author: Ackerman, Harold A., J. S. C:

text:
    WESTFIELD MOTOR SALES CO., A NEW JERSEY CORPORATION, PLAINTIFF, v. TOWN OF WESTFIELD, THE BOARD OF ADJUSTMENT OF THE TOWN OF WESTFIELD AND GEORGE TZAMOS, THE BUILDING INSPECTOR OF THE TOWN OF WESTFIELD, DEFENDANTS.
    Superior Court of New Jersey Law Division
    Decided July 12, 1974.

      Mr. Paul R. Williams, Jr. for plaintiff.

      Mr. Robert J. T. Mooney for defendants.
   Ackerman, Harold A., J. S. C:

Plaintiff brings this action 32i lieu of prerogative writs pursuant to R. 4:69. By this suit it seeks a determination that defendant Town of Westfield’s zoning ordinance is unconstitutional or, alternatively, that defendant Board of Adjustment of the Town of Westfield acted arbitrarily and capriciously in denying its application for a variance pursuant to N. J. S. A. 40: 55-39(c).

Plaintiff is a franchised Ford dealer operating its business in defendant town’s G.B. (General Business) district. In line with Ford’s national identification campaign, plaintiff applied to defendant building inspector for permission to erect on its premises five advertising signs. At the time it applied there were 15 or 16 signs of various types already existing on the premises, and concededly old and unsightly. Plaintiff wished to tear almost all of these down and replace ihem with the new ones which it had applied for.

The building inspector denied plaintiff’s application and plaintiff then instituted a suit contending, among other things, that the sign ordinance was unconstitutional. In an unreported opinion dated Jamiary 22, 1971, Judge Feller held the ordinance invalid, essentially because it had been improper^ enacted as part of defendant’s general ordinances instead of having been enacted as part of defendant’s zoning ordinances. The case was then remanded so that defendant could enact a new sign ordinance. Westfield Motor Sales Co. v. Westfield, Dkt. No. L-30894-69 (Law Div. 1971).

On April 13, 1971 defendant town adopted a new ordinance and plaintiff’s suit was dismissed by consent of the parties. It is this ordinance which is now under attack.

Section 419 of the zoning ordinance of the Town of Westfield provides in pertinent part as follows:

I>. Signs in the Residence Districts. The following signs are permitted in the Residence Districts:
2. Signs erected upon the premises of and for churches, charitable and civic organizations which shall not exceed twenty square feet in area.
4. Tn the Garden Apartment Residence Districts one sign identifying the name of the garden apartment premises only which shall not exceed 16 square feet in area.
5. Temporary Signs:
(a) One sign identifying the owner, architect, builder, realtor and contractor on premises on which a building is being constructed, altered or repaired. Such a sign shall not exceed 16 square feet in area.
(b) One free-standing sign on a subdivision which has been approved by the Town Planning Board. Such a sign shall not exceed 24 square feet in area and shall bo removed after residences have been constructed on 95%' of the lots * * s". In no case shall any such subdivision sign be permitted after two years have elapsed from the time when the first sign was so erected.
(c) One sign announcing that the premises on which it is located are available for sale or rental. Such a sign shall not exceed four square feet in area and shall be displayed only for so long as such premises are in fact available for sale or rental.
6. All signs which are located in the Residence Districts may be of the free-standing type. All other signs in the Residence Districts are prohibited.
G. Signs in the Professional Office District.
The following signs are permitted in the Professional Office District :
2. One sign upon the premises used for professional offices which shall not exceed ten square feet in area.
D. Signs in Central-Business, General Business, Indus!rial Parks and Industrial Districts:
1. All signs permitted in the Residence and Professional Districts.
2. Signs which direct attention exclusively to a permitted business conducted on the premises :j" * Said sign shall comply with the following:
(a) One sign may be attached to the wall at each main public entrance of a building. Such sign shall not exceed the length of said wall nor a height of 3 feet.
* * * #*
(e) Two business signs may be painted on the windows and/or doors of each business v * * provided that there shall be no more than one such sign on each window or door, and the total area o£ all such signs shall not exceed 10 square feet.
>:? * s}? * i'r -'r *
3. Signs required by law to be exhibited * * provided the same do not exceed 6 square feet in total area.
:¡¡ % * s¡? v *»- *
5. Non-illuminated signs displayed on the interior of windows to give notice of sales or special functions shall be permitted for 75 days each year. No more than 30% of the total area of the window on which such signs are displayed shall be covered.
6. A free standing sign for each entrance on parking lot premises which shall not exceed 10 square feet in area.
* * * *• * >5' -'r *
E. General Kegulations
s[; i'.i sj« si? ^ sh *
6. No wall sign shall project more than 5 inches beyond the building wall to which it is affixed.
7. No sign shall be above the top or beyond the ends of the wall surface upon which it is placed.
* * * * !i: S¡?
E. Illumination.
1. All signs permitted by this ordinance may be illuminated unless otherwise provided herein.

After the adoption of this ordinance plaintiff again applied to defendant building inspector for permission to erect five signs. Sign No. 1 was to be a nonilluminated, wall-mounted sign running the length of the building and bearing the words “Westfield Ford.” It was to project more than the five inches prescribed under section 419(E) (6), supra. Sign No. 2 was to be a freestanding sign of approximately 138 square feet in area bearing the single word “Ford.” This contravened the ten-square-foot maximum allowed in the business district under Section 419 (D) (6). Plaintiff proposed that sign No. 3 be an internally illuminated, wall-mounted sign directing the customers to the body and paint area. This sign was also planned to project more than five inches. Sign No. 4 was to be a freestanding one of approximately 32 square feet bearing the words “Used Cars,” and sign No. 5 was to be an internally illuminated, wall-mounted sign projecting almost eight feet from the building.

On December 27, 1971 defendant building inspector again denied plaintiff’s application because the proposed signs violated the ordinance. Plaintiff then appealed to defendant board for a variance under N. J. 8. A. 40:5o-39(e). A hearing was held on January 24, 1972 and at that time the application for sign No. 1 was withdrawn as plaintiff expected that the proposed sign would comply with the ordinance. The board denied the requested variances without making any findings of fact or stating any conclusions of law. No stenographic record of the hearing was made.

Plaintiff instituted the present action on March 8, 1972, and on January 8, 1973 Judge Steinbrugge ordered the matter remanded so that a verbatim record could be made and so that the board could set forth its findings of facts and conclusions of law.

Two hearings were held as a result of the remand. Plaintiff amended its application so that sign No. 2 would only be 52 square feet in area, the smallest sign of that type supplied by Pord. The testimony indicated that there were 37 other signs in the area all the same size. Evidently these were preexisting nonconforming uses. Plaintiff’s witnesses testified that the purpose of the large freestanding sign was to make the dealership visible at a major intersection some distance away. However, this visibility was not essential for plaintiff’s business; it was merely to make the premises more attractive and to maintain the present sales volume. The sign would radiate little glare due to its internal illumination. As for the internally illuminated, wall-mounted signs, plaintiff’s expert testified that the five-inch projection provision effectively prohibited any such signs because industry standards mandated that internally illuminated signs be at least six inches thick. This factor would make it practically impossible to comply with the ordinance.

There was great opposition to plaintiff’s application. Many residents of the area argued that the freestanding sign would visually project onto three residential streets. One resident, who had measured distances and lines of sight, indicated that the large sign could not be seen from the intersection, as plaintiff had contemplated. Several persons viewed plaintiff’s application as a “test case” in which an unfavorable precedent might bo set for the future. The crux of the opposition was that the purpose of the ordinance was to preserve Westfield’s colonial atmosphere; any variance granted would destroy that purpose notwithstanding the fact that the proposed signs would be more aesthetically pleasing than the signs presently in place.

An April 16, 1973 the board of adjustment denied the requested variance. It found as a fact that “the purpose of the proposed sign installations is to create uniformity of Ford Dealership signs throughout the country * * *” and that plaintiff “does not contend that the proposed new signs are necessary to increase or preserve business * * The board found that the purpose of the signs Avas modernization and beautification.

It therefore concluded that plaintiff had failed to establish unique or exceptional conditions constituting a hardship. It also stated that to permit the substitution of one set of nonconforming signs for another set simply to meet the needs of a national identity program would “substantially impair the corrective intent and prospective purpose of the Zoning Ordinance :|! *

Plaintiff alleges that the ordinance represents an illegal use of zoning power under N. J. S. A. 40:55—32, and that the ordinance is arbitrary and discriminatory. It prohibits signs over 10 square feet in area in the business zones, Avhile permitting garden apartments up to 16 square feet, and churches up to 20 square feet. Defendants now concede that section 419(E)(6), which prohibits signs from projecting more than five inches beyond the wall, is defective in that this requirement is realistically impractical when applied to internally illuminated, wall-mounted signs. Thus, this issue has become moot and is not presently before the court.

We turn now to plaintiff’s first contention. N. J. S. A. 40:55— 32 provides that zoning regulations

shall be in accordance with a comprehensive plan and designed for one or more of the following purposes: to lessen congestion in the streets; secure safety from fire, flood, panic and other dangers; promote health, morals or the general welfare; provide adequate light and air; prevent the overcrowding o£ land or buildings; avoid undue concentration of population. Such regulations shall be made with reasonable consideration, among other things, to the character of the district and its peculiar suitability for particular uses, and with a view of conserving the value of property and encouraging the most appropriate use of land throughout such municipality.

The record does not indicate any reason for enacting this ordinance except for the preservation of defendant town’s uniqueness and character. The only purpose of the ordinance therefore is aesthetic, and this, plaintiff argues, is an impermissible purpose under the statute, supra.

The question plainly put is whether or not aesthetic considerations alone justify the exercise of the police power of the state. Nor is this issue a novel one. While it has been said that the “zoning power may not be exercised for purely aesthetic considerations,” Piscitelli v. Scotch Plains Tp. Comm., 103 N. J. Super. 589, 597 (Law Div. 1968), our Supreme Court has stated that “the. issue may be said to be unexplored in our State * * United Advertising Corp. v. Metuchen, 42 N. J. 1, 5 (1964). After reviewing the recent eases, this court today holds that defendant town may, within the scope of its police power, enact a zoning ordinance based solely upon aesthetic; considerations.

The first New Jersey case dealing with aesthetics was Passaic v. Paterson Bill Posting Co., 71 N. J. L. 75 (Sup. Ct. 1904), rev’d 72 N. J. L. 285 (E. & A. 1905). Defendant was convicted of violating an ordinance which mandated that certain signs be no more than eight feet high and not less than ten feet from the street line. The lower court did not find the ordinance invalid, hut the Court of Errors and Appeals reversed the conviction saying:

It is probable that the enactment of section 1 of the ordinance was due rather to aesthetic considerations than to considerations of the public safety. No case has been cited, nor are we aware of any case which holds that a man may be deprived of his property because his tastes are not those of his neighbors. Aesthetic considerations a/re a matter of luxury and indulgence rather than of necessity, and it is necessity alone which justifies the exercise of the police power to take private property without compensation. [72 N. J. L. at 287; emphasis supplied]

Passaic was cited numerous times, and the underscored language often quoted as the rationale behind striking ordinances enacted for aesthetic purposes. See, e. g., Pfister v. Clifton, 133 N. J. L. 148, 152 (Sup. Ct. 1945); O’Mealia Outdoor Advertising Co. v. Rutherford, 128 N. J. L. 587, 591 (Sup. Ct. 1942); Cooper Lumber Co. v. Dammers, 125 A. 325, 327, 2 N. J. Misc. 289, 292 (Sup. Ct. 1924); Levy v. Mravlag, 96 N. J. L. 367, 371 (Sup. Ct. 1921); Romar Realty Co. v. Haddonfield, 96 N. J. L. 117 (Sup. Ct. 1921); People ex rel. Wineburgh Advertising Co. v. Murphy, 195 N. Y. 126, 135, 88 N. E. 17, 20 (1909).

Yet, despite this' negative judicial attitude, some courts justified aesthetic zoning on various other grounds. See, e. g., St. Louis Gunning Advertisement Co. v. City of St. Louis, 235 Mo. 99, 137 S. W. 929 (1911), app. dism. per stipulation, 231 U. S. 761, 34 S. Ct. 325, 58 L. Ed. 470 (1913) (billboards endanger health and promote immorality) ; City of Providence v. Stephens, 47 R. I. 387, 133 A. 614 (1926) (apartments in residential areas are fire hazards). As was stated in Perlmutter v. Greene, 259 N. 7. 327, 332, 182 N. E. 5, 6 (1932), “[bjeauty may not be queen, but she is not an outcast beyond the pale of protection or respect. She may at least shelter herself under the wing of safety, morality or decency.” However, many authors recognized that this reasoning was nothing more than fiction. See, e. g., Dukeminier, “Zoning for Aesthetic Objectives: A Reappraisal,” 20 Law & Contemp. Prob. 218 (1955); Landels, “Zoning: An Analysis of Its Purposes and Its Legal Sanctions,” 17 A. B. A. J. 163 (1931). And so, this superficial approach was supplemented “by the more direct technique of expanding 'general welfare’ to include aesthetic considerations.” Comment, 64 Colum. L. Rev. 81, 85 (1964).

In New Jersey this issue was discussed in Justice Heher’s dissenting opinion in Brookdale Homes, Inc. v. Johnson, 123 N. J. L. 602 (Sup. Ct. 1940), aff'd o. b. 126 N. J. L. 516 (E. & A. 1941). The court there affirmed the invalidation of an ordinance which prohibited the construction of a building with a height in excess of 35 feet, and Justice Heher urged the court to adopt a more modern view:

And, while it is the prevailing rule that aesthetic elements are not in themselves sufficient to warrant the invocation of the police power, the fact that they are also inducing considerations does not invalidate the regulation if otherwise within the sphere of that authority. [Citations omitted.] Police regulation on aesthetic grounds is generally deemed to be an invasion of the right of private property, but it would seem that on principle such is within the police power if so far promotive of the interests of the public at large, through the resultant community development and profit, as to outweigh the incidental restraint upon private ownership. [126 N. J. L. at 521-522]

It was not until Lionshead Lake, Inc v. Wayne Tp., 13 N. J. Super. 490 (Law Div. 1951), rev’d 10 N. J. 165 (1952), app. dism. 344 U. S. 919, 73 S. Ct. 386, 97 L. Ed. 708 (1952), that the majority accepted Justice Heher’s dissent as the law in New Jersey. The court upheld an ordinance fixing minimum floor space for various types of housing, saying: ''so long as the zoning ordinance was reasonably designed, by whatever means, to further the advancement of a community as a social, economic and political unit, it is in the general welfare and therefore a proper exercise of the zoning power.” 10 N. J. at 172. Thus, “the courts in conformance with the constitutional provisions and the statutes hereinbefore cited take a broad view of what constitutes general welfare.” Id. at 174. See Schmidt v. Newark Bd. of Adjustment, 9 N. J. 405 (1952); Duffcon Concrete Products, Inc. v. Cresskill, 1 N. J. 509 (1949), rev’g 137 N. J. L. 81 (Sup. Ct. 1948) ; Pequannock Tp. v. De Wilde, 21 N. J. Super. 517 (App. Div. 1952).

The unique feature of Lionshead was that it focused attention upon the interrelationship of aesthetic considerations and the public welfare goal of preserving property values. See Steinbach, “Aesthetic Zoning: Property Values and the Judical Decision Process,” 93 N. J. L. J. 869, 875 (1970) ; Comment, 11 Duquesne L. Rev. 204, 227 (1972). Justice Jacobs, in his concurring opinion, stated that the provisions of the ordinance

wore influenced in considerable part by aesthetic considerations which I believe to be entirely proper. [Citations omitted.] In the Point Pleasant case I recently expressed the view, to which I adhere fully, “that it is the public interest that our communities, so far as feasible, should be made pleasant and inviting and that primary considerations of attractiveness and beauty might well be frankly acknowledged as appropriate, under certain circumstances, in the promotion of the general welfare of our people.” And in the Broolcdale case Justice Heher expressed the view that, on principle, regulation on aesthetic grounds would seem to be within the police power “if so far promotive of the interests of the public at large, through the resultant community development and profit, as to outweigh the incidental restraint upon private ownership.” [Citations omitted.] To the extent that our earlier cases express outmoded narrower doctrines (see Passaic v. Paterson Bill Posting Co., 72 N. J. L. 285, 287 (E. & A. 1905) ) they ought to be expressly disavowed.” [10 N. J. at 176-177]

Plaintiff argues that under New Jersey law an ordinance must be related to the preservation of property values and may not be enacted solely for aesthetic reasons. See, e. g., United Advertising Corp. v. Metuchen, supra, 42 N. J. at 6; Vickers v. Gloucester Tp. Comm., 37 N. J. 232, 247-248 (1962), cert. den. 371 U. S. 233, 83 S. Ct. 326, 9 L. Ed. 2d 495 (1963); Napierkowski v. Gloucester Tp., 29 N. J. 481, 494 (1959); Pierro v. Baxenddle, 20 N. J. 17, 27-30 (1955); Fischer v. Bedminster Tp., 11 N. J. 194, 205 (1952); Livingston Tp. v. Marchev, 85 N. J. Super. 428, 433 (App. Div. 1964), certif. den. 44 N. J. 412 (1965), app. dism. 382 U. S. 201, 86 S. Ct. 393, 15 L. Ed. 2d 269 (1965); N. Y. Central R. R. v. Ridgefield, 84 N. J. Super. 85, 93 (App. Div. 1964); Loveladies Property Owners Ass’n, Inc. v. Barnegat City, 60 N. J. Super. 491, 499 (App. Div. 1960), certif. den. 33 N. J. 118 (1960); Hankins v. Rockleigh, 55 N. J. Super. 132, 137 (App. Div. 1959); Clary v. Eatontown, 41 N. J. Super. 47, 67 (App. Div. 1956); Piscitelli v. Scotch Plains Tp. Comm., supra, 103 N. J. Super. at 597; Frankel v. C. Burwell, Inc., 94 N. J. Super. 53, 59-60 (Law Div. 1967); Klotz v. Englewood Cliffs Bd. of Adj., 90 N. J. Super. 295, 298 (Law Div. 1966) . However, we disagree.

An analysis of the foregoing cases indicates that aesthetic zoning has been given judicial approbation only when clothed with other legal raiment which masked its true purpose. One author states:

"When courts have had the opportunity to utilize the aesthetic factor and conceptually clarify its basic essence, they have often avoided the real aesthetic issue by resourcefully providing an expedient alternative to justify the exercise of the police power and to substantiate the result achieved. [Comment, 11 Duquesne L. lien., supra at 204]

This court today holds that it is now appropriate to permit a municipality, under proper safeguard, to legally deal with the problem without subterfuge. Zoning solely for aesthetic purposes is an idea whose time has come; it is not outside the scope of the police power.

Embodied within the theory of police power is a concept of “utilitarianism,” a theory of balancing individual interests against the general welfare of the community. See Village of Euclid v. Ambler Realty Co., 272 U. S. 365, 387-389, 47 S. Ct. 114, 71 L. Ed. 303 (1926); Steinbach, 93 N. J. L. J., supra at 875; Note, 18 U. Fla. L. Rev. 430, 431 (1965). And, as was said in Berman v. Parker, 348 U. S. 26, 75 S. Ct. 98, 99 L. Ed. 27 (1954):

The concept of the public welfare is broad and inclusive. [Citation omitted.] The values it represents are spiritual as well as physical, aesthetic as well as monetary. It is within the power of the legislature to determine that the community should be beautiful as well as healthy, spacious as well as clean, well-balanced as well as carefully patrolled. In the present case, the Congress and its authorized agencies have made determinations that take into account a wide variety of values. It is not for us to reappraise them. If those who govern the District of Columbia decide that the Nation’s capital should be beautiful as well as sanitary, there is nothing in the Fifth Amendment that stands in the way.” [at 33, 75 S. Ct. at 102]

Furthermore, it has been argued that not only does the police power include aesthetics but, in fact, that all planning and zoning is essentially aesthetic in nature, growing, as it did, out of'“the city beautiful movement of the early 1900’s.” Norton, “Police Power, Planning and Aesthetics,” 7 Santa Clara Lawyer 171, 172 (1967).

The modern view is to completely and openly accept aesthetic regulation for its own sake. See Dukeminier, supra at 219; Norton, supra at 182; Steinbach, supra at 872. The underlying reasoning is that times are changing and values are shifting. As Judge Finch pointed out in his dissenting opinion when the majority of the Court of Appeals of New York voided an ordinance prohibiting construction of certain billboards, “[circumstances, surrounding conditions, changed social attitudes, newly-acquired knowledge,, do not alter the Constitution, but they do alter oujr view of what is reasonable. Restrictions upon the use of property, which were deemed unreasonable in 1909, are regarded today as entirely reasonable and natural.” Mid-State Advertising Corp. v. Bond, 274 N. Y. 82, 87, 8 N. E. 2d 286, 288 (1937).

Oregon adopted this approach in Oregon City v. Hartke, 240 Or. 35, 400 P. 2d 255 (1965). In that case the court upheld an ordinance based solely upon aesthetics, saying:

9 * * there is a growing judicial recognition of the power of a city to impose zoning restrictions which can be justified solely upon the ground that they will tend to prevent or minimize discordant and unsightly surroundings. This change in attitude is a reflection of the refinement of our tastes and the growing appreciation of cultured values in a maturing society. The change may be ascribed more directly to the judicial expansion of the police power to include within the concept of “general welfare” the enhancement of the citizen’s cultural life. [240 Or. at 46, 400 P. 2d 261]

And this approach was also taken by the Appellate Court of Michigan in Sun Oil Co. v. City of Madison Heights, 41 Mich. App. 47, 199 N. W. 2d 525 (1972). There the appellate court reversed the trial court’s holding that an ordinance restricting the height of free-standing signs to 20 feet was invalid. Although mentioning the public safety as one possible consideration, the court said:

The modern trend is to recognize that a community’s aesthetic well-being can contribute to urban man’s psychological and emotional stability. It is true that the question of what is beautiful and pleasing is for each individual to decide. We should begin to realize, however, that a visually satisfying city can stimulate an identity and pride which is the foundation for social responsibility and citizenship. These are proper concerns of the general welfare. [Citation omitted.] Madison Heights has determined that its citizens’ well-being will be served best by preventing the visual pollution which occurs when high-rise signs dot major thoroughfares. [41 Mich, at 53, 199 N. W. 2d at 529]

See also, State v. Diamond Motors, Inc., 50 Hawaii 33, 429 P. 2d 825 (Sup. Ct. 1967); Jasper v. Commonwealth, 375 S. W. 2d 709 (Ky. App. 1964).

Nor does this approach to aesthetics do violence to the majority opinion in United Advertising, as the issue was specifically left open as we noted previously. In fact, Justice Hall, when faced with an ordinance admittedly enacted for purely aesthetic purposes, suggested in that case that New Jersey embrace the new trend.

It seems to me that courts ought to face up to realities squarely and begin to give frank recognition to aesthetics as an appropriate basis in some areas for exercise of the police power to attain proper community objectives. See Dukeminier, “Zoning for Aesthetic Objectives: A Reappraisal,” 20 Law and Contemporary Problems 21S (1955). While this has actually been done for a considerable time, judicial opinions generally expound some other reason. Many police power regulations are upheld where the true but unexpressed basis is that the activity or condition is considered by practically everyone to be an eyesore or offensive to some other sense. Many zoning regulations actually rest on aesthetic considerations, such as those prescribing subui’ban residential setback and yard distances.

The concept is admittedly a most difficult one to put into fair practice. Beauty and taste are almost impossible to legislate affirmatively on any very broad scale because they are generally such subjective and individual things, not easily susceptible of objective, non-arbiv.rary standards. See Vickers v. Township Committee of Gloucester Township, 37 N. J. 232, dissenting opinion, at p. 269 (1962). But that does not mean that they cannot be judicially recognized in some situations as proper community objectives. [42 N. J. at 11]

One author suggests that United Advertising indicates that New Jersey has recognized “the confusion of aesthetics with economics but * * * has not taken steps to redefine its position in uniformity with its recognition of the confusion.” Note, 18 U. Fla. L. Rev., supra at 437.

Admittedly, some authorities disagree with zoning solely for aesthetics. In People v. Stover, 12 N. Y. 2d 462, 240 N. Y. S. 2d 734, 191 N. E. 2d 272 (1963), Judge Van Yoorhis of the Court of Appeals of New York dissented when the majority upheld a zoning ordinance prohibiting the hanging of clothes on clotheslines in front or side yards abutting a street. He stated:

This ordinance is unrelated to the public safety, health, morals or welfare except insofar as it compels conformity to what the neighbors like to look at. Zoning, important as it is within limits, is too rapidly becoming a legalized device to prevent property owners from doing whatever their neighbors dislike. Protection of minority rights is as essential to democracy as majority vote. In our age of conformity it is still not possible for all to be exactly alike, nor is it the instinct of our law to compel uniformity wherever diversity may offend the sensibilities of those who cast the largest numbers of votes in municipal elections. The right to be different has its place in this country. The United States has drawn strength from differences among its people in laste, experience, temperament, ide,as, and ambitions as well as from differences in race, national or religious background. Even where the use of propertj' is bizarre, unsuitable or obstreperous it is not to be curtailed in the absence of overriding reasons of public policy. The security and repose which come from protection of the right lo be different in matter of aesthetics, taste, thought, expression and within limits in conduct are not to be cast aside without violating constitutional privileges and immunities. This is not merely a matter of legislative policy, at whatever level. In my view, this pertains to individual rights protected by the Constitution. [12 N. Y. 2d at 472, 240 N. Y. S. 2d at 742, 191 N. E. 2d at 278]

See also, Presnell v. Leslie, 3 N. Y. 2d 384, 165 N. Y. S. 2d 488, 144 N. E. 2d 381 (Ct. App. 1957) (Judge Van Voorhis dissenting); Reid v. Architectural Board of Review, 119 Ohio App. 67, 192 N. E. 2d 74 (App. Ct. 1963) (Judge Corrigan dissenting). Or, in the words of Judge Targonski, in his partially dissenting opinion in Sun Oil Co. v. City of Madison Heights, supra:

We will all live to rue the day that public officials are permitted to meddle in private affairs on aesthetic considerations since as the majority opinion states each person has his own yardstick for the evaluation of matters aesthetic. We should not open this door which could very well lead to a situation of a most highly regulated society in the world at the whim and caprice of individual officials without any proper measure for a limitation on such individual values rather than values prescribed by law. [41 Mich. App. at 57, 199 N. W. 2d at 531]

However, this prophecy need not necessarily be self-fulfilling. Ordinances based on aesthetics may still be scrutinized by ilie courts to determine their reasonableness in achieving their goals. Less confusion will result if the courts accept aesthetic zoning per se; instead of purporting to accept it and then dismissing it as inadequate. Indeed, when an ordinance is based purely upon aesthetics, an opponent may better aim Ms attack towards the imperfections in the ordinance instead of being sidetracked towards the less substantial question of whether or not some factor such as safety or health is involved. The attack may be directed, without diversion, at the reasonableness of the ordinance. See Anderson, “Regulation of Land Use for Aesthetic Purposes — An Appraisal of People v. Stover,” 15 Syr. L. Rev. 33, 40 (1964).

In the instant ease there is nothing wrong with a large or small business concern seeking- to advertise its wares in a uniform manner, either nationally or locally. Those who live in an urban megalopolis are no strangers to the jungle of signs which daily compete for their attention. Undoubtedly, some signs by virtue of their design are more aesthetically pleasing than others, regardless of size. But a municipality may perceive that a plethora of signs of a certain size, no matter how tasteful, can have an undesirable cumulative effect upon the well-being of the entire commumty. Is the citizenry then powerless to deal with this problem when it beholds the fruits of a philosophy of nomnterference ? We think not. In such a situation, assuming the muMcipality acts reasonably and fairly in the process of balancing the various interests, the right of the businessman to promote his goods may become subservient to the community’s interest in its appearance.

Plaintiff contends that the municipality has acted unfairly and unreasonably and that the restrictions imposed upon the business area, within the context of the entire ordinance, are arbitrary and discriminatory. Again, we must disagree. The ordinance in question does not do violence to the businessman’s right to advertise Ms wares; it merely regulates this right by limiting the size of certain signs he may desire to use. We need not, at this point, analyze the various provisions of the ordinance. Suffice it to say that what we have here is a basic disagreement over the reasonableness of ten square feet as the maximum area permitted freestanding signs in the business district. (We note again that defendants have conceded the invalidity of that portion of the ordinance dealing with the projection of a sign more than five inches beyond the wall and have acknowledged their duty to remedy the problem.)

Plaintiff produced Dr. Robert James Claus as its key expert witness. Plaintiff contends, and defendants readily admit, that Dr. Claus demonstrated considerable expertise on the subject of signs. Having listened to Dr. Claus, this court has no quarrel with this assessment. His knowledge of the subject is truly encyclopedic.

Dr. Claus found the ordinance to be an example of “municipal harassment” of the business community. lie found the section dealing with free-standing signs to be particularly opprobrious because of the ten-square-foot size limitation. Characterizing this provision as “pedestrian oriented,” he was of the opinion that 35 to 40 square feet represented the minimum, considering the necessity of maintaining legibility, visibility and readibility for automobile drivers. Characterizing section D(6), supra, as the “primary cancer” in the ordinance he attacked this provision as a safety hazard. Defendant’s expert, Edward C. Chase, disagreed with this assessment and also pointed out that certain New Jersey communities had ordinances which were more stringent than Westfield’s.

In the opinion of this court a fair reading of Dr. Claus’ testimony necessarily leads one to the conclusion that he believes a businessman has the right to erect various types of signs unconstrained by the community’s desires. This laissez-faire approach to the problem runs counter to sound decisional law in this area, which views with approbation an exercise of legislative judgment by a municipality, which is unattended by arbitrariness.

It is curious to note, as defendants have pointed out in their supplemental brief, that Dr. Claus had no quarrel with the City of Las Vegas, Nevada portraying a certain public image on a thoroughfare known as the “Strip,” but denied Westfield the same aesthetic privilege. Thus, in effect, plaintiff’s expert cries foul when a community attempts by regulation to portray itself with an aura of relative placidity. In this vast land there is much to be said for diversity of treatment of the problems at hand by various communities. As stated in United Advertising:

The most that can be said with respect to the proof is that reasonable men can disagree as to whether the addition of off-premise signs would disserve the general welfare. Such policy questions are committed to the judgment of the local legislative bodies. As we have said so many times with respect to zoning and other legislative or g-MOsi-legislative decisions, a judge may not interfere merely because he would have made a different policy decision if the power to decide had been his. A court can concern itself only with an abuse of delegated legislative power, and may set aside the legislative judgment only if arbitrariness clearly appears. [42 N. J. at 8]

We are not faced with any claim on the part of plaintiff, that the ordinance would have an adverse economic effect on its business. Plaintiff’s distress apparently is centered solely on its inability to erect free-standing signs of a certain size in conformance with Eord’s national identification program.

On balance, this court found that Dr. Claus’ testimony as to signs, while impressive, left much to be desired and was substantively unpersuasive. The ten-square-foot maximum area permitted free-standing signs in the business’ area is not unreasonable.

Reasonableness is a two-sided coin. On one side is the adverse impact of the restriction upon him who asserts its unreasonableness. On the other are the social and policy considerations which led to the adoption of the regulation. The final assessment of reasonableness involves a balancing of the considerations on one side of the coin as against those on the other. The more cogent the social pressures impelling the adoption of the restriction the greater the permissible abrasion of the interests of the individual affected. [Clary v. Eatontown, 41 N. J. Super. at 71]

Plaintiff alleges that the sign ordinance is violative of equal protection because certain other uses are permitted to erect larger signs. It is true that freestanding signs upon church property may be up to 20 square feet, and garden apartments are allowed up to 16 square feet. However, garden apartments are permitted only one freestanding sign, whereas a business may have one sign for each parking lot entrance. Similarly, a valid legislative distinction can be made between businesses operated for a profit and churches and other nonprofit organizations. Furthermore, although certain temporary signs and subdivision signs may be 16 and 24 square feet respectively, these must be removed after a specified length of time. Plaintiff has not demonstrated by a clear showing that there is anything arbitrary or unreasonable about these legislative distinctions. See Harvard Enterprises, Inc. v. Madison Tp. Bd. of Adjustment, 56 N. J. 362 (1970); Kozesnik v. Montgomery Tp., 24 N. J. 154 (1957).

Plaintiff argues that the ordinance must fall for vagueness, claiming that certain definitional terms are ambiguous. A reading of the ordinance indicates that this argument is specious, and the court concurs with defendant’s characterization of plaintiff’s expert’s testimony in this regard as ^nit-picking.”

Zoning ordinances are strongly presumed valid, Kozesnik v. Montgomery Tp., supra at 167, and, as the foregoing discussion indicates, plaintiff has failed to overcome this presumption. The ordinance is therefore constitutional.

We turn finally to plaintiff’s application for a variance pursuant to N. J. S. A. 40:55-39(e). The statute provides that plaintiff show undue hardship were the variance to be denied, and that plaintiff also demonstrate that the granting of the variance would not substantially impair the intent and purpose of the zoning ordinance. Nor may the court substitute its judgment for that of the board of adjustment’s. See Kramer v. Sea Girt Bd. of Adjustment, 45 N. J. 268, 296 (1965). The court should set aside the determination of the board only when it is arbitrary, capricious and unreasonable. Id.

In the instant case, we hold that the determination of the board was neither arbitrary, capricious nor unreasonable. Plaintiff’s own testimony was that it wanted the signs only to be more visible and to maintain its volume. The board, based upon these facts, determined that no hardship existed. And furthermore, the board was not convinced that plaintiff had satisfied the negative criteria under the statute. Thus, the record supports the findings and conclusions of the board, and the denial of the variance will be sustained.

Judgment is hereby rendered for defendants.

      Previous to IAonshead the Passaic rationale was still followed. See, e. g., Delawanna Iron and Metal Co. v. Albrecht, 9 N. J. 424 (1952); Wright v. Vogt, 7 N. J. 1 (1951) ; Vassallo v. Orange, 125 N. J. L. 419 (E. & A. 1949), rev’g 124 N. J. L. 153 (Sup. Ct. 1940); Point Pleasant Beach v. Point Pleasant Pavilion, 3 N. J. Super. 222 (App. Div. 1949); Hendlin v. Fairmount Construction Co., 8 N. J. Super. 310 (Ch. Div. 1950).

      We note, however, that this expansive view of the general welfare was not within the context of a zoning case but concerned an eminent domain problem under the Fifth Amendment.


source: Caselaw Access Project

author: Aikins, J. S. C.

license: Public Domain

text:
    THE STATE OF NEW JERSEY, v. JOHN G. TILLMAN, DEFENDANT.
    Superior Court of New Jersey Law Division (Criminal)
    Decided July 15, 1974.

      Mr. William J. Gearty, Deputy Public Defender, argued the cause for defendant (Mr. Stanley O. Van Ness, Public Defender, attorney).

      Mr. Edward A. MacDuffie, Jr., Assistant Prosecutor, argued the cause for the State (Mr. James M. Coleman, Jr., Monmouth County Prosecutor).
   Aikins, J. S. C.

The state moves to dismiss defendant’s motion made pursuant to R. 3:21 — 10(a) for reduction of his sentence of a total of 10-15 years imposed on November 10, 1972 following a conviction of armed robbery.

The procedural history after sentence reflects that defendant timely appealed to the Appellate Division, which unanimously affirmed in an unreported per curiam opinion filed on Eebruary 7, 1974. The contentions on appeal appear to have been directed solely to alleged trial errors since the Appellate Division opinion does not pass judgment on the sentence imposed.

A notice of petition for certification was filed on Eebruary 25, 1974, and the Supreme Court denied the petition by an order filed May 14.

Defendant’s pro se motion for reduction of sentence pursuant to B. 3:21-10(a) was misfiled with the Camden County Clerk on May 28 and forwarded to this court for disposition by letter received June 4.

No challenge is directed by the State to the delay beyond 20 days occasioned by the misfiling of the motion; rather, the attack is channeled toward defendant’s failure to file such motion within 20 days after the filing of tile Appellate Division opinion and judgment — a contention with which this court does not agree.

R. 3 :21-10(a) requires that a “motion to reduce or change a sentence shall be filed not later than 60 days after the date of the judgment of conviction, or, if an appeal is taken within the 60 days, not later than 20 days after the date of the judgment of the appellate court.” However, the rule is silent as to the effect on the time limitations therein resulting from the timely filing of a notice of petition for certification.

Prior to the September 1969 revision, the predecessor rule (R. R. 3:7-13(a)) spoke to a 20-day filing limit after “issuance of the mandate by the appellate court,” and under then R. R. 1:9-l and 2:9-l it was clear that the timely filing of a further notice of appeal or notice of petition for eer-

tification automatically stayed the issuance of the mandate. State v. Montalbano, 94 N. J. Super. 152 (App. Div. 1967).

Therefore, either the granting of the petition for certification or the filing of a notice of appeal as of right squarely put the defendant again in the appellate process, thus preserving liis right to file a motion for reduction of sentence within 20 days of the issuance of the mandate by the Supreme Court. Conversely, the denial of a timely petition for certification recommenced the running of the time for issuance of the Appellate Division mandate and still left defendant his 20-day period after actual issuance of the mandate. An order of denial of a petition for certification, however, was held not to be a “mandate” within the intendment of R. R. 3:7-13(a). State v. Montalbano, supra at 155.

N otwithstanding the foregoing, the State asserts that under the 1969 rules revision, R. 2 :ll-3 replaced the former R. R. 1:9-l and 2:9-l and thereby eliminated the mandate and also the automatic stay features consequent upon the timely filing of either a further notice of appeal or a notice of petition for certification, and further urges that since, under the same revision, R. 3:21-10 (a) also eliminated any reference to “mandate” and substituted “judgment” of the appellate court, a defendant waives his right to move for reduction of sentence unless such motion be made within 20 days of the judgment of the Appellate Division, the rule containing no provisions as to the effect to be given to certification proceedings.

The fallacy of this contention is apparent when one recognizes the premise that a defendant will again be in the appellate process upon the timely filing of a further notice of appeal as of right or upon the granting of a petition for certification, and that “judgment of the appellate court” under R. 3:21-10 (a) encompasses both judgments of the Appellate Division and the Supreme Court. Cf. State v. Costello, 59 N. J. 334, 347 (1971). Additionally, neither the language of the subject rule and its immediate predecessors nor any of the comments thereunder disclose any intention of the Supreme Court in the enactment thereof to foreclose. a defendant from making a motion to reduce his sentence following the affirmance of his conviction by the Supreme Court.

Finally, while B. 2:12-10 provides that a denial of a petition for certification results in an order of the Supreme Court, whereas R. 3:21-10 (a) speaks to a “judgment” of an appellate court, it is, in this narrow sense, a distinction without a difference. Fundamental concepts of fair play and justice dictate the consideration on the merits of a timely motion for reduction of sentence following denial of a petition for certification. To hold otherwise would place an undue premium on a favorable vote of at least three-sevenths of the Supreme Court. R. 2:12-10.

The State’s motion to dismiss defendant Tillman’s motion to reduce his sentence is therefore denied.

During the course of oral argument on the foregoing motion, the State also advanced the proposition that a defendant is entitled to make and be heard on but one motion to reduce his sentence. The contention is actually not in issue here since defendant Tillman made but one such motion to date following his sentence, nonetheless, the matter is of such significance that this court is of the opinion that some comments and observations are in order.

Firstly, the motion must be filed under R. 3 :21-10 (a) not later than 60 days after conviction or in the event of an appeal within said period then not later than 20 days after the appellate court judgment. Since R. 2:4-1 requires the filing of a notice of appeal within 45 days of the date of judgment of conviction, such filing will deprive the trial court of jurisdiction to act further in the matter even if the motion to reduce has been previously filed, unless perchance the trial court has heard and decided the motion prior to the filing of a notice of appeal. The trial court, of course, may properly calendar for hearing a motion to reduce sentence after the 45-day appeal deadline and decide it within the 75 days from the date of judgment of conviction. State v. Alvarado, 95 N. J. Super. 595 (App. Div. 1967), aff’d per curiam 51 N. J. 375 (1968). The latter course of action would indeed appear to be preferable, since any appeal ground of excessiveness of sentence will be resolved by the Appellate Division and yet preserve defendant’s right to move for reduction of sentence within 20 days of the Appellate Division judgment, should the sentence aspect of his conviction be affirmed.

Defendant’s apparent right to so move after the Appellate Division judgment with a 35-day decisional deadline cast upon the trial court presents, however, another difficulty in view of the fact that when a defendant has a right of appeal to the Supreme Court under R. 2:2-1 (a), he may file his notice of appeal within 4-5 days of entry of judgment in the Appellate Division, which terminal date is obviously 10 days after the prescribed 35th day for determination by the trial court of the motion to reduce. It is thus apparent that this anomaly may set the stage for still another (possibly a third) motion to reduce following the appellate judgment of the Supreme Court.

Since both a motion to reduce and a notice of petition for certification must be filed within 20 days after date of the Appellate Division judgment, it seems rather unlikely that a trial court would hear and decide the motion to reduce by the deadline for fding the notice of petition for certification, upon the occasion of which the trial court is also deprived of jurisdiction to act further. R. 2:9-l. Here again, the trial court has the ultimate control by reason of the 35-day decisional deadline. Thus, the aforementioned anomaly is in practice more likely to occur in the “appeal as of right” situation.

In any case, a defendant, consistent with the holding of this court, may then file his motion to reduce within 20 days after the order of denial of the petition for certification.

Examination of all the predecessor versions of R. 3:21-10(a), the tentative draft comments thereunder and annotation comments, clearly convinces this court that the intent of the rule was to provide defendant with only one opportunity to be heard on a motion to reduce. The sapctioning of unlimited such motions would only congest criminal calendars, especialty where excessiveness of sentence has been raised as a ground of appeal.

In the light of the foregoing observations, clarification and revision of R. 3:21-10 (a) would appear to be in order for the benefit of both bench and bar.

      R. 2:9-1; Sturdivant v. General Brass & Machine Corp., 115 37. J. Super. 224, 227 (App. Div. 1971).


author: Staller, J. C. C.

text:
    SARA J. KUHNER AND FREDERICK KUHNER, HER HUSBAND, PLAINTIFF, v. MARLYN MANOR, INC., A CORPORATION OF NEW JERSEY, HORACE SMITH, AND CHRYSLER CORPORATION, A FOREIGN CORPORATION, JOINTLY, SEVERALLY AND IN THE ALTERNATIVE, DEFENDANTS.
    Superior Court of New Jersey Law Division
    Decided July 31, 1974.

      Mr. James Cooper argued for plaintiffs (Messrs. Cooper, Perskie, Neustadter & Katzman, attorneys).

      Mr. Roger Steedle for defendant Horace Smith (Messrs. Lloyd, Megargee & Steedle, attorneys).

      Mr. Douglas R. Kleinfeld for defendant Chrysler Corporation (Messrs. Conway, Reiseman & Michals, attorneys).
   Staller, J. C. C.

This matter is before the court on motions for a new trial made on behalf of plaintiff and of defendant Horace Smith pursuant to R. 4:49-l.

Plaintiff Sara Kuhner suffered serious injuries, including the amputation of one leg, when she was struck by a 1964 Plymouth automobile owned and operated by defendant Smith in the parking area of the Marlyn Manor shopping center. At trial in this court the jury found that Smith and Marlyn Manor were liable in negligence to plaintiff but that defendant Chrysler Corporation was not liable. The jury found damages in favor of Mrs. Kuhner in tire amount of $300,000 and in favor of her husband Frederick in the amount of $50,000.

After the return of the verdict certain facts were brought to the attention of this court which led it to order that the jurors should be interrogated concerning their verdict. This order was stayed pending an appeal from it by defendant Chrysler. The Appellate Division held that it was improper to interrogate the jurors in this case concerning their answers to the special interrogatories posed to them. The cause was remanded to this court for disposition of the other grounds Taised by the motion for a new trial.

At oral argument on this motion counsel for plaintiff did not argue the issue of whether the communication made by the court to the jury regarding their request for clarification of Interrogatory No. 2 was improper as not having been done in open court. In any event, the response made was undertaken in chambers with the knowledge and consent of all counsel.

With respect to plaintiff’s grounds for a new trial which deal with the instructions given to the jury (Nos. 4, 5, 7 and 9 through 33), the court has reexamined its charge to the jury and finds no error. (Grounds Nos. 1 through 3 and No. 6 were dealt with in the decision of the Appellate Division).

The principal contention advanced for plaintiff at oral argument, based largely on plaintiff’s grounds Nos. 8, 34 and 35, was that this court erred with regard to its instructions to the jury concerning the duty of Chrysler Corporation to warn users of the dangers posed by the pushbutton gear selector. After instructing the jurors on the applicable law of negligence and on reasonable care this court said:

* * * now, a manufacturer not only owes a duty to exercise reasonable care in the manufacture and inspection of this product, but likewise owes a duty, owes a companion duty to warn buyers and users of the latent or hidden limitations of even a perfectly made article, the use of which is dangerous if the xiser is ignorant of those limitations and the manufacturer has no reason to believe that the user will recognize the danger. ¡.Emphasis added]

No objection is made to the content of this instruction which sets out the rule established in Martin v. Bengue Inc., 25 N. J. 359, 366-367 (1957). However, immediately following this instruction the jury was then instructed with regard to the concept of strict liability in tort. It is plaintiff’s contention that the instruction given by the court, because of the underlined language and because of the sequence in which it was given, informed the jury that “duty to warn” was purely aud solely applicable to a negligence theory of liability and had no applicability to the theory of strict liability in tort. This, contends plaintiff, was error which requires that a new trial be ordered.

It is clear that the instruction on a duty to warn did apply only to the negligence theory of liability. The jury was never told that under strict liability in tort the manufacturer has a duty to warn users of the dangers of a perfectly made product. The question thus arises as to whether such an instruction was proper and required.

It should be pointed out initially that Martin v. Bengue Inc., supra, was a negligence case which did not involve the theory of strict liability in tort. There seem to be no reported decisions in this State in which a manufacturer or distributor has been held strictly liable in tort for its failure to warn of a latent danger in a perfectly' made product. In order to find a manufacturer strictly liable in tort the jury must find that the product was in a “defective condition.” It‘ seems anamolous to speak of a perfectly made product as “defective.” But, Comment (h) to Restatement, Torts 2d, § 402A, says,

■ Where, however, he [the manufacturer] has reason to anticipate that danger may result from a particular use, as where a drug is sold which is safe only in limited doses, he may be required to give adequate warning of the danger * * * and a product sold without such warning is in a defective condition.

That is, the “defect” in the product is the failure of the manufacturer to warn of danger which may result from its use.

In New Jersey a product is deemed “defective” for strict liability purposes if it is “not reasonably fit for the ordinary purposes for which such articles are sold and used, and the defect arose out of the design or manufacture pr while the article was in the control of the manufacturer, and it proximately causes injury or damage to the ultimate purchaser or reasonably expected consumer”. Santor v. A. M. Karagheusian, Inc., 44 N. J. 52, 66-67 (1965). Mrs. Kuhner, as an “innocent bystander,” is a protected person, like a “reasonably expected consumer” who could recover from Chrysler Corporation if a jury were to find it strictly liable in tort. Lamendola v. Mizel, 115 N. J. Super. 514, 524 (Law Div. 1971), and cases cited therein at 521.

This definition of “defect” provided by the Santor case does not seem to include or particularly allow for the concept that a failure to warn of the dangers of a “perfectly made” product is a defect. But the Supreme Court in Santor pointed out that it was not attempting to define “the outer limits” of the term “defect.” 44 N. J. at 67; 1 Frumer & Friedman, Products Liability §16A [3] [c] (1960).

As noted above, there appear to be no reported New Jersey decisions on a manufacturer’s duty to warn under strict liability in tort theory. As the example given in comment (h) to § 402A indicates, many of the cases dealing with this concept concern drugs — either dosage or side effects. It may be that in some way drug cases are unique or distinguishable from other products liability cases. But there are several nondrug eases from other jurisdictions in which the manufacturer of a product faultlessly made, free of design defect, has been found strictly liable in tort for its failure to warn of dangers inherent in using the product. Dunham v. Vaughan & Bushnell Mfg. Co., 86 Ill. App. 2d 315, 229 N. E. 2d 684, 689 (App. Ct. 1967) (hammer); Patch v. Stanley Works (Stanley Chemical Co. Div.), 448 F. 2d 483 (2 Cir. 1971) (textile coating compound); Boains v. Losar Mfg. Co., 330 F. Supp. 1134, 1137 (D. Conn. 1971) (meat grinding machine); Crane v. Sears Roebuck & Co., 218 Cal App. 2d 85, 32 Cal. Rptr. 754 (D. Ct. App. 1963) (paint surface preparer); Gherna v. Ford Motor Co., 246 Cal. App. 2d 639, 55 Cal. Rptr. 94 (D. Ct. App. 1966) (oil in automatic transmission); see Hall v. E. I. DuPont DeNemours & Co., Inc., 345 F. Supp. 353, 360 (E. D. N. Y. 1972) (blasting caps). The theory on which liability may be found was stated in Dunham, supra, to be that “a product faultlessly made may be deemed ‘defective’ if it is unreasonably dangerous to place tbe product within the hands of the user without suitable warning.” 229 N. E. 2d at 689.

In this ease there was evidence upon which the jury could have found that the push-button automatic selector possessed latent dangers. The jury did not find that Chrysler was negligent for failing to warn buyers and users of such dangers. But the jury was not instructed that it should determine, if it found the system did present danger, whether or not Chrysler’s failure to warn of the danger made the push button system “defective” and whether or not such a defect rendered Chrysler strictly liable in tort to Mrs. Kuhner. It is clear that were the jury to find that Chrysler had a duty to warn, that duty would exist and continue once Chrysler was apprised of the danger. Braniff Airways v. Curtiss Wright Corp., 441 F. 2d 451, 453 (2 Cir. 1969).

Thus, this court concludes that it failed to give the jury an instruction which should have been given.

The court, in considering this motion, has reviewed the instructions to the jury. The court has discovered that nowhere in the charge did it tell the jurors that in order to find for plaintiff against Chrysler Corporation it had only to find liability under any one of the three theories advanced, and not that they (had to find Chrysler liable on all theories. This court is not now attempting to delve into how the jurors understood the charge or the special interrogatories. But the court, in instructing the jury, should have made this point clear and did not.

As was said in Hartpence v. Grouleff, 15 N. J. 545, 549 (1954), “Trial judges are wont to set aside verdicts, and properly so, when they are convinced or have a grave doubt that a portion of the charge may have misled the jury.” See Barr v. Francks, 70 N. J. Super. 565, 568-570 (App. Div. 1961). In the present case the jury may have been misled as to the law by the instructions. This constitutes a miscarriage of justice under the law and the plaintiff is entitled to a new trial on the issue of the liability of defendant Chrysler Corporation.

Defendant Horace Smith moved for a new trial on liability only. At oral argument his counsel sought to amend the motion to move further for a now trial on damages as well. The court notes that paragraph 7 of the motion states that “the amount of the verdict was excessive.”

This court is convinced that, based upon the evidence presented, the jury reasonably could have found that Horace Smith was negligent and that his negligence was a proximate cause of the injuries to Mrs. Kuhner. Mr. Smith’s motion for a new trial as to his liability is denied.

At the first trial, all issues relating to plaintiff’s injuries and damages were litigated. This court finds that the damages as determined by the jury were justified by the evidence. A new trial as to damages will not be ordered.


author: Leopizzi, J. D. C.,

text:
    STATE OF NEW JERSEY, PLAINTIFF, v. JOHN TEARE, DEFENDANT.
    Essex County Court Law Division
    May 28, 1974.

      Minish and Dooley, Esqs., attorney for the defendant (Mr. George J. Minish on the brief).

      Mr. Joseph P. Lordi, Essex County Prosecutor, attorney for the plaintiff (Mr. Nicholas Turco).
   Leopizzi, J. D. C.,

Temporarily Assigned. This case comes to the County Court on a motion to suppress the results of a breathalyzer test taken pursuant to an arrest under N. J. S. A. 39:4-50 et seq. in the Borough of Yerona on January 24, 1974 at 1:25 a.m. Defendant John Teare is a New York State licensed driver and was initially stopped for going through a stop sign. He was given a single breathalyzer test with his consent a short time after his arrest. The reading on the meter was .20, which would bo prima facie evidence of a violation of N. J. S. A. 39:-4-50(a).

Approximately one month after this arrest defense counsel contacted the municipal prosecutor by telephone to ask to examine the test ampule used in the breathalyzer test of the defendant. Several days later a letter dated February 28, 1974 was sent by defense counsel to the municipal prosecutor confirming their previous conversation. Defense counsel was informed both by telephone and by letter that the test ampule of defendant had been destroyed in accordance with the routine established by the State Police.

Two motions are now presented to the court. The first is that the complaint against defendant should be dismissed because of the State’s failure to produce material evidence. The second motion is made in the alternative and seeks the suppression of the results of the breathalyzer.

The grounds upon which these two motions are based, a request by defense counsel to examine the test ampule of a breathalyzer test, is unique in this State so far as this court is able to ascertain.

An eminently qualified expert with a doctorate in chemistry was produced by defendant at the hearing of these motions. A brief recitation of the findings of fact of the expert’s testimony is necessary. I find as a fact:

1. The exact volume of the ampule is critical to the accuracy of the test and the exact volume can later be determined by independent test of the ampule.

2. The alcoholic content of the ampule is converted into acetic acid by a chemical reaction.

3. The amount of acetic acid can later be determined by means of a chemical procedure known as' Yapor Phase Chromatography (YPC).

4. By means of YPC a qualitative and quantitative analysis of the contents of the ampule can be later determined.

5. By determining the amount of acetic acid in an ampule the amount of blood alcohol in the person tested can later be determined.

6. In order to prevent deterioration of the contents of a test ampule for later examination, it should be stored in an amber-colored bottle to prevent light from entering, and tightly capped to prevent oxidation.

7. If properly stored, the contents of a test ampule would not deteriorate within a reasonable period of time.

8. Because the test reading of the breathalyzer is made shortly after the ampule is breathed into, the chemical reaction of alcohol to acetic acid has not been fully completed at the time of the test reading. A reading or other test taken at a later time would be likely to have a slightly higher reading. Therefore, if the later test were to show a result less than or equal to the test conducted by the police officer, this second test result would at least rebut the prima facie presumption raised by the breathalyzer test.

9. The amount of sulphuric acid in the ampule is critical to the accuracy of the test and this amount can later be determined.

10. Because breathalyzer apparatus can be calibrated to correct itself for certain inaccuracies in the ampules, an expert would need both the test ampule and the reference ampule at a later examination to be certain that the breathalyzer test was accurate. •

This court makes a further finding which is based upon logic. That is, if an error had in fact been made by the police in the breathalyzer test and if defendant had available to him both the test ampule and the reference ampule, then these ampules might be of significant benefit to a defense. With so many factors concerning the qualitative and quantitative contents of the ampules critical to the accuracy of the test, a defendant has no way of authenticating the fact that the particular ampule used in his test was properly composed. At the present time all defendant has is the assurance that the ampules with the same batch number met certain standards at the time they were packaged. If a slight defect in a single ampule of a batch did affect its light transmissibilty, chances are no one would ever learn of it. Clearly, an important avenue of cross-examination on the test would be closed to defendant. Therefore, the State’s failure to produce this evidence, albeit without willfulness, is prejudicial to defendant and a denial of due process. The fact that a breathalyzer test provides prima facie evidence of guilt makes the safeguard of a follow-up test all the more important.

Justice and a sense of fair play dictate that the results of the breathalyzer test should be suppressed. However, absent willful destruction or secretion of evidence by the State, dismissal of the complaint is inappropriate. The defense has not shown how its case would be prejudiced by the destruction of the ampules if the results of the breathalyzer test were suppressed and independent evidence of driving while impaired or under the influence was produced.

The court notes with approval the case of People v. Hitch, 113 Cal. Rptr. 158, 520 P. 2d 974 (Sup. Ct. 1974), where the court considered the same questions as those considered herein when dealing with California’s breathalyzer statute, which is very similar to that of New Jersey. The Supreme Court of California in a unanimous decision has reached the same conclusion as has this court and has suppressed the results of the breathalyzer test but did not dismiss the complaint. While the California opinion is not binding on this court, it certainly is persuasive of the issues of due process and fair play. This court sees no undue burden on the State in being required to keep the ampules in an undeteriorated condition until the time for trial set forth in the complaint. Failure of the defendant to make such an application within the above-stated time will be construed as a waiver of his right to make such a request.

Motion to dismiss the complaint against the defendant is denied. Motion to suppress the results of the breathalyzer is granted.


author: Per Curiam.

text:
    RICHARD J. ALBIGESE, TRADING AS DOMINION ENTERPRISES, PLAINTIFF-APPELLANT, v. CITY OF JERSEY CITY, A MUNICIPAL CORPORATION, DEFENDANT-RESPONDENT. ROBERT GOLDBERG REAL ESTATE MANAGEMENT COMPANY, PLAINTIFF-APPELLANT, v. CITY OF JERSEY CITY, MUNICIPAL COUNCIL, RENT CONTROL BOARD, CITY ATTORNEY OF JERSEY CITY, DEFENDANT-RESPONDENT.
    Superior Court of New Jersey Appellate Division
    Argued April 29, 1974
    Decided August 7, 1974.

      Before Judges Coneoed, Handler and Meanor.

      Mr. Joseph L. Freiman argued the cause for appellant Richard J. Albigese, trading as Dominion Enterprises.

      Mr. Harvey M. Douglen argued the cause for appellant Robert Goldberg Real Estate Management Company (Messrs. Stier & Douglen, attorneys).

      Ms. Eileen Tulipán Martini, Assistant Corporation Counsel, argued the cause for respondent City of Jersey City, a municipal corporation (Mr. Dennis L. McGill, Corporation Counsel, attorney), and respondent City of Jersey City, Municipal Council, Rent Control Board, City Attorney of Jersey City (Mr. Raymond A. Hay ser, Acting Corporation Counsel, attorney).
   Per Curiam.

These two cases present challenges to the Rent Stabilization Ordinance of the City of Jersey City. All but one of the issues presented here were dealt with at the-trial level in two opinions by Judge Larner. Albigese v. Jer sey City, 127 N. J. Super. 101 (Law Div. 1974) and Wood-cliff Management v. North Bergen, 127 N. J. Super. 123 (Law Div. 3974). The latter has not been appealed, and decided an issue relative to the rent rollback provisions of the ordinance which was not raised at the trial level but which is raised here in both of the cases now before us.

Substantially for the reasons set forth by Judge Lamer in Woodcliff Management v. North Bergen, supra, we modify the judgments under review to the end that any rent rollback in these matters be calculated in accordance with the decision in that case, and as so modified the judgments are affirmed essentially for the reasons set forth in Albigese v. Jersey City, supra.

The ordinance in question was effective March 12, 1973 and by its own terms was to remain in effect “for a period not to exceed one year from said effective date * * * unless specifically extended by the Municipal Council by Resolution extending said term from year to year.” The additional issue presented to us, not ripe at the time of the decisions below, is whether the municipality has power to extend this ordinance by resolution.

It is a recognized tenet of municipal law that the term “ordinance” encompasses matters legislative in character, while the term “resolution” refers to matters administrative or procedural in nature. McLaughlin v. Millville, 110 N. J. Super. 200 (Law Div. 1970); O’Keefe v. Dunn, 89 N. J. Super. 383, 388 (Law Div. 1965), affirmed o. b. 47 N. J. 210 (1966); Woodhull v. Manahan, 85 N. J. Super. 157, 164 (App. Div. 1964), aff’d 43 N. J. 445 (1964); 5 McQuillin, Municipal Corporations, § 15.02 and § 16.42 (3969).

Unquestionably, the ordinance before us represents an exercise of legislative power. Thus, its enactment by ordinance and not by resolution was required. Amendment or reenactment of legislation required initially to be enacted by ordinance must be accomplished by the same moans and may not be done by resolution. Kessler v. Passaic, 113 N. J. Super. 59 (Law Div. 1971). As was stated in Chasis v. Tumulty, 8 N. J. 147 (1951) :

Where the law requires a proceeding to be instituted by an ordinance it cannot be effected by resolution merely; the latter, wanting the solemnities of the former, is not regarded as a legal equivalent, [at 153]

Hence, the municipality’s extension of the rent stabilization ordinance by resolution is invalid. Obviously, the municipality did not acquire a power denied to it by incorporating in the original enactment the provision for an extension by resolution rather than by the adoption of a new ordinance. That portion of the initial ordinance was invalid. See Hilton Acres v. Klein, 64 N. J. Super. 281, 295-296 (App. Div. 1960), mod. on other grounds 35 N. J. 570 (1961). We add that to require extension only by ordinance in a matter of public importance sudh as this serves the salutary objectives of public notice and participation and affords the opportunity for unhurried deliberation.


author: Meanor, J. A. D.

text:
    CITY OF JERSEY CITY, PLAINTIFF-APPELLANT, v. REALTY TRANSFER COMPANY, DEFENDANT-RESPONDENT.
    Superior Court of New Jersey Appellate Division
    Argued June 3, 1974
    Decided August 13, 1974.

      Before Judges Coneord, Handler and Meanor.

      Mr. Edmund E. Lynch argued the cause for appellant (Mr. Raymond Chasan, Corporation Counsel, City of Jersey City, attorney).

      Mr. Walter Goldberg argued the cause for respondent (Messrs. Goldberg & Carlin, attorneys).
   The opinion of the court was delivered by

Meanor, J. A. D.

By eminent domain plaintiff Jersey City took approximately 1,334 acres of essentially vacant and unused land belonging to defendant and located in Jefferson Township, Morris County, New Jersey. Eollowing jury trial the award to defendant was $821,000, of which $650,000 previously had been paid. On January 5, 1973 the court entered judgment for the difference plus interest of $180,358.32 for a total of $351,358.32. The only important issues presented by this appeal concern the allowance and calculation of interest.

The trial court held that the parties, during negotiation prior to suit, had stipulated to a taking date of June 1, 1968, although plaintiff denied that such a stipulation had been made. This finding of the trial court is based on sufficient credible evidence and we affirm it. State v. Johnson, 4.2 N. J. 146, 162 (1964). Since we believe that litigants should be held to their stipulations and the consequences thereof, we may pass plaintiff’s argument that there was no taking in fact by it.

The complaint was filed Eebruary 28, 1969; $150,000 was paid to defendant on July 2, 1969 and deposit into court of $500,000 was made on July 12, 1972, which was promptly withdrawn by defendant. The trial court allowed interest on $821,000 from June 1, 1968 to July 2, 1969, the date of payment of $150,000; on the balance of $671,000 from July 2, 1969 to July 12, 1972, the date of the $500,000 deposit; and on the balance of $171,000 from July 12, 1972 to January 5, 1973, the date of its judgment.

Despite plaintiff’s attempt to distinguish it, we believe that the allowance of interest here was in accord with State v. Nordstrom, 54 N. J. 50 (1969). See also, N. J. Highway Authority v. Ellis, 24 N. J. 1 (1957). Our problem lies in the fact that between Nordstrom and the entry of judgment below the Eminent Domain Act of 1971 became law, N. J. S. A. 20:3-1 el seq., and included the following in N. J. S. A. 20:3-4:

Tliis act shall take effect immediately following the approval thereof, and shall apply to all actions instituted thereafter, and to all proceedings taken subsequent thereto in all actions pending on such effective date. * * *

The effective date of the Eminent Domain Act of 1971 was December 21, 1971. The question is whether certain sections of that act pertaining to the allowance of interest to the condemnee require a modification of the interest assessed below. See Wayne v. Ricmin, Inc., 124 N. J. Super. 509 (App. Div. 1973), certif. den. 63 N. J. 583 (1973).

N. J. S. A. 20 :3 — 31 provides:

Interest as set by the court upon the amount of compensation determined to be payable hereunder shall be paid by the condemnor from the date of the commencement oí the action until the date of payment of the compensation; provided, however, that there shall be excluded from the amount upon which interest shall be calculated, all moneys deposited pursuant to Article V hereof; and provided, further, that interest payable hereunder shall be subject to abatement for rents and profits derived from the property by the condemnee during the period for which interest is payable hereunder, and/or for the fair rental value of such property or any portion thereof occupied by the condemnee during such period.

Applied literally to the facts here, this statute would require that interest begin to run, not from the stipulated date of talcing of June 1, 1968, but from the filing of the complaint on February 28, 1969. The unfairness of depriving a condemnee of interest during a portion of the period following the talcing is obvious and this remedial act should not be construed to require so harsh a result unless no alternative is open. Alexander v. N. J. Power & Light Co., 21 N. J. 373, 378 (1956). We conclude that a viable alternate construction is available to us.

The scheme of this legislation as a whole did not contemplate’ the occurrence here — a taking date prior to the commencement of the action. If the property to be taken cannot be acquired by negotiation, N. J. S. A. 20:3-6, the act provides for the institution of an action in condemnation, N. J. S. A. 20 :3-8, with a mandatory filing of a lis pendens by the condemnor. N. J. S. A. 20:3-10. It is further provided that “[A]t any time contemporaneous with or after the institution of an action * * * the condemnor may file * * * a declaration of taking * * *.” N. J. S. A. 20:3-17. Provision is also made for an application by the condemnee for an order requiring the condemnor to elect to file a declaration of taking or abandon the action. N. J. S. A. 20:3-25. The act further requires that a deposit in the amount of the estimated compensation be made by the condemnor simultaneonsly with the filing of the declaration of taking. N. J. S. A. 20:3-18.

It is clear that the act envisions either an acquisition by negotiation or, with respect to the application of its interest provisions, a taking only after commencement of the action in accord with a filed declaration of taking accompanied by a deposit. What occurred here, an agreed taking date in advance of litigation, was not anticipated by the act. We believe that it would be contrary to the spirit of the act to deprive the landowner of interest for the period between the taking date and the filing of the complaint. This conclusion is supported by the legislative history available on the topic. The record of the public hearing before the Eminent Domain Eevision Commission, November 20, 1963, has appended to it a Report of the Committee on Revisions of the Law of Eminent Domain, New Jersey State Bar Association. With respect to interest this report says:

Again the question of when interest shall begin to run brought on the same discussion as was produced under the heading of “fixing the date of determining valuation,” and the committee decided to recommend that interest on an award should be deemed to run from the date of faking of possession or the filing of proceedings, whichever is first, [at 1691

The Report of the Eminent Domain Revision Commission (May 4, 1965) has this to say concerning the commencement of interest:

Accordingly, it is recommended that interest at 6% per annum on the amount of compensation (exclusive of any amount deposited in court) be paid by the condemning agency from the date possession is taken, or the date title vests in the taking body, whichever date is earlier, [at 39]

In our judgment the trial court correctly began the running of interest on the agreed taking date rather than the later date of filing the action. Cf. Public Service Elec. & Gas v. Oldwick, 125 N. J. Super. 31, 38 (App. Div. 1972), certif. den. 64 N. J. 153 (1973).

N. J. S. A. 20:3-31 provides “that there shall he excluded from the amount upon which interest shall be calculated, all moneys deposited * * *.” Again, applied literally, this would preclude the allowance of any interest on the $500,000 deposited July 12, 1972 and also on the $150,000 paid July 2, 1969, even for the period between the taking and the date of deposit or payment. This was held in Wayne v. Ricmin, Inc., supra, which on an award of $170,000 allowed interest only on $30,000 because there had been a deposit of $140,000, even though the deposit was not made until nearly 21 months after the complaint was filed.

we are not in accord with the holding in Wayne v. Ricmin that the amount deposited must be excluded entirely from any interest calculation. To us the statutory scheme is clear. Interest runs as a matter of right from the date of commencement of the action on the amount of the award (or where, as here, there has been a taking in advance of suit, interest runs from that date of taking). If no deposit is made, interest is so calculated on the entire amount of the award. If a deposit is made during the pendency of the ac.tion,,interest is excluded on the amount deposited from the date of deposit. Interest is not permitted on. the amount deposited from the date of the deposit forward because the condemnee may withdraw the deposit and use the money. N. J. 8. A. 20:3 — 23.

Contrary to the discussion in Wayne v. Ricmin, Inc., supra, 124 N. J. Super. at 514, we do not believe that the exclusion of the amount deposited from the computation of interest for the period prior to the deposit is supported by N. J. S. A. 20:3-23, which provides that where there is a deposit followed by an award in excess of the deposit interest is to be allowed on the excess “from the date of the deposit.” This provision is entirely consistent with, and indeed reinforces, our view that the theme of the interest provisions of the act is to provide interest on the entire award from the date of the commencement of the action (or from the date of an earlier taking) and to exclude therefrom only payments or deposits from the date of payment or deposit forward. This construction is enhanced by reference to that portion of N. J. S. A. 20:3-23 which deals with interest where a withdrawn deposit exceeds the amount of the award. In such an event a judgment against the condemnee in the amount of the excess with interest “from the date of payment” is authorized. This is another indication that those portions of the statute dealing with deposits and interest consistently project the logical and reasonable design that a deposit affects the allowance of interest only from the date of deposit forward, and that for the period between complaint and deposit interest shall run on the full amount of the award as commanded by N. J. S. A. 20:3-31.*

The trial court properly calculated the interest due to defendant. The remaining issues presented by appellant have been examined and found lacking in merit.

Affirmed.
      This statute, -which we have quoted in full supra, also provides for abatement of interest on account of rents and profits derived by the condemnee during the period for which interest is payable. A tangential argument has been made by Jersey City that it is entitled to such relief. We find, however, that the issue has not been satisfactorily projected on this record.


author: Handler, J. A. D.

text:
    RUTH WEIMAN, INDIVIDUALLY, AS ADMINISTRATRIX AD PROSEQUENDUM OF THE ESTATE OF ROBERT WEIMAN, AND AS GUARDIAN FOR THOMAS ALAN WEIMAN AND RICHARD DAVID WEIMAN, MINORS, PLAINTIFF-RESPONDENT, v. GLORIA WEIMAN IPPOLITO, INDIVIDUALLY AND AS EXECUTRIX OF THE ESTATE OF ROBERT WEIMAN, DEFENDANT-APPELLANT.
    Superior Court of New Jersey Appellate Division
    Argued May 13, 1974
    Decided August 16, 1974.

      Before Judges Coneoed, IIandleb and Meajstoe.

      Mr. M. Marvin Soperstein argued the cause for Appellant.

      Mr. Michael R. Griffinger argued the cause for Respondent (Messrs. Crummy, O’Neill, Del Deo & Dolan, attorneys).
   The opinion of the court was delivered by

Handler, J. A. D.

The appeal and cross-appeal in this matter relate solely to issues of damages arising from the wrongful death of Robert Weiman, who was found to have been killed intentionally by his wife, defendant Gloria Wei-man Ippolito. Plaintiff is Ruth Weiman, the former wife of decedent, who brought the action individually and as administratrix ad prosequendum of the estate of Robert Wei-man and as guardian for his two sons, Thomas Alan and Richard David Weiman.

Plaintiff Ruth Weiman filed a multi-count complaint setting forth in counts I, III and V claims respectively founded upon negligence for wrongful death, a survival action and for the tortious interference with a contractual relationship based upon a separation agreement with decedent. Similar claims were asserted in counts II, IV and VI based upon the theory of an intentional wrong. In counts VII and VIII plaintiff demanded declaratory judgments that as a result of her intentional act in taking the life of decedent, defendant was not entitled to receive the proceeds of insurance upon decedent’s life or any property under his will. In other counts plaintiff sought the removal of defendant as executrix for the estate and a cancellation of stock of decedent’s insurance agency which had been issued to defendant. Plaintiff also sought an accounting and the payment of medical bills and upward adjustments of support and alimony payments under the separation agreement. After an answer was filed a supplemental complaint was served by plaintiff against two insurance companieá) alleging rights as a third-party beneficiary under two liability insurance policies in favor of defendant as the insured. Defendant then filed a cross-claim against the insurance companies for indemnification for any negligence judgment recovered against 'her. The insurance companies filed ansAvers to the cross-claim.

After a pretrial of the matter, an order Avas entered which prescribed the issues for trial as (1) Avrongful death liabilitj, (2) Avrongful death damages and (3) estate matters. The case thereafter proceeded to trial Avithout a jury. At the conclusion of the testimony and prior to summations a settlement Avas entered disposing of the negligence portion of the suit. Pursuant to the order reflecting this settlement, a judgment in the sum of $8,000 Avas entered against the insurance companies, allocating $2,000 for each of the sons and $4,000 in favor of plaintiff individually and as administratrix ad prosequendum of the estate, Avith a counsel fee and disbursements of $2,808.72 to be paid out of plaintiff’s share of the settlement. The order for settlement also provided for the dismissal Avith prejudice of all of the negligence counts of the original complaint against defendant as Avell as the supplemental complaint for indemnification and defendant’s cross-claim for indemnification against the insurance companies. The order, thus, reflected Avhat was made clear to plaintiff at the hearing, namely that the settlement concluded any claims she might have individually or in a representative capacity based upon the negligence of defendant for decedent’s wrongful death.

It is this settlement and the judgment for $8,000 pursuant thereto which poses the first issue on the appeal. After the friendly settlement, the trial judge later rendered a decision on the aspects of the case remaining after the elimination of the negligence counts. He determined, among other things, that plaintiff’s proofs established a cause of action for the wrongful death of decedent attributable to defendant’s intentional acts. This determination is not disputed. Wrongful death damages were allowed reflecting the loss of support for the sons as next of kin, funeral expenses, the value of a major medical policy, as well as survival action losses.

It is claimed by defendant on her direct appeal that she should be allowed a credit of $8,000, the sum paid by her insurance companies in settlement of the negligence claims, against the total award of money damages. We conclude that defendant is entitled to this credit.

The measure of damages in a wrongful death action is prescribed by statute. N. J. S. A. 2A:31-5. It would be identical regardless of whether defendant’s liability for a decedent’s wrongful death rested ou a finding of negligence or intentional wrongdoing. (Thexe is an indication in the pretrial orders that there was an issue as to punitive as well as compensatory damages. Exemplary damages, however, were not sought or proved.) It is well established that a successful plaintiff in a tort action is entitled to a single recovery • — ■ a quantum of damages that will justly compensate him for injuries caused by a defendant. Cf. Theobold v. Angelos, 40 N. J. 295 (1963), aff’d 44 N. J. 228 (1965); Breen v. Peck, 28 N. J. 351 (1958). Plaintiff urges, however, that her recovery of the $8,000 represents a payment from collateral sources which may not be set up to benefit defendant by mitigating or reducing the damages award otherwise payable by her.

Plaintiff’s reliance on the “collateral source rule” in this context is misplaced. Under this rule, a defendant is not entitled to get the benefits of payments which have come to a plaintiff from a “collateral source,” that is, a source which is “collateral” to or independent of defendant; and even though such payments may compensate a plaintiff doubly for a particular loss or item of damage, the defendant is. nevertheless, obligated to compensate the plaintiff for the entire amount of harm done. 2 Harper & James, The Law of Torts, § 25.22 at 1343-1344 (1956). Hote, Unreason in the Law of Damages; The Collateral Source Rule, 77 Han. L. Rev. 741 (1964). The New Jersey cases are in accord. Long v. Landy, 35 N. J. 44, 55—56 (1961); Rusk v. Jeffries, 110 N. J. L. 307 (E. & A. 1933); Skillen v. Eagle Motor Co., 107 N. J. L. 211 (Sup. Ct. 1931); Cornish v. North Jersey St. R. Co., 73 N. J. L. 273 (Sup. Ct. 1906). Plaintiff, absent the settlement, would have been entitled to payment of damages only on the negligence counts if she had prevailed on this theory. The proceeds of the insurance policies were a consequence of defendant’s contract rights with the insurance companies, and plaintiff, as a victim of defendant’s wrongdoing, was a third-party beneficiary under these policies. Consequently, the settlement payment on the negligence counts in this case was not collateral to defendant. Plaintiff sought damages for the same wrong and the same injury on two different theories. The settlement pursuant to one theory does not render the payment therefor “collateral” to the recover under the alternative thesis. That fortuitously she in effect prevailed on both should not entitle her to an amplified recovery.

The trial judge awarded plaintiff the sum of $29,925 as damages (discounted to present value) for the loss of support payments which decedent had been obligated to make for the benefit of his two sons under the separation agreement, including the value of a major medical policy. Also awarded were $1,711.50 for funeral expenses and $1,000 as survival action damages. Plaintiff has not appealed these specific determinations. The trial judge also imposed a constructive trust for the benefit of decedent’s sons on $24,087.50 received by defendant as the proceeds of life insurance. A constructive trust was also imposed on the assets of decedent’s estate. This relief was accorded pursuant to counts VII and VIII of the complaint that, as a result of defendant’s intentional act of taking the life of decedent, she was not entitled to receive the proceeds of his life insurance or anjr propertj' under the will. Defendant has not on this appeal questioned these dispositions.

Plaintiff in her cross-appeal contends that the trial court erred in excluding the proceeds of the sale of the Robert J. Weiman Agency from the decedent’s estate. It is argued that under a separation agreement decedent had agreed to bequeath not less than one-third of his estate to his children and that it was contemplated that the agency would be part of the estate. The trial judge rejected this contention, finding that the incorporation of the agency, which had theretofore been operated as an individual proprietorship, and the issuance of the corporate stock to his wife, the defendant, with one nominal share reserved to himself and one issued to his mother-in-law, were in no way connected with decedent’s obligation under the separation agreement.

We are constrained to agree. The record does not reveal the negotiations or circumstances surrounding the execution of the separation agreement, and the evidence is otherwise insufficient to warrant any factual determination to the effect that it was within the contemplation of the parties that decedent’s business as such would be retained by him and preserved for his estate, or that there was any implied contractual promise on decedent’s part to do so. Macfadden v. Macfadden, 46 N. J. Super. 242 (Ch. Div. 1957), aff’d 49 N. J. Super. 356 (App. Div.), certif. den. 27 N. J 155 (1958), relied upon by plaintiff is distinguishable. In that case there was an express contractual undertaking specified in thp separation agreement by the husband to permit his wife to use a particular house during her lifetime. There was an anticipatory breach of this obligation when he conveyed title to a foundation which endeavored then to sell the house after decedent’s death. Id. at 244^246. The court consequently found fraud in the breach of a legal or equitable duty undertaken by decedent in the earlier separation agreement. Id. at 246-249. In this case, however, adequate facts were not developed to posit a finding of a comparable duty on the part of decedent. Cf. Salvemini v. Giblin, 24 N. J. 123 (1957): Van Duyne v. Vreeland, 12 N. J. Eq. 142 (Ch. 1858).

It is also argued by plaintiff that the court below erred in refusing to award damages for loss of inheritance. It was contended that plaintiff’s sons would have inherited money from the increase of their father’s estate attributable to the growth of his insurance business. We agree with the conclusion of the court.

The measure of damages under the Wrongful Death Act is the “deprivation of a reasonable expectation of a pecuniary advantage which would have resulted by a continuance of the life of the deceased.” Dubil v. Labate, 52 N. J. 255, 259 (1968); McStay v. Przychocki, 7 N. J. 456, 460 (1951); N. J. S. A. 2A :31—1 et seq. The trial court concluded that the expert’s projections of the growth of decedent’s business and the retention or accumulation of earnings by decedent were too speculative and unreliable to he used as a basis for awarding damages for loss of inheritance. Where lost inheritance has been recognized as an element of damages in a wrongful death action, it must appear that the decedent could reasonably have been expected to accumulate income over and above what he would have contributed toward the support of his next of kin during the remainder of his life. National Airlines, Inc. v. Stiles, 268 F. 2d 400 (5 Cir.), cert. den. 361 U. S. 885, 80 S. Ct. 157, 4 L. Ed. 2d 121, reh. den. 361 U. S. 926, 80 S. Ct. 291, 4 L. Ed. 2d 241 (1959); Martin v. Atlantic Coast Line R. R. Co., 268 F. 2d 397 (5 Cir. 1959), aff’d 289 F. 2d 414 (5 Cir. 1961); O’Toole v. United States, 242 F. 2d 308 (3 Cir. 1957); Speiser, Recovery For Wrongful Death § 3:32 at 182 — 190 (1966). In this case the record supports the trial judge’s conclusion that decedent was a spender, not a saver. We therefore find no error in the refusal to consider lost inheritance as an element in the measure of damages.

Plaintiff makes the further contention that the trial judge erred in declining to award plaintiff damages for loss of gifts and other contributions by decedent for his two sons. These consisted of miscellaneous items and activities such as cash gifts, graduation presents, payment for a driver’s test, occasional outings and the like. As the trier of the facts, the trial judge on this record could conclude, as he did, that it would be speculative to estimate the loss of these items. While it may have been somewhat conjectural for the judge to have concluded that such contributions would diminish as the boys grew older, it does appear that decedent made these gifts irregularly and in no set amounts.

Tt is asserted that plaintiff, under R. 4:42-ll(b), was entitled to interest on the damages awarded. The trial judge determined that the pecuniary injury suffered by decedent’s sons — the loss of support payments — was $10,300 for Thomas and $22,236 for Richard, or a total of $32,536, as well as the value of a major medical policy of $1,069. These damages were discounted to their present value as of January 1, 1970 and reflected in the final judgment in the amount of $29,925. But in doing so, the judge also declined to recognize prejudgment interest on the award of $29,925.

Under R. 4:42 — 11(b) prejudgment interest at 6% a year is required to be allowed on the amount of the award from the date of the institution of the action or from a date six months after the date of the tort, whichever occurs laier. Busik v. Levine, 63 N. J. 351, app. dism. 414 U. S. 1106, 94 S. Ct. 831, 38 L. Ed. 2d 733 (1973). The rule is applicable to an action commenced prior to its effective date of January 1, 1972, wherein the judgment is rendered subsequent thereto. American Metal Co. v. Fluid Chemical Co., 121 N. J. Super. 177 (Law Div. 1972) ; Riley v. Savary, 120 N. J. Super. 331 (Law Div. 1972). Here, the final judgment was entered on January 26, 1973. We are also of the opinion that R. 4:42-11(b) is applicable to an action for wrongful death brought pursuant to N. J. S. A. 2A:31-1 et seq. Cf. Prosser, Law of Torts (4 ed. 1971), § 127 at 903. Consequently the judgment below is modified to allow the award of interest on the award in accordance with R. 4:42-11(b); Ford v. Garvin, 127 N. J. Super. 391 (App. Div. 1974).

Finally, plaintiff seeks an award of counsel fees and costs and contends that the trial judge should have exercised a discretionary power under B. 1 :l-2 to relax B. 4:42-9, which forbids the awards of counsel fees except in certain specified actions not here applicable. The court, in our view, acted correctly in rejecting this application.

Judgment below is modified.