author: Labbecqtje, J. A. D. Sullivan, P. J. A. D.

text:
    RAYMOND PILON AND JOHN A. CRANER, t/a MUGGSY’S FRIENDLY TAVERN, APPELLANTS, v. BOARD OF ALCOHOLIC BEVERAGE CONTROL OF THE CITY OF PATERSON, RESPONDENT.
    Superior Court of New Jersey Appellate Division
    Argued November 9, 1970
    Decided December 8, 1970.

      Before Judges Sullivan, Collestek and Labbecque.

      Mr. Ronald J. Nelson argued the cause for appellants (Messrs. Qraner As Brennan, attorneys).

      Mr. Joseph A. LaCava argued the cause for respondent Board of Alcoholic Beverage Control of Paterson (Mr. Joseph L. Conn, attorney).

      Mr. Harry 'W. Leszchyn, Jr., Deputy Attorney General, argued the cause on behalf of the Division of Alcoholic Beverage Control (Mr. George F. Kugler, Jr., Attorney General of New Jersey, attorney; Mr. Stephen STcillman, Assistant Attorney General, of counsel).
   The opinion of the court was delivered by

Labbecqtje, J. A. D.

Appellants Raymond Pilón and John A. Craner (the licensees) are the holders of plenary retail consumption license. C-224 for premises known as Muggsy’s Friendly Tavern located at 839 Main Street, Paterson. On March 17, 1969 they were found guilty by the Alcoholic Beverage Control Board of the City of Paterson (the Board) of five violations and their license was suspended for a total of 75 days. On appeal to the Division of Alcoholic Beverage Control (the Division), the Director affirmed. The present appeal followed.

Appellants raise three points, summarized as follows: (1) the findings below were not supported by substantial evidence and should be set aside; (2) Rule 6 of State Regulation 15 is unconstitutional in that it deprives appellants of due process of law, and (3) since the charges arose out of a single incident, the penalty is excessive and should be reduced to 30 days.

We find the first point to be without merit. There was testimony that at approximately 3 :35 a.m. on December 8, 1968 Emil Peri, a Paterson police detective, while on routine patrol observed that the licensees’ tavern was still open, notwithstanding the 3 a.m. closing hour. When he entered the premises he found from 20 to 30 people inside, many of them still sitting at the bar drinking. Pilón, one of the owners, was still serving customers at the bar. When he identified himself to Pilón, the latter allegedly became abusive and grabbed, pushed and assaulted him. During the affray one John Seager, a customer, came to Pilon’s assistance and grabbed Peri, who thereupon placed them both under arrest. Later Pilón pleaded guilty to creating a disturbance while under the influence of liquor (N. J. S. A. 2A:170-30) and was given a suspended sentence. Peri testified Pilón had later apologized to him, stating “if he wasn’t drinking this wouldn’t have happened.”

Thereafter, disciplinary proceedings were instituted against the licensees charging the following violations: (1) permitting a brawl to take place on the licensed premises in violation of Rule 5 of State Regulation 20; (2) hindering and delaying Peri in the performance of his duty, in violation of Rule 35 of State Regulation 20; (3) selling and serving alcoholic beverages after hours, in violation of the local ordinance; (4) failing to have the licensed premises closed between 3 a.m. and 3:35 A.M., in violation of the local ordinance, and (5) permitting Pilón to work in the licensed premises while actually or apparently intoxicated, in violation of Rule 24 of State Regulation 20. The Board found the licensees guilty and imposed a suspension of 15 days on each charge. On appeal the transcript of the testimony before the Board was received in evidence and additional testimony was adduced before a hearer. His report and recommendations upholding the suspension were adopted by the Director.

The licensees argue that while the test here applicable is whether the factual findings of the administrative tribunal are supported by substantial evidence, Hornauer v. Div. of Alcoholic Beverage Control, 40 N. J. Super. 501, 504 (App. Div. 1956), the evidence does not support the administrative determination because of the alleged incredibility of the testimony of Peri. They also argue that the Director failed to make an independent determination as to Peri’s credibility. We find neither contention to be meritorious. The hearer’s report, which was adopted by the Director, specifically found Peri’s testimony to be forthright and credible, rejected the testimony of appellants’ -witnesses as contradictory and incredible, and found that the charges had been established by the preponderance of the evidence. The factual findings of the Director were supported by substantia] evidence, i. e., a reasonable man upon consideration of the entire record could reasonably have concluded that the violations charged did in fact occur. Hornauer v. Div. of Alcoholic Beverage Control, supra, at 504. See also Atkinson v. Parsekian, 37 N. J. 143, 149 (1962). The choice of accepting or rejecting the testimony of witnesses rests with the administrative agency, and where such choice is reasonably made it is conclusive on appeal. Hornauer, supra, 40 N. J. Super. at 506.

We likewise find no merit to the licensees’ contention that the form of the appellate hearing in the Division, and the Division’s requirement that an appellant carry the burden of establishing that the Board’s action was erroneous, amounted to a denial of due process which compels reversal.

The Director of the Division of Alcoholic Beverage Control is empowered to hear and conduct all appeals and to establish appellate rules and procedures. N. J. S. A. 33 :1 — 38. State Regulation 15 establishes the procedure for appeals. Rule 6 thereof provides that:

All appeals [to the Director] shall be heard de novo except as otherwise provided in Rule 8 hereof * * * but the burden of establishing that the action of the respondent issuing authority was erroneous and should be reversed shall rest with the appellant.

Rule 8 provides, in part:

Where there is available a stenographic transcript of the proceedings before the issuing authority, either party may, if at least three (3) days notice of intention so to do has been given to opposing parties, or counsel therefor, offer the transcript of testimony of any witness or witnesses named in said notice in lieu of producing said witness or witnesses at the hearing of the appeal. In such event, any opposing party may subpoena such witness or witnesses to appear personally and any party may produce any additional evidence, oral or documentary, at the hearing of the appeal.

See Fanwood v. Rocco, 59 N. J. Super. 306, 315-319 (App. Div. 1960), aff’d 33 N. J. 404 (1960) as to the scope of the Director’s review.

When the stenographic record of the testimony below was received in evidence by the hearer, counsel for the licensees objected and sought a de novo trial on the ground, inter alia, that they had not received a fair hearing before the Board and had been precluded from putting certain questions to officer Peri. Although the hearer suggested, that Peri be produced by the licensees for further examination, stating that, since he was a hostile witness, wide latitude would be afforded the licensees in examining him, counsel for the licensees declined to do so. He did, however, produce four witnesses, three of whom had previously testified before the Board.

The licensees cite no case, and we know of none, which holds that Rule 6 of Regulation 15 requires that all witnesses who testified before the issuing authority be required to give their testimony anew before the Division. Cino v. Driscoll, 130 N. J. L. 535 (Sup. Ct. 1943), was decided before Rules 6 and 8 of Regulation 15 (formerly Rules 6 and 8 of Regulation 14) were promulgated in their present form. Compare Neiden Bar and Grill v. Municipal Bd., etc., Newark, 40 N. J. Super. 24, 28 (App. Div. 1956); Florence Meth. Church v. Tp. Committee, Florence Tp., 38 N. J. Super. 85, 90 (App. Div. 1955); Tp. Committee, Lakewood Tp. v. Brandt, 38 N. J. Super. 462, 467 (App. Div. 1955). Here the licensees were afforded a full hearing at which the burden of proof rested upon the issuing authority. At the subsequent appellate hearing in the Division they were afforded the opportunity of further examining any witness whose testimony appeared in the transcript, and of calling additional witnesses. At the close of the hearing they were furnished with a copy of the hearer’s report and their exceptions thereto were considered by the Director in arriving at his decision. The Director’s decision was in the form of findings of fact and conclusions of law which were reviewable on appeal. This satisfied the requirements of due process. Cf. N. J. Zinc Co. v. Board of Review, 25 N. J. 235, 239 (1957); In re Masiello, 25 N. J. 590, 600 (1958).

Appellants urge that, notwithstanding the foregoing, the provision of Eule 6 which imposes the burden of proof on one who appeals from the action of a municipal board works a deprivation of due process. We disagree. Due process varies according to specific factual contexts, the type of proceeding involved and the different fields in which adjudicatory powers are exercised. 2 Am. Jur. 2d, Administrative Law, § 351, at 164 (1962). The primary responsibility for enforcement of the laws pertaining to retail licensees rests upon the municipality. Benedetti v. Bd. of Com’rs, Trenton, 35 N. J. Super. 30, 33 (App. Div. 1955). In the case of the City of Paterson that responsibility was vested in respondent Board. Because of the great volume of matters coming before the Director and the fact that the local authority is generally well fitted to determine such matters at their initial stages, we are satisfied that the challenged portion of the rule is not so unreasonable as to deny due process. We are told that it was in the rule as originally promulgated by the first Commissioner of Alcoholic Beverage Control, Cino v. Driscoll, supra, 130 N. J. L. at 539-540, and has continued in effect since that time. See Rajah Liquors v. Div. of Alcoholic Bev. Control, 33 N. J. Super. 598, 600 (App. Div. 1955), certif. den. 18 N. J. 204 (1955); Nordco, Inc. v. State, 43 N. J. Super. 277, 282 (App. Div. 1957); Lyons Farms Tavern v. Mun. Bd. of Alc. Bev., Newark, 55 N. J. 292, 303 (1970).

It is urged that the requirement that an appellant carry the burden of proof was unfair in its application to the present appeal in view of the contention of the licensees that the Board below had been biased and prejudiced against them. We find no unfairness. The licensees were afforded the opportunity of demonstrating to the Director, both by testimony and argument, the Board’s asserted prejudice. After considering the proofs the Director specifically determined that the asserted bias or prejudice did not exist and that the Board had leaned over backward in permitting cross-examination of officer Peri by the licensees’ attorney. He then proceeded to evaluate the testimony and arrived at the conclusion that guilt had been established. There was substantial credible evidence to support his findings. Hornauer, supra, 40 N. J. Super. at 504.

We find no merit to the licensees’ final point. There were five separate offenses, i. e., when officer Peri passed the tavern on routine patrol, he found it open after the closing hour fixed by the city ordinance; when he entered the tavern he found Pilón making sales to customers, also a violation of the ordinance; Pilón was acting at bartender while intoxicated, a violation of the ABC regulations; he hindered Peri in the performance of his duty; he permitted — if he did not directly bring about — a fracas involving himself, another customer and Peri. We find no cause to disturb the quantum of the suspension in view of the nature of the offenses and the licensees’ prior record. F. & A. Distrib. Co. v. Div. of Alcoholic Bev. Control, 36 N. J. 34 (1961); Butler Oak Tavern v. Div. of Alcoholic Bev. Control, 36 N. J. Super. 512 (App. Div. 1955), aff’d 20 N. J. 373 (1956).

Affirmed.

Sullivan, P. J. A. D.

(concurring). I agree we should affirm but, under the circumstances presented, do not see how the validity of Rule 6 is properly in issue. The Director did not base his decision on appellant’s failure' to establish that the action of respondent issuing authority was erroneous. Rather, he weighed the proofs and made independent findings that the charges had been sustained. I would affirm on the ground that the credible evidence supports these findings.

       While the record fails to reveal whether the three days’ notice of intention to use the transcript, prescribed by Rule 8, was given, the point is not raised by the licensees and it may be considered as having been waived if, in fact, the notice was not given.


source: Caselaw Access Project

author: Furman, J. S. C.

license: Public Domain

text:
    IRENE ENGLER, FRANK GOMEZ AND IDA GOMEZ, HENRY KOE, JAMES PETRUCELL, THOMAS STEGER AND LINDA STEGER, RAYMOND FORSE AND PATRICIA FORSE, RICHARD GARDNER AND LAWRENCE RISSEN, PLAINTIFFS, v. CAPITAL MANAGEMENT CORPORATION, A NEW JERSEY CORPORATION, AND PAUL GOLDMAN, DEFENDANTS.
    Superior Court of New Jersey Chancery Division
    Decided — November 30, 1970.

      Mr. Harold Sherman for plaintiffs (Messrs. Mandel, Wysolcer, Sherman, Glassner, Weingartner & Feingold, attorneys).

      Mr. William B. Kaufman for defendants {Messrs. Kaufman & Kaufman, attorneys).
   Furman, J. S. C.

Defendants seek judgment on a counterclaim for eviction. The complaint for an injunction restraining defendants from refusing to renew the six plaintiffs’ leases at the expiration of their respective one-or two-year terms was dismissed voluntarily, without prejudice to plaintiffs’ defense on the counterclaim.

In a brief trial counter claimants’ only witness acknowledged that notices to. quit were served upon plaintiffs because they were officers or active members in a tenants association. The tenants association drew its membership from the tenants in counterclaimants’ three large apartment complexes in Middlesex County. Its activities included publishing a newsletter, inspecting stairways, halls, basements and other common areas, and making requests and complaints to defendants and to municipal officials, e. g., with reference-to dilatory snow .removal. .

Counterclaimants’ only witness also acknowledged that leases had been renewed as a matter of general policy, unless the tenant was chronically in arrears in his rent, had caused defacement of property, or had been the subject of recurrent complaints by other tenants. None of the six plaintiffs had been so charged.

During the pendency of this litigation the Legislature enacted Assembly Bill No. 1204 as chapter 210 of the Laws of 1970, effective September 30, 1970. That statute prohibits, among other things, a reprisal against a tenant for his membership in a tenants association and specifies that judgment is to be entered in his favor in any dispossess proceeding if he establishes that the notice to quit or the action to recover possession was a reprisal against him for such membership.

Plaintiffs urge the retroactive application of chapter 210 by this court. .But a landlord’s right of possession upon the expiration of a lease and the right of action to dispossess a tenant holding over without a lease are vested rights which cannot be annulled by subsequent legislation. To deprive counterelaimants by retroactively applied legislation of the right to dispossess would be a denial of due process of law in the substantive sense. LaParre v. Y. M. C. A. of the Oranges, 30 N. J. 225, 229 (1959); Shack v. Weissbard, 130 N. J. L. 472, 475 (Sup. Ct. 1943), aff’d 131 N. J. L. 314 (E. & A. 1944); Magierowski v. Buckley, 39 N. J. Super. 534, 557 (App. Div. 1956); cf. Howard Savings Institution v. Kielb, 38 N. J. 186, 194 (1962); State by Parsons v. Standard Oil Co., 5 N. J. 281, 293 (1950).

The issue before this court, therefore, is whether, irrespective of chapter 210, counterclaimants have an enforceable remedy against plaintiffs or whether equity should bar them, under the doctrine of unclean hands or otherwise, because counterclaimants’ refusal to renew on the sole ground of tenants association activity shocks a court of conscience.

An earlier statute, chapter 215 of the Laws of 1967 (N. J. S. A. 2A :170-92.1), constituted as a disorderly person offense any reprisal by a landlord against a tenant for reporting or complaining of a health code, building code or other state or municipal violation to a public agency. Upon a finding of a violation of that statute a dispossess action was dismissed in Alexander Hamilton S. & L. Ass’n of Paterson, New Jersey v. Whaley, 107 N. J. Super. 89 (Cty. D. Ct. 1969).

Absent any applicable legislation, a parallel result was reached in Edwards v. Habib, 130 N. S. App. D. C. 126, 397 F. 2d 687 (1968), and Hosey v. Club Van Cortlandt, 299 F. Supp. 501 (S. D. N. Y. 1969). The court in Hosey said:

“An eviction ordered by a state court in an action begun to retaliate against a tenant for exercising Ms rights of speech and assembly to remedy building and health code violations in his building would be a violation of the 14th amendment, [at 508].

The Supreme Court of this State recognized a current housing shortage in Marini v. Ireland, 56 N. J. 130, 146 (1970), which accorded to a tenant the right to offset the reasonable cost of repairs made by him against rent, as an alternative to moving out.

The tenant, dissatisfied with housing conditions, no longer may be said to have a viable alternative to move to comparable housing nearby. Difficulties and delays confront him. One resort open to him is to organize or participate in a tenants association formed to present proposals and grievances. The Legislature has now sanctioned such associations by safeguarding their members against retaliatory evictions.

The testimony is inconclusive as to whether the tenants association of which plaintiffs were members had brought complaints of violations of health or building codes or of other statutes, regulations or ordinances promulgated for their protection. Nevertheless, an essential purpose of any tenants association must be to safeguard its members by reporting and, if necessary, pressing complaints to remedy housing conditions which imperil their health and safety. Such a purpose and the initiative to carry it out are constitutionally protected within freedom of speech and in furtherance of the legislative objectives of health codes, building codes and related legislation. See Edwards v. Habib, supra, 397 F. 2d at 699.

By an extension of Edwards and Hosey, and in accordance with the expression of legislative policy in chapter 210 of the Laws of 1970, this court grants judgment for plaintiffs of no cause for action on the counterclaim.


author: Simpson, J. C. C.

text:
    BERTHA SCHRAER, PETITIONER-APPELLANT, v. SOUTHERN TRUCKING CO., RESPONDENT-RESPONDENT.
    Bergen County Court Law Division
    Decided — November 30, 1970.

      Mr. Robert J. Inglima argued the cause for appellant.

      Mr. Thomas J. Osborne, Jr. argued the cause for appellee. (Messrs. Vaccaro •& Osborne, attorneys).
   Simpson, J. C. C.

In this workmen’s compensation appeal petitioner applied for a counsel fee for services in the County Court. Both the amount and the apportionment thereof are in dispute.

Walter Schraer died of an acute coronary occlusion while working on January 18, 1965. A claim petition was filed January 18, 1966, testimony was taken in the Division of Workmen’s Compensation on several days between July 13, 1967 and September 17, 1968 under the “partial hearing” system, and on October 3, 1968 dependency benefits were denied. A subsequent appeal to this court resulted in a remand on January 14, 1969 for additional testimony, findings of fact and conclusions. Further hearings resulted in a similar denial of benefits on February 9, 1970. On the second appeal to this court, the decision of the judge of compensation was reversed, and the resulting judgment below was for $14,000 benefits, $400 funeral expense and a counsel fee for services in the Division of $2,750, apportioned $1,500 against respondent and $1,250 against petitioner. This attorney’s fee for services below was virtually' the maximum allowable 20% of the judgment under N. J. S. A. 34:15-64.

Eor all services on the aforesaid two appeals to the County Court, as well as the proceedings on this application for attorney’s fee, an allowance of $6,500 is sought, and respondent contends that $1,000 “would be more than reasonable.” Petitioner urges that the full allowance be assessed against respondent, while the latter argued that an apportionment of between one-half and two-thirds thereof against it would be more appropriate.

I

In the Division of Workmen’s Compensation an unsuccessful petitioner’s attorney gets no fee. An attorney for a respondent successful in the Division gets no fee (payable by petitioner), either. This results from the wording of N. J. 8. A. 34:15-64 providing for a discretionary attorney’s fee “to the party in whose favor judgment is entered * * * not exceeding * * * (20%) of the judgment.” Haberberger v. Myer, 4 N. J. 116 (1950).

R. 4:74-l(f), as to workmen’s compensation appeals to the County Court, provides:

The county court, may in its discretion, allow to a petitioner prevailing on the appeal a reasonable attorney’s fee for his services in the county court. [Emphasis added]
Discretionary attorney’s fees in connection with further appeals of workmen’s compensation proceedings may be allowed by the appellate courts pursuant to R. 2 :ll-4. The foregoing two new rules reflect two changes in the previously applicable R. R. 5:2-5 (f) which provided:
The county court may, in its discretion, allow reasonable attorney’s fee to the prevailing party on appeal from an order or determination of the Division of Workmen’s Compensation for his services in the county court, the Appellate Division of the Superior Court, and the Supreme Court. [Emphasis added]

The first change limits the power of the County Court to allow counsel fees for services on the appeal to it, rather than for all appellate services. Even under the old rule, however, it was not inappropriate to make the allowance at the time of the County Court appeal, even though further appeals were contemplated. Walsh v. Eclipse Pioneer Division, 83 N. J. Super. 284 (Cty. Ct. 1964).

The second change restricts County Court allowances of reasonable attorney’s fees to a “petitioner prevailing” rather than a “prevailing party,” although there are no restrictions as to allowances in the Appellate Division or in the Supreme Court. Reading R. 4:74-l(f), B. 2:11-4 and N. J. S. A. 34:15-64 together, it appears that allowance of a counsel fee to petitioner’s attorney for services in the Division of Workmen’s Compensation is contingent upon the ultimate outcome of the case, since it is tied by statute to the amount of the judgment. This was clearly the law under the old rules, both before and after the repeal of N. J. S. A. 34:15-67, similar in import to the above cited R. B. 5:2-5(f). Comparri v. James Readding, Inc., 121 N. J. L. 591 (Sup. Ct. 1939); D. Kaltman & Co., Inc. v. Itzkowitz, 133 N. J. L. 191 (Sup. Ct. 1945); Walsh v. Eclipse Pioneer Division, supra. Although the opinions in these same cases implied that counsel fees for services on all appeals were contingent upon the final decision in the case, they all involved situations where the petitioners were successful at the intermediate levels of appeal reached at the time. On the other hand, it was held in Hodes v. Oak Flooring Co., 43 N. J. 359 (1964), that under unusual circumstances a counsel fee for petitioner’s attorney’s services in the County Court, Appellate Division and Supreme Court would be allowed, regardless of the ultimate outcome of the case there being remanded.

There are no unusual circumstances in this case calling for an allowance of petitioner’s counsel fees for services in the County Court not dependent on the ultimate outcome of the case, in the sense of the Hodes ease. The remand to the Division of Workmen’s Compensation for additional testimony was not chargeable to any omission or dilatory tactics of respondent. It is not necessary to decide whether the allowance to be made at this time is contingent upon the outcome of any further possible appeals, it being sufficient to state that the allowance is made in the absence of circumstances calling for a deviation from whatever the general rule is ultimately determined to be.

II

The quantum of a reasonable attorney’s fee for services in the County Court for a prevailing petitioner is a matter of discretion. McKenzie v. Brixite Mfg. Co., 34 N. J. 1, 8 (1961). The affidavit of services filed by petitioner’s attorney meets the requirements of R. 4:42-9(b), and on the basis of time and effort expended and results obtained for the benefit of petitioner, would warrant the amount requested. The fact that heart attack death cases are a most difficult problem for the courts and the Division of Workmen’s Compensation hardly needs a citation. Szumski v. Dale Boat Yards, Inc., 48 N. J. 401, 407 (1967). It follows that counsel have the same difficulties, and the proofs, briefs and oral arguments require considerable time, effort and skill meriting consideration in evaluating fee applications. That this was a difficult case is also apparent from the already noted allowance by the judge of compensation of virtually the maximum 20% for services in the Division.

Two appeals to the County Court were required, and it has already been noted that this was not the fault of respondent’s attorney. On the other hand, it was not the fault of petitioner’s counsel either, so that this factor is more appropriate for consideration on the question of apportionment rather than in determining the total amount thereof. Despite the foregoing indications that the amount requested is not exorbitant in the circumstances, some consideration must be given to the relationship between the total benefits and total fees, and the fact that on this type of case there is a certain amount of repetition and duplication of work. Kasiski v. International Paper Co., 33 N. J. 473 (1960). Dor all services in this matter in the County Court, petitioner’s attorney is allowed a total of $4,000 in attorney’s fees.

The question of apportionment of counsel fees for appellate services (including appeal to the County Court) in workmen’s compensation matters has not been decided by our Supreme Court, as noted in Kasiski, supra, at 476. The Appellate Division has said that apportionment is preferable, however, where the appeal to the County Court is not frivolous. Ryder v. Riverside Gardens, Inc., 60 N. J. Super. 553, 568 (App. Div. 1959). Although apportionment must obviously be determined on a case by case basis, Joy v. Florence Pipe Foundry Co., 64 N. J. Super. 13 (App. Div. 1960), is an example approving an assessment of about 67% to a respondent. Under all the circumstances, the $4,000 counsel fee for petitioner’s attorney’s services in the County Court is apportioned as follows: 75%, or $3,000, to be paid by respondent, and 25%, or $1,000, to be paid by petitioner. In view of the question of apportionment, the clerk will be unable to tax costs as of course under R. 4:42-8. These are assessed to respondent, to include $397 for transcripts, as supported by the affidavit of services of petitioner’s attorney and unopposed.

       “The court of common pleas may, in its discretion, allow a reasonable attorney fee to the party prevailing in the trial of such appeal, which fee may be taxed in the costs and recovered against the unsuccessful party. In cases where the judgment of the court of common pleas is reviewed by the supreme court by certiorari, the court of common pleas may allow a reasonable attorney fee to the party prevailing on the certiorari for his services on the certiorari, which fee shall be taxed in the costs and become a part of the final judgment in the cause, and may be recovered against the unsuccessful party. In cases where an appeal is taken from the judgment of the supreme court to the court of errors and appeals, the court of common pleas may allow a reasonable attorney fee to the party prevailing on the appeal to the court of errors and appeals for his services on the appeal, which fee shall be taxed in the costs and become a part of the final judgment in the cause, and may be recovered against the unsuccessful party.”


author: Kentz, J. J. & D. R. C.

text:
    ELIZABETH Di NUNZIO, COMPLAINANT, v. ROBERT Di NUNZIO, DEFENDANT.
    Juvenile and Domestic Relations Court Union County
    Decided November 9, 1970.

      Mr. David J. MeeTcer, for complainant (Messrs. McDonough, Murray <& MeeTcer, attorneys).

      Mr. J. Alan Drummond, for defendant (Messrs. Drummond & Owren, attorneys).-
   Kentz, J. J. & D. R. C.

Complainant and defendant were married in 1959 and three children were born of their marriage. On June 24, 1968 complainant left the marital abode as a result of defendant’s alleged misconduct.

On August 5, 1968 there was a hearing in this court on the wife’s complaint for' support for herself and the three minor children based on defendant’s cruel and inhuman conduct, pursuant to N. J. 8. A. 2A:4-18(f). At the hearing on the complaint this court found factually that over a period of time defendant liad violent arguments with complainant; that during one such argument he took out a gun and threatened to kill himself in front of his family; that he drove recklessly with his wife and children in his car, deliberately to frighten them; that he threatened to kill his wife and children and attempted to choke her, and by reason thereof complainant and her children were forced to leave the marital home. The court being of the opinion that complainant had sustained the burden of proving the complaint, entered a support order for complainant and the minor children based on defendant’s financial ability. No appeal was taken from that order by either party under N. J. 8. A. 2A :4-40.

Thereafter complainant instituted an action for divorce in our Superior Court, Chancery Division, on the ground of extreme cruelty. The complaint was dismissed for lack of sufficient evidence.

Subsequently defendant ceased making payments to complainant but continued to make payments for the children. As a result, complainant now seeks a determination as to the resulting arrearages and defendant seeks to vacate that portion of the support order which provided support for complainant. He contends that by virtue of the dismissal of her divorce action she would not be entitled to support in the Chancery Division and should not now receive any support from this court.

The first question raised in this proceeding is whether the evidence required to establish such extreme cruelty as would justify the wife’s leaving the marital abode and thereby constitute a constructive desertion entitling her to a divorce is the same quantum as is necessary to show that the husband’s conduct was so cruel and inhuman as to force the wife to leave the marital homo and thereby constitute a constructive desertion entitling her to support in the Juvenile and Domestic Eelations Court.

This question calls for an examination of the concurrent jurisdiction of the Juvenile and Domestic Eelations Court and the Superior Court. The Juvenile and Domestic Relations Court has concurrent jurisdiction with the Superior Court in matters pertaining to support of a deserted spouse and can order support based on the common law duty of a husband to provide suitable support and maintenance for his wife. Bonanno v. Bonanno, 4 N. J. 268 (1950); Wilson v. Wilson, 86 N. J. Super. 61 (App. Div. 1965); Russell v. Russell, 99 N. J. Super. 423 (Ch. Div. 1967). See also, Lysick v. Lysick, 91 N. J. Super. 394 (App. Div. 1966), and Ricci v. Ricci, 96 N. J. Super. 214 (J. & D. R. Ct. 1967).

N. J. S. A. 2A :4-18 states:

The juvenile and domestic relations court shall also have jurisdiction concurrently with such other courts as may have jurisdiction over the matter, to hear and determine in a summary manner disputes and complaints * * *
(f) Involving the domestic relation, where a husband or father forces his wife or child to leave the home because of his cruel and inhuman conduct, in which ease the court may provide by appropriate order for their support and maintenance. [Emphasis added.]

The determining factor that would justify the wife’s leaving the marital abode under N. J. S. A. 2A:4-18(f) is the cruel and inhuman conduct of the husband. If a divorce is sought, rather than an order of support, the proceeding would be instituted on the ground of extreme cruelty in the Superior Court, Chancery Division, under N. J. S. A. 2A:34-2(c) and 2A:34^3(c).

It is an established principle that the quantum of proof necessary for proving a complaint, in the Juvenile and Domestic Relations Court under N. J. S. A. 2A:4-18(f) is less than that required in the Superior Court under N. J. S. A. 2A :34-2(c) and 2A :34 — 3 (c). The words “cruel and inhuman conduct,” as applied to a husband under the former, do not have the same requirements of proof as are called for under the latter. If the Legislature had intended that the quantum of proof be the same, they would have used the same language in all three sections; that they did not is an indication of contrary intention, and the statutes have been so construed.

In Compton v. Compton, 109 N. J. Super. 5 (App. Div. 1970), the court said:

In the summary proceeding under the support statute, the wife need not establish the cruel and inhuman conduct of the husband to such a degree and with such specificity as is required in the aforementioned actions for divorce or separate maintenance, [at 8]

Similarly, the type of desertion necessary to substantiate an action for support is less than that required in a separate maintenance action. Tracey v. Tracey, 69 N. J. Super. 382 (App. Div. 1961); Mattox v. Mattox, 43 N. J. Super. 111 (App. Div. 1956); Cohen v. Cohen, 47 N. J. Super. 141 (App. Div. 1957).

In the present ease the husband’s conduct has been previously determined by this court to be cruel and inhuman in accord with the applicable statute. In other words, the wife’s leaving the marital home with the children has been determined to be justifiable in this case.

The second question to be answered is whether the dismissal of the wife’s subsequent divorce action in favor of the husband had any effect on the previous determination and accompanying support order of this court. I find no reported case in this State which would answer this question.

To be consistent with the prior reasoning, I find that the dismissal could not affect the determination and order of this court.

In Ogden v. Ogden, 101 N. J. Super. 509, 517 (J. & D. R. Ct. 1968), this court stated that a defendant should not bo permitted to use the Chancery Division of the Superior Court as an appellate tribunal to reverse a decision of the Juvenile and Domestic Relations Court. The proper procedure is an appeal. This court also stated that a judgment for divorce has no effect aside from terminating the marital relationship unless other matters, such as support, are brought directly to the attention of the divorce court. The only rights affected by the judgment per se are those directly based on the continuing existence of the spousal relationship. Ogden v. Ogden, supra. See also, Schimek v. Schimek, 109 N. J. Eq. 395 (Ch. 1931); Bowers v. Bowers, 132 N. J. Eq. 431 (E. & A. 1942); Isserman v. Isserman, 11 N. J. 106, 114 (1952); Equitable Life Assur. Society of United States v. Kretzschmar, 21 N. J. 129, 135 (1956); Messner v. Union County, 34 N. J. 233 (1961).

The consequences of the dismissal of the divorce action here are that the marital relationship still exists, with the attendant obligations, and that the evidence presented of the husband’s conduct did not constitute extreme cruelty within the meaning of the statutes. Because of the difference in the quantum of proof, it cannot be assumed logically that the dismissal of an action requiring the greater quantum of proof implies the reversal of a determination requiring a lesser standard of proof. Furthermore, it does not appear that the issue of support was ever brought before the Superior Court in this case.

The argument has been raised by defendant that as a result of the above conclusions the outcome of a particular application for support will be dependent upon the choice of tribunal. I find no merit in this argument. This court’s practices are traditionally more flexible than those in the Superior Court. Ricci v. Ricci, supra. As it was stated in Russell v. Russell, supra:

The Juvenile and Domestic Relations Court is designed, in the interest of public policy, to provide a tribunal able expeditiously to assure adequate support for a wife and child to avert a need for their public maintenance, and it deals with the financial aspect of the matrimonial relations where the husband is the “deserter,” within the meaning of the term as set forth in the statute. [99 N. J. Super. at 425]

• This court deals with the matrimonial obligations existing when the husband forces the wife to leave the marital home by reason of his “cruel and 'inhuman conduct,” as those terms are set forth in the statute. As stated above, since t-he effect of the dismissal is to continue the marital relation, and since it does hot appear that the Superior Court made any finding with respect to support, the parties remain in the same relative position. The quantum of proof being less in this court, the support order continues. The dismissal of the divorce action does not operate to terminate the husband’s duty to support when that issue was never determined.

Of course, an order of support is always subject to review and modification, depending upon new facts or a change of circumstances which may subsequently arise. N. J. S. A. 2A:34-19; 2A:34-23; Ramhorst v. Ramhorst, 138 N. J. Eq. 523 (E. & A. 1946). When such occurs, either party to a proceeding may apply at any time for a rehearing and modification of the support order.

An appropriate order will be entered.


author: Goedstann, P. J. A. D. L. K.,

text:
    STATE IN THE INTEREST OF L. R. STATE OF NEW JERSEY, COMPLAINANT-RESPONDENT, v. L. R., JUVENILE-APPELLANT.
    Superior Court of New Jersey Appellate Division
    Argued November 30, 1970
    Decided December 7, 1970.

      Before Judges Golbmann, Leonard and Mountain.

      Mr. George Y. Sodowick argued the cause for appellant (Mr. Burton L. Eichler, assigned attorney).

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

Goedstann, P. J. A. D. L. K.,

a juvenile, was charged with violating N. J. 8. A. 2A:170-31, the trespassing section of the Disorderly Persons Act, adjudicated a delinquent and committed to the New Jersey Youth Deception and Correction Center at Yardville. At the Juvenile and Domestic Delations Court hearing the judge also considered a complaint charging L. B. with malicious mischief, in violation of N. J. 8. A. 2A :í70-36. This appeal deals only with the first complaint, the juvenile maintaining that the proofs did not support a finding that he had violated the trespass statute.

N. J. 8. A. 2A :170-31 reads:

Any person who trespasses on any lands * * * after being forbidden so to trespass by the owner, occupant, lessee or licensee thereof, or after public notice on the part of the owner, occupant, lessee or licensee forbidding such trespassing, which notice has been conspicuously posted adjacent to the highway bounding on such lands or adjacent to a usual entry way thereto, is a disorderly person * * *.

On October 13, 1968, a Sunday, L. D. was discovered by policemen sitting in an automobile located in the car lot owned by Ward Motors, on Central Avenue, East Orange. The lot was enclosed by a lO'-high fence with a foot of barbed wire on top. All the gates in the fence had been locked the previous night and wrere not opened that Sunday. Admittedly, there were no signs on the fence advising people to keep out. The police ordered L. E. to come to the fence, and after lie said he had climbed it to get into the lot, they ordered him to climb the fence and come out.

The question here, absent any posted notice, is whether the facts support an adjudication of delinquency under the first clause of the statute, which denotes it a violation for any person to trespass on lands after being forbidden to do so by the owner or occupant.

The Juvenile Court judge held that there was constructive notice of a prohibition against trespassing by reason of the nature of the fence, ingress being foreclosed because all the gates were locked. The juvenile claims that the judge adopted a strained construction of the statute which, being penal, should be strictly construed. A fence, he reasons, may serve many purposes, such as keeping something within a delineated area, segregating items, delineating boundaries, and to serve insurance purposes. Although L. R. was not expressly forbidden by Ward Motors from entering upon its premises, the high, barbed-wire, locked fence around the car lot served the obvious purpose of letting the public know that it was excluded. To adopt any other approach would require the owner or occupant of property to expressly forbid entrance to any person who, at a time when the lot was closed — for example, on a Sunday — might take it into his mind to climb the fence and, as the juvenile did here, attempt to operate one or more of the parked ears. The action taken by Ward Motors in enclosing its lot to protect its cars and property from outsiders during nonbusiness hours was indication enough that it forbade defendant’s presence.

As was said in another setting, “Prevailing customs often determine whether a possessor of land is willing to have a third person come thereon.” Snyder v. I. Jay Realty Co., 30 N. J. 303, 312 (1959). They may be such that it is entirely reasonable for one to assume that his presence will not be tolerated unless he is told otherwise. Pragmatically, a fence of the type here involved, with all gates closed during nonbusiness hours — and particularly on a Sunday — is a custom so frequently adopted that any member of the public would, without being told, know that he was not to trespass upon the premises unless he had specific and express permission from the owner or occupant so to do.

The adjudication is affirmed.


author: Lane, J. A. D.

text:
    PRINCETON RESEARCH LANDS, INC., A NEW JERSEY CORPORATION, PLAINTIFF-APPELLANT, v. PLANNING BOARD OF THE TOWNSHIP OF PRINCETON, IN THE COUNTY OF MERCER AND STATE OF NEW JERSEY, AND THE TOWNSHIP COMMITTEE OF THE TOWNSHIP OF PRINCETON, IN THE COUNTY OF MERCER AND STATE OF NEW JERSEY, DEFENDANTS-RESPONDENTS.
    Superior Court of New Jersey Appellate Division
    Argued September 29, 1970
    Decided October 15, 1970.

      Before Judges Kilkenny, Haipern and Lane.

      Mr. Gordon C. Strauss argued the cause for appellant (Messrs. McCarthy, Bacsik, Hicks and Dix, attorneys).

      Mr. Hester B. Pierson argued the cause for respondents (Messrs. Mason, Griffin and Moore, attorneys; Mr. Pierson, on the brief).
   The opinion of the court was delivered by

Lane, J. A. D.

Plaintiff appeals from a summary judgment granted to defendants and from a denial of its motion for summary judgment in this action in lieu of prerogative writ.

Plaintiff is the owner of a generally triangular 36.4-aere tract of land which is bounded by 4,555 feet of existing streets. In December 196? it entered into a contract to sell a 10.9-acre rectangular portion of the tract. This portion was bounded by two of the streets a total of 1,350 feet. There were two existing structures on the 10.9-acre parcel, but the remaining 25.5 acres were vacant land. The purchaser planned to use the 10.9-acre parcel to establish a training center for executives, a use allowed in the applicable zone. There was no plan to develop the remaining 25.5 acres. An application was made to the planning board for a classification of the subdivision as “exempt.” The sole purpose of the subdivision was to sell the 10.9-acre portion.

On January 8, 1968 the subdivision committee of the planning board purported to classify the subdivision as “exempt” (the terminology of the ordinance being “minor”) but attached as one of three conditions the requirement that the plaintiff dedicate to the municipality land along the entire street perimeter sufficient to increase the existing street right-of-way to the width established by the design standards contained in the township’s subdivision ordinance. In the initial submission plaintiff had offered to make such dedication for the streets adjoining the 10.9-acre parcel. The area that was offered in the submission was 0.9 acres. The area required by the condition was 3.33 acres.

When notification of the action was received by letter dated January 8, 1968, the president of the plaintiff was out of the country. Immediately upon his return he filed an appeal with the township committee in accordance with N. J. 8. A. 40:55-1.19 and the ordinance. That appeal, however, was not filed until January 19, 1968, one day after the ten-day appeal period had expired. The township committee refused to hear the appeal because it was out of time. The complaint in this action was filed February 21, 1968, contesting the validity of the condition and challenging the constitutionality of the provision of the subdivision ordinance requiring dedication of land to increase abutting streets to the design standard set in the subdivision ordinance.

On March 11, 1968 plaintiff offered to file a new subdivision plat complying with the objeeted-to condition, subject however to the final determination of the courts as to its validity. On April 9, 1968 the planning board rejected the 'offer and rescinded the classification by its committee of the proposed subdivision as minor.

The Law Division disposed of the matter by holding that the only genuine issue was the validity of the subdivision ordinance requirement of land dedication to increase the right of way of an abutting street. On the basis of dictum contained in Brazer v. Mountainside, 102 N. J. Super. 497 (Law Div. 1968), aff’d o.b. 104 N. J. Super. 456 (App. Div. 1969), the Law Division held here:

* * * [T]he Planning Board may require that plaintiff dedicate land for road widening purposes around the entire subdivision, and not merely around that land which is to be sold.

Plaintiff argues that its subdivision having been classified as minor, the classification may not be changed. Eurther, it contends that the municipality has no authority to demand land dedication to increase the right-of-way of the existing, abutting streets, and that if there is such authority, the dedication required in this case was arbitrary, caprieions and unreasonable.

Initially, we point out that the township committee should not have held that the appeal was out of time. N. J. 8. A. 40:55-1.19 provides that an appeal may be taken from an action of the planning board to the governing body “within 10 days after the date of the action of the planning hoard.” Here the appeal was filed on the eleventh day, the delay being caused by the absence of the president of the plaintiff from the country. In view of the explanation submitted by the plaintiff, it was unreasonable for the township committee to dismiss the appeal which had been expeditiously filed and was but one day beyond the ten-day period. The N. J. Court Rules, 1969 (R. 1:3-3) provide that when service of a notice or paper is made by mail and a rule or court order allows the party served a period of time after the service thereof within which to take some action, three days shall be added to the period allowed. Since the township committee is acting in a qMtm-judicial capacity in hearing an appeal from the planning board, we think that it should have applied R. 1:3 — 3 in determining whether the appeal was timely.

Did the subdivision committee of the planning board have authority to attach a condition to its classification?

Chapter 20 of the Princeton Township Code was adopted pursuant to N. J. 8. A. 40 :55-l.l el seq. Section 20.5 of the Township Code provides for final action to he taken hv the planning board. A minor subdivision is defined in section 20-1:

Any subdivision containing not more than two lots fronting on an existing street, not involving any new street or road or the extension of municipal facilities, not adversely effecting [sic] the development of the remainder of the parcel or adjoining property, and not in conflict with any provision or portion of the master plan, official map, Health Code, chapter 23, or this chapter.

The Princeton Township Code (section 30-1) provides that a subdivision committee of at least three members of the planning board will classify subdivisions in accordance with the Code. The committee action in classifying a subdivision as minor must be unanimous. Code, section 30-9.

Section 30-41 requires a subdivider to dedicate land for additional width for existing, adjoining streets in certain cases:

Subdivisions that adjoin or include existing streets that do not conform to widths as shown on the master plan or official map or the street width requirements of this article shall dedicate additional width along either one or both sides of the road. If the subdivision is along one side only, one-half of the required extra width shall be dedicated. (Ord. No. 278, § 8.2)

Section 30-40 provides that the width of streets shall be not less than 50 feet “or such greater width as shall be shown on the master plan or official map if such exists.” There is a master plan.

Here there is some dispute as to the amount of land required for dedication, but that is not of importance. As to one street the condition required a 33' dedication. As to a second street the condition required a 13J4' dedication.

N. J. 8. A. 40:55-1.14 permits a municipality to exempt certain subdivisions from the requirement of local municipal approval. The classes of subdivisions that may be declared exempt are those (1) in which the number of new lots is less than a designated number, or (3) in which no new streets are involved, or (3) “such other classes of subdivisions as such ordinance shall designate.” It is not necessary that a municipality declare that any subdivisions are exempt. It can require all subdivisions to be treated as major subdivisions. Noble v. Mendham Tp., 91 N. J. Super. 111 (App. Div. 1966), certif. den. 48 N. J. 120 (1966); Kotlarich v. Mayor & Council of Ramsey, 51 N. J. Super. 520 (App. Div. 1958).

In the classification process a planning board committee can exercise no discretion. A subdivision that is submitted either complies with the ordinance establishing exempt subdivisions and with the requirements of N. J. S. A. 40:55-1.20 (Kotlarich v. Mayor & Council of Ramsey, supra, 51 N. J. Super. at 531), or it does not. The effect of a classification of a subdivision as minor is that no further affirmative action for approval is required. The subdivision committee must accept the ordinance as it is written and apply its definition of minor subdivision to the letter. Since no discretion may be exercised in the classification process, it follows that no conditions may be imposed. The inability of a planning board committee to attach conditions to a classification is to be distinguished from the power of a planning board to impose conditions to the approval of a major subdivision. See Ardolino v. Florham Park Board of Adjustment, 24 N. J. 94, 110 (1957).

Since the subdivision committee of the planning board attached a condition to the classification of the plaintiff’s subdivision, its classification action was invalid.

Practically speaking, the action of the committee was not a classification at all. It was merely a statement that if the plaintiff made the dedication, its subdivision would be classified as a minor subdivision. Clearly the plaintiff’s subdivision did not comply with the definition of a minor subdivision contained in the Township Code because it did not comply with section 20-41. There was, therefore, no error in the planning board’s subsequent rescission of the ultra vires action taken by its committee. Cf. Burlington County Evergreen Park Mental Hosp. v. Cooper, 56 N. J. 579, 600 (1970).

The township has stated that even if the plaintiff applies for major subdivision approval, it will not be given without compliance by the plaintiff with section 20-41. May a municipality require dedication of land to increase the right-of-way of an existing, abutting, improved street?

N. J. S. A. 40:55-1.20 provides in part:

Where the planning board after hearing has adopted portions of the master plan with proposals regarding the street system within the proposed subdivision, the board may require that the street shown conform in design and in width to the proposals shown on the master plan.

Municipalities have construed this provision to give them authority to require a subdivider to dedicate land for the increase of width of an abutting, existing street which does not comply with the design standards set forth in a subdivision ordinance or by a master plan.

The Appellate Division in Longridge Builders, Inc. v. Planning Board of Princeton Tp., 98 N. J. Super. 67, 74 (1967), held that the statutory authority allowed the planning board to require the improvement only of streets "within the subdivision.” Upon appeal the Supreme Court affirmed the action of the Appellate Division but refused to follow the reasoning. Longridge Builders, Inc. v. Planning Board of Princeton Tp., 52 N. J. 348 (1968). The court stated:

In our view, the instant case does not present a proper occasion to consider the question, passed upon below, whether the Planning Act authorizes a municipality to impose upon a subdivider, as a planning matter, the duty to provide off-site improvements, [at 850]

In Brazer v. Mountainside, 55 N. J. 456 (1970), the effect of the statutory provision referred to above was specifically considered. Justice Hall stated:

Therefore the provision of N. J. S. A. 40:55-1.20 and the implementing ordinance relied upon by defendants here— “[w]here the planning board after hearing has adopted portions of the master plan with proposals regarding the street system within the proposed subdivision, the board may require that the street shown conform in design and in width to the proposals on the master plan” — is validly applicable solely where the proposed street shown on the master plan is necessary to serve and benefits the subdivided lots. Oonversely, the quoted sentence must be construed to mean only that, where a new street or streets are necessary by reason of and to serve the subdivided lots, the Planning Board may require the location and design of such streets to conform to proposals shown on the master plan. Otherwise, the municipality, if it desires to implement the master plan, must pay compensation to the landowner for the right-of-way it desires to reserve for future use. [at 467]

Therefore, under the existing statutory authority, although a municipality may require a subdivider to establish an off-site new street and “to bear that portion of the cost which bears a rational nexus to the needs created by, and benefits conferred upon, the subdivision," (Longridge Builders, Inc. v. Planning Board of Princeton Tp., supra, 52 N. J. at 350), it may not require a subdivider to donate land to increase the right-of-way of an existing, abutting street which already serves the municipality.

Section 20-41 of the Priueeton Township Code, insofar as it refers to adjoining, existing streets, exceeds the statutory authority of the municipality and is, therefore, invalid.

In view of the fact that section 20-41 has been held invalid as applied to adjoining, existing streets, upon resubmission by the plaintiff of the application for classification, the subdivision committee will be required to classify the subdivision as a minor subdivision. Although in its original application plaintiff volunteered to dedicate land for street widening purposes from the 10.9-acre parcel, such dedication may not be required by the municipality.

The judgment holding that section 20-41 of the Princeton Township Code is valid is reversed. Section 20-41 of the Code is invalid as applied to adjoining, existing streets.


author: Pee Cueiam.

text:
    STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT, v. OTTO S. GULLO, SR., AND GEORGE L. STEEVER, DEFENDANTS-APPELLANTS.
    Superior Court of New Jersey Appellate Division
    Argued September 15, 1970
    Decided December 4, 1970.
    Before Judges Lewis, Matthews and Mintz.

      Mr. Joseph Narrow argued the cause for appellants (Messrs. Narrow & Bmns, attorneys).

      Mr. Willard Bernstein, Assistant Prosecutor, argued the cause for respondent (Mr. Gerard J. Di Nicola, Salem County Prosecutor, attorney).
   Pee Cueiam.

Defendants Otto Gullo and George Steever were convicted on three indictments charging them with obtaining money by false pretenses in violation of N. J. S. A. 2A:111-1. They were sentenced to State Prison; Gullo for a term of two to three years and Steever for a term of one to three years.

The offenses involved a fraudulent scheme and, incident thereto, the cashing of three checks totalling $2350. The checks were issued in February 1968 by Gullo to Steever and were drawn on the Girard Trust Company of Philadelphia where Gullo had an account which was closed in November 1967. Upon cashing the first check of $650 at the City National Bank and Trust Company of Salem, Steever opened an account, depositing $100 of the proceeds and retaining the balance. Two subsequent checks were similarly cashed and, in each instance, a relatively small deposit was made to the account.

Steever testified that he gave the cash proceeds of the checks to Gullo. Although Gullo did not take the witness stand. State Trooper Daniel La Ferriere testified as to the versions of the events as related to him by Steever and Gullo. According to the trooper’s testimony, Gullo denied conspiring with anyone and said he had given the checks to Steever as promissory notes and that he had made arrangements to make all of the checks good.

On appeal defendants argue that (1) the trial court erred in not granting their motions for judgments of acquittal at the close of the State’s case, (2) the failure of the trial court to instruct the jury that the respective oral statements were not evidential against the other defendant was plain error, (3) the instruction to the jury on the issue of voluntariness constituted plain error, and (4) defendant Gullo was prejudiced by not being permitted to call an attorney from his home when he was first arrested. We find no substance to any of these contentions.

The State’s evidence, when given the benefit of all the testimony and the favorable inferences which could reasonably be drawn therefrom, was sufficient to support-the guilt of both defendants beyond a reasonable doubt. See State v. Reyes, 50 N. J. 454, 458-459 (1967). The jury had the benefit of all the testimony, including the inconsistencies in the testimony of the bank’s clerk, and it could fairly conclude that, at least on one occasion, Gullo accompanied Steever to the bank in his car.

When Steever testified, he reiterated the statements he had given to Trooper La Perriere and was subjected to cross-examination by his codefendant. Accordingly, Gullo was not deprived of his Sixth Amendment right of confrontation. State v. Gardner, 54 N. J. 37, 44-45 (1969). The test of plain error has not been satisfied.

While there is some confusing language in a limited portion of the charge to the jury on the issue of voluntariness, when the instructions on this phase of the case are read in their entirety, it appears that the explanation of voluntariness was reasonably complete, fair and understandable.

The argument that Gullo could not call a lawyer from his home is of no moment for the reason that he made no statement to the police at that time.

Although not cited in the briefs, State v. Morse, 109 N. J. Super. 160 (App. Div. 1970) was raised at oral argument and counsel were afforded an opportunity to supplement their briefs in respect to its applicability. The facts in Morse are plainly distinguishable and our decision in that case does not militate against an affirmance of the judgments under review. Here, there is ample evidence of greater fraudulent involvement than the mere cashing of worthless checks within the meaning of N. J. S. A. 2A :111 — 15.

The judgments of conviction are affirmed.


author: Halpern, J. A. D.

text:
    STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT, v. JAMES HARVEY VANCE, JR., DEFENDANT-APPELLANT.
    Superior Court of New Jersey Appellate Division
    Argued December 8, 1970
    Decided December 22, 1970.

      Before Judges Kilkenny, Halpern and Lane.

      Mr. George E. Pollard, Assistant Deputy Public Defender, argued the cause for appellant (Mr. Stanley 0. Van Ness, Public Defender, attorney; Mr. Kenneth Krause, Assistant Deputy Public Defender, on the brief).

      Mr. Michael L. Bitterman, Deputy Attorney General, argued the cause for respondent (Mr. George F. Kugler, Jr., Attorney General of New Jersey, attorney).
   The opinion of the court was delivered by

Halpern, J. A. D.

Defendant appeals the denial of his petition for post-conviction relief wherein he contended his sentences were illegal, or in the alternative excessive.

On October 11, 1962 defendant pled non vult to separate indictments charging him with murdering Noreen Buckley and Margaret Kennedy. He was sentenced on one indictment to a State Prison term of not less than 25 years and not more than 30 years, and to a consecutive life sentence on the other indictment.

The facts are not in substantial dispute and the full details of these heinous offenses need not be set forth. It is sufficient to relate that defendant, without apparent reason, by separate acts killed both girls with a tire iron and left their bodies in an isolated area about 490 feet apart.

Defendant contends the court erred in imposing consecutive sentences since he acted on a single impulse, and regardless of how many different criminal acts he committed they “arose out of a single transaction, and therefore, only one sentence may be imposed.” He argues that the life imprisonment sentence be rescinded and cites as authority State v. Mills, 51 N. J. 277 (1968), cert. den. 393 U. S. 832, 89 S. Ct. 105, 21 L. Ed. 2d 104 (1968); State v. Di Rienzo, 53 N. J. 360 (1969); State v. Pennsylvania R. R. Co., 9 N. J. 194 (1952), and State v. Willhite, 40 N. J. Super. 405 (Cty. Ct. 1956). The contention is without merit. The record is clear that two separate and distinct criminal acts were committed by defendant for which separate sentences may be imposed. State v. Carter, 54 N. J. 436, 451 (1969) cert. den. 397 U. S. 948, 90 S. Ct. 969, 25 L. Ed. 2d 130 (1970) ; State v. Billingsley, 46 N. J. 219 (1966) ; State v. Maxey, 42 N. J. 62 (1964); State v. Jefferson, 40 N. J. Super. 466, 470 (App. Div. 1956).

The cases cited by defendant are clearly distinguishable. In Mills, three deaths resulted from a single act of arson; in Di Rienzo, one act of receiving goods stolen from various places was held to be a singlo offense; in Pennsylvania R. R. Co., 84 deaths resulted from a single act of negligence; and in WilThite, one continuous act of reckless driving through several municipalities was held to be a single offense. These cases deal with a single act which injured more than one person, or resulted in but one offense. As previously stated, in the instant case we have two separate and distinct criminal acts for which multiple punishment may be imposed.

In the alternative, defendant contends the sentences were excessive. While we have the power to review and modify sentences, such power must be exercised with extreme care. We will overturn a sentence only upon a clear showing if was unduly punitive or there was an abuse of discretion by the sentencing judge. State v. Brown, 46 N. J. 96, 108 (1965); State v. Provoid, 110 N. J. Super. 547, 559 (App. Div. 1970), and cases cited therein. No such showing has been made. The sentences imposed were severe, but in light of the magnitude of the crimes they were not manifestly excessive.

We think it appropriate to indicate that sentences claimed to be excessive are only reviewable on direct appeal and not by post-conviction application. State v. Smith, 43 N. J. 67, 74 (1964), cert. den. 379 U. S. 1005, 85 S. Ct. 731, 13 L. Ed. 2d 706 (1965). But see State v. Hicks, 54 N. J. 390 (1969), where the issue apparently was not raised, and the court was confronted with an unusual factual situation. While we have treated with the merits in this case, we are not disposed to do so in the future.

Affirmed.


author: Pee Curiam.

text:
    GEORGE DUGAN, PLAINTIFF-APPELLANT, v. POLICE DEPARTMENT, CITY OF CAMDEN, DEFENDANTS-RESPONDENTS.
    Superior Court of New Jersey Appellate Division
    Argued December 14, 1970
    Decided December 24, 1970.

      Before Judges Sullivan, Collestee and Labeeoque.

      Mr. Allen 8. Zeller argued the cause for appellant (Mr. Leonard II. Wallach, Director, of counsel and on the brief; Mr. David II. Dugan, III, Director Camden Regional Legal Services, Inc., attorney).

      Mr. Isaiah Steinberg argued the cause for respondents.
   Pee Curiam.

We conclude that the Municipal Police Department of the City of Camden may maintain records of juvenile arrests which include the particular charge on which the juvenile was arrested. These records are maintained within the Department, are not public records and are available only to other law enforcement and related agencies. Such records are part of the overall police facilities for crime investigation, analysis, evaluation and prevention, and are necessary to the proper and effective functioning of a police department.

The arguments that these records violate the legislative policy expressed in N. J. 8. A. 2A :4-39 and deny plaintiff equal protection and due process of law under the Fourteenth Amendment, are without merit. Cf. Anderson v. Sills, 56 N. J. 210 (1970).

It is to be noted that plaintiff’s juvenile court record of having been adjudicated a juvenile delinquent may be expunged by proper proceedings under N. J. 8. A. 2A:4-39.1.

Affirmed.


author: Laenee, A. J. S. C.

text:
    BOARD OF TRUSTEES OF THE FREE PUBLIC LIBRARY OF THE CITY OF UNION CITY, IN THE COUNTY OF HUDSON, A BODY CORPORATE OF THE STATE OF NEW JERSEY, ET AL., PLAINTIFFS, v. THE CITY OF UNION CITY, IN THE COUNTY OF HUDSON, A BODY CORPORATE AND POLITIC OF THE STATE OF NEW JERSEY, ET AL., DEFENDANTS.
    Superior Court of New Jersey Chancery Division
    Decided December 3, 1970.

      Mr. Joseph L. Freiman, attorney for plaintiffs.

      Mr. Victor P. Mullica, attorney for defendants.
   Laenee, A. J. S. C.

This opinion is limited to the issues raised by the third count of the amended complaint wherein plaintiffs seek to quash subpoenas summoning Herbert Borne-man and Kenneth E. Traphagen as witnesses before the investigating committee of Union City appointed pursuant to N. J. 8. A. 40:48-25 et seq., and 2A:67A-1 et seq., and to enjoin defendants from undertaking any investigation pertaining to the operations of the Free Public Library of Union City. By consent of the parties the matter was heard in a summary manner and is to be determined by the court as a matter of law.

The controversy arises as a result of the creation of a municipal investigating committee by the Board of Commissioners of the city pursuant to the authority of N. J. S. A. 40:48-25, which grants the power of subpoena to a committee of the governing body of a municipality appointed to consider “any subject or matter within its jurisdiction.”

The municipal resolution in question provides:

WHEREAS, by reason of a Municipal Election held in the City of Union City on Tuesday, May 12, 1970, there was elected to the office of Commissioner, HARRY M. CALANDRILLO, JR., JAMES E. LAGOMARSINO, PAUL J. LOMBARDO, WILLIAM J. MEE-HAN and PRANK X. CLARK: and
WHEREAS, said newly elected Commissioners, upon taking their oath of office, and having undertaken the duties of their respective offices, have ascertained certain deficiencies in records heretofore kept, and in other practices in the various departments; and
WHEREAS, it is deemed necessary for the purpose of promoting efficiency and economy in government and in the best interests of the City of Union City to have said investigating committee;
NOW, THEREFORE, be it
RESOLVED, that HARRY M. CALANDRILLO, JR., JAMES E. LAGOMARSINO, PAUL J. LOMBARDO, WILLIAM J. MEE-HAN and PRANK X. CLARK, be and they are hereby designated as an Investigating Committee to examine any and all officials, officers and employees of the City of Union City in relation to the discharge of his or their official duty or conduct, as the case may be, and to examine and investigate such additional subject, persons or matters falling within the jurisdiction this Investigating Committee as may, in the judgment of said Committee, require or necessitate such examination and investigation.

Plaintiffs are the board of trustees of the Free Public Library and two members of the board under subpoena. (The legality of the board and the appointment of its members is under attack in another phase of this litigation). They challenge the proposed investigation into their operations and activities on the following grounds that (1) the Free Public Library is an autonomous body, free of control or supervision by the board of commissioners of the city; (2) the individuals who were subpoenaed are not officials, officers or employees of the city subject to investigation within the scope of the resolution creating the investigating committee; and (3) the intended investigation of the Library is being undertaken in bad faith and without a legitimate public purpose.

The issue involved is a novel one for it has not been determined by any reported opinion in this State.

The creation and operation of a free public library in a municipality is governed by N. J. 8. A. 40:54r-l et seq. The board of trustees constitutes a corporate entity with independent powers to manage and operate the library. N. J. 8. A. 40:54-12. However, despite its independent status, the library is “an adjunct of the local government in the field of education and intellectual recreation, and under its control.” Glick v. Trustees of Free Public Library, 2 N. J. 579, 583 (1949).

Various facets of interdependence can be gleaned from the legislative scheme. The cost of operation is borne by local taxation, and the moneys are appropriated by the local governing body, albeit the amount of the appropriation is mandated by the Legislature. N. J. 8. A. 40:54^8. The trustees are appointed by the mayor, and the mayor and the head of the local school system are ex-officio members of the board. N. J. 8. A. 40:54-9. Library funds are deposited in the municipal treasury and disbursed by municipal officials on the vouchers of the trustees. N. J. 8. A. 40:54^18. The mayor fixes the amount of the bond of the treasurer of the board. N. J. 8. A. 40 :54-13. The board is required to render an annual report to the governing body. N. J. 8. A. 40 :54-15. The board can only purchase lands, erect buildings, or alter the same with the approval of the mayor and governing body of the municipality; and after such a purchase title to the real estate is taken in the name of the municipality. N. J. 8. A. 40:54-25.

Furthermore., it has been determined by our courts that employees of the library are in the paid service of the municipality and therefore entitled to civil service status. Trustees of Free Public Library, Newark v. Civil Service Commission, 83 N. J. L. 196 (Sup. Ct. 1912), aff’d 86 N. J. L. 307 (E. & A. 1914), and that the municipal bidding statutes are applicable to contracts undertaken by a library. Glick v. Trustees of Free Public Library, 1 N. J. Super. 308 (App. Div. 1949), aff’d 2 N. J. 579 (1949).

The foregoing illustrates that regardless of the corporate status of the board of trustees of the Library and its independence in operation and management, the municipality as a whole, and the governing body in particular, have a substantial involvement with the welfare and management of the library business in the areas of finance and personnel. For many purposes the Library is but a branch or agency of the municipality, and its mere form as a corporate entity does not detract from the substance of its status as a branch of the municipality under the legislative design. See Glick and Trustees of Free Public Library, Newark, supra. For an analogous ease, see Dept. of Civil Service v. Clark, 27 N. J. Super. 290 (Law Div. 1953), aff’d 15 N. J. 334 (1954), involving boulevard commissioners of Hudson County; compare State v. Parking Authority, Trenton 27 N. J. Super. 284 (Law Div. 1953), aff’d 29 N. J. Super. 335 (App. Div. 1954); Monte v. Milat, 17 N. J. Super. 260 (Law Div. 1952).

It is manifest, however, that the present issue before the court does not necessarily turn upon the structure of the Library board or the extent of its independence in management. The key problem, rather, is whether an inquiry into the activities of the board comes within the statutory authorization as a subject within the jurisdiction of the governing body of the municipality. In other terms, does such an inquiry serve any legitimate public purpose within the purview of the functions of the commissioners of Union City ? See Eggers v. Kenny, 15 N. J. 107, 125 (1954).

Investigation in itself is an important and valuable tool for the functioning of government. In the absence of a clear showing of bad faith, such a power should be construed liberally to permit a broad scope of inquiry to achieve the legitimate ends of the investigation.

As has already been noted, the governing body has a substantial legitimate interest in the operation of the Library, particularly with reference to the handling of property and funds and the performance of the personnel constituting the Board of Trustees. The governing body and the public are entitled to know in what manner moneys are expended, how the buildings and equipment are used, whether the members of the board are qualified, in what manner they are performing their duties, and a myriad of other facts and data in connection with the management of the Library. So long as the Library facility is an adjunct of the municipality expending municipal funds, the proper area of investigation is broad and undefinable. The subject matter is clearly within the “jurisdiction” of the governing body as required by the applicable statute.

Plaintiffs have failed to submit any evidence to support a factual claim of bad faith, and the mere fact that the inquiry may be motivated by political ends is wholly immaterial with reference to the power and right to make such an inquiry. Eggers v. Kenny, supra, 15 N. J. at 125.

It must also be noted that the powers of the board of commissioners of Union City are not limited to the legislative function. A municipal commission form of government is not patterned upon the separation of powers applicable to Eederal and State Governments. In a municipality of this type the governing body is invested with executive, administrative, judicial and legislative powers, authority and duties, which are distributed among five departments headed by the respective commissioners. N. J. S. A. 40 :72-4. See Wintermute v. Ellenstein, 117 N. J. L. 274 (Sup. Ct. 1936); La Guardia v. Smith, 288 N. Y. 1, 41 N. E. 2d 153, 155 (Ct. App. 1942); 42 Colum. L. Rev. 1217 (1942). Consequently, the legitimate ends of investigation available to the governing body of a municipality are much broader in scope than those relevant to an investigation under the aegis of a legislative body. The municipal government is involved in all facets of operation of government business, and as such its jurisdiction extends to any area of governmental activity which may call for some type of official imprimatur on its part. Thus, the purpose of the municipal investigation is not limited to the adoption of new legislation, but may be utilized for the development of any facts relevant to the administrative, executive or judicial functions as well. Cf. Kilbourn v. Thompson, 103 U. S. 168, 26 L. Ed. 377 (1881); 9 Rutgers L. Rev. 576 (1955), dealing with legislative investigations.

In addition to the attack on the basic power of the investigating committee to inquire into the affairs of the Free Public Library, plaintiffs challenge the inquiry and the issuance of the subpoenas on the ground that such action is beyond the compass of the resolution creating the committee and authorizing the investigation. It is contended that the resolution limits the committee’s inquiry to municipal officials, officers and employees, and that the individual plaintiffs, as trustees of the Library, do not fall into that classification.

This contention is without merit. Even upon an assumption that plaintiffs Borneman and Traphagen are not “officials, officers or employees” of the city, the resolution in question contains a comprehensive clause which authorizes the committee “to examine and investigate such additional subject, persons or matters falling within the jurisdiction of this Investigating Committee as may, in the judgment of said Committee, require or necessitate such examination and investigation.” It is apparent that the format of the resolution is identical with that utilized by the City of Jersey City which was before the court in Eggers v. Kenny, supra, and by the City of Newark in the case of Wintermute v. Ellenstein, supra. Furthermore, the underlying statute, N. J. S. A. 40:48-25, permits the issuance of a subpoena "to any person within this state.”

It is clear, therefore, that the trustees of the Eree Public Library may be subpoenaed to testify before the investigating committee and to produce such records which may be in their possession pertaining to the Library and the conduct and management of its activities; and they are compelled to honor the subpoenas heretofore served upon them for a date to be set by the committee.

Judgment will be entered in favor of defendants accordingly.


author: Larner, A. J. S. C.

text:
    BOARD OF EDUCATION OF THE CITY OF UNION CITY, IN THE COUNTY OF HUDSON, A BODY CORPORATE OF THE STATE OF NEW JERSEY, ET AL., PLAINTIFFS, v. THE CITY OF UNION CITY IN THE COUNTY OF HUDSON, A BODY CORPORATE AND POLITIC OF THE STATE OF NEW JERSEY, ET AL., DEFENDANTS.
    Superior Court of New Jersey Law Division
    Decided December 3, 1970.

      Mr. Scipio L. Africano, attorney for plaintiffs.

      Mr. Victor P. Mullica, attorney for defendants.
   Larner, A. J. S. C.

This action in lieu of prerogative writs is brought by the Board of Education of the City of Union City and its architect, Joseph D. Lugosch, to prevent the investigating committee of the board of commissioners from inquiring into the conduct of the Board of Education of that city, and to quash the subpoena issued to Lugosch to testify and produce certain records before the committee. The applicable statute and resolution are those considered by this court in the companion case of Board of Trustees of Free Public Library v. City of Union City, 112 N. J. Super. 484 argued at the same time and decided this day. N. J. S. A. 40:48-25 et seq. and 2A:67A-1 et seq. (Docket No. C13070).

Plaintiffs herein rely upon the autonomous characteristics of the board of education in support of their position, pointing out that a board of education is an independent corporate entity which manages the operation of the school system substantially free of control by the local governing body. N. J. 8. A. 18A:10-1; 18A:11-1 et seq.; Botkin v. Mayor, etc., Westwood, 52 N. J. Super. 416 (App. Div. 1958), app. dism. on other grounds 28 N. J. 218 (1958); Gualano v. Board of School Estimate, Elizabeth, 39 N. J. 300, 303 (1963); Board of Education East Brunswick v. Township Council, 48 N. J. 94, 108 (1966).

Despite the autonomous character of the board of education in the management and conduct of the school system, there are nevertheless certain areas of interdependence between the board and the governing body of the city.

The Board of Education of Union City is a Type I school district governed by N. J. S. A. 18A:12-5 et seq. (formerly 18:6-1 et seq.), with its members appointed by the mayor of the city. N. J. S. A. 18A:12-7 (formerly 18:6-4). There is a Board of School Estimate, composed of two members of the Board of Education, two members of the governing body and the mayor, which passes on the school budget and fixes the amount of the necessary appropriation to be submitted to the governing body. N. J. 8. A. 18A:22-1. The governing body must appropriate the amount certified by the Board of School Estimate up to a maximum of 1)4% of the assessed valuation of property in the municipality. N. J. S. A. 18A:22-15.

In connection with capital projects, the Board of School Estimate also determines the amount necessary, and the governing body, subject to certain limitations, is required to appropriate the amount so certified either from its general funds or through the issuance of municipal bonds. N. J. S. A. 18A:22-19 and 20. A bond issue for school purposes must be authorized by ordinance adopted by the board of commissioners of the city and, under certain circumstances, by the voters of the municipality. N. J. 8. A. 18A :24-20 to 29.

All moneys necessary for school purposes must be provided by the city through local taxation.

As a consequence, there are sufficient areas of mutual relationship between the two bodies to demonstrate that the activities of the Board of Education of Union City, including cost, efficiency and performance of the school system, are a matter of legitimate interest to the governing body of the city so as to justify the inquiry by its investigating committee. See dissenting opinion in Botkin v. Mayor, etc., Westwood, 52 N. J. Super. 416, 437 (App. Div. 1958); Hackensack Bd. of Education v. Hackensack, 63 N. J. Super. 560 (App. Div. 1960). The rationale articulated in Board of Trustees of Free Public Library v. City of Union City, supra, is equally applicable and dispositive of the plaintiffs’ contentions herein.

The subject is manifestly within the jurisdiction of the governing body, in the sense of the latter’s legitimate interest in the business of the Board of Education for the purpose of performing its statutory functions vis-a-vis the school system. .Consequently, the inquiry into the operation of the Board of Education is properly within the jurisdiction of the investigating committee, and the .Board’s architect and employee Lugoseh, is subject to its subpoena.

Judgment will be entered in favor of defendants dismissing the complaint and directing plaintiff, Lugoseh, to testify and produce records in his possession pursuant to the subpoena heretofore served upon him at a time to be determined by the investigating committee.


author: Baebett, J. S. C.

text:
    MELODY DALE FRANCO, PLAINTIFF, v. JAMES GLYNN DAVIS, DEFENDANT.
    Superior Court of New Jersey-Law Division
    Decided December 9, 1970.

      Mr. Leonard Meyerson appeared for plaintiff. (Messrs. Miller, Hochman, Meyerson & Miller, attorneys, Mr. Gerald D. Miller on the brief).

      Mr. Donald 8. McCord, Jr. appeared for defendant. (Messrs. Colquhoun & Pollock, attorneys, Mr. Peter B. Brogan on the brief).
   Baebett, J. S. C.

This is a motion for summary judgment in favor of defendant. Briefs were submitted by counsel and oral argument was heard. This is one of the many cases of a child suing a parent in light of France v. A. P. A. Transport Corp., 56 N. J. 500 (1970), which abolished the doctrine oí child-parent immunity. In addition to the question of whether that decision is retrospective in application, this case also involves the applicability of the doctrine of res judicata. The same parties were involved in a prior case on the same set of facts and issues. At that time a motion for summary judgment in favor of defendant was granted in light of the immunity doctrine as set forth in Reingold v. Reingold, 115 N. J. L. 532 (E. & A. 1935), and reaffirmed in Hastings v. Hastings, 33 N. J. 247 (1960) and Heyman v. Gordon, 40 N. J. 52 (1963). The decision was appealed to the New Jersey Supreme Court, which affirmed Franco v. Davis, 51 N. J. 237 (1968). That was the last case upholding the doctrine until its abolition in France, supra. The latter case (at 507) expressly overruled Franco, the first case between these parties.

Plaintiff child brings this action and defendant moves for summary judgment on the basis of res judicata. Whether or not the France decision is retrospective in application, I hold the doctrine of res judicata applies. “Res Judicata is an ancient judicial doctrine which contemplates that when a controversy between parties is once fairly litigated, and determined, it is no longer open to relitigation.” Lubliner v. Bd. of Alcoholic Bev. Control, 33 N. J. 428, 435 (1960). It is also well established that,

* * * a matter, is not res judieata unless there be identity of the thing sued for, of the cause of action, of the persons and parties, of the quality of the persons for and against whom the claim is made, and the judgment in the former suit be so in point as to control the issue in the pending action. [Templeton v. Scudder, 16 N. J. Super. 576, 579 (App. Div. 1951)]

There is no claim that those criteria do not apply here. Plaintiff ■ claims, however, that because of the France decision, supra,-, res judicata does not apply. This, she alleges, is because “the principle of res adjudícala, however, does not bar relitigation where, after the rendition of the judgment, subsequent events or conditions occur, thus creating a new legal situation or altering the legal rights or relations of the parties.” Lasasso v. Lasasso, 1 N. J. 324, 328 (1949). The principle was also expressed in Washington Tp. v. Gould, 39 N. J. 527, 533 (1963), citing Lasasso. The latter case, however, clearly presented a change of factual situation in a child support case and did not contemplate a change in decisional law. In such cases a change of factual situations has always been the basis for altering the amount of a support decree. In any event, I feel this principle generally applies only to a change in the factual situation and does not apply to changes in law.

There are no New Jersey cases directly applicable to this situation. The only authority directly on point is that a “judgment remains res judicata, although overruled in a subsequent case between other parties,” 50 C. J. S. Judgments § 704, n. 56. The source for that statement is City of Watertown, S. D. v. Eastern Dakota Electric Co., 296 F. 832 (8 Cir. 1924), where the court stated (at 835), “A sufficient answer to this is that overruling a former decision does not reverse the judgment duly rendered in the case overruled, or aifeet the rights of the parties to that decree.”

It is a well established principle that a decision revealing a prior decision to be in error in law or fact does not preclude the application of the doctrine of res judicata, e. g., Delaware River Port Authority v. Pennsylvania Public Utility, 408 Pa. 169, 182 A. 2d 682 (Sup. Ct. 1962) ; 50 C. J. S. Judgments § 704, n. 56. Perth Amboy Dry Dock v. Crawford, 103 N. J. L. 440 (E. & A. 1927), held that

* * * it is entirely settled that after one judicial determination by a court of competent jurisdiction, a second suit for the same matter, between the same parties or their privies, cannot be relitigated in the same or any other court. Nor does it matter that, in the first suit, evidence existed which was withheld or undiscovered, or that the law was misconceived by the court, or left uncited by counsel * » *. jn gpite of any of these defects in the prosecution or defense of the action, the judgment stands as an absolute bar against a second litigation of the same cause of action, [at 444]

Therefore, if Franco v. Davis, supra, is viewed as an “error in law,” it does not preclude application of the doctrine of res judicata.

It is also recognized in some cases that “the doctrine of res judicata is regarded as operative notwithstanding a change in law after the rendition of the judgment even though the amendment is declared by the legislature to be retroactive.” 46 Am. Jur. 2d, Judgments, § 444. The source of this principle is a series of related Iowa cases, the facts of which are as follows. A Mr. Young was the husband of a policewoman in Sioux City. She died, and he attempted to obtain certain death benefits and pension fund rights under a statute. In the first case the Supreme Court of Iowa held that he was not entitled to the benefits because the statute mentioned only surviving “widows” and not “widowers.” Young v. O’Keefe, 246 Iowa 1182, 1187, 69 N. W. 2d 534 (1955). The Iowa legislature, in an obvious response to that decision, amended the statute to include widowers. Young again attempted to collect the benefits. The Supreme Court of Iowa again held he could not obtain the benefits, basing its decision on two grounds: first, that in the absence of clear legislative intent the statute was not retroactive, and second, even if it was, he would be barred by the doctrine of res judicata. Young v. O’Keefe, 248 Iowa 751, 82 N. W. 2d 111 (1957). The court said:

If the purpose of res judicata he to add finality to judicial decisions, the propriety of its presence here cannot be doubted. A judgment based on plain statutory construction, as was our earlier decision, would not be exactly final if the legislature could by subsequent retroactive (nunc pro tune) change of statute reopen the identical controversy for the benefit of a losing litigant. [82 N. W. 2d at 114].

Again, in obvious response to the second opinion, the legislature of Iowa amended the statute, this time to expressly make it retroactive. Young again attempted to obtain the benefits, but to no avail. The Supreme Court of Iowa reiterated its decision that even if the change in the statute was retroactive in application, Young was barred by the doctrine of res judicata. Sioux City v. Young, 250 Iowa 1005, 97 N. W. 2d 907 (1959).

While that case dealt with a change in law creating a new right by amendment to a statute after rendition of a judgment, and the case at bar deals with a change in law creating a new right by judicial decision after rendition of a judgment, I feel the situation is such that application of the doctrine of res judicaia is equally called for.

It is also to be noted that “A judgment based on a statute, or an adjudication on an issue, that a statute is constitutional, is res judicata as between the parties, even though in another action the statute is declared unconstitutional.” 50 C. J. S. Judgments § 704, n. 56; e. g., Chicot County Drainage District v. Baxter State Bank, 308 U. S. 371, 60 S. Ct. 317, 84 L. Ed. 329 (1940); John v. Berzon, 255 App. Div. 1023, 8 N. Y. S. 2d 640 (App. Div. 1938), appeal granted 256 App. Div. 932, 10 N. Y. S. 2d 679, motion to dismiss appeal granted, 280 N. Y. 808, 21 N. E. 2d 694 (Ct. App. 1939).

For the above reasons i hold the doctrine of res judicata applies here whether or not the France decision, supra, is held to apply retroactively.

The genera] rule in this State is that “overruling of a decision has retrospective effect.” Wangler v. Harvey, 41 N. J. 277, 286 (1964); Dalton v. St. Luke’s Catholic Church, 27 N. J. 22 (1958), and Arrow Builders Supply Corp. v. Hudson Terrace Apts., 16 N. J. 47 (1954). In most situations the questions of retrospective effect does not concern too many possible actions because of the two-year statute of limitations applicable to personal injury actions, N. J. S. A. 2A.T4-1. However, because the France decision involves minors, the period within which actions can be brought is greatly expanded, N. J. S. A. 2A:14 — 21. If France is retrospective in effect, it could result in actions being brought for accidents that occurred in 1947. This factor, as well as others, led the Supreme Court of Wisconsin to hold the overruling of child-parent immunity prospective in application, Goller v. White, 20 Wis. 2d 402, 122 N. W. 2d 193 (1963). One of the other major factors to be considered here is the reliance of persons, mostly insurance companies, on the immunity doctrine. This .would result in their not having conducted extensive investigations of accidents and or disposing of records. The Supreme Court of New Hampshire found this to be a major factor in givr ing only prospective effect to the abolition of child-parent immunity, Vickers v. Vickers, 109 N. H. 69, 242 A. 2d 57 (1968). Minnesota also has held the abolition of the doctrine to be prospective. Silesky v. Kelman, 281 Minn. 431, 161 N. W. 2d 631 (1968). I think a consideration of these factors and others should result in the France decision being given prospective effect.

Eor the above reasons, the defendant’s motion for summary judgment dismissing plaintiff’s action is granted.