text:
    STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT, v. ULYSSES G. MONTAGUE, DEFENDANT-APPELLANT.
    Superior C<mrt of New Jersey Appellate Division
    Argued June 10, 1968 —
    Decided June 25, 1968.

      Before Judges Goldmann, Kilkenny and Carton.

      Mr. Mark Oasarch argued the the cause for appellant (Mr. Peter Murray, Public Defender, attorney; Mr. Richard Newman, Deputy Public Defender, of counsel).

      Mr. Matthew J. 8cola, Assistant Prosecutor, argued the ■capse. f or respondent (Mr. Joseph P. Lordi, County Prosecutor, of Essex County, attorney).
   Per Curiam.

Defendant Ulysses Montague and co-defendant Clarence Lollie were indicted for assault and battery upon Newark police officer James Nance, in violation of N. J. S. 2A :90-4. Montague was also indicted for threatening the life of Officer Nance by pointing a revolver at him contrary to N. J. S. 2A :113-8. The jury found defendant guilty of both offenses and acquitted Lollie. Defendant received consecutive State Prison sentences of 1-2 years on the threat to life charge and 2-3 years on the assault and battery charge. He appeals.

Officer Nance testified that while on duty on May 23, 1966, at about 2:53 e.m., he observed a Eord Mustang traveling south on Johnson Avenue in Newark without a valid motor vehicle inspection sticker. At that time he was on a police motorcycle, in uniform and wearing a police helmet. He stopped the vehicle and Lollie, the driver, got out and proceeded to discuss the matter with him. Defendant and his niece and nephew, Lilliteen and Cornell Rochelle, remained in the car.

While Lollie and Nance were talking, 16-year-old Cornell began blowing the horn of the vehicle to attract the attention of a pedestrian named Charles Jones. Nance said he went over to the car and told the boy to stop blowing the horn as it was a violation of the law. Returning to his discussion with Lollie, Nance observed that Lilliteen began sounding the horn loudly. When he told her to stop, Lilliteen said, according to Nance, “You don’t tell me nothing. I’m not driving this car.” Nance replied that it was against the law. Lilliteen then began to curse and, despite Lollie’s attempt to calm her, got out of the Mustang and approached Nance. He placed her under arrest and tried to call a patrol car on his radio.

At this point Lilliteen started to walk away and as the officer attempted to restrain her, she began to resist physically. Lollie grabbed Nance’s arm when the officer tried to handcuff Lilliteen and Nance knocked him to the ground. Defendant, who had been in the car up to this time, got out and tackled Officer Nance. Nance testified that while he and defendant were struggling, Lollie was holding his arms, Lilliteen was kicking him and defendant was shouting to Lollie to 'Told his arm while I get his gun.” Defendant succeeded in pulling the pistol from its holster, pointed it at Nance and said: “I will shoot you. Keep coming. You don’t think I will shoot you?” Nance lunged for the gun and defendant hit him on the side of the head with it.

Nance managed to call for help on his motorcycle radio. When the other officers arrived, Nance instructed them to pursue Lollie who had fled and he went after defendant. Asked to surrender the revolver, defendant refused and was subsequently subdued by several officers.

James Barrett and Alvin Picker, members of the faculty at nearby South Side High School, testified for the State. They were witnesses to the entire altercation and substantially corroborated Nance’s testimony. Officer Kneipher, one of the policemen who answered the call fox help, confirmed Nance’s account as to taking the gun from defendant and subduing him.

Defendant’s version of the incident is considerably at odds with that of Officer Nance. He said he did not hear the discussion between Nance and Lollie but he did hear Nance’s warning to Lilliteen about blowing the horn. According to defendant, however, Nance had said to her, “Stop blowing the damn horn or I’ll give Clarence another ticket.” Lilliteen then got out of the car, went around to the rear where Nance and Lollie were standing and called Nance “a Nigger cop in uniform.” Defendant said he heard Nance reply, “Don’t call me no Nigger cop or I’ll smack you” and Lilliteen retort, “I’ll smack you hack,” but he did not hear Nance tell Littiteen she was under arrest. The next thing he knew, the officer was hitting Lilliteen and had her by the throat. WRen Lollie tried to intervene, he was knocked away. Defendant stated that he stepped out of the ear and attempted to pull the officer away from his niece but when Nance reached for his gun, he jumped on him and they struggled on the ground. Defendant got the gun and refused to return it for fear Nance would shoot him. He denied hitting the officer with the gun but admitted that he struck him on the head when Nance lunged at him. He also denied threatening Nance with the gun or pointing it at him. After the other officers arrived at the scene, defendant said, ho surrendered the gun voluntarily and was thereafter beaten by one of the policemen, handcuffed and taken away.

Pour other witnesses testified for the defense: Lollie, Lilliteen, Cornell and Charles Jones, the pedestrian whose attention Cornell and Lilliteen were trying to attract by blowing the horn. Their testimony substantially corroborated defendant’s account of the episode.

Defendant’s first contention is that the trial judge committed reversible error when he required defendant’s attorney to turn over to the prosecution his own notes of interviews with certain witnesses, particularly Charles Jones, the pedestrian bystander. These notes were given to the prosecutor and were used in cross-examining Jones as to inconsistencies between his testimony on direct and statements during the interview.

The State concedes that the trial judge’s action was not authorized by the ruLes of court in effect at the time of trial in May 1967 or by the express provisions of rules currently in force, namely if. R. R 3:5-11 and 3 :7-3A. It argues, however, that these rules and the spirit of certain New Jersey decisions, particularly State v. Hunt, 25 N. J. 514 (1958), should be read to permit the trial judge’s ruling to stand.

We disagree. The cited rules relate to discovery by a defendant of certain matters in the prosecutor’s files, including statements made by a witness about to testify for the State. But there is no rule that would support, either by express language or by implication, the trial judge’s order that the defense attorney produce for the State’s inspection his own notes of an interview with a prospective witness. Nor can we read State v. Hunt, supra, as authorizing the ruling below. That case involved a wholly different question and held only that a defendant may compel production of notes made and used by a witness for the State to refresh his recollection before testifying.

Moreover, we are satisfied that the notes here in question represented the work product of defendant’s attorney and, under the doctrine of Hickman v. Taylor, 329 U. S. 495, 67 S. Ct. 385, 91 L. Ed. 451 (1947), production should not have been compelled. The fears therein expressed with regard to the inviolability of an attorney’s thoughts and the possibility of inefficiency, unfairness and sharp practice are equally applicable to the setting of a criminal case.

We have no doubt that the error was prejudicial to defendant’s cause. Jones was the first and key witness for the defense and his impeachment through the use of the notes clearly undermined the effect of not only his testimony but that of other witnesses who appeared in defendant’s behalf. In addition, both the prosecutor in summation and the trial judge in his charge brought home to the jury the inconsistencies between Jones’ testimony and his statements as recorded in defense counsel’s notes. The jury may well have been influenced by this erroneously permitted evidence and we therefore conclude that the conviction must be reversed. See State v. Green, 46 N. J. 192, 197 (1965).

Although not necessary to disposition of this appeal, we deem it appropriate, in view of the likelihood of a retrial, to comment briefly upon defendant’s other claims of error.

Defendant contends that the trial judge erroneously charged the jury with respect to the right of a person to go to the aid of another whom he reasonably believes is the victim of an unlawful assault. In support thereof he relies upon the so-called "mens rea rule” of State v. Fair, 45 N. J. 77 (1965), and State v. Chiarello, 69 N.J. Super. 479 (App.Div. 1961), certification denied 36 N. J. 301 (1962), that justification for intervention by a third party in defense of another depends not on the facts as they actually existed but as the third party reasonably perceived them at the time. The State, on the other hand, asserts the applicability of State v. Koonce, 89 N. J. Super. 169 (App. Div. 1965), holding that “a private citizen may not use force to resist arrest by one he Tcnows or has good reason to believe is an authorized police officer engaged in the performance of his duties, whether or not the arrest is illegal * * 89 N. J. Super., at p. 184 (italics added).

We see no conflict between these rules. On the contrary, as the italicized language just quoted clearly demonstrates, Koonce incorporates the mens rea element espoused in Fair and Chiarello. Moreover, we have no doubt as to the applicability of Koonce to the intervention of a third party as in the present case. However, our review of the charge given below leads us to believe that the jury was not informed that defendant’s knowledge or reasonable belief as to Nance’s authority and performance of his duty was a subject for consideration. On any retrial, such information, with an appropriate explanation, should be given, for defendant has a right to have the reasonableness of his belief that Nance was attacking Lilliteen taken into account. See State v. Koonce, supra, at p. 184.

There is no merit to defendant’s third argument that the offense of threatening the officer’s life (N. J. S. 2A :113-8) merged with or was preempted by the more specific statute condemning an assault and battery upon a police officer (N. J. S. 2A :90-4). The elements of the two offenses are separate and distinct and the trial judge correctly sent both charges to the jury. See, e. g., State v. Craig, 48 N. J. Super. 276, 279 (App. Div. 1958).

Einally, defendant claims the sentences imposed were manifestly excessive. In effect, he was sentenced to not less than three nor more than five years in prison for both crimes. Since the statutory maximum for these offenses was 22 years, we find no abuse of discretion.

Reversed and remanded for new trial.


source: Caselaw Access Project

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

license: Public Domain

text:
    STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT, v. THOMAS GRAY, DEFENDANT-APPELLANT.
    Superior Court of New Jersey Appellate Division
    Argued June 10, 1968 —
    Decided June 28, 1968.

      Before Judges Gaulkin, Lewis and Kolovsky.

      Mr. Kenneth S. Javerbaum, Assistant Deputy Public Defender, argued the cause for defendant-appellant (Mr. Peter Murray, Public Defender, attorney).

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

Gaulkin, S. J. A. D.

Defendant was convicted of possession and sale of narcotics and he appeals.

I

His first ground of appeal is that the trial judge erred in failing to charge the jury that no inference adverse to defendant was to be drawn from his failure to testify. However, no request to so charge was made before the judge charged the jury. After the charge, and by way of exception to it, defense counsel said: “I didn’t hear anything concerning the defendant’s right not to take the stand should he so desire.”

When the judge pointed out that defendant had made no request for such a charge, defense counsel replied: “I know I didn’t submit any formal written requests to charge, but I had presumed that that would be among your Honor’s charge to the jury, to the purpose that they may be advised as to his rights.”

A colloquy then ensued between the judge and defense counsel during which the judge commented upon the uncertainty of the law in this area, especially as to what is to be said and when it may be said. At no point did defense counsel make a positive request for such a charge, and, if we treat the exception as a request for such a charge, we find that nowhere did defense counsel state specifically what he wanted said in such a charge. State v. Smith, 100 N. J. Super. 420 (App. Div. 1968), had not yet been decided at the time of Gray’s trial. At that time it was uncertain as to whether a judge should, sua sponte, charge with reference to the defendant’s failure to testify. State v. DeStasio, 49 N. J. 247, 252 (1967). Indeed, there are cases in which it has been held that it was or would be error to do so. See State v. Cousins, 4 Ariz. App. 318, 420 P. 2d 185 (Ct. of App. 1966), followed in State v. Zaragosa, 6 Ariz. App. 80, 430 P. 2d 426 (Ct. of App. 1967); People v. Horrigan, 253 Cal. App. 2d 519, 61 Cal. Rptr. 403 (Ct. of App. 1967); Russell v. State, 240 Ark. 97, 398 S. W. 2d 213 (Sup. Ct. 1966) (instruction given over defendant’s objection); People v. Molano, 253 Cal. App. 2d 841, 61 Cal. Rptr. 821 (Ct. of App. 1967) (instruction given over defendant’s objection). And even when a charge was requested by defendant, it was uncertain as to whether it had to be given at all and, if given, just what had to be said. See cases collected in the annotation in 84 L. Ed. 261, 277-281 (1940). In Griffin v. State of California, 380 U. S. 609, 85 S. Ct. 1229, 14 L. Ed. 2d 106 (1965), the Supreme Court refrained from ruling on the question saying: “We reserve decision on whether an accused can require, as in Bruno v. United States, 308 U. S. 287, 60 S. Ct. 198, 84 L. Ed. 257 that the jury, be instructed that his silence must be disregarded.” 380 U. S., at 615, 85 S. Ct., at 1233, 14 L. Ed. 2d, at 110, fn. 6. Besides the cases cited in State v. Smith, supra, the following cases, decided after Griffin, hold that a defendant’s request for the charge need not be honored. Jackson v. State, Nev., 438 P. 2d 795 (Sup. Ct. 1968); State v. McCall, 425 S. W. 2d 165 (Mo. Sup. Ct. 1968); State v. Powers, 4 Conn. Cir. 520, 236 A. 2d 354 (App. Div. 1967); contra, People v. Bernal, Cal. App., 62 Cal. Rptr. 96 (Ct. of App. 1967).

Bruno, supra, approved the charge therein stated, not because the Constitution required it but because 28 U. S. C. A. § 632 (now 18 U. S. C. A. § 3481) did. In State v. Smith, supra, defendant had asked for a charge which he formulated and which was somewhat different in language, hut perhaps not in meaning, from the Bruno charge, and we held it was error not to give it. Even now the question remains whether the United States Supreme Court or our Supreme Court will hold that such a charge must be given, and, if so, what language it must contain. In any event, how was the trial judge here to know, before State v. Smith, what charge to give, in the absence of a written request and the opportunity to study it contemplated by R. R. 3 :7 — 7 (a) ? Under the circumstances, we hold that the trial judge was not required to charge on the subject without a request by defendant, State v. Aviles, 49 N. J. 192 (1967), and no timely or proper request wes here made; hence there was no error.

R. R. 3 :7 — 7 (a) requires a party to file written requests for instructions at the close of the evidence and before summations and charge, and unless so filed they may be rejected by the trial court. State v. Silverman, 116 N. J. L. 242 (E. & A. 1936). Written requests to charge are essential, especially when they deal with new or uncertain areas of the law. Cf. State v. Mangrella, 86 N. J. Super. 404, 409 (App. Div. 1965).

As we said in State v. Mangrella, supra, with reference to a charge upon accomplice testimony:

“Indeed, it may be dangerous to volunteer such a charge for, as was pointed out in Begyn [State v. Begyn, 34 N. J. 35], supra, a defendant may claim to be prejudiced by it. Even when requested, the charge has to be carefully tailored to fit the facts of the particular case (Begyn, supra). Therefore, the defendant should be the one to ask for the charge and to do the tailoring. * * ( 86 N. J. Super, at p. 409)

Had the trial court charged on defendant’s failure to take the stand in any words other than the Bruno charge, defendant would doubtless now argue that that was error, especially because it came after the main charge had been completed and thus his failure to testify was highlighted. On the other hand, at that point the State had the right, if one was given, to a charge carefully formulated and which would not prejudice its rights to a fair trial.

II

The summations having concluded late in the day, the trial judge decided to charge the jury the next day. On the following morning, prior to the charge, defense counsel moved to allow defendant to testify. This motion was denied. Defendant contends that this was error.

Defendant recognizes that the decision to reopen the case rested in the discretion of the trial court. State v. Menke, 25 N. J. 66 (1957); State v. Wolf, 44 N. J. 176 (1965) (after submission of case to jury); 87 A. L. R. 2d 849 (1963) (after submission of case to jury). Consequently, the issue presented is whether the trial court abused its discretion by denying defendant’s request to testify (1) where defendant previously had made an express election not to testify, (2), where both parties had rested and concluded their summations, and (3) where the jury had not yet been charged. We perceive no abuse of discretion. See Eyer v. Brady, 128 F. 2d 1012 (4 Cir. 1942), certiorari denied 317 U. S. 679, 63 S. Ct. 157, 87 L. Ed. 545 (1942) and Hawkins v. State, 102 Tex. Cr. R. 468, 277 S. W. 1067 (Crim. App. 1925).

Defendant contends he was denied effective counsel at his trial because he failed to subpoena the magistrate who presided at defendant’s preliminary hearing to contradict certain testimony given at the trial. We find no merit in this contention.

Affirmed.


author: Antell, J. C. C.

text:
    JOHN B. KEENAN, SUPERINTENDENT OF ELECTIONS OF ESSEX COUNTY, AND COMMISSIONER OF REGISTRATION OF ESSEX COUNTY, WITHIN THE STATE OF NEW JERSEY, PLAINTIFF, v. THE BOARD OF CHOSEN FREEHOLDERS OF THE COUNTY OF ESSEX, A BODY POLITIC OF THE STATE OF NEW JERSEY; HARRY LERNER, TREASURER OF THE COUNTY OF ESSEX, AND HENRY A. PEER, TREASURER ELECT OF SAID COUNTY, DEFENDANTS.
    Superior Court of New Jersey Law Division
    Decided June 19, 1968.

      Mr. Herman W. Kapp for plaintiff.

      Mr. Irwin I. Kimmelman, Essex County Counsel, for defendants.
   The opinion of the court was delivered by

Antell, J. C. C.

(temporarily assigned). Plaintiff is the Superintendent of Elections and Commissioner of Registration of Essex County. By this action he challenges the right of defendant Board of Chosen Ereeholders of Essex County to remove his. legal counsel from the county payroll. He also seeks to have the county treasurer enjoined from complying with the terms of the resolution by which the action of the board was taken. On these cross-motions for summary judgment no material facts are in dispute.

On December 16, 1965 plaintiff, acting under color of N. J. S. A. 19:31-2 and N. J. S. A. 19:32-2, appointed Patrick J. Hanifin, Esq., a member of the New Jersey Bar, as counsel to his office. Hanifin was thereupon placed on the county payroll by defendant board and served in that position until January 25, 1968. During the intervening time Hanifin provided plaintiff with legal opinions, counseled as to election recounts, represented plaintiff in court hearings, supervised the employment of additional attorneys on election days for court hearings, took necessary legal action where election violations were alleged, and generally provided those services which counsel to governmental agencies regularly furnish. He also arranged for neighborhood registration and the investigation of election law complaints, helped supervise office routine during vacation periods, and performed “other duties” which plaintiff delegated to him. The efficiency of his service is not drawn into question on this proceeding.

On January 25, 1968, following successive changes in the composition of its membership, defendant board passed its controversial resolution No. 40 which directed the county treasurer to discontinue payment of salary or other remuneration to Hanifin “or to any other person appointed to the position of Counsel, Commissioner of Begistration and Superintendent of Elections and to remove his name from the list of current employees”. The county treasurer has complied with the mandate of the resolution and plaintiff has since administered his office without benefit of his own counsel.

Defendants justify their action by arguing that although plaintiff may hire and fire his administrative personnel, he is without authority to engage his own counsel, and that whatever legal representation plaintiff, being a state officer, requires is obtainable only from the Attorney General. Plaintiff rejoins that the board has usurped his exclusive power to remove appointees of his office and that there is no limit upon his power to engage assistants other than the statutory annual budget ceiling of $655,000 fixed by the Legislature. Subject to that sole restriction plaintiff argues that all expenses in connection with personnel appointments must be paid by the defendant board, citing N. J. S. A. 19 :31-2 and N. J. S. A. 19 :32-2.

In support of their position defendants rely upon the following statutes:

N. J. S. A. 52:17A-11:

“No officer, department, board, body, commission or instrumentality of the State Government shall employ any person to act as attorney, counsel, solicitor, legal assistant or other legal adviser to such officer, department, board, body, commission or instrumentality. Nor shall such officer, department, board, body, commission or instrumentality of the State Government employ any person in any legal capacity for the purpose of giving legal advice or rendering legal services, but such officer, department, board, body, commission or instrumentality may employ an attorney-at-law under full-time employment solely in the performance of administrative functions entailing the hearing of issues and determining facts in order that the said officer, department, board, body, commission or instrumentality may perform his or its functions as required by law; provided, however, that no such attorney shall act in a legal capacity in the prosecution of any charge or complaint before any such officer, department, board, body, commission or instrumentality.”

N. J. S. A. 52:17A-4, which provides that the Attorney-General shall:

* ❖ * * * .•}: «4
(e) Act as the sole legal adviser, attorney or counsel, notwithstanding the provisions of any other law, for all officers, departments, boards, bodies, commissions and instrumentalities of the State Government in all matters other than those requiring the performance of administrative functions entailing the enforcement, prosecution and hearing of issues as imposed by law upon them; and represent them in all proceedings or actions of any kind which may be brought for or against them in any court of this State; and shall likewise interpret all statutes and legal documents, inspect and approve contracts and titles and otherwise control their legal activities.
********
(g) Attend generally to all legal matters in which the State or any officer, department, board, body, commission or instrumentality of the State Government is a party or in which its rights or interests are involved.”

V. J. S. A. 52:174-12:

“The Attorney-General may assign an assistant Attorney-General, a deputy Attorney-General or an assistant deputy Attorney-General to serve in any legal capacity in or for any officer, department, board, body, commission or instrumentality of the State Government on a part-time or full-time basis whenever, in the judgment of the Attorney-General, such assignment will contribute to the efficiency of the operation of such office, department, board, body, commission or instrumentality, but such member of the Division of Law shall remain under the supervision and control of the Attorney-General while so serving and his compensation shall be payable solely from appropriations made to the Department of Law and Public Safety.”

N. J. S. A. 52:174-13:

“No special counsel shall be employed for the State or for or by any officer, department, board, body, commission or instrumentality of the State Government except by authority of the Attorney-General, and then only with the approval of the Governor, and provided that appropriations have been made therefore, unless the matter be of such an emergency and shall be so declared by the Governor.”

For these enactments to apply, plaintiff must be an officer of the State Government.

The office of superintendent of elections was created by L. 1923, c. 9, which transferred powers and duties theretofore exercised under L. 1918, c. 210, by the prosecutor of the pleas, an official whose status as an officer of the State Government is beyond question. Board of Public Utility Com’rs of New Jersey v. Lehigh Talley R. R. Co., 106 N. J. L. 411 (E. & A. 1929). The Superintendent in counties of the first class is appointed by the Governor with the advice and consent of the Senate and holds office for a term of five years from the date of appointment and until his successor is appointed and qualified. N. J. S. A. 19 :32-l. The holder of this office is also designated Commissioner of Registration. N. J. S. A. 19 :31-2. He is empowered to investigate complaints on voter registration by visiting, inspecting and interrogating in order to enforce the statute. N. J. S. A. 19 :32-5. He may issue subpoenas, the disregard of which is punishable as a misdemeanor. N. J. S. A. 19 :32-6. He has access to and may inspect any and all signature copy registers, and for refusal to deliver same to the superintendent’s office local officials may be found guilty of a misdemeanor. N. J. S. A. 19 :18-1. He may direct landlords to keep permanent ledgers, N. J. S. A. 19 :32-8, and may take possession of and seal any ballot boxes — which must remain sealed in the absence of a Superior Court order. N. J. S. A. 19 :32-11. It is a misdemeanor for a district election board to disregard the superintendent’s order not to permit a certain person to vote. N. J. S. A. 19 :32-15. He also has all the powers of police and peace officers, N. J. S. A. 19 :32-21, and may remove those violating the Act from the polling place, N. J. S. A. 19 :32-35, or arrest them, N. J. S. A. 19 :32-22. Police officers, constables and other peace officers who fail to comply with the superintendent’s request to assist in making an arrest are guilty of a misdemeanor. N. J. S. A. 19 :32-22. He prepares sample ballots, N. J. S. A. 19:14-21, collects certificates from municipal clerks, furnishes the county clerks with descriptions of the district lines, N. J. S. A. 19 :9-2, keeps the registry books, N. J. S. A. 19 :18-7, and investigates those lists prior to elections, N. J. S. A. 19 :32-15. The Legislature determines the superintendent’s allowable expenditures, N. J. S. A. 19 :32-2. The commissioner has charge of permanent registration of all eligible voters, N. J. S. A. 19 :31-2, prepares registers and poll books, N. J. S. A. 19 :4-6, has custody and control of all voting machines, N. J. S. A. 19 :32-49, and has broad duties concerning absentee and military service balloting, N. J. S. A. 19 :57-22.

The duties imposed upon this dual office are of' considerable scope and magnitude.

In McDonald v. Board of Chosen Freeholders, Hudson County, 99 N. J. L. 393 (E. & A. 1924), the board of chosen freeholders appealed from a writ of mandamus requiring it to make budgetary provision for paying the salary and expenses of the superintendent of elections and his appointees. One ground of appeal was that the statute itself was unconstitutional as a special law regulating the internal affairs of Hudson and Essex Counties only. Rejecting this claim, the court dwelt upon the statewide nature and purpose of the legislation:

“The answer to this contention is contained in the opinion of the Supreme Court in the original litigation between these parties relating to this subject-matter. It is there pointed out that the purpose of the statute is to provide for honest elections in counties of the first class; that it is a matter of the gravest importance to the people of the whole state that elections should he fairly and honestly conducted in every county of the state,; that it is a matter of common knowledge that in sparsely settled districts it is not necessary to provide expensive machinery in order to procure an honest expression of the popular will at the polls; that there is no need in such districts of that vigilance, supervision or regulation which is required in densely populated municipalities; that, consequently, where a necessity arises to add to the machinery of government additional machinery in certain localities for the purpose of attaining purity in general elections, it is within the legislative power to supply such machinery without burdening other localities, which are not in need of it, with the expense of such machinery, and that the Legislature was the sole .judge whether the necessity existed in Essex and Hudson counties by reason of their crowded districts and large population, and that its decision in that regard is not open to question. 98 N. J. L. 386. The purpose of the statute, as is indicated by the above statement, was to protect our citizens, no matter in what part of the state they might live, from being deprived of or injured in, the enjoyment of their rights as voters by the corruption of the ballot boa: in Hudson or in Vlssex County; and an act which undertakes to do this — that is, to provide for the purity of elections in the state by making it difficult to put into execution a scheme for the corruption of the ballot box in any part thereof, and so partially destroy the value of the franchise of every voter in the state — is an act po.ssed for the benefit of the whole state, and not one which merely regulates the internal affairs of the counties in which the act is made operative.” (at pp. 397-398; emphasis supplied)

This reasoning appears to articulate the philosophy of other decisions in which certain officers and boards were said to be state officers, even though the performance of their duties were confined to a particular area of the State — usually a county. State v. Jefferson, 90 N. J. L. 507, 508 (E. & A. 1917), involving a county prosecutor; State ex rel. Police Com’rs of Jersey City v. Pritchard, 36 N. J. L. 101, 102, 118 (Sup. Ct. 1873), involving police officials; Karp v. High Point Park Commission, 131 N. J. Eq. 249 (Ch. 1942), affirmed 132 N. J. Eq. 351 (E. & A. 1942), involving a park commission; Warren v. Hudson County, 23 N. J. Misc. 252 (C. P. 1945), affirmed 135 N. J. L. 91 (Sup. Ct. 1946), holding Hudson County Board of Taxation a state board; Goldberger v. Perth Amboy, 16 N. J. Misc. 84 (Sup. Ct. Comm. 1938), involving a district court judge.

That plaintiff himself regards his office as an appendage of State Government is reflected in the Civil Service Request for Personnel Action form submitted by him in connection with Hanifin’s appointment in 1965. Request was there made for action under R. S. 11:4^4(h), a section of the Civil Service Act dealing with the appointment of special counsel to “State Departments.” It is of parenthetical interest that such an appointment may only be made with the authorization of the Attorney General. See N. J. S. A. 52:17A-12 and 13, supra.

I conclude that plaintiff is an officer of the State Government within the meaning of N. J. S. A. 52 :17A-4(e), (g) and N. J. S. A. 52 :17A-11 through 13, and that the provisions of those statutes are operative.

Plaintiff argues that even though he is a state officer within the meaning of the aforementioned statutes, the language with which the Legislature has vested in him the power of appointing personnel evinces its intent to except his office from their ordainments. N. J. S. A. 19 :31-2 empowers him, as Commissioner of Registration, to appoint on a permanent or temporary basis “such number of persons, as in his * * * judgment may be necessary in order to carry out the provisions of this Title.” N. J. S. A. 19 :32-2 authorizes him, as Superintendent of Elections, to appoint “a chief deputy, a chief clerk, a secretary,” “custodians of voting machines” (under N. J. S. A. 19 :48-6), and any other assistants he considers necessary to carry out the provisions of this Title, and, except as hereinafter provided, may remove the same whenever he deems it necessary * *

In Gibson v. Kay, 68 Ore. 589, 137 P. 864 (1914), the Supreme Court of Oregon specifically held that although the corporation commissioner of that state was authorized to appoint “clerks, stenographers and assistants,” these terms were not comprehensive enough to allow for the appointment of attorneys or to work a repeal or amendment by implication of the laws governing legal advisers for the state and in its interest. Thus, the court decided that the commissioner had no authority to engage the services of an attorney in connection with the work of his office, and that such services could be rendered only by the attorney general.

In Darling Apartment Co. v. Springer, 25 Del. Ch. 420, 22 A. 2d 397 (Sup. Ct. 1941), the Delaware Liquor Commission had engaged counsel of its own choice to defend it in certain litigation, and the question presented was the right of the commission to take such action in the face of the attorney general’s claim of priority. The commission supported its action upon statutory language contained in its enabling legislation authorizing it:

“To appoint or employ every officer or employee necessary for the carrying out of the work of the Commission and dismiss them for cause, fix their salaries or remunerations, and assign them their official titles and duties, and to engage the services of experts and of persons engaged in the practice of a profession. * * *”

Particularly emphasized was the italicized excerpt giving the commission general authority to engage the services of experts and those practicing a profession. Characterizing this as “entirely equivocal language,” the court decided the question adverse to the commission, with this analysis:

“The Act docs not mention ‘counsel’, ‘attorney’, ‘actions’, nor does the language suggest legal representation of any kind; while in the cases cited by the defendant in error the statutes expressly authorized the appointment of ‘counsel’ or ‘special counsel’ by the administrative bodies. Holding in mind the accepted principle that, in the absence of express legislative restriction, the Attorney General, as the chief law officer of the State, may exercise all of the powers and authority incident to the office at common law, it is manifest that there is nothing in the Act as a whole, nor in the particular language relied on, which, either expressly or by any reasonable intendment, indicates the legislative purpose to empower the Commission to appoint its own law officer to represent the State in judicial proceedings. The language is not apt for the purpose. It is entirely consonant with the powers and duties of the Commission as an administrative body. The right of a mere administrative agency of the State to appoint its own law officer to conduct litigation in supersession of the Attorney General, and to charge the public with the incidental expense, must rest on a plain and unambiguous grant of authority. It necessarily follows that the Attorney General has the power, and it is his duty to represent the Commission in all judicial proceedings.” (22 A. 2d, at p. 404)

The exclusive right of the attorney general to represent the state agency, said the court, was derived from that official’s common law status as the legal representative of the sovereign and his historic identification with the public interest. Therefore, he exercises “all such power and authority as the public interest may from time to time require” in the absence of “express legislative restriction to the contrary.” 22 A. 2d, at p. 403. This view prevails in New Jersey. Board of Public Utility Comm’rs of New Jersey v. Lehigh Valley R. R. Co., 106 N. J. L. 411 (E. & A. 1929). Indeed, his powers and duties seem to be even broader that those at common law since the particularizations in N. J. S. A. 52 :17A-4 are in addition to what is conferred or required “either by the Constitution or by the common and statutory law of the State * * Accordingly,

“In determining whether a statute confers implied authority upon a state commission or agency to appoint its own law officer in derogation of the prerogative of the Attorney General to represent such state agency in the courts, the language of such statute must he considered in the light of the office of Attorney General at common law and of the general understanding of the nature of the office and the public policy in regard thereto exhibited through the years.”
7 Am. Jur. 2d, Attorney General, § 9.

See too Annotation, 137 A. L. R. 818, 826 et seq.

That our Legislature leaves nothing to intendment when authorizing a state agency to employ counsel other than the Attorney General appears from the following sampling of statutes:

N. J. S. A. 1:17-18, empowering the Election Law Revision Commission to “employ counsel”; N. J. S. A. 4:12A-4, authorizing the Director of Milk Control to appoint “counsel”; N. J. S. A. 4:25-4(b), authorizing the Public Market Control Commissioner to appoint “a general counsel”; N. J. S. A. 17:9A-275, authorizing the Commissioner of Banking and Insurance “notwithstanding any other provision of law, [to] appoint an attorney * * * who need not be a member or an employee of the Department of Law * * *”; N. J. S. A. 17:12B-186, authorizing the Commissioner of Banking and Insurance to appoint an “attorney or counsellorat-law” to assist in administration of the Savings and Loan Act; N. J. S. A. 17:13-57, authorizing the Commissioner of Banking and Insurance to appoint “such counsel” needed to administer to credit unions; N. J. S. A. 27 :12B-5(q), authorizing the New Jersey Highway Authority to appoint “attorneys”; N. J. S. A. 27:12C-6, authorizing the Now Jersey Expressway Authority to appoint “general counsel” and “special attorneys or counsel”; N. J. S. A. 27 :16-55, authorizing the Highway Right of Way Commission, with approval of the board of chosen freeholders, “to engage the services of an attorney”; N. J. S. A. 27:19-34, authorizing a county bridge commission to employ “attorneys”; N. J. S. A. 32:3-5(e), authorizing the Delaware River Port Authority “to appoint, hire, or employ counsel”; N. J. S. A. 32 :14-4, authorizing the Palisades Interstate Park Commission to employ “counsel”; N. J. S. A. 32:18-6, authorizing the Interstate Sanitation Commission to appoint “legal” assistants; N. J. S. A. 32:20-14(4), authorizing the Delaware River Basin Water Commission to appoint “counsel”; N. J. S. A. 32:23-10(5), authorizing the Waterfront Commission of New York Harbor to “employ counsel”; N. J. S. A. 33:l-4(f), authorizing the Director of Division of Alcoholic Beverage Control to appoint “counsel and other legal assistants”; N. J. S. A. 40:36A-16, authorizing the Sanitary Sewerage District Authority to employ “counsel”; N. J. S. A. 40:55A-7, authorizing a municipal beach commission to employ “counsel”; N. J. S. A. 40:55C-7, authorizing a municipal redevelopment agency to employ “its own counsel and legal staff”; N. J. S. A. 40 :60-25.25, authorizing a plant management commission to employ “counsel” and other “legal” assistants; N. J. S. A. 40:179-8, authorizing a municipal board of harbor commissioners to employ “a legal counsel”; N. J. S. A. 48:2-2, authorizing the Board of Public Utility Commissioners to appoint “counsel”; N. J. S. A. 52:9F-3, authorizing the Commission on Urban Colored Population to “employ counsel”; N. J. S. A. 52:27-6, authorizing the Municipal Finance Commission to appoint “counsel” and other “legal” assistants; N. J. S. A. 52:15-8, authorizing the Governor, “Notwithstanding the provisions of any other law to the contrary,” to “appoint and commission a person to be known as counsel to the Governor,” “associate counsels” and “such legal assistants as he may deem necessary”; N. J. S. A. 18A :65-28, authorizing the governing board of Rutgers University to exercise its power “without recourse or reference to any department or agency of the state * * *.” This section also specifically provides, “The provisions of sections 11 and 13 of chapter 20 of the Laws of 1944 [N. J. S. A. 52:17A-11 and 13] shall not be deemed or construed to be applicable to the corporation or the university.”

Both N. J. S. A. 19 :31-2 and N. J. S. A. 19 :32-3 were last amended as recently as 1963, without the inclusion of any specified reference to the employment of “counsel” or “attorney.”

In William H. Goldberg & Co. v. Division of Employment Security, 21 N. J. 107 (1956), the court held that plaintiff was obligated to pay unemployment compensation taxes upon commissions paid to an insurance “solicitor” even though the act exempted commissions paid to insurance “agents.” Tt was noted that those states which chose to exempt commissions paid to solicitors had amended their unemployment compensation laws to conform with the language of the 1939 amendment to the Federal Social Security Act, by which commissions received by both agents and solicitors were exempted from the payment of taxes under that law. Observing that our Legislature must have “acted with knowledge of the existing provisions of the related federal statute,” the wording of our statute exempting “agents” was characterized as “careful draftsmanship” evidencing a “clear intention” that commissions paid to “solicitors” not be exempted. It was stated that for the court to interpret “agents” to include “solicitors” would write into the statute the very meaning which the lawmakers deliberately eschewed, (at pp. 112-113). Thus was applied the rule of analogy by which reference is made to analogous statutes to ascertain a uniform course of legislative policy with regard to the subject matter at hand. 3 Sutherland, Statutory Construction, §§ 6102-6104 (1943). The rule would appear to be especially applicable where, as here, the numerous analogized enactments are those of the same jurisdiction as that of the statute under examination.

Since the New Jersey Legislature has spoken unequivocally of “counsel” or “attorney” over a period of years in these many instances where it chose to empower state agencies to appoint counsel, the court will not find such power by implication where the words of unmistakable meaning are pointedly omitted. What the Legislature omits the courts will not supply. E. g. Craster v. Board of Commissioners of City of Newark, 9 N. J. 225, 230 (1952); 50 Am. Jur., Statutes, 222, § 234. Omissions may only be supplied which are necessary to carry out the manifest intent of the Legislature. Publix Asbury Corp., Inc. v. City of Asbury Park, 18 N. J. Super. 286, 293 (Ch. 1951) affirmed 18 N. J. Super. 192 (App. Div. 1952).

I conclude, therefore, that plaintiff is not empowered to appoint legal counsel of his own choosing. Inasmuch as defendants are required under N. J. S. A. 19:31-2 and N. J. S. A. 19:32-2 to pay the salaries only of “such persons” whose appointments are authorized by these statutes — Hanifin’s appointment being unauthorized — it follows that defendants are not obligated to meet the expense of his salary.

Consideration has been given to plaintiff’s contention that defendants should be estopped from attacking the validity of the appointment, but circumstances do not favor the application of this device, particularly bearing in mind the defendants’ status as agencies of government. Adler v. Department of Parks and Public Property, Irvington Tp., 20 N. J. Super. 240, 243 (App. Div. 1952).

Motion by defendants granted. Motion by plaintiff denied.


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

text:
    JOAN M. OGDEN, COMPLAINANT, v. JOHN E. OGDEN, DEFENDANT.
    Juvenile and Domestic Relations Court Union County
    Decided June 14, 1968.

      Mrs. Joan M. Ogden, complainant, pro se.

      Mr. William N. Ogden for defendant (Messrs. Ogden and Sutphen, attorneys).
   Kentz, J. J. & D. R. C.

The parties to this suit were divorced on November 21, 1967 by a judgment entered on the grounds of desertion in the Superior Court of New Jersey, Chancery Division, in favor of defendant and against complainant herein. Complainant in this proceeding now seeks to obtain the arrears accrued under an order for her support entered in the Juvenile and Domestic Relations Court of Somerset County, and transferred to this court prior to the entry of the aforesaid judgment of divorce. The pertinent facts follow.

On January 8, 1963 complainant filed a complaint for support in the Juvenile and Domestic Relations Court of Somerset County, in which county both parties then resided. A hearing was held on February 14, 1963. At the hearing defendant contended that he was not liable for the support of his wife since she was the wrongdoer. The court found otherwise and a support order was entered on February 15, 1963, whereby defendant was ordered to pay $50 per week — $10 for complainant and $40 for the four children of the marriage who were then in complainant’s custody.

On September 29, 1967 the Somerset County Juvenile and Domestic Relations Court ordered that the complaint and order of support be transferred to Union County with existing arrearages. Defendant made his last payment on the Somerset County order on September 30, 1966, at which time he took custody of the four children. On that date the arrears were $1,100. Complainant seeks this amount plus $10 per week, from September 30, 1966 until the entry of the judgment of divorce.

Defendant denies the existence of any arrears insofar as they relate to the payments allocated for the support of complainant, and contends that he is not liable therefore since the divorce was granted in his favor and the Superior Court failed to reserve in its judgment any arrears under the support order here in question. Furthermore, defendant argues that since his contention at the hearing in the Somerset County Juvenile and Domestic Relations Court that his wife was a wrongdoer and not entitled to support was confirmed by the entry of a judgment for divorce in his favor by the Superior Court, the judgment should be given retroactive effect and any arrears resulting from the order for her support should be cancelled. He cites as authority Lief v. Lief, 14 N. J. Misc. 27, 178 A. 762 (Ch. 1935), affirmed, 117 N. J. Eq. 483 (E. & A. 1935).

The sole issue here is the effect, if any, a judgment for divorce has on arrears accumulated under a prior order of support of the Juvenile and Domestic Relations Court where the judgment is granted in favor of defendant in the support proceeding and fails to reserve arrears in favor of the unsuccessful party, and where defendant had urged nonliability for support of his wife at the hearing in the Juvenile and Domestic Relations Court because she was the wrongdoer and such wrongdoing was the basis for the divorce judgment. This presents a novel question in New Jersey.

Without needlessly going into excessive citation, some general principles may set the stage for my decision. Beyond question a husband is liable for the support of his wife during the marriage and for his children during their minority. Turi v. Turi, 34 N. J. Super. 313 (App. Div. 1955); Daly v. Daly, 21 N. J. 599, 609 (1956); Fischer v. Fischer, 24 N. J. Super 180 (App. Div. 1952) reversed on other grounds 13 N. J. 162 (1953). He would be liable for the expense of any necessaries provided to his family because of his failure to provide them without just reason. Levin v. Levin, 130 N. J. Eq. 459. (Ch. 1941). A man’s duty of support towards his former wife terminates when a judgment of divorce is entered in his favor because of the fault of his former wife. Nappe v. Nappe, 20 N. J. 337 (1956). As stated before, while this issue has not arisen with respect to orders of the Juvenile and Domestic Relations Court, the decisions of our appellate courts as to the effect of a divorce judgment on prior orders for separate maintenance under N. J. S. 2A :34-24 may shed some light on the issue here presented.

Schimek v. Schimek, 109 N. J. Eq. 395 (Ch. 1931), was an action brought to adjudge defendant in contempt for failure to pay arrearages arising out of a decree for separate maintenance. Defendant denied his liability on the basis of a.1928 decree of divorce which failed to provide for alimony. The court dismissed his defense because two years after the decree of divorce defendant had consented through counsel to the entry of an order for' $20 per week, and again in 1930 defendant had been adjudged guilty of contempt and execution of the writ was withheld only on the condition of his paying one-third of his weekly income. In denying defendant’s contentions the court stated:

“In view of these two adjudications made long after the divorce decree, to one of which the defendant consented, he is barred now from claiming- that he is no longer responsible under the maintenance decree. Complainant had a right to assume that he would make the payments as he agreed, and he cannot now raise technical objections to relieve himself of an obligation he voluntarily assumed.
Moreover, a decree for divorce alone does not merge or vacate a prior order for separate maintenance. Corpus Juris, 1 Vol. 30, p. 1076, § 870.” (at pp. 390-397.)

Schimek, supra, was followed by the Court of Errors and Appeals in Bowers v. Bowers, 132 N. J. Eq. 431 (E. & A. 1942). There the husband continued to pay for ten years after complainant wife was granted a divorce in 1931 under a separate maintenance decree entered in 1929. The court referred to the failure of the wife to apply for alimony in the divorce proceeding in substitution for the support order in the maintenance proceeding as “a mere procedural defect”, — one which did not affect the substantial rights of the parties.

In Isserman v. Isserman, 11 N. J. 106 (1952), a wife appealed the vacation of a decree of maintenance and support in her favor. The decree had been entered in 1927. In 1943 the husband instituted a divorce proceeding in Nevada and a final decree was entered in his favor. The wife had filed an appearance in the Nevada proceeding and contested the basic issues therein. The court held that the Nevada decree was res adjudícala as to the wife since she chose to appear and contest the action in Nevada rather than rely on her decree of separate maintenance in New Jersey. In reaching this conclusion the court said:

“Our statute on maintenance is applicable only where the relationship of husband and wife exists, and a decree of absolute divorce dissolves such relationship and thereby terminates the wife’s right to thereafter sue or enforce an order for separate maintenance and support. Peff v. Peff, 2 N. J. 512, 525 (1949). This is subject to the exception that where there is a failure to apply in the divorce proceeding for alimony in substitution for the support order granted in the maintenance proceeding, this is merely a procedural defect and the decree of divorce alone does not merge or vacate a prior order for separate maintenance. Bowers v. Bowers, 132 N. J. Eq. 431 (E. & A. 1942) ; Schimek v. Schimek, 109 N. J. Eq. 395 (Ch. 1931).” (at p. 114).

In Equitable Life Assur. Society of U. S. v. Kretzschmar, 21 N. J. 129, 135 (1956), Chief Justice Vanderbilt said that “ [I] f the property settlement provisions in the separate maintenance decree are not dealt with in the subsequent divorce judgment in some definite or positive fashion or are not excluded or modified by inconsistent subsequent provisions in the divorce judgment, there is no substantive change in the rights of the parties but merely, what is termed in the Isserman case, ‘a, defect in procedure/ ”

Finally, in Messner v. Union County, 34 N. J. 233 (1961), the court refused to allow complainant to recover funds paid to defendant for the support of complainant’s former wife pursuant to an order entered in 1941 when said wife was committed to the New Jersey Hospital for the Insane at Marlboro. Complainant had received a divorce in 1947 but failed to have the support order vacated until 1959, at which time he brought this action to recover the monies paid from 1947 to 1959. The court said (at page 23) : “As the husband-wife status existed in 1941 and as the order of support was concededly properly entered, it did not automatically become void because an order of another court terminated the spousal relationship.”

It seems clear from a reading of these cases that a judgment of divorce has no effect aside from terminating the marital relationship unless the matter is brought directly to the attention of the divorce court. The only rights affected by the judgment per se are those directly based on the continuing existence of the spousal relationship.

In the present case the husband won in the divorce court and thus is no longer liable for the support of.his former wife. Since he was successful the Superior Court had no reason to determine alimony or any other property rights and thus the silence of the judgment as to those issues.

Rephrasing the question, it must now be decided whether the wife, though no longer having any present or future right to support from her husband, can still enforce a prior order of support of the juvenile and domestic relations court with respect to arrears accumulated thereunder while she did have a right to support as determined by that court.

A somewhat similar issue arose in New Jersey, apparently for the first time, in Garino v. Garino, 57 N. J. Super. 575 (App. Div. 1959). Complainant-wife was awarded a divorce on the grounds of adultery but the court refused to allow proof as to money spent by her for her support. Complainant sought reparation of these funds, basing her claim on the common law duty of the husband to provide support. The court, while declining to decide whether such a cause of action would be possible in this State, denied complainant’s action on the ground of laches, in that there was no apparent reason why she waited three years before suing on the cause of action she was then asserting or invoking any other remedy then available, such as an action for separate maintenance in Chancery or for support in the Juvenile and Domestic Relations Court.

The issue arose again in Salmon v. Salmon, 88 N. J. Super. 291, 311-312 (App. Div. 1965). The wife’s application was denied primarily because she failed to show any equitable reason why she should be reimbursed.

While in both of these cases the court declined to award reimbursement to the wife, it seems clear that given a proper ease such an award might be allowed. It is to be noted that what guided the Appellate Division in denying these applications is absent in the case at bar. Here the wife did seek an immediate remedy by obtaining an order of support in the Juvenile and Domestic Relations Court in Somerset County, and thus defendant herein cannot claim laches. He knew that there was a court order which could have been enforced at all times by an appropriate proceeding in the juvenile and domestic relations court.

Lief v. Lief, supra, cited by defendant, is factually distinguishable from the present case. In Lief the issue was whether after a wife’s suit for divorce results in a decree of dismissal on the merits in which there is no reference to arrears accrued under a pendente lite order, the court could punish the husband for contempt for failure to pay such accrued alimony. The court held it could not under the doctrine, of res adjudicata since the pendente lite award was by nature interlocutory and thus subject to final disposition at the termination of the suit. In this regard see also Wilson v. Wilson, 99 N. J. Super. 427 (Ch. Div. 1968), where the court held that a pendente lite order dies in every respect on the entry of a final judgment unless there is a reservation contained therein. The court further held that in a judgment of dismissal there could be no such reservation. In Wilson the attorney for the wife, who had been awarded counsel fees pendente lite, was denied reservation of such fees in the judgment of dismissal after reconciliation of the parties.

Lief, as noted, applies only to interlocutory orders. A support order in the Juvenile and Domestic Relations Court, or, for that matter, an order of support in an action for separate maintenance in the Chancery Division, is not by nature interlocutory. A proceeding in the Juvenile and Domestic Relations Court is primarily designed to enforce the common law duty of the husband to provide suitable support for his family. It is a summary proceeding. N. J. S. 2A :4-18, Russell v. Russell, 99 N. J. Super. 423 (Ch. Div. 1967). See also Lysick v. Lysick, 91 N. J. Super. 394 (App. Div. 1966) , and Ricci v. Ricci, 96 N. J. Super. 214 (J. & D. R. Ct. 1967) .

Defendant’s contention that the Superior Court, by granting him a divorce based on his wife’s wrongdoing which he had asserted in the Somerset County Juvenile and Domestic Relations Court in 1963 as a defense to her complaint for support, confirmed his position of nonliability for her support in that Court, and therefore the divorce judgment should be given retroactive effect and the arrears accrued under the support order for his wife cancelled, is without merit. At the time the order was entered in the Somerset County Juvenile and Domestic Relations Court for complainant’s support the court presumably had determined that she was entitled to an award based on the proofs presented at the hearing and that she had done nothing that would deprive her of her right to support. The quantum of proof necessary in the Juvenile and Domestic Relations Court to support such an order had apparently been met. See Russell v. Russell, supra. The defendant in that proceeding had a right of appeal which he did not exercise. B. B. 6:3 — 11 (a). Guided by the logic which controlled our Supreme Court in Messner v. Union County, supra, and also the Superior Court in Garino v. Garino, supra, it is my view that because the order was proper when entered, and because defendant failed to exercise his right to appeal he is barred from now seeking a retroactive vacation of the order of support in favor of his wife which was entered in the Somerset County Juvenile and Domestic Relations Court. The defendant should not now be permitted to use the Chancery Division of the Superior Court as an appellate tribunal to reverse a decision of the Juvenile and Domestic Relations Court.

It seems clear that where there is an absence of laches on the part of the wife as stated before, public policy would dictate an action for arrears under a support order of this court. First, if this application were denied, it might encourage other husbands in arrears on similar support orders to seek a divorce and relieve themselves of the financial burden accumulated against them. This is against the strong public policy of this State to preserve the marital bond. See Wilson v. Wilson, supra. Second, any decision weakening the power of this court to enforce its orders would greatly impair its effectiveness as a means of providing support to families where the husband fails. And third, it might readily mean that money borrowed by the complainant, or expended from her own estate, for the support of the family, would remain unrepaid.

In the case of Gerard v. Distefano, 84 N. J. Super 396 (Ch. Div. 1964), an action was instituted for annulment based on the prior existing marriage of defendant. There the court held in part:

“A pendente lite order for support was entered, and for some reason plaintiff’s attorney had (so the plaintiff testified) told him he need not continue paying. An order of the court must be complied with until vacated.
Plaintiff’s argument that payment can await the outcome of the suit, since the one so ordered may prevail and thus be freed from the burden to support, is not tenable. If that were so, there would be no need for an ad interim order. Plaintiff will pay all arrearages of the pendente lite order forthwith.” (at p. 403).

I conclude that since there is nothing in the judgment of divorce denying the enforcement of the wife’s right to the arrears, and in view of the foregoing reasons compelling such enforcement, defendant-husband shall be liable under the order of the Somerset County Juvenile and Domestic Relations Court for the support of the children of the marriage until custody was transferred to defendant, and for ■ the support of the wife until the entry of the divorce judgment. An order will be entered by this court in favor of the complainant upon proof or stipulation as to exact amount in issue.


author: Collester, J. A. D.

text:
    STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT, v. SIDNEY JEFFERSON, ELIZABETH JEFFERSON AND JOAN L. JEFFERSON, DEFENDANTS-APPELLANTS.
    Superior Court of New Jersey Appellate Division
    Argued May 13, 1958 —
    Decided June 24, 1968.

      Before Judges Coneobd, Collesteb and Labbecque.

      Mrs. Miriam N. Span, Assistant Deputy Public Defender, argued the cause for appellants (Mr. Peter Murray, Public Defender, attorney).

      Mr. Edward J. Phelan, Assistant County Prosecutor, argued the cause for respondent (Mr. Vincent Panaro, County Prosecutor, attorney).
   The opinion of the court was delivered by

Collester, J. A. D.

This is an appeal by defendants Sidney Jefferson, Elizabeth Jefferson and Joan Jefferson from a judgment of conviction following a trial on an indictment charging them, together with one Eoy Jefferson, with the crime of assault and battery upon a police officer in violation of N. J. S. 2A :90-4. The indictment was served as to Eoy Jefferson at the trial because he was unavailable. Sidney and Eoy Jefferson are brothers. Elizabeth Jefferson is the wife of Sidney and Joan Jefferson is the wife of Eoy.

The State’s evidence disclosed the following facts. Shortly after 3 p.m. on October 16, 1966 State Trooper Charles O’Connor, who was patrolling on the New Jersey Turnpike, received a radio call initiated by Trooper Philip Eink in Yew Brunswick requesting assistance in stopping a white Chevrolet automobile which was being driven southbound on the turnpike at an excessive rate of speed. A short time later O’Connor observed the speeding Chevrolet approaching and signaled it to stop. The driver swerved the car and continued on without stopping. O’ Connor pursued the car for over three miles during which it attained a speed of over 90 m.p.h. When the Chevrolet reached the Hightstown interchange its passage was blocked by two buses parked on the right shoulder of the highway and heavy traffic congestion in the southbound lanes. Defendant Sidney Jefferson, who was driving the Chevrolet in which the other defendants and Roy Jefferson were passengers, pulled to a stop with the car straddling the medial strip and the fast lane. O’Connor stopped his car behind the Chevrolet, alighted, and called several times to the driver to step out. When Sidney Jefferson failed to respond the trooper walked to the driver’s side of the car, where the window was open, and told Sidney to come out and to produce his driver’s license and registration certificate. When Sidney failed to comply the trooper opened the door and ordered him out. When Sidney finally came out he put his hand in his back pocket, which prompted the officer to seize his hand, push him against the car and search him.

Roy Jefferson, who was seated in the front seat of the car alighted on the roadway side and began to yell at the trooper. Concerned that Roy might be struck by the traffic, O’Connor left Sidney and went into the highway, took Roy by the arm, and persuaded him to walk towards the medial strip. The trooper heard Sidney call out, “Don’t do it Roy, don’t do it.” Whereupon Roy struck O’Connor ■ in the eye with his fist. The trooper testified that as he was attempting to handcuff Roy, the two women got out of the car and together with Sidney punched, scratched and grabbed him. While he was being attacked Trooper Eink arrived on the scene and assisted O’Conner in restraining the defendants. Edward Kozabo, a Cities Service employee who was servicing a Trailways bus which was parked on the shoulder of the turnpike, and James Gallagher, the bus driver, witnessed defendants’ assault upon O’Connor and crossed the turnpike to assist him. However, at this point Trooper Eink arrived and their services were not needed. During the attack O’Connor sustained a cut over his eye, a black eye and various scratches.

The defendants gave a different version of the incident. Sidney Jefferson testified he was not speeding on the turnpike, that he didn’t see either Eink or O’Connor signal him to stop because of poor visibility due to the weather, and that he stopped when he saw the light of the police car behind him. He said the trooper opened his car door, grabbed him by the shirt, pulled him out of the ear and searched him. Sidney testified that his brother Eoy, who was asleep on the front seat, awoke and tried to get out of the car but was forced back into it by the officer. He said O’Connor bumped his head on the car door while shoving his brother Eoy back into the seat. The defendants denied that any one struck O’Connor and testified that the two women never got out of the car until Eink arrived and their husbands were handcuffed.

I

Defendant Sidney Jefferson contends that the trial court erred in denying a motion for a mistrial made following cross-examination by the prosecutor which elicited from this defendant an admission that he had refused to give a statement to the police while in custody.

The alleged reversible error occurred when Sidney was being cross-examined as to testimony he had given of alleged police brutality suffered by his brother Eoy at police headquarters after their arrest. Sidney testified that a detective questioned both him and his brother. Thereafter, the following cross-examination took place:

“Q. You are positive that investigator Conrad didn’t tell you about your civil rights and that you and your brother refused to give a statement?
A. I can’t recall.
Q. Did you refuse to give a statement?
A. I did not give a statement.
Q. You refused to give a statement?
A. Yes.”

Defense counsel moved for a mistrial on the ground that it was improper for the prosecutor to ask whether or not a defendant had refused to give a statement to the police. The trial judge, out of the presence of the jury, implicitly acknowledged that such interrogation was improper but denied the mistrial motion. The judge also said he would make no comment to the jury concerning the impropriety of such question because he “might compound the problem.”

It seems clear that the questions propounded by the prosecutor were improper. In Miranda v. State of Arizona, 384 U. S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966) the court stated:

“In accord with our decision today, it is impermissible to penalize an individual for exercising his Fifth Amendment privilege [to remain silent] when he is under police custodial investigation. The prosecution may not, therefore, use at trial the fact that he stood mute or claimed his privilege in the face of accusation. Cf. Griffin v. State of California, 380 U. S. 609, 85 S. Ct. 1229, 14 L. Ed. 2d 106 (1965) * * *” (at p. 468, fn. 37, 86 S. Ct., at p. 1625; additional citations omitted).

Thus, failure or refusal by an accused to give a statement while in police custody which might give rise to an inference of guilt is now accorded federal constitutional protection based on the Eifth Amendment privilege against self-incrimination.

The real issue in this case is whether the improper inter* rogation which revealed defendant’s refusal to give a statement constituted prejudicial or harmless error.

In Chapman v. State of California, 386 U. S. 18, 87 S. Ct. 824, 17 L. Ed. 2d 705 (1967), the United States Supreme Court held that the determination of whether a conviction of crime should stand when a state has failed to accord federal constitutionally guaranteed rights to a defendant is a federal question. The court laid down a rule that in order for an error involving the denial of a federal constitutional right to be held harmless in a state criminal case, the reviewing court must be satisfied beyond a reasonable doubt that the error did not contribute to the defendant’s conviction. In so fashioning a harmless-constitutional-error rule the court declined to adopt a rule that all constitutional errors, regardless of the facts and circumstances, must always be deemed harmful requiring an automatic reversal of a conviction. It stated that all harmless-error rules, state and federal, serve a useful purpose insofar as they block setting aside convictions for small errors or defects that have little, if any, likelihood of having changed the result of a trial, and concluded that there may be some constitutional errors which in the setting of a particular case are so unimportant and insignificant that they may, consistent with the Federal Constitution, be deemed harmless, not requiring an automatic reversal, (at pp. 21-22, 87 S. Ct. 824).

In promulgating the harmless-constitutional-error rule the court indicated an intention not to treat as harmless those constitutional errors that affect the substantial rights of a party and iterated with approval (at pp. 23-24, 87 S. Ct. 824) the approach it followed in Fahy v. State of Connecticut, 375 U. S. 85, 86-87, 84 S. Ct. 229, 11 L. Ed. 2d 171 (1963), where it said, “The question is whether there is a reasonable possibility that the evidence complained of might have contributed to the conviction.”

We conclude that under the Chapman rule, in order to justify a finding that a constitutional error is harmless and a guilty verdict should be upheld, the State must show that (1) the result of the trial would have been the same in the absence of the error, and (2) the error did not constitute a substantial part of the prosecution’s case or play a substantial part in the jury’s deliberations. See dissenting opinion of Justice Traynor in People v. Ross, 60 Cal Rptr. 254, 429 P. 2d 606, 621 (Sup. Ct. 1967).

From our review of the record in the instant case, which is summarized above, it is readily apparent that the prosecution presented a strong case against defendant consisting of direct evidence that he participated in the assault upon the state trooper. O’Connor’s testimony was corroborated not only by Trooper Fink but by Kozabo and Gallagher, two disinterested eye-witnesses. The injuries O’Connor sustained in the attack were substantiated by photographs taken on the same day. Following the improper interrogation of the defendant no further reference was made to his refusal to give a statement while in custody, during the course of the trial, including summation of counsel and the court’s charge. The other two defendants, Joan and Elizabeth Jefferson, who participated with Sidney Jefferson in the assault upon the officer were found guilty by the jury.

We are not faced here with a factual situation comparable to that in Chapman. In that case the constitutional errors consisted of the prosecutor’s comments in summation and the court’s instruction to the jury concerning defendants’ failure to testify and the adverse inferences to be drawn therefrom. In holding that such errors were not harmless the court placed emphasis upon the prosecutor’s continuous and repeated adverse comments. (See Appendix, 386 U. S., at pp. 26-42, 87 S. Ct. 824) The court stated:

“And though the case in which this occurred presented a reasonably strong ‘circumstantial web of evidence’ against petitioners * * * it was also a case in which, absent the constitutionally forbidden comments. honest, fair-minded jurors might very well have brought in not-guilty verdicts. Under these circumstances, it is completely impossible for us to say that the State has demonstrated beyond a reasonable doubt, that the prosecutor’s comments and the trial judge’s insi ruction did not contribute to petitioners’ convictions. Such a machine-gun repetition of a denial of constitutional rights, designed and calculated to make petitioners’ version of the evidence worthless, can no more be considered harmless than the introduction against a defendant of a coerced confession.” (386 U. S., at pp. 25-26, 87 S. Ct., at p. 829).

Nor do the facts in this case compare with those in State v. McElroy, 96 N. J. Super. 582 (App. Div. 1967). There the issue of identification of defendant as the person who had committed a robbery was of paramount importance and the facts presented by the State indicated that only he could deny evidence relating to his identification. Following the Chapman rule, we held that we could not say that we were satisfied beyond a reasonable doubt that the prosecutor’s improper remarks in summation to the effect that not a scintilla of evidence had been offered on behalf of defendant to contradict the State’s eye-witnesses did not contribute to defendant’s conviction.

Prom our examination of the record in the instant case we are satisfied beyond a reasonable doubt that the results of the trial would have been the same if the constitutional error had not been made and that the error did not constitute a substantial part of the prosecution’s case. Cf. People v. Hays, 58 Cal. Rptr. 293, 297 (D. Ct. App. 1967); State v. Gosser, 50 N. J. 438, 452-453 (1967) (dictum). Accordingly, we hold that the denial of defendant’s mistrial motion does not justify a reversal.

II

All three defendants contend that the trial court erred by instructing the jury on the law of aiding and abetting (N. J. S. 2A :85-14) in addition to that concerning the crime of assault and battery upon a law enforcement officer. Since no objection was made to the charge, as required by R. R. 3:7-7(6), no basis for appellate review exists unless the alleged error in the charge qualifies as plain error. R. R. 1 :5-1(a); State v. Corby, 28 N. J. 106, 108 (1958).

Defendants argue that, accepting the State’s evidence as true, they were attempting to prevent Trooper O’Connor from taking Eoy into custody after the latter struck the officer, and therefore if they were chargeable with any criminal offense, it would be as accessories after the fact (N. J. S. 2A :85-2), for which they have not been indicted.

We are satisfied that this argument lacks merit. The State’s testimony shows that Roy Jefferson and all three defendants jointly participated in the assault and battery of the police officer. Thus, each was the aider and abettor of the others and under N. J. 8. 2A :85-14 were punishable as principals. We note that at no time during the course of the trial did defendants testify that they attempted to prevent Trooper O’Connor from arresting Roy Jefferson; in fact they each denied that they had participated in the assault.

We hold that the trial court was correct in instructing the jury on aiding and abetting on the evidence adduced in this case. In any event, the charge did not prejudice defendant’s substantial rights and did not constitute plain error. Cf. State v. Riley, 28 N. J. 188, 196-197 (1958); State v. Jacques, 99 N. J. Super. 230, 235-236 (App. Div. 1968) and see the comments of the court in State v. Picciotti, 12 N. J. 205, 211 (1953), concerning the application of the plain error rule.

Affirmed.


author: Kolovsky, J. A. D.

text:
    THE FARMERS AND MERCHANTS NATIONAL BANK OF BRIDGETON, NEW JERSEY, A NATIONAL BANKING CORPORATION, PLAINTIFF-RESPONDENT, v. BOARDWALK NATIONAL BANK, DEFENDANT-RESPONDENT, AND HAMMONTON INVESTMENT & MORTGAGE CO., DEFENDANT-APPELLANT.
    Superior Court of New Jersey Appellate Division
    Argued June 3, 1968 —
    Decided June 25, 1968.

      Before Judges Gaulkust, Lewis and Kolovsky.

      Mr. Clarence Blitz argued the cause for appellant.

      Mr. Samuel J. Serata argued the cause for plaintiff-respondent.

      Mr. John B. Armstrong argued the cause for defendant-respondent (Messrs. Kirhman, Mulligan, Bell & Armstrong, attorneys).
   The opinion of the court was delivered by

Kolovsky, J. A. D.

Plaintiff (Farmers), claiming to be a holder in due course of seven drafts dated January 12, 1966 drawn by Beeves Motors, Inc. (Beeves) to its own order on defendant Hammonton Investment & Mortgage Co. (Himco) and “payable through Boardwalk National Bank, Atlantic City, New Jersey” (Boardwalk), recovered a judgment for §10,250, the amount of the drafts, plus interest, against Himco and Boardwalk. The order for judgment further provided that Boardwalk, which had filed a cross-claim against Himco, should “be entitled to judgment against [Himco] for any sum it may be required to pay plaintiff on account of the above judgment.” Himco appeals both from the judgment for plaintiff and the judgment entered in Boardwalk’s favor on its cross-claim. Boardwalk did not appeal.

Most of the essential facts are stipulated. Himco, a finance company and a checking account depositor in the Boardwalk bank, financed sales made on conditional sales contracts or other security agreements by Beeves, an automobile dealer. Beeves was a checking account depositor in the Farmers bank.

In accordance with its prior practice, Beeves on January 12, 1966 deposited the seven drafts with Farmers, which credited the amount thereof, $10,250, to Beeves’ checking account. With that credit, Beeves’ balance totalled $12,-345.03. On the same day, January 12, checks drawn by Beeves totaling $11,261.05 were cleared through and charged against Beeves’ account, leaving a balance of $1,083.98. On January 13 Beeves made deposits totaling $7,300; a check for $7,953.05 drawn by it cleared the bank, reducing its credit balance to $430.13. Further charges against the account reduced Beeves’ balance to $6.21 on January 18, 1966.

Meanwhile, Farmers had delivered the seven drafts to its correspondent bank, First Pennsylvania Banking and Trust Company. The latter delivered them at about 1:30 p. m. on January 13 to the Federal Beserve Bank of Philadelphia, which in turn mailed them to Boardwalk in the Federal Beserve’s “afternoon cash letter” of January 13.

The drafts were received at Boardwalk’s “operations office” on Black Horse Pike, Pleasantville, before 2 p. m. on Friday, January 14.

The drafts were received at Boardwalk’s Hammonton branch office, where Himco banked, by Tuesday morning, January 18. Sometime between 10:30 A. m. and 12 noon on that day, Boardwalk notified Himco by telephone that it had the seven drafts.

It should be noted at this point that each of the drafts was on a printed form, captioned “Cash Item Payable at Par,” prepared by Himco for the use of its customers. Left to be filled in on the printed form of the draft proper were only the date, the amount, the name of the payee and the signature of the drawer (dealer), and in a data column captioned “Contract (s) covered by this draft,” the last name of the purchaser of the automobile and the amount of the draft. The printed form contained the following paragraph immediately above the line provided for the signature of the drawer:

“In consideration of your immediate payment of this draft, covering your purchase of the supporting contract (s) contained in the ENVELOPE MAILED TO YOU THIS DATE bearing this draft number, Undersigned hereby agrees that if any such contract is not received by you Undersigned will repurchase the same or honor your draft upon presentation, for the amount you have paid for the same.”

It is evident from the quoted paragraph that the draft contemplated immediate payment thereof on presentment to the drawee Himco instead of an “acceptance” — -“the drawee’s signed engagement to honor the draft as presented,” N. J. S. 12A :3-410 — to be followed by payment in performance of the agreement of acceptance.

The contemplated procedure was that followed when Himco’s representative appeared at the Hammonton branch of Boardwalk shortly before 3 o’clock in the afternoon of Tuesday, January 18. Himco’s check for $15,000 drawn on its account with Boardwalk and payable to the order of Boardwalk was delivered to Boardwalk. The seven Beeves’ drafts, as well as drafts drawn by other dealers in the amount of the difference between $15,000 and $10,500, each stamped “Paid, January 18, 1966, The Boardwalk National Bank, Atlantic City, N. J.”, were delivered in exchange to Himeo’3 representative.

Later that afternoon, after the hank had closed, Himco’s representative telephoned Boardwalk and “requested that the drafts be returned, that he be permitted to return them and get his money back.” He was told that the hank’s “returns office was closed and nothing could he done until the following morning.” Himco says that its call to the hank was prompted by the discovery, when the drafts were brought back to its office, that it had not received any contracts from Reeves covering those drafts.

On the following morning, January 19, Boardwalk’s Hammonton branch, at the request of Himco, returned Himco’s $15,000 check to it, took back the seven drafts and wrote the words “stamped in error” over the paid stamps. The only proof offered as to what was said or agreed to when the check was returned to. Himco and the drafts returned to Boardwalk was the stipulation that “the representative of the bank gave no assurance they [the drafts] could be returned, but said it would try to do so as requested.”

Later that day Boardwalk notified the Federal Reserve Bank in Philadelphia by telephone that the drafts, only six of, which were then or thereafter identified, were being returned for the reason, “payment refused.” In turn, at 2:36 P. M. on January 19, Federal Reserve notified the First Pennsylvania Banking & Trust Company of the six identified drafts being returned and the reason for the return.

The six drafts were received by the Federal Reserve Bank on January 20 and delivered to the First Pennsylvania Bank about 11 A. m. on that day. The seventh draft for $900 was similarly received and delivered later the same day.

The First Pennsylvania returned all seven drafts to Farmers, which thereafter instituted this action against Boardwalk and Himco. The sole theory of the claim for relief pleaded by plaintiff — which then did not know of all that had taken place at Hammonton — was that defendants Boardwalk and Himco “by their delay in notifying plaintiff of their refusal to pay said items in a timely manner, accepted said items.” However, the trial was not limited to the theory originally pleaded, a theory not supported either by the proofs or the law, see N. J. S. 12A :4-202(2); N. J. S. 12A :4-104(c), (h); N. J. S. 12A :4-106. Instead, with the consent of the parties, the trial proceeded to a determination of the legal rights and obligations of the respective parties arising from the stipulated facts and from the proofs offered by Farmers and Boardwalk. Those proofs dealt only with banking practices and the issue of Farmers’ good faith.

Basic to a resolution of the rights and obligations of the parties was a decision as to whether or not Farmers was a holder in due course,

“a holder who takes the instrument (a) for value; and (b) in good faith; and (c) without notice that it is overdue or has been dishonered or of any defense against or claim to it on the part of any person.” N. J. S. 124:3-302(1).

The trial court ruled that Farmers was a holder in due course. Himco challenges the court’s findings with respect to the elements of “value” and “good faith.”

“Good faith” is “honesty in fact in the conduct or transaction concerned.” N. J. S. 12A:1-201(19); N. J. Mtge. & Inv. Corp. v. Calvetti, 68 N. J. Super. 18, 26 (App. Div. 1961). The trial court’s finding that Farmers took the drafts in good faith is supported by the record; we may not disturb it. State v. Johnson, 42 N. J. 146, 162 (1964). That Farmers permitted Reeves to draw its checks against uncollected funds at a time when its account was otherwise low is not in itself evidence that Farmers did not act in good faith. Citizens Nat. Bank of Englewood v. Ft. Lee S. & L. Ass’n, 89 N. J. Super. 43, 48 (Law Div. 1965); N. J. Mtge. & Inv. Corp. v. Calvetti, supra.

Further, it is clear that Farmers had given “value.” N. J. S. 12A :4-208(1) (a) provides:

“(1) A bank has a security interest in an item and any accompanying documents or the proceeds of either
(a) in case of an item deposited in an account to the, extent to which credit given for the item has been withdrawn or applied.”

The full amount of the credit given to Reeves for the drafts, $10,250, had been withdrawn, thus vesting Parmers with a security interest to that extent in the drafts and a concommitant status as ¿ holder in due course.

“For purposes of determining its status as a holder in due course, the bank has given value to the extent that it has a security interest in an item provided that the bank otherwise complies with the requirements of 12A :3-302 on what constitutes a holder in due course.” N. J. S. 12A : 4-209;

See also, N. J. S. 12A:3-303; Citizens Nat. Bank of Englewood v. Ft. Lee S. & L. Ass’n, supra, at p. 49; Annotation, 59 A. L. R. 2d 1173 (1958).

We find no merit in Himco’s suggestion that one who acquires a draft prior to acceptance is not a holder in due course. The law in this State is settled to the contrary, Seneca County Trust Co. v. Swiller Bros., 7 N. J. Misc. 591, 146 A. 654 (Sup. Ct. 1929), and nothing in the Uniform Commercial Code abrogates holder in due course status predicated on whether acceptance preceded or succeeded acquisition of title to a draft.

We turn next to a consideration of the legal effect and consequences of what took place after the drafts reached Hammonton. We have noted that the drafts, by their terms, were payable through Boardwalk, thus designating Boardwalk “as a collecting bank to make presentment,” N. J. S. 12A :3-120. As a collecting bank, Boardwalk was Parmers’ agent, authorized to receive payment of the drafts, N. J. S. 12A :4-201(1), and obligated to seasonably transmit the payment through appropriate channels to Farmers. N. J. S. 12A :4-202 (1) (c).

Here, Boardwalk was also the bank in which Himco maintained a checking account. It was a check drawn on that account, payable to the order of Boardwalk, which Himco delivered to Boardwalk as Farmers’ collecting agent in purported payment oí the drafts, which were then stamped “Paid” and surrendered to Himco. We are satisfied and hold that delivery of such a check constituted payment of the drafts as effectively as if cash rather than the check had been given. See 10 Am. Jur. 2d, Banks, § 727, p. 694:

“The courts hold, almost without exception, that a collection by a bank by the medium of a check on itself is a valid payment, since the payor should not be required to go through the idle ceremony of withdrawing the money from the bank and then paying it back to the bank.”

Payment of an instrument to a collecting bank is the equivalent of payment to its principal, the owner of the instrument, and constitutes an absolute discharge thereof. Ibid., § 697, p. 667. The payment was final as far as Farmers was concerned; “payment or acceptance of any instrument is final in favor of a holder in due course.” N. J. S. 12A :3-418. Farmers then became entitled to receive the payment which Boardwalk had collected on its behalf.

Heither Himco nor Boardwalk, nor the two acting jointly, had any power to revoke the payment and final settlement as against Farmers, a holder in due course.

It is of no moment that Himco did not learn until after it had paid the drafts that Reeves had not forwarded the accompanying contract documents. It is the drawee’s responsibility to ascertain the status of the drawer’s account with him before accepting or paying a draft upon presentment; after acceptance or payment, the drawee has no power to revoke because of the drawer’s insolvency or breach of contract. Trent Tile Co. v. Fort Dearborn Nat. Bk., 54 N. J. L. 33 (Sup. Ct. 1891), affirmed 54 N. J. L. 599 (E. & A. 1892); 11 Am. Jur. 2d, § 596, p. 665.

Boardwalk’s authority to collect the drafts on Farmers’ behalf did not empower it to agree on Farmers’ behalf to a rescission of the completed payment and settlement. 1 Restatement, Agency 2d § 72 (1958); see Monongahela Nat. Bank v. First Nat. Bank, 226 Pa. 270, 75 A. 359, 361, 26 L. R. A., N. S., 1098 (Sup. Ct. 1910).

On the contrary, in paying the money back to Himco and accepting the return of the drafts, Boardwalk violated its duty as collecting agent and was therefore properly held liable to its principal, plaintiff Farmers. Its 'Eability for breach of duty is in no wise mitigated by the fact that it acted to accommodate its checking account customer, Himco.

Further, Himco is also liable to ' Farmers — and judgment was therefore also properly entered against it for the $10,250 plus interest involved — because, without being privileged to do so, it caused Boardwalk to violate its duty as collecting agent to transmit that amount to its principal Farmers. 2 Restatement, Agency 2d § 312 (1958); Hirsch v. Schwartz, 87 N. J. Super. 382, 390 (App. Div. 1965).

Finally, we find no reason td interfere with the judgment entered in favor of Boardwalk and against Himco on the cross-claim in view of the circumstances ■ indicating Himco’s implied undertaking to hold Boardwalk harmless from liability to Farmers if Boardwalk acceded tó Himco’s request for a return of its check and a cancellation of the “Paid” stamps on the drafts.

The judgment is affirmed.

       In response to our inquiry at oral argument, we were told that the $15,000 cheek had been destroyed. No evidence was offered as to what notations or entries were made on Boardwalk’s records with respect to the $15,000 check between the time it was delivered to Boardwalk o"n January 18 and returned to Himco on January 19.