaintiff to a strict compliance with the time provision of the contract. Further, it suggests he himself was relying upon this circumstance as an excuse for not fulfilling his obligation to deliver a valid deed at that time. (On this latter point, it is worthy of note that defendant Harry Trace testified that he was dissatisfied with the contract because he thought he was selling the property at too low a price.)

The dissenting opinion of our colleague on the waiver aspect of the case merits consideration. That opinion rests heavily upon the conclusion of the trial judge that defendants were actually in a position to convey a marketable title on December 8 despite the lack of any county planning hoard approval at that time, and upon the assumption that tire purchaser had not demonstrated a breach of contract through an avoidance or interference on the part of the sellers with the time of the essence provision.

In our view, these conclusions, if correct, had only tangential relevance to the controlling and essentially equitable issue presented. Whether or not defendants had the capability of delivering a valid title on December 8 of the kind called for by the contract, lacking as it did, county planning board approval, has no bearing on this critical question. Whether the trial judge’s interpretation of the applicable planning statutes on this point is correct is equally beside the point. Nor is it controlling whether or not there was an affirmative showing that defendants avoided or interfered with the December 8 closing date.

What is of vital significance in resolving the basically equitable problem is the state of mind of the contracting parties, particularly that of defendants just prior to December 8. Was it their intention at that time that the rights of the parties under the contract would terminate on the December 8 date fixed for closing, irrespective of whether the county planning board approval had not been obtained by then? On that critical date the minds of both parties were directed towards a closing date, the time of which hinged specifically upon the assumed need for such approval. There was no quarrel between them as to whether such approval was a legal requirement for the conveyance of a marketable title; the fact is that they believed it was required and acted accordingly.

Consequently, neither the correctness of that assumption nor the fact that it may have originated with the title company has any bearing on whether defendants’ conduct was so inconsistent with an intention to close on the date originally specified as to preclude them from forfeiting plaintiff’s rights under the contract for failure to do so. We observe that there was no other reason shown by the evidence why the parties permitted the December 8 closing date to pass, except their assumption that county planning board approval was required. There was no other unresolved title questions. There can be no doubt that the purchaser was ready and willing, indeed anxious, to bring the transaction to fruition. Eor this reason it is farfetched to suggest that the purchaser had some kind of an obligation to exercise his rights under the option clause of rescinding the contract or of taking less than the title bargained for as the price of keeping his rights alive. This provision would have significance on the waiver issue only if it appeared that the purchaser was pursuing rights under the option provision and that the sellers so understood and acted thereon. That was not the case here.

Nor are we persuaded that equitable relief should be denied on any theory that waiver of the time of the essence provision was not previously articulated in the pleadings. The action for specific performance involved the equitable powers of the court. Defendants sought to deny the exercise of those powers by reliance on a forfeiture. The evidence relating to the time of the essence provision focused attention on the activity and conduct of the parties and implicitly involved the issue of waiver which was before the court. If it were technically necessary or desirable, the pleadings could readily be amended to conform to the evidence. In the interest of a just and fair result that issue may not be ignored.

In view of our conclusion that defendants, by their conduct, waived the right to insist upon strict enforcement of the provision making time of the essence, we deem it unnecessary to consider at length plaintiffs alternative contention that defendants were not entitled to roly on that provision because they themselves were in default under the contract. The argument advanced on this score is that defendants, in order to deliver the good and marketable title called for by the contract, were obliged to procure all necessary subdivision approvals prerequisite to delivery of such valid title, and that it was defendants’ failure to obtain such approval that prevented the closing.

The title, of course, was not marketable without such subdivision approval, as the parties by their conduct recognized. See N. J. S. A. 40:55—1.23. Compare Purich v. Weininger, 72 N. J. Super. 344, 346 (App. Div. 1962). .But plaintiff’s right to insist that procurement of the subdivision approvals was an implicit obligation of the sellers under the contract is weakened by the fact that he engaged the engineer to prepare the subdivision map, participated in the process of obtaining the necessary approvals, and assumed at least equal responsibility with defendants to this end. Under such circumstances, it seems doubtful that he, any more than defendants, may insist upon strict performance of what otherwise may have been a legal obligation of defendants.

Finally, there is no merit to defendants’ suggestion that plaintiff is not entitled to relief because the contract contained a provision conferring upon the buyer, among other things, the option of taking such title as the sellers were able to give, without abatement of price. As the term “option” indicates, this provision was for the benefit of the buyer. It permitted him to waive any deficiency in the title and relieved him from the obligation of taking the title if it proved defective. It was not intended to provide the sellers with a means of avoiding performance of their obligation to convey a good and marketable title. Furthermore, it has no relevance to the issues in this case since failure to close as the parties originally planned was not due to defendants’ lack of an ability ultimately to deliver good title, but rather to their inability to do so at the time originally specified.

The judgment is reversed. The matter is remanded for the entry of a judgment directing that upon plaintiff’s payment of the purchase price defendants shall specifically perform the contract by delivery of a deed in accordance herewith.

Kolovsky, J. A. D.

(dissenting) : Two reasons were given by the trial court for ruling adversely to plaintiff: (1) the indefiniteness of the contract description of the land to be conveyed because of its inclusion of “a piece of ground of at least 25 foot frontage on Oak Avenue”; and (2) plaintiff’s unexeused failure to comply with the “time of the essence” provision of the contract calling for settlement on December 8, 1967.

The last mentioned provision reads:

3. Settlement shall be made on or before the 8th day of December A. D. 1967, said time to be of the essence of this Agreement, unless extended by mutual consent in writing endorsed hereon.

It was on the settlement date that plaintiff was to pay $3475 of the $3500 purchase price (only $25 had been paid as a deposit under the contract) and was to receive possession. And it was on that date, too, that plaintiff was required to elect what course to pursue if the defendants were “unable to give a good and marketable title or such as [would] be insured by [a] reputable Title Insurance Company,” paragraph 9 of the contract providing that in such event,

Buyer shall have the option of taking such title as the Seller can give without abatement of price, or of being repaid all monies paid on account by Buyer to Seller and the Buyer shall also be reimbursed for any Title Company charges incurred; and in the latter event there shall be no further liability or obligation by either of the parties hereunder and this agreement shall become null and void.

The majority opinion rules that neither of the reasons given by the trial court for its decision is valid. As to the first, it concludes — and I agree —■ that the defect resulting from the indefiniteness of the contract description was eliminated when defendant Harry W. Trace signed the certification on the subdivision map delineating the premises to he conveyed.

In treating with the second reason given by the trial court, the majority opinion acknowledges that

The parties to an agreement may properly provide, however, as they did in the present case, that the time fixed in the contract for performance shall be of the essence. Such agreement will be given effect if it clearly so provides,

but concludes that here the parties had, prior to December 8, 1967, waived by their conduct the contract provision making settlement on that day of the essence.

I find no justification in the record for that conclusion.

Indeed, plaintiff does now not contend that the time of essence provision of the contract had been waived or that the parties had agreed to an extension of time for settlement beyond December 8. Waiver was not pleaded by plaintiff (see R. R. 4:8-3); it was not encompassed within the plaintiff’s contentions or the issues listed in the pretrial order. Nor is waiver or an extension of time asserted or relied on in plaintiff’s brief on appeal. Quite the contrary. We are told in a purported paraphrase of plaintiff’s testimony — testimony which defendant Harry W. Trace flatly denied — that at a conference which took place on December 5 or 6, 1967,

Trace told [plaintiff! Mr. Salvatore that he was not ready to convey a clear title and that Salvatore would have to wait. Evidently Mr. Trace had in mind the approval of the County Planning Board which was not given until January 26th of 1068. The plaintiff did not agree to any extension of time. (Emphasis added)

The paraphrase of plaintiff’s testimony does not conform to the record. That testimony and its evaluation by the trial court are discussed later in this opinion.

Plaintiff’s claim rather is that his failure to tender performance on December 8 is excused because allegedly defendants were then unable to convey

to the plaintiff the land in accordance with the agreement because they had been unable to have various exceptions removed from the report of title, issued by the Commonwealth Land Title Insurance Company under Application No. N13587-S

and because, to quote the amendment to the complaint embodied in the pretrial order, defendants allegedly “refused to allow plaintiff’s agents from making a survey; and attempted to block subdivision.” To this plaintiff added in his trial testimony (quoted below) a claim that several days prior to December 8, 1967, defendant had requested an extension of time to clear the title and that he, plaintiff, had assented thereto. The .trial judge found that defendants were able to convey good and marketable title on December 8 and that the other charges made by plaintiff were not proved, the court saying,

The Court feels that the vendee failed by his jjroofs to demonstrate that the vendors breached the contract by avoiding or interfering with the closing set for December 8, 1967, time being of the essence.

The record furnishes full support for those findings.

The contract required that the title to the property to be conveyed

be good and marketable or such as will be insured by any reputable Title Insurance Company in the City of Philadelphia, or the adjacent counties, at the regular rates.

That municipal subdivision approval would have to be obtained was acknowledged by all the parties. Plaintiff undertook the laboring oar in seeking such approval although the application therefor was filed by defendants or in their name. Plaintiff retained an engineer and surveyor to prepare the subdivision map and to process the application. When the township planning board refused to approve the first map showing 25 feet on Oak Avenue, plaintiff and his engineer induced defendants to agree to include additional land to increase the Oak Avenue frontage to 31.29 feet.

The subdivision map, revised accordingly, was approved by the planning board on November 28, 1967. By letter of November 30, 1967, the planning board notified the Township Committee that it had reviewed the proposed subdivision, had approved it “as an exempt minor subdivision” and was favorably referring it to the Township Committee for approval. The Township Committee’s resolution approving the subdivision was adopted at its meeting of December 1, 1967.

With the adoption of the last mentioned resolution, a week before the specified settlement date, defendants were able to convey good and marketable title to the subdivided tract.

The resolution adopted by the Township Committee at its meeting of December 1, 1967 effectuated the required subdivision approval. N. J. S. A. 40:55-1.14, 1.17 and 1.18, L. 1953, c. 433, §§ 14, 17, 18; and see Stoker v. Irvington, 71 N. J. Super. 370, 383 (Law Div. 1961).

Nothing appears in the record to justify the alleged refusal of the title insurance company retained by plaintiff to remove from its report of title the exception requiring:

8. Municipal approval for sub-division of premises of which insured premises are a part

unless the subdivision which had' already been approved by the municipal planning board and the Township Committee was also approved by the County Planning Board. By section 18 of L. 1968, c. 285, approved September 6, 1968 but not effective until July 1, 1969, N. J. S. A. 40:55-1.14 was amended to require a subdivision application to be submitted to the County Planning Board for review and approval prior to approval by the municipal approving authority; see also L. 1968, c. 285, §§ 5, 6 and 7, N. J. S. A. 40:27-6.3 to 6.5. But that amendment has no application to the present case, nor in the circumstances of the property involved in this case was such approval called for by N. J. S. A. 40:27-7 or N. J. S. A. 40:27-12. There is no indication in the record that this minor subdivision 'i-could in any way affect drainage conditions on a county highway, the only situation in which, as plaintiff’s attorney conceded during the trial, a county planning board would be concerned with a proposed subdivision. Cf. N. J. S. A. 40:27—12.

Moreover, plaintiff-purchaser would be fully protected by the certificate signed by the Township Clerk pursuant to the power granted by N. J. S. A. 40:55-1.24 and endorsed on the subdivision map on December 1, 1967. The certificate reads:

I certify that this map was duly approved by resolution of (he Township Committee of the Township of Gloucester at a meeting held on 12-1-67 and shall be filed on or before 2-28-68. I hereby further certify that the Township Committee of the Township of Gloucester is the j>roper constituted authority.

By reason of N. J. S. A. 40:55-1.25, the certificate constituted an effective bar to any future action by the municipality to invalidate the conveyance or prohibit the use of the subdivided property.

The fact that the title insurance company would not approve the title is of no moment. Defendants’ obligation under the contract would be satisfied by a conveyance of a good and marketable title. It was not necessary that the title also be such as would be insured by a title insurance company. The contract provision is in the alternative; title is to be “good and marketable or such as will be insured by any reputable title insurance company * * * at the regular rates.” The contract does not require that the title be both marketable and such as would be insured by a title company. Cf. Mackenzie v. McLean, 20 N. J. Super. 517 (App. Div. 1952).

Further, even if the lack of County Planning Board approval were to be held to render title unmarketable, plaintiff’s position would be no better. He still had to act on the date fixed for settlement; to then elect, as paragraph 9 of the contract quoted above required him to do, either to take such title as defendants could give without abatement in the purchase price or to rescind the transaction. Where time is of the essence of the contract as it is here, one seeking to enforce it either by way of specific performance or by an action for damages for breach of contract must first establish that he tendered performance at the time called for by the contract. Sonek v. Hill B. & L. Assn., 138 N. J. Eq. 534, 539 (Ch. 1946), aff’d o.b. 140 N. J. Eq. 108 (E. & A. 1947); Doctorman v. Schroeder, 92 N. J. Eq. 676 (E. & A. 1921); Collins v. Delaney Co., 71 N. J. Eq. 320 (Ch. 1906); Long v. Hartwell, adm’r of Carpenter, 34 N. J. L. 116, 127-128 (Sup. Ct. 1870); McKuen v. Serody, 269 Pa. 284, 112 A. 460 (Sup. Ct. 1921).

The majority’s conclusion that plaintiff is entitled to specific performance is not bottomed on any of the reasons argued by plaintiff to excuse his failure to tender performance on the date specified for settlement but rather on a factual finding which the majority makes, that the parties had by their conduct waived the time of the essence provision of the contract. As I have noted, the factual issue of whether there was such a waiver was neither pleaded nor litigated below; it was not raised by the factual contentions advanced by the respective parties. In such circumstances, I see no warrant for an appellate court to initiate such a finding on the basis of the cold record.

Moreover, as I read the record it does not establish that there had been a waiver of the time of the essence provision. The quotation from 6 Williston, Contracts (3 ed. 1962), § 856, p. 232, appearing in the majority opinion, refers to a situation where the parties, subsequent to the time fixed for performance by their conduct, recognize the contract as subsisting. But nothing that occurred in this case subsequent to December 8 constituted such a recognition.

Nor, in my opinion, does the record — in view of the trial court’s findings as to credibility — establish an agreement between the parties, prior to the closing date, either express or to be inferred from their conduct, that the settlement date should be extended or that the time of the essence provision should no longer be effective.

Here the time of the essence provision is embodied in a contract drafted by plaintiff’s own attorney; defendants were not represented. The provision is unusually explicit and unequivocal; the time fixed, December 8, 1967, was not only made of the essence but the parties agreed that any extension of time had to be embodied in a writing endorsed on the contract.

I recognize of course that the fact that the contract calls for a writing to effectuate an extension of time of the settlement date is not a bar to the establishment of such extension or a waiver thereof by oral testimony (see Lewis et al. v. Travelers Insurance Co. et al., 51 N. J. 244, 253 (1968); Headley v. Cavileer, 82 N. J. L. 635 (E. & A. 1911); 1 Corbin, Contracts, § 31, p. 116), but the fact that the contract does so provide is “to be given some evidential weight in interpreting the subsequent expressions of the parties; it is not lightly to be discarded in determining whether the parties have later agreed to be bound without a writing,” 1 Corbin, supra, at 117; and see Headley v. Cavileer, supra, at 643.

The only evidence which would justify a finding that there had been a waiver of the time of the essence provision was the testimony given by plaintiff as to an alleged conversation on December o or 6, 1967 between him and defendant Harry W. Trace. That testimony, if accepted as true, would have established that Trace had asked for and plaintiff had agreed to an extension of the time for settlement until title could be cleared.

Plaintiff testified on direct examination that Trace had told him on December 5 or 6,

A. That he wasn’t ready yet, and he couldn’t give me clear title.

Q. What did he ask you to do, if anything?

A. Nothing really, I just had to wait.

Q. Is that what he said:

A. Yes

* * * * * * * »

Q. But after he told you about this, did you agree?

A. Yes, I did.

Q. You said it was Ms idea to do what?

A. He needed more time to clean this thing up.

So, too, plaintiff testified on cross-examination:

Q. Was there an extension of this agreement made between you and Mr. and Mrs. Trace?

* * * * ;¡s* * i¡. *

THE WITNESS: Yes, there was.

Trace flatly denied that there had been any conversation at any time regarding an extension of time.

In making his finding that plaintiff “failed by his proofs to demonstrate that the vendors breached the contract by avoiding or interfering with the closing set for December 8, 1967,” the judge who heard and saw the witnesses resolved the issue of credibility against plaintiff.

I find no justification for refusing to give deference to the finding of the trial judge which was “substantially influenced by his opportunity to hear and see the witnesses and to have the ffeeP of the ease, which a reviewing court cannot enjoy” (State v. Johnson, 42 N. J. 146, 161 (1964)).

Finally, I find no basis for inferring an agreement to waive the time of the essence provision from the fact that the parties cooperated in obtaining subdivision approval from the municipality or from the fact — if it be a fact — that defendants knew that the title insurance company insisted on County Planning Board approval of the subdivision. There is no inconsistency between such cooperation and such knowledge and the continued effectiveness of the provisions calling for settlement on December 8, with time being of the essence.

Even if waiver were to be deemed properly an issue before us, in my opinion the time of the essence provision was not waived. It must be enforced.

It lias many times been held that the court will not make a different or better contract than the parties themselves have seen fit to enter into. When a contract is clear, the court is bound to enforce the contract as it finds it. S. G. Young, Inc. v. B. & C. Distributors Co., 23 N. J. Super. 15, 26 (App. Div. 1952).

I would affirm.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT, v. SAMUEL E. BYNES, JR., DEFENDANT-APPELLANT.
    Superior Court of New Jersey Appellate Division
    Argued September 23, 1969

    Decided October 2, 1969.

      Before Judges Kilkenny, Labkecque and Leonard.

      Mr. John Anthony Ijombardi, assigned counsel, argued the cause for appellant.

      Mr. Arthur J. Timins, Assistant Prosecutor, argued the cause for respondent (Mr. Leo Kaplowitz, Union County Prosecutor, attorney).
   Per Curiam.

Defendant appeals from the trial court’s denial of his application for post-conviction relief.

In 1963 defendant pleaded guilty to two charges of armed robbery and pleaded non vult to an indictment for murder. Thereafter, he was sentenced to long terms in State Prison.

Some years later he was called as a witness for the State in the prosecution of a participant in the same robbery which resulted in the murder. He refused to testify, was indicted for criminal contempt of court under N. J. S. A. 2A:85-1, and was tried and convicted. On July 29, 1966 lie was sentenced to two to three years in State Prison, to be consecutive to his prior sentence.

Defendant seeks to have his 1963 plea and sentence vacated on the sole ground that N. J. S. A. 2A:113-3 (which permits a plea of non vult to an indictment for murder) and N. J. S. A. 2A:113-4 (which provides for the death penalty in murder convictions unless the jury recommends life imprisonment) are coercive as a matter of law and are therefore unconstitutional. He asserts that pursuant to these statutes the plea of non vult carries a maximum sentence of life imprisonment while a plea of not guilty with an accompanying jury trial exposes a defendant to a possible sentence of death. Thus, he argues that the non vult plea cannot be voluntary as a matter of law. This point lacks substance. State v. Forcella, 52 N. J. 263 (1968).

Defendant attacks his conviction for contempt on the ground that the provisions of N. J. S. A. 2A:85-1 are so vague and uncertain that this statute must be declared unconstitutional and void. This contention lacks merit.

N. J. S. A. 2A:85—1, in its pertinent part, makes “all other offenses of an indictable nature at common law, and not otherwise expressly provided for by statute,” misdemeanors. It is clear that this statute has only two purposes. First, it preserves all indictable offenses at common law which were not made expressly a part of our statutory law. Secondly, it prescribes that these offenses shall be treated as misdeameanors. There is no doubt that contempt of court was a common law offense. In Re: Ruth M. Buehrer et al, 50 N. J. 501, 513 (1967), N. J. Dept. of Health v. Roselle, 34 N. J. 331, 340 (1961). Further the indictment upon which defendant was tried and convicted, charges that defendant did act “contemptuously against the Court, contrary to the provisions of N. J. S. A. 2A:85-1.” Thus, defendant was made aware of the specific charge against him.

Judgment affirmed.


author: Labrecque, J. A. D.

text:
    STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT, v. NATHANIEL CULVER, DEFENDANT-APPELLANT.
    Superior Court of New Jersey Appellate Division
    Argued November 24, 1969
    Decided February 20, 1970.

      Before Judges Kilkenny, Labkecque and Leonard.

      Mr. Arthur B. Penn, Assistant Deputy Public Defender, argued the cause for appellant (Mr. Stanley C. Van Ness, Public Defender, attorney).

      Mr. David 8. Baime, Assistant Prosecutor, argued the cause for respondent (Mr. Joseph P. Lordi, Essex County Prosecutor, attorney).
   The opinion of the court was delivered by

Labrecque, J. A. D.

Defendant appeals from a judgment of conviction for armed robbery, N. J. S. A. 2A :141-1 and N. J. S. A. 2A :151-5, following a jury verdict of guilty.

On October 20, 1967, at about 1 p.m., Paul Caruso, the operator of a grocery and luncheonette at 399 South Orange Avenue, Newark, heard screams coming from his living quarters in back of the store. Just before this his married daughter, Pauline Testa, employed by him in the store, had left it to use the bathroom in the rear apartment. Caruso rushed to the rear of the store and upon opening the door to the living quarters was confronted by defendant, who had a gun in his hand. As he approached the intruder a bullet from the gun was discharged into the ceiling. Following this there was a struggle between the two men in the course of which Caruso was struck over the head with the gun barrel. His attacker later made his escape through the store and into the street. Caruso’s subsequent search revealed that apprximately $700 in cash and other items of personal property were missing. The indictment was for robbery of $300. Defendant did not take the stand, but adduced testimony that he had been at home at the time of the alleged robbery.

There were two entrances to the living quarters, one from the store and the other from the rear yard. The one from the store was located where it could normally be observed by the owner. The one in the rear was protected by a double lock and a burglar alarm. Presumably, the intruder gained entrance through the store.

Defendant raises two points: (1) the trial judge erroneously denied his motion for acquittal, and (2) he committed plain error in the charge.

N. J. S. A. 2A:141—1, provides that any person who forcibly takes from the person of another money or personal goods and chattels of any value whatever by violence or putting him in fear, is guilty of a high misdemeanor. Thus, force or intimidation is a necessary element of the crime and must precede or be concomitant with the taking. 46 Am. Jur., Robbery, §§ 14, 19, at. 145, 148 (1943); 77 C. J. S. Robbery, §§ 10, 11, at 455-457 (1952). The property stolen need not have been in contact with the person from whom it was taken at the time it was stolen, and if taken by fear it must be the result of such demonstration or threat as to create reasonable apprehension on the part of the victim that, if the theft were resisted, force would be used. State v. McDonald, 89 N. J. L. 421 (Sup. Ct. 1916), affirmed 91 N. J. L. 233 (E. & A. 1918). While a secret or sudden taking of property from the owner without putting him in fear and without open violence is deemed larceny, if there be a struggle to keep it or any violence or disruption, the taking is robbery. 2 Schlosser, Criminal Laws of New Jersey (rev. ed) § 2146, at 1064 (1953).

Defendant urges that proof of the force or intimidation necessary to support the charge of robbery was lacking. The gist of his argument is that the assaults neither preceded nor were concomitant with his taking of the property.

Erom our review of the record we are fully satisfied of the propriety of the denial of defendant’s motion for acquittal.

When Mrs. Testa unexpectedly went to the rear apartment, the intruder came at her from the rear, striking her on the back of the head, knocking her to the floor and striking her again while she lay there. When, upon his appearing to walk away from her, she got up and attempted to walk towards the front of the store to get help, he blocked her way, facing her with the gun in his hand. She described what then transpired as follows: “He said, ‘Don’t scream and I won’t shoot. I don’t want to hurt you any more.’ And then I begged with him to let me go into the bathroom to leave me alone. He could take whatever he wanted and I wouldn’t scream.” She then went into the bathroom, leaving defendant in the bedroom. The money had previously been in a bureau drawer in the bedroom.

As Mrs. Testa entered the bathroom she heard her father shout her name. As noted, when he opened the door leading from the store to the living quarters he was confronted by defendant. He testified that after the gun had been discharged and they had struggled, defendant “told me to stand back,” and “told me to put my hands up and not to come towards him any more.” He then “ordered me to bend over. I told him I wouldn’t and I told him, I said, Hake what you want. No one will stop you. Don’t hurt anybody’ and with that I went to the bathroom door.” Caruso could not say how long after that defendant left, since he was in the bathroom giving first aid to his daughter. When he checked the room before, leaving it he observed that the dresser drawers had been pulled out and the room had been ransacked.

The cited facts afforded an adequate basis for a finding beyond a reasonable doubt that defendant had possessed himself of Caruso’s money after putting Caruso and his daughter in fear. It is clear that the consent to the taking which was voiced by each of them was induced by fear of further physical injury at the hands of defendant. There was no direct proof that the money had been taken before the assault on Mrs. Testa — or even before the assault on Caruso — which would have precluded such a finding.

Alternatively, the proofs were adequate to sustain a finding that the violence and putting in fear were concomitant with the taking. The money and articles of personal property kept in the bureau drawer of Caruso’s apartment were in his custody and control, as well as in the control of his daughter while she was iu the apartment. State v. Cottone, 52 N. J. Super. 316 (App. Div. 1958), certif. den. 28 N. J. 527 (1959). Cf. State v. Ford, 92 N. J. Super. 356 (App. Div. 1966); State v. Butler, 27 N. J. 560 (1958). Ordinarily, the degree of asportation necessary to constitute a taking under the statute need only be slight. 2 Schlosser, op. cit., § 2144, at 1062, 1063. However, in the context of the facts before us, the taking was not terminated when defendant took the money from the dresser drawer and (presumably) placed it in his coat pocket. Here Caruso’s precautions for the security of his property placed defendant in a position where, if he was to enjoy the stolen items, he had to take them out from the area of Caruso’s control. This meant that he had to pass back through the store where Caruso would presumably be on guard. Hnfortunately for defendant, first Mrs. Testa and then Caruso interfered with his exit. This necessitated the overcoming of their opposition by force and putting in fear, a course which led to their invitation to him to “take what you want. No one will stop you.”

Illustrative of the type of taking here involved would be one in which a thief, after surreptitiously gaining entrance to a bank vault and possessing himself of money contained therein, made his escape by assaulting or overcoming the manager when the vault was opened on the following morning •—■ or one in which a thief approached a bank teller’s window, presumably to make a deposit, only to reach over and pick up a stack of bills while the teller’s back was turned. In the latter case, if a special policeman employed by the bank for the purpose of guarding against such actions intervened to prevent the thief’s escape from the bank, and the thief drew a gun and ordered him to stand aside while he made his escape, it could hardly be said that a robbery had not been perpetrated.

Reason and logic would seem to dictate that where an owner of premises takes similar, though less effective, precautions against thievery and his opposition is overcome as he interposes himself to prevent the thief from taking the money from the portion of his premises in which it had been kept, his use of force is concurrent or concomitant with the taking, thus constituting the thief’s action as robbery. State v. Miller, 53 Kan. 324, 36 P. 751 (Sup. Ct. 1894); Rivers v. State, 46 Ga. App. 778, 169 S. E. 260 (Ct. App. 1933); Grant v. State, 125 Ga. 259, 54 S. E. 191 (Sup. Ct. 1906); People v. Glynn, 54 Hun. 332, 7 N. Y. S. 555 (Sup. Ct. 1889).

The series of events which allegedly took place here —■ the ransacking of the room, taking of the money, Mrs. Testa’s discovery of the thief and her giving of the alarm, Caruso’s attempt to stop him, defendant’s assault upon both of them and his consequently successful exit from the apartment — constituted a single incident or occurrence, the res gestae of the crime. People v. Chambliss, 69 Ill. App. 2d 459, 217 N. E. 2d 422, 426 (App. Ct. 1966); People v. Brown, 76 Ill. App. 2d 362, 222 N. E. 2d 227 (App. Ct. 1966). Such a situation is clearly distinguishable from one in which force is used to foil pursuit after the taking is complete. 46 Am. Jur., Robbery § 19, at 148 (1943). Compare, however, State v. Turco, 99 N. J. L. 96, 102 (E. & A. 1923); State v. Mule, 114 N. J. L. 384, 392 (E. & A. 1934).

Defendant also asserts as error an excerpt from the charge in which the trial judge instructed the jury:

Now in this particular case although the perpetrator of the alleged robbery may have another's property in his actual physical control the owner still may be said to be in constructive possession of it. * *
If a person steals property and in the process of doing so is confronted with the owner or his agent and at that point in timo before being able to take the property and carry it away so that a stealing is actually complete the owner or the agent as I have already indicated still is in constructive possession of that property and if upon such a confrontation the perpetrator uses force or puts his victim in fear the offense would still be robbery.

There was no objection to the cited portion of the charge so that we are limited to consideration of whether it amounted to plain error which possessed the clear capacity to bring about an unjust result. State v. Williams, 39 N. J. 471 (1963), cert. den. 374 U. S. 855, 83 S. Ct. 1924, 10 L. Ed. 2d 1075 (1963). We find no plain error. The charge, considered as a whole, sufficiently alerted the jury to the issues involved and the law applicable thereto. Immediately after the challenged excerpt the jury was instructed, “* * * so if you find that even though there had been a rummaging and burglarizing which had started to take place before Mr. Caruso came upon the scene and before Mrs. Testa came upon the scene, but that that burglarizing and thievery was not completed until after the threat was placed upon Mrs. Testa and or Mr. Caruso, there would be a robbery.” Defendant suffered no prejudice or manifest injury by reason of the challenged portion of the charge. State v. Seaman, 10 N. J. Super. 439 (App. Dir. 1950), certif. den. 6 N. J. 456 (1951).

. The judgment is accordingly affirmed.

       Defendant’s verbal statement to the police was excluded by the trial judge and was not before the jury. In it he admitted that he had found about S30 in coins before Mrs. Testa and Caruso came into the room, and had taken a transistor radio after Caruso left him and went into the bathroom.

       Caruso testified that when he accosted defendant he noticed that his jacket was bulging.


author: Carton, J. A. D.

text:
    BOARD OF EDUCATION OF THE TOWN OF WEST ORANGE IN THE COUNTY OF ESSEX, A CORPORATION, APPELLANT, v. INTERNATIONAL UNION OF OPERATING ENGINEERS, LOCAL NO. 68, AND THE PUBLIC EMPLOYMENT RELATIONS COMMISSION, AN AGENCY OF THE STATE OF NEW JERSEY, RESPONDENTS.
    Superior Court of New Jersey Appellate Division
    Argued December 22, 1969—Decided January 21, 1970.
    Supplemental Argument February 2, 1970—
    Decided February 24, 1970.

      Before Judges Sullivan, Carton and Haleern.

      Mr. Samuel A. Christiano argued the cause for appellant.

      Mr. Victor J. Parsonnet argued the cause for respondent, International Union of Operating Engineers, Local No. 68 (Messrs. Parsonnet, Parsonnet <& Duggan, attorneys).
   The opinion of the court was delivered by

Carton, J. A. D.

West Orange Board of Education (board) appeals from a determination of the Public Employment Relations Commission (PERC) that the International Union of Operating Engineers, Local 68, is entitled to act as negotiating agent for “all custodians, assistant custodians, drivers, maintenance workers, firemen and matrons” employed by the board in its school system.

The dispute centered around the board’s refusal to recognize the union’s right to represent head custodians, the board contending that employees in this category were management or supervisory employees and should not be included in the same unit as the custodians whom they supervise. The governing legislation (New Jersey Employer-Employee Relations Act, N. J. S. A. 34:13A-1 et seq.) specifically prohibits supervisory personnel having the power to hire, discharge, discipline or to effectively recommend the same, to be represented by a bargaining unit which includes nonsupervisory personnel.

After a hearing conducted at the direction of PERC, the hearing officer, a member of the New York Bar, filed a report concluding that these employees were properly included in the same unit as the rank-and-file custodians. PEEC adopted this report and recommendation and ordered a secret election to be held to decide whether its members desired to be represented by the union. The union won.

The board raises two issues: (1) the decision of PEEC should be set aside because it is infected with a conflict of interest in that one of its commissioners is a partner in the law firm which represented the union in the proceeding before it, and (2) the finding that head custodians should be included in the bargaining unit was improper. In view of the conclusion we have reached, we do not reach the second issue.

The pertinent facts are brief and undisputed. One of the seven members of the Commission is an attorney who is also a partner in the law firm representing the union. This member participated in the decision challenged here. The vote of the Commission was unanimous.

The Rules Governing Neio Jersey Courts mandate that a judge in any court disqualify himself when he is closely related to any party or any attorney in the action. R. 1:12-1. Those rules further provide that he disqualify himself if he “is interested in the event of the action” or “when there is any other reason which might preclude a fair and unbiased hearing and judgment, or which might reasonably lead counsel or the parties to believe so.” R. 1:12-1(e),(f). See also Canons 13, 24 and 34 of the Canons of Judicial Ethics.

We perceive no valid reason why the conduct of those acting in a qassi-judicial capacity should be governed by a lesser standard. Cf. Kremer v. City of Plainfield, 101 N. J. Super. 346, 352 (Law Div. 1968). The same considerations of public policy expressed in the rules which require neutrality and impartiality on the part of a judge rendering decisions in a court of law are present in the adjudicative process involved here.

These considerations are well known and require little elaboration. The presence or absence of good faith or honest motives is not the test. Representatives of the public acting in a judicial or quasi-judicial capacity must be required to perform their duties free of any interest, personal or pecuniary, possessing the potentiality of influencing their judgment.

As the court succinctly pointed out in S & L Associates, Inc. v. Washington Tp., 61 N. J. Super. 312 (App. Div. 1960), rev’d in part on other grounds, 35 N. J. 224 (1961), the interest which disqualified an official need not be a direct or pecuniary one. The question involved is

* * * whether the public official, by reason of a personal interest in the matter, is placed in a situation of temptation to serve his own purposes, to the prejudice of those for whom the law authorizes him to act. The validity of his action does not rest upon proof of fraud, dishonesty, loss to the municipality, or whether he was in fact influenced by his personal interest. * * * [61 N. J. Super., at 329]

Along the same lines is the comment of the court in Aldom v. Borough of Roseland, 42 N. J. Super. 495 (App. Div. 1956), dealing with a similar issue involving a municipal agency:

And in the determination of the issue, too much refinement should not be engaged in by the courts in an effort to uphold the municipal action on the ground that his interest is so little or so indirect. Such an approach gives recognition to the moral philosophy that next in importance to the duty of the officer to render a righteous judgment is that of doing it in such a manner as will beget no suspicion of the pureness and integrity of his action. * * ® [at 502]

The union urges that no disqualification exists because the Legislature has specifically authorized the procedure followed here. We do not agree.

It is true that N. J. S. A. 34:13A-5.2 provides for the appointment of seven members, two to be representative of public employers, two representative of public employee organizations, and three representative of the public. It does not follow that the representatives thus chosen are intended to be anything more than representatives of the “philosophy” of their respective sides. A clear distinction must be made between representation of a general point of view (i. e. public employers or public employee organizations) and advocacy on behalf of a client having a special interest in a case being decided by the tribunal of which the representative is a member. As the statute itself provides :

No member or officer of the board having any financial or other interest in a trade, business, industry or occupation in which a labor dispute exists * * * shall be qualified to participate in any way * * * with the settlement *' * * thereof. [N. J. S. A. 34:13A-10]

This prohibition is applicable to members of the PEEC under N. J. S. A. 34:13A-5.2.

Nor does the principle expressed here disserve the public interest “because it might operate to influence substantial and civic-minded citizens, who have outside business connections, against membership in elective or appointive public agencies.” See Aldom v. Borough of Roseland, supra, at 508, where the court comments further: “The rule disqualifies only where personal and public loyalties come into conflict. In those rare instances such high-minded persons undoubtedly will welcome the disqualification.”

In this case the board maintained from the inception of the litigation that a conflict of interest situation existed. It did not suggest and there is no suggestion that any wrongdoing actually occurred. But there is no doubt that the member in question, sitting as he did in a gwassi-judicial capacity, was called upon to judge a case being handled by his own law firm. His membership in that firm was an active one. It is clear to us that it was improper for him to act in that capacity and that he should have disqualified himself from participating in the decision of the Commission. Such participation is contrary to the policy of the foregoing authorities which complement the “ancient principle of Anglo-American justice that ‘no man shall be a judge in his own cause.’ Bonham’s Case, 8 Co., 113 b, 118 a, 77 Eng. Rep. 646, 652 (K. B. 1610).” Pyatt v. Mayor, etc. of Borough of Dunellen, 9 N. J. 548, 555—556 (1952). And see New Jersey State Board of Optometrists v. Nemitz, 21 N. J. Super. 18, 36-37 (App. Div. 1952).

The facts of this ease do not come within the single “stern necessity” exception which permits an “interested” judge to hear a case where his disqualification would perpetually foreclose the adjudicatory proceeding. Pyatt v. Mayor, etc., of Borough of Dunellen, supra, at 557. The conflict of interest is of such nature that it not only invalidated the vote of the disqualified member but also tainted and rendered void the action of the Commission. This is so even though there were sufficient votes to carry the decision after eliminating the interested vote. Aldom v. Borough of Roseland, supra, at 507. See Hochberg v. Borough of Freehold, 40 N. J. Super. 276, 283-84 (App. Div. 1956).

We turn now to the additional question, raised by the court after oral argument, whether the disqualified member’s law firm may not also be disqualified from representing the client in any future proceeding in this matter under the jurisdiction of the Commission as long as this member remains on the Commission. We have heard further oral argument on this issue and afforded counsel the opportunity to submit supplemental briefs.

It cannot be seriously argued that the attorney could properly represent a client before the Commission while he retained his membership thereon. Consideration of professional duties and responsibilities which an attorne]’', as an officer of the court, owes to the public leads inexorably to the conclusion that he cannot undertake such representation. It matters not that the office has not, in fact, been improperly utilized in this case. Nor is the principle altered because the individual concerned is a prominent and highly regarded attorney and consequently that there is no likelihood of any such occurrence. The objection goes not to the individual involved but the dual nature of the functions that person must perform.

The position of a member of the bar who also serves the public in a quasi-judicial capacity such as the one here concerned is one of extreme sensitivity and great responsibility. A compelling public interest dictates that the attorney should not place himself in a situation which harbors a temptation to serve his own interest or that of a client to the prejudice of those for whom the law authorizes him to act as a public official. Cf. Aldom v. Borough of Roseland, supra. It is of perhaps equal importance that he should not be placed in a position which, in the eyes of the public, presents the opportunity of such a risk. “[WJhere public confidence is at issue, what people think is true may be as important as what is true.” Reilly v. Ozzard, 33 N. J. 529, 554 (1960) (dissenting opinion). Cf. R. 1:12—1(f).

The controlling principle finds cogent expression in Opinion 88 of the Supreme Court Advisory Committee on Professional Ethics, 89 N. J. L. J. 49 (1966):

Running through all our opinions, in this area of conflict,, is the prevailing theme that, where the public interest is involved, every situation which affords a chance for impropriety, however slight, should, if possible, be avoided in order to eliminate public suspicion that an attorney in public office will use his position or influence in behalf of a client. And this is so whether he is the attorney for or a member of a public body, board or agency.

Canon 31 of the Canons of Judicial Ethics refers to the analogous duties of a practicing attorney who at the same time serves in a part-time judicial capacity, in the following language:

In such cases one who practices law is in a position of great delicacy and must be scrupulously careful to avoid conduct in his practice whereby he utilizes or seems to utilize his judicial position to further his professional success.
He should not practice in the court in which he is a judge, even when presided over by another judge, or appear therein for himself in any controversy.

Here, again, we observe that there is no reason why a lesser criterion of conduct should be applied to a practicing attorney serving at the same time in a g«asi-judicial capacity.

What we have said applies with equal force to members of the firm. The incompatibility may seem less evident and be more subtle, but the principle remains the same. See Drinker, Legal Ethics, 106 (4 ed. 1963). In this respect “a lawyer may not do what his partner may not do.” Opinion 78 of the Supreme Court Advisory Committee on Professional Ethics, 88 N. J. L. J. 460 (1965). Compare R. 1:15-1 (c) with B. 1:15-4 and R. 1:12—1. To permit representation before the Commission by the member’s firm would render the court’s proscription of such representation by the member himself a futile gesture and would undermine the policies mandating that proscription. Consequently, as long as the disqualified member remains on the Commission, no member of his firm may represent the client before that body.

In view of the special nature of the dispute involved and the fact that it arises under recently adopted legislation in this area, rather than exercise our original jurisdiction to decide the case on the merits, we deem it preferable to remand the matter for a new determination (within 45 days from the date hereof) by the Commission sitting without the disqualified member. Neither that member nor his firm may continue to represent the client in the controversy before the Commission. There is nothing in the record which indicates to us that the defect in the determination of the Commission extends to the action of the hearing officer or requires that a new hearing be held or a new report be made by the hearing officer to the Commission.

We retain jurisdiction. No costs.


author: Collester, J. A. D.

text:
    IN THE MATTER OF THE SUSPENSION OR REVOCATION OF THE LICENSE OF GEORGE BLUM TO PRACTICE CHIROPRACTIC IN THE STATE OF NEW JERSEY.
    Superior Court of New Jersey-Appellate Division
    Argued January 12, 1970
    Denied February 24, 1970.

      Before Judges Coneobd, Collesteb and Kolovsky.

      Mr. Dominic G. Boceo argued the cause for appellant (Messrs. Sandone & Boceo, attorneys).

      Mrs. Virginia Long Annich, Deputy Attorney General, argued the cause for respondent (Mr. Arthur J. Sills, Attorney General of New Jersey, attorney).
   The opinion of the court was delivered by

Collester, J. A. D.

This is an appeal by George Blum, a chiropractor, from a final decision of the State Board of Medical Examiners (Board) which revoked his license to practice chiropractic within the State.

Appellant was charged with violation of N. J. S. A. 45;9-16(d) which provides that the Board may revoke a license to practice chiropractic upon proof that the holder of the license has advertised fraudulently. At the hearing before the Board, the State introduced in evidence 24 advertisements which the appellant had placed in New Brunswick newspapers between October 1, 1967 and April 9, 1968. Each advertisement contained the appellant’s name, photograph, address, office hours, telephone number and an article allegedly dealing with the practice of chiropractic.

One of the advertisements bore the heading, “High blood pressure —• and its correction,” and stated that “Chiropractic is a normal procedure to adopt to reduce this high blood pressure naturally and being reduced naturally, it stays reduced.” Dr. Martino, a chiropractor, testified that the statement was “gross misinformation * * * too gross to be accurate * * * not academically correct * * * not clinically correct.” Dr. Oianeiulli, also a chiropractor, characterized it as being “physiologically incorrect.”

Another advertisement headed, “Do you need drugs with your adjustments ?” read: “Any drug you are required to use for any reason should be reported to your chiropractor and he will give specific instructions as to continuance of such a drug.” Both Dr. Martino and Dr. Oianeiulli indicated that the statement was a misrepresentation. Dr. Martino said a chiropractor is not trained in the use of drugs and not qualified to advise as to such use. Dr. Oianeiulli testified that drug therapy is the practice of medicine which chiropractors are not qualified to practice and that the statement was misleading.

Sylvia Swidler, an inspector of the Division of Professional Boards, testified that she went to the appellant’s office and told him she was suffering from several ailments (all of which were fictitious). She asked for the free consultation promised in one of his advertisements. She testified he did not provide her with a “free consultation” but said he could not tell or do anything fox her unless he took an X-ray of her spine. He charged her $20 for the X-ray. On her second visit he said her problems stemmed from pressures on the spine; that she required 18 weeks of treatment, three times a week, for a test period and that total correction would take 2)^ years. He gave her a brochure indicating that maximum correction would result with her cooperation and showing a tombstone reading, “Rest in Peace,” for failure to cooperate.

The Board found as a fact that 16 of the advertisements contained statements which were false, deceitful, and in some instances injurious to the public. It adjudged appellant guilty of advertising fraudulently in violation of the statute and revoked his license to practice chiropractic.

Appellant raises three grounds of appeal. He contends: (1) he was denied his duo process right to a hearing before an impartial tribunal; (2) the Board failed to prove or make a specific finding of fact that he made the misrepresentations with a fraudulent intent, and (3) the Board had no authority to charge or find him guilty because the advertisements contained statements which were allegedly derogatory of the medical profession.

Appellant’s argument that he was denied a due process right to a hearing before an impartial tribunal is based on the claim that N. J. S. A. 45:9-16 permits a merger of the functions of investigator, prosecutor and judge in the State Board of Medical Examiners. There are two answers to this argument. First, even if the contention were true, it is not a violation of due process. See State Board of Medical Examiners v. Kempkes, 10 N. J. Misc. 838 (Sup. Ct. 1932), and concurring opinion of Judge (now Justice) Brennan in In re Larsen, 17 N. J. Super. 564, 575 (App. Div. 1952). Secondly, the facts do not support appellant’s argument that there was a merger of such functions. Here the investigation was made by an inspector of the Division of Professional Boards of the Department of Law and Public Safety, the prosecution was conducted by a deputy attorney general, who is not subject to the Board in any respect, and the case was heard and determined by the Board.

We also find no merit to appellant’s second point. While the violation of N. J. S. A. 45:9-16(d) requires proof that the proscribed fraudulent advertising was intentionally false, calculated to mislead or deceive the public (cf. Abelson’s Inc. v. N. J. State Board of Optometrists, 5 N. J. 412, 422 (1950)), such proof may be discovered, as other mental states are, in the evidence of the accused’s conduct in the surrounding circumstances. State v. Costa, 11 N. J. 239, 247 (1953). Such proof may be found where it appears that the accused believes his statement to be false or it is made without any belief as to its truth, or with reckless disregard whether it be true or false, or when it is made by one who is conscious that he has no sufficient basis of information to justify the statement. Prosser on Torts, § 102, at 715-716.

Here the evidence showed that some statements in appellant’s advertisements were false in fact while others were misleading to the public. As a chiropractor appellant knew that the services he could render to a patient were limited by his license to practice. He was also well aware of his limited knowledge of the practice of medicine. Despite such limitations he asserted facts in the advertisements as if they were of his own knowledge, or implied that he had such knowledge, when he was well aware he would be so understood by members of the public and knew that he did not in fact know whether such statements were true. We are satisfied and hold that the State proved that such advertisements were inserted by appellant with an intent to deceive the public.

The Board’s opinion indicates it clearly recognized that a finding of fraudulent intent on appellant’s part was essential to prove a violation of the statute. After reviewing in detail a substantial part of the evidence the Board made specific findings of fact characterizing statements contained in Blum’s advertisements as “false and deceitful,” “injurious to the public,” “fraud,” “false and misleading” and, in one instance, “Dr. Blum practiced fraud and deception on the public.” In conclusion it said that appellant was “guilty of advertising in a false, deceitful or delusive manner, or in a manner calculated to lead the public astray or cause error, which advertising constitutes fraudulent advertising.” Implicit in the Board’s conclusions are findings that the appellant knew that statements in the advertisements were false and caused them to be published with an intent to deceive and to perpetrate a fraud upon the public.

In his third point appellant challenges the Board’s finding that nine advertisements were derogatory to the practice of medicine and false, deceiving and injurious to the public. He argues that N. J. S. A. 45:9-16(d) does not prohibit chiropractic claims of superiority over the practice of medicine. The argument lacks substance. The Board found such advertisements to be fraudulent because they were calculated to persuade the public to avoid medical attention and treatment in cases where such treatment was needed and which were beyond the limited scope of the practice of chiropractic. We have examined the advertisements and conclude that the findings of the Board are supported by substantial evidence.

Affirmed.


text:
    EUGENE HULSE, PETITIONER-APPELLEE, v. TOWNSHIP OF MADISON, RESPONDENT-APPELLANT.
    Superior Court of New Jersey Appellate Division
    Argued February 16, 1970
    Decided February 27, 1970.

      Before Judges Kilkenny, Labrecque and Leonard.

      Mr. James A. Bobottom argued the cause for appellant Township of Madison (Messrs. Haskins, Bobottom é Hack, attorneys).

      Mr. Avron J. Wahl argued the cause for appellee Hug ene Hulse (Mr. Norman Bobbins, attorney).
   Per Curiam.

The Township of Madison (hereafter respondent) appeals from the judgment of the Middlesex County Court affirming an award to Eugene Hulse (hereafter petitioner) by the Division of Workmen’s Compensation.

Petitioner alleged that on May 25, 1965, while in the performance of his duties as chief plumbing inspector of the Township of Madison, he sustained injuries which over a course of time had rendered him totally disabled. On the day in question, when he had pulled his car to the side of the road preparatory to changing a flat tire, he was struck from behind by a school bus, -which drove his car forward some 50 feet, and caused it to collide with two or three 4" x 4" concrete posts. His original claim petition for compensation, filed June 2, 1966, claimed injuries to the neck and lower back. A subsequent amendment added a claim for neurological disability. The petition was vigorously contested and the case thoroughly tried. The lengthy record before us covers eight trial days.

The principal point of disagreement between the parties was the nature and extent of the medical consequences of petitioner’s May 25, 1965 accident. Respondent contested the extent of petitioner’s disability and alleged that it was due to unrelated causes. Each side called three expert medical witnesses. The Judge of compensation was impressed by petitioner’s witnesses and made an award for both temporary and permanent disability, the latter amounting to 100% of total. The award held that the disability was both orthopedic and neuropsychiatric in nature. The judge of the County Court, in a letter opinion which reviewed the testimony in detail, disallowed the contentions advanced by the township and found that the total and permanent disability sustained by the petitioner was work-connected.

This case presented a close factual question. Both the Division and the County Court resolved the facts in favor of petitioner. On review we are required to determine whether the findings made below could reasonably have been reached on sufficient credible evidence present in the record, considering the proofs as a whole and with due regard to the opportunity of the one who heard the witnesses to judge of their credibility. Close v. Kordulak Bros., 44 N. J. 589, 598-599 (1965). We conclude that they could have been so reached.

We are in accord with the conclusion of the County Court that it was not error for the judge of compensation to decline to conduct a physical viewing of petitioner in chambers. Respondent’s orthopedic expert had testified that there was an absence of atrophy to explain certain of petitioner’s symptoms from an orthopedic standpoint, and it was proposed that petitioner be taken into chambers and stripped to the waist for the purpose of demonstrating that “his muscle tone is good” and “there was no atrophy.” Although there was no objection by petitioner’s attorney, the judge vetoed the idea.

While we can conceive of instances in which such a course would be extremely helpful, counsel cites no case which holds that in an action involving personal injuries the trier of the facts is under a duty to personally inspect the body of the injured person. It was discretionary with the compensation judge whether to conduct the test suggested. Anthony v. Public Transit Co., 3 N. J. Misc. 1204, 1206, 130 A. 895 (Sup. Ct. 1925); Swift v. O’Neill, 88 Ill. App. 162 (App. Ct. 1899) aff’d 187 Ill. 337, 58 N. E. 416 (Sup. Ct. 1900); Young v. Texas & Pacific R. Co., 347 S. W. 2d 345 (Tex. Ct. Civ. App. 1961); Darling v. Charleston Comm. Mem. Hospital, 50 Ill. App. 2d 253, 200 N. E. 2d 149 (App. Ct. 1964), aff’d 33 Ill. 2d 326, 211 N. E. 2d 253, 14 A. L. R. 3d 860 (Sup. Ct. 1965), cert. den. 383 U. S. 946, 86 S. Ct. 1204, 16 L. Ed. 2d 209 (1966). See also 8 Wigmore on Evidence (McNaughton rev. 1961), § 2220, at 194, 195; McCormick on Evidence § 182, at 390-391 (1954); Annotation, 66 A. L. R. 2d 1382, 1388 (1959).

We find no mistaken exercise of discretion on the part of the judge of compensation. Petitioner had already submitted to a total of seven examinations by three physicians who testified for respondent. The effectiveness of any demonstration would no doubt have depended, to some degree at least, upon the ability of the compensation judge to judge muscle tone, and the opportunity to make some comparison for the purpose of determining whether there was any degree of muscle atrophy. Its allowance would also have opened the door to the allowance of a similar demonstration by one or more of the physicians who testified for petitioner. All in all, we cannot say that the judge erred in preferring to rely upon the testimony of the experts. In any event, we are satisfied that respondent suffered no prejudice since it is apparent from the “determination of facts” made by the judge of compensation that he accepted the testimony of respondent’s doctor that petitioner’s muscles in the cervical and trapezius area were not atrophied but found that the absence of atrophy was due to spasm induced by petitioner’s work connected injuries.

Respondent also challenges the asserted refusal of the judge of compensation to permit petitioner to be marked as an exhibit in the case. From the colloquy in the record we are not at all convinced that there was such a refusal. Assuming that there was, we are satisfied for the reasons set forth above that there was no prejudicial error.

Finally, we find no merit to the respondent’s contention that the judge of compensation was guilty of an abuse of discretion in his conduct of the trial. Succinctly put, it contends that he asked too many questions and that they were frequently leading and helpful to petitioner’s case.

The trial judge possesses a broad discretion as to his participation in the trial. State v. Riley, 28 N. J. 188, 200-201 (1958), cert. den. 359 U. S. 313, 79 S. Ct. 891, 3 L. Ed. 2d 832 (1959); 361 U. S. 879, 80 S. Ct. 166, 4 L. Ed. 2d 117 (1959). He may properly intervene in a trial to promote expedition, prevent unnecessary waste of time or clear up obscurity. State v. Ray, 43 N. J. 19, 25 (1964). However, the power thus vested in him is to be balanced against the necessity of judicial self-restraint and maintenance of an atmosphere of impartiality. Band’s Refuse Removal, Inc. v. Fair Lawn, 62 N. J. Super. 522, 548 (App. Div. 1960), certif. den. 33 N. J. 387 (1960). The extent of his participation is one which necessarily rests in discretion and depends upon the circumstances of the particular case. State v. Riley, supra, at 201. Here we cannot say that his discretion was mistakenly exercised. The judge was the trier of the facts so that his allegedly excessive intervention could not have affected a jury. The trial lasted eight days; the exhibits were many; much of the testimony was of a highly technical nature and petitioner, probably because of his neuropsyehiatric condition, was a difficult witness.

The judgment of the Middlesex County Court is accordingly affirmed.


author: Fritz, J. S. C.

text:
    CHESTER ROGOZINSKI, JOHN ROGOZINSKI, WALTER ROGOZINSKI, STANLEY ROGOZINSKI, FRANCES GRYGON, AMELIA RADONSKI, AND MARY JERZEWSKI, PLAINTIFFS, v. JOSEPH ROGOZINSKI AND GERTRUDE DETRICK, EXECUTORS UNDER THE WILL OF ANASTASIA ROGOZINSKI, DECEASED, DEFENDANTS.
    Superior Court of New Jersey Chancery Division
    Decided February 27, 1970.

      Mr. Seymour S. Weinblatt for plaintiffs.

      Mr. Stanley R. Bonczeh for defendants (Messrs. Mc-Donough & Sullivan, attorneys).
   Fritz, J. S. C.

The question here presented concerns a proper choice between concurrent jurisdiction in the Chancery Division and the County Court in actions relating to the administration of wills.

Plaintiffs, all of whom are, with defendants, children of and the solo heirs of Anasiasia Eogozinski, have commenced an action in the Chancery Division for instructions with regard to the will of Anastasia Eogozinski and the will of her husband Walter Eogozinski, who predeceased her. Defendants are coexeeutors under the will of Anastasia. Plaintiffs’ complaint also seeks removal of these coexecutors.

Defendants have moved for a resolution of substantially the same will construction problems in the County Court of the county whose surrogate admitted both wills to probate.

Walter’s will was executed on May 7, 1966. His death followed on June 14, 1966. His surviving wife Anastasia, together with Joseph Rogozinski, a defendant in the aforementioned action, were named as coexecntors. His will was admitted to probate by the surrogate of Somerset County on July IS, 1966. Anastasia executed her will on March 2, 1967 and died on October 28, 1968. Her will named the present defendants as her coexeeutors. This will was admitted to probate by the surrogate of Somerset County on November 8, 1968.

The controversy arose in the course of the administration of Anastasia’s will, principally with respect to an alleged indebtedness of Joseph Rogozinski to his father. The substance of the legal (as contrasted with procedural) issue here concerns the intent of Walter Rogozinski with respect to this debt, i. a., whether the debt was a charge against his legacy or whether it was forgiven. Other instructions are sought collateral to this question and in addition thereto. All concern the coexeeutors’ administration of the two wills involved.

An additional legal question is presented by the suggestion of plaintiffs in the Chancery Division action that because the coexecutors here as fiduciaries might be disposed to act in a manner contrary to the monetary interests of their brothers and sisters, but to their own interests as legatees, they should be removed.

The principal present concern of this Court is defendants’ motion to dismiss the complaint on the ground, among others, that the Chancery Division “does not exercise jurisdiction over the subject matter because the matter of probate is before the County Court, Probate Division, Somerset County, the County where the wills of Walter and Anastasia Rogozinski were probated.” The complaint in the Chancery Division action was filed on January 8, 1970, but not served upon defendants until January 19, 1970. On January 20, 1970 defendant coexecutors, by order to show cause returnable February 13, 1970, sought instructions in the Somerset County Court, Probate Division, concerning substantially the same questions raised here.

We have no doubt that jurisdiction exists in the Chancery Division to hear and decide the matters alleged in the complaint of plaintiffs here. Construction of a will and instructions to the fiduciary are within the jurisdiction of the Chancery Division of the Superior Court. The history of this jurisdiction, extended from the original inherent jurisdiction of equity to enforce an express private trust, is to be found in Capraro v. Propati, 127 N. J. Eq. 419 (E. & A. 1940).

The County Court shares this jurisdiction. N. J. Const., Art. VI, § 4, par. 5; N. J. S. A. 3A:2-2. The jurisdiction in the County Court extends to the removal of fiduciaries for cause. N. J. S. A. 3A:11-4.

This concurrence of jurisdiction conduces to the conviction that “equity [should] refuse to intervene or assume jurisdiction of the settlement of an estate where the relief sought by the parties can be secured in the [County Court] — the tribunal to which the administration and the settlement of such estates is specifically delegated.” Robinson v. Hodge, 139 N. J. Eq. 189, 190 (Ch. 1947), aff’d o. b., 140 N. J. Eq. 473 (E.& A. 1947); N. J. S. A. 3A:2-2.

“Equity respects the rights and proceedings of coordinate tribunals and is always reluctant to interfere with an action at law.” Camden Trust Co. v. Toone, 141 N. J. Eq. 342, 345 (Ch. 1948).

On the other hand, the Camden Trust case recites another rule, “essential to the orderly administration of justice, that, as between courts otherwise equally entitled to entertain jurisdiction, that court which first obtains possession of the controversy ought to be allowed to proceed and dispose of it without interference, a rule established, of course, primarily for the benefit of the suitor, rather than for the protection of the dignity of the court.” Ibid., at 345.

Where there is conflict between two rules thus enunciated, i. e., equity’s reluctance to interfere with an action at law, especially in the situation where the subject matter has been specifically delegated to the concurrent jurisdiction of the County Court, and the “first possession” rule, and with due consideration for the fact that the latter rule is said to be for the benefit of the suitor, we believe that the former rule should prevail. This is especially so where, as here, all parties in both matters seek the same relief, at least as to instructions, and where the parties seeking the removal of the fiduciaries also have their remedy available within the concurrent jurisdiction of the County Court. Beyond that, the slight difference in time in the particular circumstances of this case (a County Court filing one day after service in the Chancery Division, and only 12 days after filing in the Chancery Division) seems an inappropriate reason to defeat the obvious salutary purpose of equity’s deference to law in the case where jurisdiction at law has been specifically delegated. A corollary to this might be stated in terms of the misfortune that would arise if forum shopping were to result in an award to the fleetest to the starting line.

Eor the foregoing reasons, we believe that equity should, in the circumstances of this case, refuse to exercise its jurisdiction and that the matter should proceed in the County Court.

Defendants’ motion to dismiss is granted. An appropriate order may be submitted.


author: Breslin, J. D. C.

text:
    CATHERINE GUREGHIAN, ETC., ET AL., PLAINTIFFS, v. HACKENSACK HOSPITAL, ET AL, DEFENDANTS.
    Superior Court of New Jersey Law Division
    Decided February 19, 1970.

      Messrs. Freeman, Freeman & Cartier, attorneys for plaintiffs.

      Messrs. Mein, Smith, Mooney & Berezin, attorneys for defendant Winton Johnson.

      Messrs. Pindar, McBlroy, Connell & Foley, attorneys for defendant Herbert Henry Eceleston.

      Messrs. Winne & Banta, attorneys for defendant Hackensack Hospital Association.
   Breslin, J. D. C.

(temporarily assigned). This matter arises out of an application by the plaintiff for an order to compel defendant Hackensack Hospital to produce a report of the Perinatal Mortality Committee of the Department of Obstetrics and Gynecology. Plaintiff’s request for a copy of the report, made pursuant to R. 4:17-1, was not complied with and this motion followed.

The instant cause of action sounds in negligence, based upon various breaches of duty and malpractices allegedly committed by the several defendants during the course of childbirth, causing injuries to the mother and injuries to and the death of the infant. The report in question was prepared more than one month after the infant’s death by said committee and noted facts, cause of death and autopsy findings concerning the infant. The matters set forth in the report are not, however, confined to the subject of the infant. Apparently, the report is a monthly summary of infant deaths at or shortly after delivery and as such contains statistics of five other infant mortalities. The report is not part of the patient’s record and was not made during the course of treatment by a treating physician.

(The movant does not state whether his papers are brought pusuant to R. 4:18-1 or R. 4:17-5. However, since a determination of this dispute is governed by considerations applicable to both rules, see comment to R. 4:17-5, I will treat the application as having been introduced in accordance with the provisions of R. 4:18-1).

R. 4:18-1 states, in part:

On motion by any party, for good cause shown and upon notice to all other parlies * * * the court may order any party to produce and permit the moving- party :i * * to inspect and copy or photograph any designated books, papers * * *, not privileged, which constitute or contain evidence relating to any of the matters within the scope of the examination permitted by R. 4:10-2 and which are in his possession * *.

R. 4:10-2 states:

* * * the deponent may be examined regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action, whether it relates to the claim or defense of the examining party or to the claim or defense of any other party, including the existence, description, nature, custody, condition and location of any * * * document * * *.

The broadest possible latitude should be accorded pretrial discovery. Myers v. St. Francis Hospital, 91 N. J. Super. 377, 15 A. L. R. 3d 1432 (App. Div. 1966). This liberal spirit of discovery must be borne in mind whenever the court determines whether good cause for the discovery of documents is shown.

In Lakewood Trust Co. of Lakewood v. Fidelity & Deposit Co., 81 N. J. Super. 329 (Law Div. 1963), the court held:

What will constitute good cause is a flexible matter and must be determined * ,l-' * in each case on its own merits. * * *
Generally, inspection orders should issue upon a showing that the desired inspection of the document or other property is relevant to the subject matter of the pending action and will aid the moving party in the preparation of his case, * * s [at 339]

The test of relevancy has been stated as being whether the subject matter sought to be discovered is useful. Myers v. St. Francis Hospital, supra.

The committee report contains a capsulized finding as to the infant’s condition at delivery and the cause of death as revealed by autopsy. Since a basis of the cause of action is the alleged negligence in the delivery of the infant, which negligence caused the infant’s death, the committee report may well be relevant and useful in the preparation of plaintiff’s case.

Defendant resists production on the ground that the report is a confidential internal communication which does not relate to the care and treatment of the patient. However, it does not assert a privilege pursuant to Evidence Rule 26A(2), N. J. S. A. 2A:84A-22.2. In support of its position defendant cites Judd v. Park Avenue Hospital, 37 Misc. 2d 614, 235 N. Y. S. 2d 843 (Sup. Ct.), aff’d 18 App. Div. 2d 766, 235 N. Y. S. 2d 1023 (App. Div. 1962). In that case the movant sought discovery of records of medical staff discussions and committee meetings relative to surgery performed on the plaintiff. In denying the motion, the court held:

* * * This obviously calls for the disclosure of hearsay and statements not shown to he binding upon the defendants or any of them. Such records, if there be any, are to be distinguished from entries in the patient’s record made contemporaneously with the treatment and received in evidence pursuant to § 374-a Civil Practice Act. [235 N. Y. S. 2d, at 845]

New York Civil Practice Act, § 374-a, § 4516, now CPLR concerned the admissibility of business records into evidence.

The New York courts, however, have construed their rules of discovery, including those pertaining to the disclosure of documents (CPLR § 3120, formerly C. P. A., § 324), as applicable only to those matters which by themelves constitute admissible evidence. See Babcock v. Jackson, 40 Misc. 2d 757, 243 N. Y. S. 2d 715 (Sup. Ct. 1963). In Schuster v. City of New York, 25 Misc. 2d 916, 203 N. Y. S. 2d 278, 280 (Sup. Ct. 1960), the court held:

The remedy of discovery and inspection may be invoked only as to books, documents or other papers or articles of property which relate to the merits of the action. * *’ * They must be evidence themselves, and are not subject to inspection merely because they will suggest or supply a clue whereby evidence can be gathered * * *. It must appear that the examination of the particular record, document or article is relevant and necessary * * « and toill be admissible as evidence on the trial. [203 N. Y. S. 2d, at 280; emphasis added]

Our rule is immediately distinguishable. R. 4:10-2 provides :

* ® * it is not ground for objection that the testimony will be inadmissible at trial if the testimony sought appears reasonably calculated to lead to the discovery of admissible evidence. * * *

It is questionable whether the subject matter of this motion can be properly admitted into evidence at trial, see Evidence Rule 63 (13); State v. Gardner, 51 N. J. 444 (1968), especially in view of the included hearsay in the report. However, if the report is relevant to the issues of the pending action and it can reasonably lead to the discovery of admissible evidence, it is capable o£ discovery even though it might be inadmissible in the trial of the action. In Lakewood Trust Co. of Lakewood v. Fidelity & Deposit Co., supra, the court held that internal reports and records rendered confidential by statute would, nevertheless, be discoverable by the movant if they were relevant to the subject matter of the suit or would lead to the discovery of other material evidence, irrespective of their inadmissibility. See also, Bzozowski v. Pennsylvania-Reading Seashore Lines, 107 N. J. Super. 467, 474 (Law Div. 1969): Monaco v. Pepperidge Farms, Inc., 94 N. J. Super. 39, 42 (Ch. Div. 1967).

The defendant’s reliance on Picker X-Ray Corporation v. Fresker, 405 F. 2d 916 (8 Cir. 1969) is misplaced. There, the reports were erroneously admitted into evidence at the trial of the matter.

That the movant has had ample opportunity to take the deposition of the committee head or that information contained in the report was revealed at depositions which were already taken is not sufficient reason to deny production of the report. See Myers v. St. Francis Hospital, supra, R. 4:10-2.

Motion granted.