author: Fulop, J. S. C.

text:
    STATE OF NEW JERSEY, PLAINTIFF, v. JOHN COLLINS, a/k/a STEVE COLLINS, CLARENCE DANIELS AND FRANK LA VECCHIA, a/k/a TIGER LA VECCHIA, DEFENDANTS.
    Superior Court of New Jersey Law Division
    Decided June 29, 1972.

      Mr. John Matthews, III, Assistant Prosecutor, for plaintiff (Mr. Joseph P. Lordi, Prosecutor of Essex County, attorney).

      Mr. James A. Palmieri and Mr. Donald J. Mellado, attorneys for defendant Prank La Vecchia.
   Fulop, J. S. C.

This is a motion on behalf of the defendant Prank La Vecchia for an order setting aside a verdict which found him guilty of the crime of conspiracy and directing the entry of a judgment of acquittal pursuant to R. 3 :18—2.

The defendant La Vecchia was indicted for allegedly conspiring with two Newark police officers to obtain money in violation of law. All three were defendants named in the conspiracy indictment and no one else was named or described as a co-conspirator. The two police officers were charged in a separate indictment with the crime of receiving money in violation of N. J. S. A. 2A:105-1. The two cases wore tried together. The jury acquitted both policemen of both charges. They convicted the defendant La Vecchia alone of the crime of conspiracy.

The defendant La Vecchia contends that his conviction cannot stand as a matter of law since all alleged co-conspirators were acquitted.

The State contends that the jury must have found that the defendant La Vecchia had conspired with a fourth person, David Powell, an undercover informant of a federal law enforcement agency. Powell testified that he participated in planning and executing the crimes to obtain information and'evidence against the defendants. The State’s argument concludes that the verdict of guilty should therefore be permitted to stand.

The gist of the crime of conspiracy is an unlawful agreement between two or more persons. N. J. S. A. 2A:98-1. Although proof of one or more overt acts done to effect the object of the agreement is required in some cases (W. J. S. A. 2A:98-2), the unlawful combination of persons is an essential ingredient of all criminal conspiracies. “The essence of the statutory crime of conspiracy is the joining together of the conspirators with an unlawful intent.” State v. Moretti, 52 N. J. 182 (1968), cert. den. 393 U. S. 952, 89 S. Ct. 376, 21 L. Ed. 2d 363 (1968) “A conspiracy * * * has generally been defined * * * as a combination between two or more persons by concerted action to accomplish a criminal or unlawful purpose, or some purpose not in itself criminal or unlawful, by criminal or unlawful means.” 15A C. J. S. Conspiracy § 35(1) at 721. “The essence of a criminal conspiracy, or the gist, or * * * the gravamen * * * is the unlawful agreement or combination,” 15A C. J. S. § 36 at 726-728; State v. Carbone, 10 N. J. 329 (1952).

It is impossible for one person to conspire with himself alone. 15A C. J. S. Conspiracy § 37. In 16 Am. Jur. 2d, Conspiracy, § 33 at 144, it is said:

* * * When only two persons are charged as members of a conspiracy and there is failure of proof of guilt of one of them, both must be acquitted, since the acquittal of one and the conviction of the other is legally inconsistent. This is also true where more than two persons are charged with a conspiracy and all except one are acquitted.

The rule does not apply where the indictment charges conspiracy with unknown persons as well as named persons and where alleged co-conspirators are referred to but not joined as defendants. 16 Am. Jur. at 144-145. It does not apply where “no disposition on the merits has been made of the charges against the other accused.” State v. Goldman, 95 N. J. Super. 50 (App. Div. 1967). See also discussion by Judge Clapp in State v. Oats, 32 N. J. Super. 435 at 440-441 (App. Div. 1954).

The general rule applies forcefully in this case. The conspiracy indictment alleges that there were three conspirators and only three. Two of them were found not guilty by the jury. If they did not combine with La Veechia in a criminal purpose, La Vecchia could not have so conspired with them.

The prosecutor’s contention that the jury may have found a conspiracy to exist between the undercover agent and La Vecchia is speculative. Even if that were established, the verdict could not stand because the indictment did not charge Le Yecchia with conspiring with Powell, nor with any other person except the co-defendants Collins and Daniels.

A defendant may not be convicted of a crime not charged in the indictment.

The Fifth Amendment provides: “No person shall be held to answer for a capital, or otherwise infamous, crime, unless on a presentment or indictment of a grand jury” * * * The party can only be tried upon the indictment as found by such grand jury, and especially upon all its language found in the charging part. [Ex parte Bain, 121 U. S. 1, 7 S. Ct. 781, 30 L. Ed. 849 (1887)]

In State v. Grothmann, 13 N. J. 90 (1953), Justice Heher said:

It is fundamental in the constitutional limitation that an indictment is not amendable by the court to charge an offense not found by the grand jury, either by a substitution of offenses or to supply substantive omissions. * * *
The accused cannot be tried for “two crimes under the charge of one.” Wharton’s Criminal Evidence (11th ed.), sec. 1039. An indictment “may not be disregarded or amended in order to permit a trial upon a crime not charged by the grand jury * * *”

See also, Stirone v. United States, 361 U. S. 212, 80 S. Ct. 270, 4 L. Ed. 2d 252 (1960); Russell v. United States, 369 U. S. 749, 82 S. Ct. 1038, 8 L. Ed. 2d 240 (1962); United States v. De Cavalcante, 440 F. 2d 1264, 1270 (3 Cir. 1971).

It was the State’s position, supported by all of the evidence on the subject, that Powell was only a pretending conspirator, his true purpose being to get evidence of the commission of crime by the defendants. Therefore defendant La Yecchia probably could not have been convicted of conspiring with Powell alone even if he had been so charged in the indictment. State v. Dougherty, 88 N. J. L. 209 (E. & A. 1915). See 72 Harv. L. Rev. 926-927 (1959) and 1 Wharton’s Criminal Law and Procedure, § 83 at 180 (1957), where it is stated:

To be a conspirator, the defendant must have criminally intended, to become a party to the conspiracy. It is accordingly held that a person who pretends to join a conspiracy in order to trap the criminals is not a co-conspirator.

For these reasons La Vecchia’s conviction was contrary to law. The verdict will he set aside and a judgment of not guilty entered in favor of the defendant La Yecchia.

       The charging portion of the indictment reads as follows:
      JOHN COLLINS a/k/a STEVE COLLINS, CLARENCE DANIELS AND FRANK LA VECCHIA a/k/a TIGER LA VECCHIA
      between the first day of August, 1970 and the 13th day of December, 1970 at the City of Newark, in the County of Essex aforesaid and within the jurisdiction of this Court, did commit the crime of conspiracy, contrary to the provisions of N. J. S. 2A:98—1, in that they then and there did corruptly and unlawfully conspire among themselves knowingly and willfully and with intent to agree and to achieve the object of the conspiracy, to wit: the violation of the following criminal statutes of New Jersey, * * N. J. S. 2A :105-1, the unlawful taking of fees or rewards by police officers not allowed by the law for performing their duties as public officers.


source: Caselaw Access Project

author: Lester, J. D. C.

license: Public Domain

text:
    DONALD BURSTEIN AND ELLEN BURSTEIN, PLAINTIFFS, v. LIBERTY BELL VILLAGE, INC., DEFENDANT.
    Bergen County District Court
    Decided—June 15, 1972.

      Mr. John F. McCann, attorney for plaintiffs.

      Messrs. Freint & Jacobs, attorneys for defendant.
   Lester, J. D. C.

The main issue to be determined in this ease is whether the tenant-plaintiffs should receive double the amount of security retained by the landlord. The defendant maintains that the deductions which were for late payments of rent were justified under the lease’s provisions. On the other hand, the tenants contend in the alternative that (a) the late charges were not justified; (b) the deductions were unconscionable, and (c) the deductions were incorrectly made. Eurther, the tenants argue contrary to the landlord’s position that if the court finds that the deductions were improper, then the court has no discretion but must award punitive damages under Chapter 223 of the Laws of 1971 (N. J. S. A. 46:8—19 et seq.) even if the deductions were made in good faith.

On eight occasions after the plaintiffs failed to pay their rent before the due date, the landlord, Liberty Bell Village Inc., instituted dispossess proceedings T 23204, T 23470, T 23916, T 24.252, T 24370, T 24629, T 24883, T 25193. These actions were “settled” when the tenants paid the rent to defendant. On each of these occasions, and on one occasion when suit was not started, the landlord filled in the following form letter and sent it to the tenants:

Name Apt. No. Date ---—Apartments
Dear- Resident:
Because your . . . . rent was paid late..... and you did month date
not include the late penalty charge in your rent payment, we now charge your security deposit the $ .......late rent penalty. We will charge your security deposit this amount each time your rent is paid late and the, extra late charge is not included in your rent payment for that month. As a reminder to you, your lease calls for rent to be paid in ADVANCE on the FIRST day of each and every calendar month and you are considered in default of your lease if you are not paid up in full at that time.
THE MANAGEMENT [Emphasis added]

The total late rent penalties on these nine notices amounted to $207. After the tenancy was terminated the landlord tendered a check for $136 to the Bursteins. There was a notation on the cheek, that it was for “return of security deposit minus late rent costs and damages apt. G-13.” The Bursteins had given a security deposit of $358, which was deposited in a bank in Little Eerry, New Jersey. The Bursteins refused to accept this check and filed suit for return of their full security deposit plus punitive damages authorized by statute. A $15 deduction made by the landlord for alleged reimbursement for actual repairs will not, by consent of the parties, be considered in this matter and this opinion and will deal solely with the deductions for so called “late charges.”

The lease signed by the Bursteins contained the following provisions specifying that rent is to be paid

In advance on the first day of each and every calendar month during the said term, at the office of the Landlord, or the landlord’s agent, at the above address (or to whosoever the Landlord may from time to time direct in writing). Lessee shall be deemed in default hereunder if the above stated rental (including garage rent) is not paid in full on above stated due dates.
That the Lessee deemed in default of his rent will be assessed a penalty at the sum of $5. Dollars each calendar month his rent is not paid in full and posted by noon of the 5th day of each calendar month at the office of the Landlord, and that the penalty shall run at the rate of one dollar per day thereafter for each calendar day the Lessee is in default of his rent.
* >¡¡ sfc .J; J*. ^
30. That the failure of the Landlord to insist upon strict performance of any of the covenants or conditions of this lease, or to exercise any option herein conferred in anyone or more instances, shall not be construed as a waiver or relinquishment for the future of any such covenants, conditions, or options, the same shall be and remain in full force and effect.

SECURITY

The Tenant has this day deposited with the Landlord, the sum of $3-158 [$358], Dollars as security for the full and faithful performance by the tenant of all the terms and conditions upon the tenant’s part to be performed, which said sum shall be returned to the tenant after the time fixed as the expiration of the term hereof, provided the tenant has fully and faithfully carried out all of the terms, covenants and conditions on his part to be performed. In the event the tenant fails to fulfill all of the terms, covenants and conditions, this security shall be applied in addition to but not as full payment to other costs, charges, fees, damages, penalties or assessments agreed upon throughout throughout the lease contract, towards the damages and rent loss sustained by the Landlord by reason of the default of the tenant.
Tli is security will not be applied or construed to be applied as paying monthly rent or in lieu of monthly rent during the term of this lease.

“It is a general rule that a lessor is estopped from asserting a forfeiture for a breach of covenant or condition in a lease, or that he waives his right to such a forfeiture, where after and with full knowledge of notice of such breach he accepts rent from his tenant, unless there are circumstances arising from such acceptance of rent by him so as to negative the presumption of his affirmance of the continuance of the lease.” 49 Am. Jur. 2d, Landlord and Tenant, 1067 at 1031, 1032.

The acceptance of rents accruing subsequent to a default will cause a waiver of the right to enforce the default. Klein v. Journal Square Bank Bldg., 110 N. J. Eq. 607 (Ch. 1932). When a claim is due at the time of the consent judgment it is merged into the consent judgment. 47 Am. Jur. 2d, Judgments, § 1093 at 149. The penalty provision calling for late charges was due when the rent was accepted. Therefore the late rent charges merged with the payment. Even if there were no merger, the court could and would find that the late charges were excessive and unenforceable under the circumstances. In any event, the court finds that the landlord acted “in good faith” in deducting the late charges from the security deposit. Having determined that the deductions were not justified, the question to be considered is whether the court must assess punitive damages, where defendant acted “in good faith” but in legal error.

N. J. S. A. 46:8-21.1 reads in part:

The court upon finding for the tenant or licensee shall award recovery of double the amount of said moneys, together with full costs of any action.

While this section appears to impose a mandatory punishment, the court concludes that it has discretion to impose a more equitable decision in cases such as this, when good faith deductions are made from the security deposit. Here the landlord believed he had a right to make the deductions he attempted. The language of the lease would so indicate. If the court were to impose on him an added penalty, then an unjust result would be reached. Assume that a landlord orders repairs made to correct damages caused by the tenant’s negligence or malice. Assume further that the fair value of these repairs is $50 but that the tradesmen charged $100 to repair the damage and landlord in good faith paid the amount billed. In an action to recover the deposit the court must find for the tenant as to the extra $50. Would the court have to impose a penalty of double the amount of such money withheld? This court does not believe that the Legislature intended any such result. It is illogical and could and would create new problems.

The Legislature recognized the right of the landlord to offset against the security deposit:

* * * any charges expended in accordance with the terms of a contract, lease or agreement * * * IN. J. S. A. 46:8-21.1; emphasis added]

How then to balance the landlord’s unwarranted reliance upon the lease against the Legislature’s use of the mandatory word “shall”?

The presumption is that the word “shall” in a statute is used in an imperative and not in a directory sense. If an interpretation is sought, it must rest upon something in the character of the legislation or in the context which will justify a different meaning. [Haythorn v. VanKeuren & Son, 79 N. J. L. 101, 105, 106 (Sup. Ct. 1909)]

The security deposit law was intended as a remedial measure to alleviate certain practices engaged in by unscrupulous landlords. It was only intended to deter malicious actions by a landlord. Even before the passage of this statute tenants could recover security deposits which were wrongfully withheld but in good faith by the landlord. The bill was not intended to punish landlords who acted in good faith.

Judgment will be entered for the tenants for the return of their security deposit, $358, plus interest, plus the costs of this suit.


author: Per Curiam.

text:
    JOHN BENSON, PETITIONER-APPELLANT v. COCA COLA COMPANY, RESPONDENT-RESPONDENT.
    Superior Court of New Jersey Appellate Division
    Argued April 24, 1972
    Decided July 11, 1972.

      Before Judges Coneord, Matthews, and Fritz,

      Mr. Leivis J. Weinstein argued the cause for appellant.

      Mr. Andrew Lawrie argued the cause for respondent (Messrs. Lawrie, Jennings and Buggeln, attorneys).
   Per Curiam.

The events comprising the factual environment of this workmen’s compensation litigation are competently set forth in the opinion of the County Court, and need no further elucidation here. 115 N. J. Super. 585 (Cty. Ct. 1971).

As appears from the opinion below, the injured workman in this ease reported to the employer’s clinic with substantial complaints. After an examination, the employer’s physician offered diathermy, heat treatment, muscle relaxants, and pain relievers. The employee

* * * did not give [the employer’s physician] the opportunity to provide him with any treatment of any kind, nor did he tell the doctor that he thought he needed medical attention other than heat treatment. Instead, petitioner conveyed his feelings to a technician at the clinic, who informed him that the clinic could not authorize his going to another doctor, but could not stop him either. [115 N. J. Super, at 588]

Petitioner later, and without authorization from the employer, sought and obtained medical treatment for which he now seeks reimbursement. The statute involved is N. J. S. A. 34:15-15.

The employer’s suggestion on this appeal is that the offering of treatment was sufficient compliance with the statute that the limitation of the first paragraph of that statute should apply, the petitioner not having received authorization for other treatment from the employer or the Division of Workmen’s Compensation. Implicit, if not express, in this argument is the suggestion that under such circumstances a petition for further medical treatment must be filed with the Division of Workmen’s Compensation and a determination had thereon if the employer’s liability therefor is not to be limited to the $50 for physicians’ or surgeons’ services and $50 for hospital services or appliances as set forth in the first paragraph of the statute. Petitioner disputes this proposition, and while he acknowledges that under most circumstances some demand or request is necessary, claims that under the circumstances here involved the employer is obligated to reimburse him for his medical expenses. He urges additionally that the nature of the treatment required by the statute to be provided (and therefore the adequacy of the treatment offered), together with its reasonable necessity and its relationship from a causality standpoint to the employment, may properly be determined from a “hindsight” or after-the-fact appraisal of the medical facts as they existed at the time.

This quarrel presents two important questions of law, apparently not heretofore determined by an appellate court in New Jersey. We are asked to decide (a) whether N. J. S. A. 34:15-15 requires an injured employee who has been ofered some treatment by an employer to file a petition with the Division of Workmen’s Compensation if he is to avoid a limitation of the employer’s liability for treatment; and if not, (b) whether so-called “hindsight” review may be utilized to determine the nature of proper treatment and to measure the reasonable necessity for treatment and its relationship to the employment, conditioned upon there having been an appropriate demand and refusal. The second question necessitates some exploration of that which constitutes an appropriate demand or request for medical treatment.

We are satisfied that the first of these questions must be answered in the negative. It appears to us that the intent of the legislature in providing mechanics for the filing of a petition for medical services as set forth in the first paragraph of the cited statute did not extend beyond sanctioning a determination of responsibility for medical services prior to a determination of disability and detailing a manner in which this might be done. Otherwise, the additional provision of the second paragraph of the statute and the limitation therein, relating to the necessity for a request by the employee before an employer is responsible for reimbursement of the employee’s expenditures, would be meaningless. A construction that will render any part of the statute inoperative, superfluous or meaningless is to be avoided. State v. Sperry & Hutchinson Co., 33 N. J. 38, 46 (1956). Additionally, it is now beyond cavil that the beneficent social purposes of workmen’s compensation legislation are to be reflected by the benefits of liberal construction in the petitioner’s favor. Close v. Kordulak, 44 N. J. 589, 604 (1965). In this latter respect, we are certain that the legislature did not intend, in the nonemergent situation where immediate treatment is nonetheless indicated, to relegate the workman to the slow grinding mills of the judicial process in the Division of Workmen’s Compensation. (Compare the exceptions to certain statutory requirements with respect to the emergent and unusual situation, set forth in the second paragraph of the statute.) Assurances by the employer here in its brief that such matters are expedited do not alter our view as to that which the legislature intended by the statute.

The legislation clearly provides that upon refusal or neglect of the employer to provide adequate and proper medical treatment — “as shall be necessary to cure and relieve * * * and to restore” — the employee may either file a claim petition or, after a request to the employer, seek his own treatment at the employer’s expense. The filing of a claim petition is not a sine qua non. Cf. Quiles v. N. J. Metals Co., 37 N. J. 91, 103 (1963).

An appropriate demand or request for treatment is required by the statute and this for the obvious reason that the employer should not be burdened with paying for treatment by others without having a fair opportunity to provide adequate treatment in the first instance. It is clear that if there is no demand, there is no liability. This requirement of a demand or request admits of one exception: where such a request would be futile, it is unnecessary that the formality be accomplished. See Bobertz v. Hillside, 126 N. J. L. 416, 417 (E. & A. 1941); D’Amico v. General Elec. Supply Co., 16 N. J. Super. 472 (Cty. Ct. 1951), aff’d 22 N. J. Super. 199 (App. Div. 1952), aff’d o. b. 12 N. J. 607 (1953).

Such a rule answers the employer’s argument here that a result in this case adverse to its contentions is tantamount to .free choice of phyician. The employer points out that not only is such free choice contrary to statute, but the legislature has expressly refused to consider and pass “free choice” legislation despite its persistent and perennial reappearance in the legislative chambers. We agree that free choice of physician is repugnant to legislative intent in New Jersey. But under the rule we here enunciate, the choice of physician is not free to the workman until after the employer’s refusal or neglect to provide the treatment required by statute. In such a circumstance the free choice of physician which eventuates to the workman is imposed neither by statute nor by our law, but rather is offered by the employer itself in its refusal or neglect to comply with its obligation. We find this to be contrary to no statute, and completely concordant with legislative intention and public policy.

It is thus to be seen that with respect to questions such as those here presented, the facts as to whether there was a demand, and if not, whether its absence is excused by futility, become crucial.

The employer also points up the fact that in this case there was not only no proper demand or request for medical treatment, but that there was a refusal of proffered treatment. The petitioner insists that the proffered treatment was inadequate, and that such a proffer is, in itself, indicative of the futility of a demand. Beyond this, the adequacy of the proffered treatment is significant to whether the employer did in fact refuse or neglect to provide treatment, because inadequate treatment may be equated with a refusal or neglect to provide the treatment required by the statute, i. e., adequate treatment. Thus it is seen that a finding as to the adequacy of the proffered treatment is also crucial.

In this latter respect, we are satisfied as well that the nature of the treatment required by the statute and its reasonable necessity (or the adequacy of treatment given or offered, if any) may be measured on a post hoc appraisal of the medical facts. White v. Workmen’s Compensation Appeals Board, 270 Cal. App. 2d 447, 75 Cal. Rptr. 809 (1969). Larson notes the difficulty which arises when there is a difference of opinion between the employer and employee as to the nature of treatment. He suggests, cogently we believe, “One way to settle this kind of controversy is to let the result turn on whose diagnosis proved to be right.” 2 Larson, Workmen’s Compensation Law § 61.12, p. 88.243.

An erroneous, incomplete, or improper diagnosis at the time of the occurrence or a proffer of less than adequate treatment should not serve to defeat the employee’s absolute right to proper medical treatment to cure or alleviate the results of a compensable accident, no matter how good the intentions of the employer or the quality of its good faith in arriving at its judgment in the record. As is pointed out in Zeeb v. Workmen’s Compensation Appeals Board, 67 Cal. 2d 496, 62 Cal. Rptr. 753, 432 P. 2d 361 (1967),

* * * The employer’s refusal to provide adequate and necessary medical care, whether or not in good faith, may impose a great hardship upon an employee, who due to the injury frequently is without funds to properly support himself and his family or is without funds to obtain the necessary care. [62 Cal. Rptr. at 756, 432 P. 2d at 364]

There is no question but that the duty to provide adequate and proper medical treatment is upon the employer and is absolute. De Asio v. Bayonne, 62 N. J. Super. 232, 237 (App. Div. 1960), certif. den. 33 N. J. 386 (1960). As a matter of practicality, it is the employer (or its physician) that is generally in a position far superior to that of the injured individual to determine what constitutes proper treatment. The social policy inherent in our workmen’s compensation legislation can only be served by imposing on the employer the right-wrong risk when it makes its decision as to the nature and amount of treatment to be provided in compliance with the statute.

Applying the foregoing to the matter at hand, it is to be seen that the decision of the County Court is infirm in its lack of findings in the two crucial areas pointed out above. Inasmuch as the County Court predicated its determination on a conclusion “that the statute reposes no discretion in the injured employee to seek independent medical assistance and that the outside medical treatment and hospitalization was unauthorized, considering the employer’s prompt offer to render treatment which petitioner rejected,” (115 N. J. Super, at 592), we do not know what its finding would have been, under the evidence in this case, with respect to whether a demand for treatment beyond that offered would, in fact, have been futile. The inquiry becomes significant only if it is also to be found that the proffered treatment was inadequate, an affirmative finding of which may be equated, as we have said, with the refusal or neglect to treat, contrary to statute. We acknowledge the observation in the County Court opinion, 115 N. J. Super. at 591, that a comparison of services necessary as a foundation for a finding with respect to the adequacy of treatment was precluded by petitioner’s instant rejection of the medical treatment offered. We disagree with this postulate. There is testimony with respect to the treatment offered as well as medical proof which if credited would indicate the petitioner in fact needed immediate hospitalization. There is testimony with respect to the treatment actually had. The question becomes whether there is testimony sufficient to spell out a reasonable necessity for the treatment had, under the “hindsight” rule, and a refusal by the employer to furnish that treatment or, from a standpoint of adequacy, its equivalent.

Accordingly, we remand to the County Court for findings and conclusions with respect to whether a further demand would have been futile, and thereby not necessary under the statute, and if so, whether the treatment offered was inadequate and that procured by the employee was reasonably necessary to cure and relieve the workman of the effects of the injury and to restore function where restoration was possible. If any of these inquiries is answered in the negative, the employer is entitled to a judgment of dismissal. Otherwise, petitioner should prevail. An accordant judgment may then be entered in the County Court. We do not retain jurisdiction.


text:
    STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT, v. JOHN B. SLOBODIAN, DEFENDANT-APPELLANT.
    Superior Court of New Jersey Appellate Division
    Argued May 23, 1972
    Decided July 5, 1972.

      Before Judges Cokeobb, Matthews, and Fbitz.

      Mr. John H. Ratliff, Assistant Deputy Public Defender, argued the cause for appellant (Mr. Stanley G. Van Ness, Public Defender, attorney).

      Mr. Gary H. Schlyen, Assistant Prosecutor, argued the cause for respondent (Mr. Joseph D. J. Gourley, Passaic County Prosecutor, attorney).
   Per Curiam.

Defendant was indicted on April 10, 1968 by a Passaic County grand jury for the murder of his wife on March 1, 1968. N. J. S. A. 2A:113-1 and 2. He was convicted after a jury trial on December 11, 1968, and on January 8, 1969 sentenced to a term of 14 to 15 years in State Prison, Trenton. His conviction was appealed and this court affirmed in an unreported opinion. Thereafter, the Supreme Court granted certification and reversed the conviction on the ground that certain statements made by defendant in police headquarters after his arrest, which were adduced in evidence by the State during the trial, were obtained in violation of defendant’s constitutional right to counsel as delineated in Miranda v. Arizona, 384 U. S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966). State v. Slobodian, 57 N. J. 18 (1970). Defendant was again tried before a jury in Passaic County Court and again found guilty of second degree murder on January 27, 1971. He was sentenced on February 24, 1971 to a term of not less than 14 nor more than 15 years in State Prison, Trenton. This appeal followed.

The facts adduced at the second trial are essentially the same as those set forth in the Supreme Court’s opinion in State v. Slobodian, above, except, of course, that the statements given by defendant in police headquarters were not introduced as part of the State’s direct case.

A

Defendant took the stand and testified as to his recollection of the facts surrounding the death of his wife. During cross-examination the State was permitted to refer to the oral statements given by defendant in police headquarters for the purpose of affecting his credibility. These statements were the same which the Supreme Court found to have been obtained from defendant in violation of his constitutional rights. The trial judge permitted their use for the limited purpose indicated after he conducted a voir dire out of the presence of the jury and determined that they had been voluntarily given to the police by defendant. The State was also permitted to produce as rebuttal evidence those portions of defendant’s statements which contradicted his direct testimony through the testimony of two police officers who heard the original statements.

Defendant argues that this use of the statements in question violated defendant’s rights under the Fifth, Sixth and Fourteenth Amendments of the Constitution of the United States as enunciated in Miranda. We disagree. The issue raised in this argument by defendant is squarely answered by the opinion of the Supreme Court in Harris v. New York, 401 U. S. 222, 91 S. Ct. 643, 28 L. Ed. 2d 1 (1971). The court in Harris held that although the defendant’s prior inconsistent statements which were voluntary had been made to the police under circumstances rendering them inadmissible for substantive purposes under Miranda, such statements could properly be used to impeach his credibility, since “The shield provided by Miranda cannot be perverted into a license to use perjury by way of a defense, free from the risk of confrontation with prior inconsistent utterances.” 401 U. S. at 226, 91 S. Ct. at 646, 28 L. Ed. 2d at 5.

Harris was decided after defendant’s second trial and sentencing (February 24, 1971). There is no problem however as to whether its holding should be deemed merely prospective or retrospective as well. The court held that it was not making new law, contrary to Miranda, but rather that the strict holding of Miranda did not extend to the precise issue:

Some comments in the Miranda opinion can indeed be read as indicating a bar to use of an uncounseled statement for any purpose, but discussion of that issue was not at all necessary to the court’s holding and cannot be regarded as controlling. Miranda barred the prosecution from making its ease with statements of an accused made while in custody prior to having or effectively waiving counsel. It does not follow from Miranda that evidence inadmissible against an accused in the prosecution’s ease in chief is barred for all purposes, provided of course that the trustworthiness of the evidence satisfies legal standards. [401 U. S. at 224, 91 S. Ct. at 645, 28 L. Ed. 2d at 4]

We are in accord with, these comments and follow them. Cf. State v. Falco, 60 N. J. 570, 292 A. 2d 13 (1972).

Defendant also argues that under Walder v. United States, 347 U. S. 62, 74 S. Ct. 354, 98 L. Ed. 503 (1954), his statements could only be used to impeach him as to collateral matters. This argument was answered by the court in Harris when it noted that it was not persuaded that there is a difference in principle with respect to use of such statements as to direct matters as opposed to collateral.

Defendant has also raised several other arguments in connection with the use of the statements for impeachment purposes, none of which we find to have merit. There is ample evidence to support the trial judge’s finding that the statements were given by defendant to the police voluntarily. We find that the trial judge properly restricted the scope of the use of the statements and correctly instructed the jurors as to how they might be used by them in their deliberations. Finally, there was no mistaken exercise of discretion by the trial judge in permitting the State to introduce relevant portions of the statements as rebuttal evidence. Defendant’s claim that the statements used were not in conflict with his direct testimony is frivolous.

B

Defendant next contends that it was error for the trial judge to have permitted the police to testify as to statements made by defendant after the shooting when he admitted the police to his tavern. Defendant is incorrect in his contention that the use of the statements violated his Miranda rights. Both statements, which amounted to direct and indirect indications that defendant shot his wife, were blurted out by defendant without any interrogation by the police. In fact, after the first statement defendant was advised by a police officer that he had “said enough.” The second statement immediately followed this warning and came while the police were examining the decedent’s body in an effort to determine whether she was living or not. The warnings required under Miranda v. Arizona, above, are to be given by the police prior to interrogation of a suspect by them. As noted, there was no interrogation here. There is no Miranda problem.

C

Defendant’s next argument is that the trial court erred in admitting evidence of prior crimes. Approximately two months prior to the shooting defendant had threatened his wife with a pistol in the presence of her father, brother and a family friend. The State proffered testimony of the three eyewitnesses to the threat to show the defendant’s state of mind toward his wife. We agree with the trial judge who overruled defendant’s objections that the testimony was remote and irrelevant and therefore unnecessarily prejudicial to him. This evidence was properly admissible under Rule 55 and Rule 4. See State v. Kociolek, 23 N. J. 400 (1957). In addition, the trial judge correctly instructed the jurors as to the limited purpose for the admission of this testimonial evidence.

We also reject defendant’s argument that the prosecutor’s reference to the prior crimes evidence during his summation was improper and prejudicial. The prosecutor quite properly referred to the prior crimes evidence and the reason for its use during the trial. We observe that his references came about because of specific references thereto by defense counsel during summation.

D

We disagree with defendant’s argument that the trial court misstated the law in charging the jury. First, the trial judge properly referred to the elements of first degree murder in defining for the jurors the contours of second degree murder. We agree with the trial judge that the reference to first degree murder was required in order to give the jury a full understanding of our law with respect to murder. In addition, the trial judge carefully and articulately informed the jurors that he was referring to first degree murder only for this purpose and that thejf were not to consider the crime of first degree murder in their deliberations.

We see no merit to defendant’s argument that the judge misled the jury in his supplemental charge on manslaughter. Defendant concedes that the trial judge correctly instructed the jury in his main charge with regard to both voluntary and involuntary manslaughter. The recharge with respect to manslaughter came as an answer to a specific question by the jurors. We find that the question was correctly answered and could not have misled the jurors. We find no error, much less plain error.

E

We also reject defendant’s argument that the admission of the murder weapon and testimony with respect to a search of the tavern by the police officers for that weapon violated defendant’s rights under the Fourth Amendment of the Constitution of the United States.

After defendant shot his wife he took the .22-caliber pistol which he used and placed it in'a cupboard in the kitchen of the tavern. He then took a .32-caliber pistol and placed it in his pocket. The latter weapon was found on his person when the police arrived at the scene. The defendant during the first moments that the police were investigating stated that he had thrown the murder weapon in a garbage pail. This statement was ignored by the police ostensibly because they had found a gun on defendant’s person. On arrival at the police station, it was ascertained that the weapon which the police had was not the murder weapon. Police officers immediately returned to the tavern and looked in the garbage pail in an effort to find the .22-caliber pistol. Of course, it was not there. Subsequently, after a search of the kitchen, it was found in the cupboard.

Under these circumstances, we cannot find the warrantless reentry into the tavern by the police officers in quest of the pistol to have been violative of defendant’s Fourth Amendment rights. Unquestionably the police, under the original circumstances presented, had the right to search for the murder weapon had they known the true facts, and in light of defendant’s statement that he had thrown the weapon into the garbage pail. United States v. Rabinowitz, 339 U. S. 56, 70 S. Ct. 430, 94 L. Ed. 653 (1950). (The restrictions on such searches established in Chimel v. California, 395 U. S. 752, 23 L. Ed. 2d 685, 89 S. Ct. 2034 (1969), are not applicable, since Chimel is to be applied prospectively only). Coolidge v. New Hampshire, 403 U. S. 443, 456, 91 S. Ct. 2022, 29 L. Ed. 2d 564, 577 (1971). Additionally, we note that the murder weapon was lodged in a business premises open to the public which was probably in danger of entry by others thereby jeopardizing recovery of the weapon by the police. Prevention of loss of evidence of crime is a category of valid, warrantless search, particularly where the search follows so hard on the commission of a homicide. Cf. Maryland Penitentiary v. Hayden, 387 U. S. 294, 87 S. Ct. 1642, 18 L. Ed. 2d 782 (1967).

F

Defendant next argues that the State was improperly permitted to introduce new matters into the trial in its rebuttal evidence with respect to the distance at which a pistol would leave powder burns on the body of a victim. We disagree. Defendant in his direct testimony stated that he was 10 to 12 feet away from his wife when the pistol he had in his hand accidentally discharged. In view of this testimony, it was proper for the State to introduce testimony which tended to rebut this statement and place him much closer to his victim. The testimony disclosed that powder burns do not occur if a pistol is fired beyond 18 inches from the victim.

G

Defendant argues error on the trial judge’s denial of his request, on the third day of trial, to dismiss his retained counsel because of dissatisfaction with counsel’s handling of the case. The court declined the request but offered to permit the defendant to retain another lawyer to assist but not replace counsel. In view of the delay and possible mistrial which would have attended the replacement of original counsel in the midst of the trial we are satisfied that the determination was a correct exercise of discretion.

H

Einally, we disagree with defendant’s contention that the sentence imposed by the trial judge was manifestly excessive. Considering the circumstances of the offense and the statutory maximum, we find no mistaken exercise of discretion on the part of the trial judge.

The judgment of conviction is affirmed.


text:
    IN THE MATTER OF LAWRENCE SCHULER CHARGED WITH CONTEMPT OF COURT.
    Superior Court of New Jersey Appellate Division
    Argued June 20, 1972
    Decided July 13, 1972.

      Before Judges Labrecque, Kolovsky and Allcorh.

      Mr. Carl F. Schaefer argued the cause for appellant (Mr. Louis Zemel, attorney).

      Mr. Ralph J. Jabbour, Assistant Prosecutor, argued the cause for respondent (Mr. Joseph P. Lordi, Essex County Prosecutor, attorney).
   Per Curiam.

Pursuant to leave granted defendant Lawrence J. Schuler appeals from the denial of his motion to vacate and set aside his arrest for failure to comply with an order of the Essex County Juvenile and Domestic Relations Court.

To the extent here pertinent the facts briefly are as follows. Plaintiff and defendant were husband and wife. On January 16, 1971 plaintiff filed a complaint in the Essex County Juvenile and Domestic Relations' Court seeking support for herself and her three children. On February 13, 1971 defendant, reciting New Jersey as his residence, instituted an action in the Chancery Division for divorce. His wife filed an answer and counterclaim.

On August 1, 1971 defendant took his three children to Eiorida, ostensibly to visit his another. When defendant returned to New Jersey soone three weeks later without the children a warrant for his arrest awaited Mon for his failure to appear at a hearing in the Juvenile and Domestic Belatioais Court scheduled for August 19, 1971. Eventually an order dated September 3, 1971 was entered in that court (consented to by him) which required him to return the children to his wife by September 6, 1971 and to make certain payments toward support. The order fixed September 13, 1971 as the (peremptory) heariaag date and he was paroled in the custody of his attorney until that date.

When defendant failed either to return the children to New Jersey or to appear on Sepiember 13, 1971, an order was issued for his arrest for contempt of court.

The divorce action instituted by defendant was scheduled for trial on October 27, 1971. Prior to the commencement of the trial and while defendant was in attendance at court with his attorney the arrest warrant was served. He was held in $1,000 bail for a hearing on November 1, 1971.

At the November 1 hearing defendant urged that he had become a resident of Eiorida and was immune from arrest. The court was not impressed aaid fixed bail in the sum of $500 pending a hearing before another judge pursuant to B. 1:10, on the merits of the contempt charge.

Defendant raises two poiaits: (1) a person who comes iaato this State voluntarily in obedience to a subpoena is exempt from arrest, (2) a aioairesident who eoanes into the State as a litigant in a civil action is likewise exempt.

In support of his first point defendant relies upoai N. J. S. A. 2A:81-21 which provides, in pertinent part:

If a person comes into t-iis state in obedience to a summons directing him to attend and testify in this state he shall not, while in this state pursuant to such summons, be subject to arrest or the service of process, civil or criminal, in connection with matters which arose before his entrance into this state under the summons.

The cited provision was first enacted as a portion of L. 1941, c. 88 entitled a “Uniform Act to secure the attendance of witnesses from within or without the state in criminal proceedings.” See R. S. 2:97-37 to 33. That act is now embodied in N. J. S. A. 2A:81-18 through 2A:81-23. These six sections are to be construed together. N. J. S. A. 2A:81-20 provides the mechanism for summoning out-of-State witnesses to testify in criminal prosecutions or grand jury investigations in this State. Florida, of which defendant now claims to be a resident, has enacted a similar uniform act. F. S. A. §§ 942.01—942.06. The general procedure to be followed should a state seek to procure the attendance of an out-of-state witness under the authority of the uniform act is found in the opinion of Justice Frankfurter in New York v. O'Neill, 359 U. S. 1, 79 S. Ct. 564, 3 L. Ed. 2d 585 (1959) where, in dealing with the Florida Act, he stated: In the absence of compliance with the procedure prescribed by N. J. S. A. 2A:81-20 the exemption from arrest and service of process afforded by N. J. S. A. 2A:81—21 does not exist.

The judge of the court of the requesting State files in any court of record in the State in which the witness may be found a certificate stating the necessity of the appearance of such witness in a criminal prosecution or grand jury investigation in the requesting State. The certificate must also state the number of days the witness would be required to attend. Upon receipt of such a certificate a hearing is held by the court in which it is filed. In the hearing, at which under the Florida Act the witness is entitled to counsel, the court which received this certificate is obliged to determine whether an order to attend the prosecution or grand jury investigation in the requesting State would comply with conditions set forth in the statute: that the witness is material and necessary; that the trip to the requesting State would not involve undue hardship to the witness; that the laws of the requesting State and States through which the witness must travel grant him immunity from arrest and the service of civil and criminal process. Furthermore, the statute provides that the witness must be tendered ten cents a mile for each mile to and from the requesting State and five dollars for each day that he is required to travel and attend as a witness. Under the statute the order of the forwarding State to the witness may take two forms: first, the court may issue a summons directing the witness to attend and testify in the requesting State; second, if the certificate of the requesting State so recommends, and if the recommendation is found to be desirable by the court of the forwarding State, the court may immediately deliver the witness to an officer of the requesting State. (359 U. S. at 4-5, 79 S. Ct. at 567-568)

Here it is conceded that the statutory procedure was not followed. The “subpoena” on which defendant relies amounted to no more than a letter or written request from someone in the prosecutor’s office that he come to New Jersey to testify in a criminal case which had been initiated by his complaint. It clearly was of no force and effect. Only the power of the court in the delivering jurisdiction (here Florida) could have compelled him to attend the trial here. Buffkin v. Alum-Co. National, Inc., 118 U. S. App. D. C. 22, 331 F. 2d 96, 97 (1963); cf. In re Saperstein, 30 N. J. Super. 373 (App. Div. 1954), certif. den. 15 N. J. 613 (1954), cert. den. 348 U. S. 874, 75 S. Ct. 110, 99 L. Ed. 688 (1954). Since defendant’s reentry into New Jersey on or about October 26, 1971 was voluntary rather than pursuant to the provisions of N. J. S. A. 2A:81—20 the statutory immunity afforded by N. J. S. A. 2A:81—21 was unavailable to him. See State v. Seefeldt, 51 N. J. 472, 492 (1968); Buffkin v. Alum-Co. National, Inc., supra; State v. Brown, 35 Wash. 2d 379, 213 P. 2d 305 (Sup. Ct. 1949).

We need not reach the question of whether the alleged agreement between some unnamed person in the prosecutor’s office and defendant’s attorney that defendant would have immunity from arrest if he came to New Jersey to testify conferred exemption from arrest upon him, in view of the total absence of any evidence by way of affidavit or otherwise to support the existence of such an arrangement and the authority of the person alleged to have made it.

Defendant’s second point is likewise without merit. As noted, his suit for divorce was scheduled for trial on October 27, 1971 and he contends that as a party to that civil suit he was exempt from arrest while attending the trial. See Halsey v. Stewart, 4 N. J. L. 366 (reprint 426) (Sup. Ct. 1817). The State resists defendant’s claim on the ground that (1) the exemption from arrest does not apply to criminal warrants, Wangler v. Harvey, 41 N. J. 277, 280 (1963), and (2) the exemption does not cover a party who comes into this State to prosecute his own cause of action or resist a counterclaim filed in his own suit.

We are in accord that, regardless of whether the warrant was criminal or civil, defendant was not exempt from arrest. Here, prior to the time he claims to have taken up residence in Florida, defendant instituted an action whose purpose was to sever the bonds of matrimony between him and plaintiff and settle the issues of support and custody of the children of the marriage. He did this in the face of the fact that he had willfully disregarded the terms of the order of the Juvenile and Domestic Relations Court that he return the children, and had failed to appear on the day the matter was set down for hearing in that court. Having continued to make use of the New Jersey courts to secure his aforementioned objectives until the day of his arrest, defendant was not entitled to the immunity referred to in Halsey v. Stewart, supra, but remained subject to arrest for his alleged contumacious conduct in the related proceedings in the Juvenile and Domestic Relations Court. Korff v. G & G Corp., 21 N. J. 558, 563, 568 (1956). See also Wangler v. Harvey, supra, at 284; Grober v. Kahn, 76 N. J. Super. 252, 254-255 (Ch. Div. 1962).

Affirmed.

      At the bearing on that date a divorce without alimony was granted on the wife’s counterclaim (the complaint having been withdrawn at trial) ; he obtained custody of the two eldest children and was required only to pay $25 per week for the support of the youngest child.


author: Conford, P. J. A. D. Kolovsky, J. A. D.,

text:
    ASSOCIATION GROUP LIFE, INC., A CORPORATION, PLAINTIFF-APPELLANT v. CATHOLIC WAR VETERANS OF THE UNITED STATES OF AMERICA, A CORPORATION, ET AL., DEFENDANTS-RESPONDENTS.
    Superior Court of New Jersey Appellate Division
    Argued May 10, 1971
    Decided July 7, 1971.

      Before Judges Coneord, Kolovsky and Carton.

      Mr. James J. Shrager argued the cause for appellant (Messrs. Hannoch, Weisman, Stern <& Besser, attorneys; Mr. Albert G. Besser, of counsel).

      Mr. John J. Monigan, Jr. argued the cause for respondent North American Life and Casualty Company (Messrs. Stryker, Tams <& Dill, attorneys).

      Mr. William M. Feinberg argued the cause for respondent Catholic War Veterans of the United States of America (Messrs. Feinberg, Dee & Feinberg, attorneys).
   The opinion of the court was delivered by

Conford, P. J. A. D.

Plaintiff Association Group Life, Inc. (“AGL”) brought this action against the defendants, Catholic War Veterans of the United States of America (“CWV”) and the North American Life and Casualty Company (“NAL”) for breach of contract and for tortious interference with business relationships and advantageous economic position. Plaintiff appeals from the dismissal at a jury trial of the contract claims at the end of the plaintiff’s case, and the dismissal of the tort claims at the close of defendants’ case.

AGL is a corporation organized in 1962 for the purpose of placing group life insurance policies with veterans’ or fraternal organizations. It was a two-man operation, the principals being Charles Witzburg and Albert Mehrbach, functioning from Witzburg’s general insurance offices in Union, New Jersey.

In the latter part of 1962 and early 1963 AGL, through Mehrbach, interested the national officers of CWV in a program of group life insurance for its members. Thereafter it negotiated a tentative proposal by NAL to write the policy, under which AGL would receive commissions of 35% of premiums for the first year and 12^% thereafter on any policies written. It would solicit CWV’s full membership. The proposal was approved by the CWV National Board. On March 2, 1963 the appropriate officers of CWV, pursuant to resolution of that body, wrote AGL a letter agreeing that (1) AGL was authorized to solicit its membership for NAL life insurance; (2) CWV would furnish AGL annually a list of its members; (3) it was certified that “this agreement” was duly authorized by resolution of the National Board.

AGL at once began soliciting CWV members, using a mailing list submitted by CWV and a brochure prepared by AGL and paid for by NAL. It eventually enrolled some 1700 CWV members in the insurance program. NAL and AGL entered into a written agreement effective as of July 1, 1963. Article V of the agreement, the hereafter underscored portion of which was at first objected to by AGL but insisted upon by NAL, read:

The Broker [AGL] shall be paid a commission of 20% of the premiums paid in the first twelve months period on each certificate and 7%% of the premiums paid each subsequent twelve months period for each certificate. In addition the Administrator [AGL] shall receive an expense allowance of 15% of the premiums paid in the first twelve months period on each certificate and 5% of the premiums paid in each subsequent twelve months period for each certificate. In the event a new agent of record, or administrator shall he appointed or recognized by the Association [CWV], thereafter the Company [NAL] shall have no further obligation to pay commissions and/or expenses to the Brolcer and Administrator [AQL] . . . (Emphasis added.)

Under the agreement AGL was to canvass the CWV Group and distribute Certificates to insureds at its own expense and NAL was to print material for AGL for sales purposes. A master policy provided that it was to be renewed from year to year subject to the company’s right to establish new premium rates for renewal periods.

Dissatisfaction with the program began to be manifested by both CWV and NAL within a year of its inception. CWV thought the promotional efforts by AGL were inadequate. Near the end of 1964 NAL notified AGL it did not intend to renew the policy after July 1, 1965 because its loss experience was excessive in relation to receipts and expenses. While it wanted, as an alternative, to increase premiums, AGL persuaded it to employ the expedient of reduction of benefits instead, and CWV reluctantly agreed thereto. Thereafter CWV became increasingly dissatisfied with the reduction of the benefits and sought detailed accounting by AGL and NAL of their expenses in connection with this business, AGL pressed NAL to restore the benefits. In December 1965 the latter agreed to restore the benefits on a sliding scale roughly related to increased enrollment of CWV members in the program. AGL tried, with the acquiescence of CWV, to find another carrier which would maintain the desired scale of benefits, and it received a proposal from one company. That was rejected by CWV because of doubts as to the reliability of the proposed insurer.

At about the same time as the foregoing events CWV conceived the idea of eliminating AGL and taking over the latter’s functions and compensation. It felt it could do the administrative work necessary out of its Washington headquarters. It broached the subject to NAL but stipulated that the original insurance benefits would have to be restored if NAL was to continue to underwrite the program. It also took the position that since brokerage would be eliminated under the new arrangement the amount of the administrative fees previously paid to AGL should be increased, under the new arrangement with CWV, by the amount of such brokerage fees. NAL apparently indicated tentative approval thereof.

On March 26, 1966 the CWV National Commander, Eiley, wrote AGL that CWV would self-administer the program and that AGL’s services as agent were terminated as of June 30, 1966. AGL remonstrated to CWV, but in vain.

To prepare fox the new arrangement NAL had its Newark office manager appointed as agent of record on the CWV life insurance program. However, that individual was not to be compensated and was not expected to perform any services. Internal correspondence within the FAL corporate organization indicates that the nominal broker was designated, by advice of counsel, “so as not to violate this agreement [the one with AGL].” That correspondence also stated: “Actual commissions and expense allowances are being paid to the Catholic War Veterans’ organization. Thus, there has been no increase in our expense”.

CWV took over responsibility for administering the program on July 1, 1966 but failed over the next few years to increase the membership in the program over that attained by AGL or substantially to reduce administrative expenses.

I.

Defendant OWV makes the preliminary point that the result below is justified, if for no other reason, on the ground that AGL had failed to secure an insurance broker’s license from the State prior to solicitation of CWV’s members for group life insurance. Both Mehrbach and Witzburg were licensed insurance brokers in this State; the corporation AGL was not, at any time here involved. It paid a fine for violation of the licensing act after this action began. N. J. S. A. 17:22-6.6 and 17:22-6.9 set forth in detail the procedures an individual applicant for an insurance broker’s license must follow. The two sections prescribe minimum requirements as to age, education, experience, and reputation. These provisions were originally enacted as L. 1944, c. 175. N. J. S. A. 17:22-6.9 was amended by L. 1945, c. 82, § 1, to contain the following additional language:

A license may be issued by the commissioner to and in tbe name of any copartnership or corporation engaged in the insurance brokerage business upon written request and payment of the $25.00 fee prescribed in section 13 of this chapter [N. J. S. A. 17:22-6.13] ; provided, all members of the copartnership or all of the officers of the corporation, as the ease may be, actively engaged in the insurance brokerage business of the copartnership or corporation in this State hold an unexpired license as an insurance broker issued in accordance with the provisions of this act.

Nothing more is required of the corporation than that it pay the $25.00 (now $35.00) fee and that all of its active officers be licensed individually.

In urging that AGL’s failure to secure a license should be conclusive against its right to bring this action, the defendants point to N. J. S. A. 17:22-6.18, which provides in part:

No insurance company or licensee shall pay any money or commission or brokerage or give or allow any valuable consideration . . . to any person, partnership, association or corporation, other than a licensee, for or because of service rendered or performed in this State in negotiating or effecting in this State a contract of insurance or. any property, or insurable interests, or business activities located within or transacted within this State . . .

However, nothing in the act prohibits actions by unlicensed brokers to recover for breach of contract. Compare N. J. S. A. 45:15-3, which does contain such a prohibition with respect to real estate brokers.

Also relevant to the issues presented are N. J. S. A. 17:22-6.25, which subjects to a $1,000 penalty for an initial offense and a $2,000 penalty for each succeeding offense “any person, persons or corporation violating any of the provisions of this act” (emphasis added); and N. J. S. A. 17:22-6.20, which declares it unlawful “for any person (emphasis added), without conforming to the * * * act, * * * to represent himself to be the agent of any insurance company * * * or to solicit, negotiate or effect in this State any contract of insurance or renewal thereof. * * *”

In Tanenbaum v. Sylvan Builders, Inc., 29 N. J. 63 (1959), the Supreme Court held that an unlicensed realty broker could not maintain a tort action for interference with a contract of brokerage. The statute there involved, as noted above, expressly disallows an action for recovery on a realty brokerage agreement by an unlicensed broker, and the court held the statutory policy so reflected was equally applicable to the maintenance of a tort action by such a broker. The instant situation is distinguished by the absence of an express prohibition of right to sne in the insurance statute and the fact that the individual brokers who actually did the soliciting, etc. were duly licensed.

The problem confronting us here has been discussed in 12 C. J. S. Brokers § 67, p. 155 as follows:

An objection that plaintiff may not recover compensation for services as a broker because he is not licensed as required by statute or ordinance is of no avail . . . where such statute or ordinance is merely a revenue measure, not regulating the business of brokerage, and not disclosing any intent to invalidate acts done or contracts entered into by a person without a license. Even though the statute requiring a license is not a revenue measure, yet where it cannot be, said that its object is to protect the community against unqualified and incompetent brokers, the absence of a license does not prevent the broker from recovering compensation. On the other hand, an unlicensed person may not recover compensation for services as a broker where a statute or ordinance requiring a license is applicable and such statute or ordinance is of a regulatory nature, was enacted in the exercise of the police power for the purpose of protecting the public, requires a license as evidence of qualification and fitness, and expressly precludes an unlicensed person from recovering compensation by suit, or at least manifests an intent to prohibit and render unlawful the transaction of business by an unlicensed person. (Emphasis added.)

While basically in agreement- with the foregoing, 6A Gorlin Contracts (1962) § 1512, pp. 710-713 warns against mechanical application of the revenue-police power dichotomy, pointing out (at p. 713) :

The statute may be clearly for protection against fraud and incompetence; but in very many cases the statute breaker is neither fraudulent nor incompetent. He may have rendered excellent service or delivered goods of the highest quality, his non-compliance with the statute seems nearly harmless, and the real defrauder seems to be the defendant who is enriching himself at the plaintiff’s expense. Although many courts yearn for a mechanically applicable rule, they have not made one in the present instance. Justice requires that the penalty should fit the crime; and justice and sound policy do not always require the enforcement of licensing statutes by large forfeitures going not to the state but to repudiating defendants.

We here conclude that where the operating individuals of the corporate principal are fully qualified and licensed insurance brokers the failure of the corporation, which cannot itself be trained and qualified as such independent of its operating personnel, to have paid the $25 fee for a license, should not bar it from access to the courts. The statute does not articulate such a consequence, as do others of cognate nature, and neither sound policy nor the interests of justice as between plaintiff and the defendants call for such an excessive penalty for mere failure to pay a licensing fee. See Bundy v. Liberty Life Ins. Co., 150 Kan. 658, 95 P. 2d 550, 553 (Sup. Ct. 1939).

II.

We are in disagreement with the trial court’s dismissal of the plaintiff’s contract claim against CWV at the end of the plaintiff’s case.

In the first place, CWV is unsound in arguing, and so was the trial court in declaring that CWV’s letter of March 2, 1963 to AGL could not be the foundation of a binding contract, because a mere offer which could be revoked at any time until fully accepted. An offer which invites acceptance by performance, rather than by a promissory acceptance, will give rise to a binding contract when the offeree begins the invited performance or tenders part of it. Restatement of Contracts, § 45 (1932); Restatement of Contracts, Second, § 45, Tent. Dr. No. 1 (approved 1964; Tent. Dr. No. 2, 1965, p. vii); and see Friedman v. Tappan Development Corp., 22 N. J. 523, 533 (1956); Grossman v. Calonia Land & Imp. Co., 103 N. J. L. 98 (E. & A. 1926); and Vicarisi v. Weeden, 109 N. J. L. 513 (E. & A. 1932).

In the present instance AGL accepted CWV’s offer by proceeding to execute the invited performance—the solicitation of CWV’s membership roster—and consummating life insurance contracts with many hundreds of the members.

CWV contends, alternatively, that the contract, if any at all, was void as not sufficiently definite as to term, or in any event was terminable by it at will. We disagree with both of these contentions. It seems to us beyond dispute that the only fair and reasonable interpretation of the agreement, in the context of all the surrounding circumstances, was that the arrangement should endure as long as mutually satisfactory to the parties, but not for less than a reasonable time.

It is generally held that where the duration of a broker’s agency is not fixed by the terms of the contract of employment, it continues only for a reasonable time. 12 C. J. S. Brokers § 16, p. 44; Kaufman Inc., etc. v. American Mach. & F’dry. Co., 102 N. J. Super. 1, 12 (App. Div. 1968), aff’d 54 N. J. 239 (1969); and Dixie Mill, &c., Co., Inc., v. H. B. Smith Machine Co., 128 N. J. L. 242, 246 (Sup. Ct. 1942).

If, for example, to take an extreme case, CWV had chosen summarily to break off the contract at the end of the first year this would clearly have been unfair and unreasonable since AGL was obviously looking to renewal as well as first-year commissions on premiums as the expected measure of its compensation for selling insurance to CWV members. We agree with CWV’s contention that it should not forever be bound to AGL. But at the same time we are clear that the arrangement contemplated it would endure for a reasonable time so that AGL could realize at least a minimally fair return for the effort it expended in enrolling members in the program. In our judgment a jury could have found that three years was less than a reasonable time to terminate this agreement. As noted above, a major portion of the compensation expectable by AGL for its work would consist of renewal premiums for the duration of the policy in force. While this would be variable, depending on how long the individual insured paid his premiums and on his life expectancy, we cannot say as a matter of law that a cutoff of plaintiff’s rights at the end of three years was reasonable under all the circumstances. The issue was for the ¡jury.

The dismissal of plaintiff’s contract claim against CWV must be reversed so that the issue of whether the contract was terminated in less than a reasonable time may be determined as a question of fact at a new trial.

We conclude that the same disposition should attend CWV’s contention that it had good cause to terminate the agreement because of AGL’s allegedly inadequate performance under the contract. It may be pointed out, as noted above, that CWV did not raise the level of membership in the program during its own subsequent administration of it. The issue of good cause is one of controverted fact for trial determination.

As to CWV’s argument that the subject matter of the contract came to an end when NAL cut down the scale of benefits payable, it is clear to us that CWV acquiesced in this decision, albeit reluctantly; that such a possibility was implied in the tripartite arrangement as entered into, and that there is no just factual basis for a finding that this constituted a default by AGL or destroyed an essential element of the contract.

III.

We are in accord with NAL’s position that it was contractually free of liability vis-a-vis AGL when CWV dismissed AGL as both broker and administrator under the contract. (Distinguish the considerations pertinent to AGL’s tort claim against NAL; see infra.)

NAL had deliberately insisted, over initial AGL objection, in incorporating into the contract between them the aforequoted provision terminating NAL’s obligation if CWV appointed a new agent of record or administrator. CWV had done this by substituting itself for AGL as administrator. Plaintiff argues that NAL could not invoke the clause because it had itself caused this condition to occur. We do not agree that any fair finding of fact to that effect is possible on the proofs. It was CWV which decided for itself that AGL was to be eliminated. It was CWV which decided that it would itself become the administrator and that if RAL refused to go along with that arrangement (and restore the initial scale of benefits) CWY would look for another carrier. RAL was in the position of haying to go along or losing the business. While there may be a question as to whether everything it did in this regard is excusable from the perspective of tort liability to AGL (see infra), we are clear it did not cause CWV’s elimination of AGL, within or by analogy to the principle that a party to a contract who renders its performance impossible cannot immunize himself for liability for breach thereof based on the defense of such impossibility of performance.

IY

We next consider the tort claims against CWY and RAL which were dismissed by the trial judge at the end of the whole case.

Tort liability for interference with prospective economic benefit arises when the conduct of the defendant is not in the reasonable exercise of an equal or superior right. Louis Schlesinger Co. v. Rice, 4 N. J. 169, 180 (1950). In adjudging whether that criterion has been met the inquiry is whether defendant’s conduct has been “both injurious and transgressive of generally accepted standards of common morality or of law,” Sustick v. Slatina, 48 N. J. Super. 134, 144 (App. Div. 1957) and cases cited therein. Put another way, were the actions of the defendants in their effect upon plaintiff’s economic expectancies “sanctioned by the 'rules of the game’”? 1 Harper and James, Law of Tor is (1956) § 6.11, p. 510; or “conduct below the behavior of fair men similarly situated,” Harris v. Perl, 41 N. J. 455, 461 (1964).

Any determination that defendants did not technically breach their contracts with plaintiff is not necessarily determinative of the absence of liability in tort. Cf. Harris v. Perl, supra (41 N. J. 461-462). We have decided that CWY had the right insofar as contractual liability is concerned to terminate AGL’s participation in the program as administrator, broker or both after a reasonable time. But the tort question is whether it was fair dealing also to design and execute a plan to appropriate for itself AGL’s expectancy in the renewal brokerage commissions (including those beyond the reasonable time period), when it was not an insurance broker, and also, in effect, to obtain broker’s fees on new insurance certificates through what a jury might consider the subterfuge of adding AGL’s former brokerage allowance to its (CWV’s) newly acquired administrative allowance.

AGL had developed this whole program for CWV, and CWV’s purported interest therein was merely to service its members and to provide an attractive insurance benefit as a means of getting new members and retaining old ones. AGL had an expectancy of continuing to participate in the plan indefinitely. Cf. Harris v. Perl, supra (41 N. J., at 461-463). Was it in accordance with fair “rules of the game” for CWV not only to terminate AGL but also to move into its expectancy of future brokerage earnings for its own financial benefit? There may be arguable justificatory answers to these questions, but we think that, in totality, the evidence required submission of the tort issue to the jury.

We take the same position in relation to potential tort liability of NAL.

We think contemplation of the proofs of record, measured against the legal standard of liability, raises a question of fact so far as NAL is concerned. A jury might reasonably find that the way in which NAL cooperated to enable CWV to substitute itself for AGL in the rearrangement of the insurance program was not consonant with good business morality. NAL not only agreed to give CWV the administration expense formerly allowed AGL but also agreed to pad that item so as, in effect, to give it the brokerage commissions. And this notwithstanding evidence that NAL officers did not regard it as good insurance practice to permit a lay group to be acting as insurance brokers. They insisted upon the window dressing of naming a nominal licensed broker who would, however, get no commission since the allowance therefor was being given to OWV as purported additional administrative expense.

Of course a jury might find, on the other hand, that, vis-a-vis AGL, NAL was acting in the exercise of an equal right on the theory that AGL had been trying to preserve for itself the benefits of the program at the expense of NAL by looking for a new insurer to supplant it on the CWV insurance program and that NAL, in cooperating with CWV, was merely acting defensively in preservation of its own interests. But the choice between this and less favorable views of NAL’s conduct, was, on the whole fact spectrum, one for the jury as an issue of fact.

V

Plaintiff also argues error in the trial court having excluded from evidence formal admissions made by defendant NAL pursuant to demand therefor by plaintiff. These consisted of mathematical computations of the present value of loss of future income from the brokerage arrangement assuming various annual sums, periods of time and rates of return. NAL had on pretrial motion before a different judge objected to the demand as improper and was overruled. In consequence it subsequently made the admissions. But on its objection thereto on grounds of admissibility when plaintiff offered the admissions at the trial they were excluded.

Plaintiff’s argument is that the admissibility in evidence of the information thus factually conceded by NAL was established affirmatively on the pretrial motion and was therefore binding on the defendants and the trial judge as the “law of the case.” We are clear that the premise is incorrect and we are therefore not required to examine legal implications of the “law of the case” doctrine which might otherwise have been involved.

Plaintiff’s original request for admissions expressly stated that it was made “subject to pertinent objections to admissibility which may be interposed at trial.” When, on the argument of defendants’ motion objecting to the request for admissions, the motion judge ruled adversely to defendants, they stated their understanding that that decision did not bear upon any question of admissibility in evidence of the data which defendants might raise at trial. Both the motion judge and plaintiff then expressly declared their concurrence in that understanding. Moreover, the colloquy on the motion clearly indicates that the judge was not purporting to deal with competence or admissibility of any answers to the request for admissions. In the light of the foregoing it would obviously be unjust to treat the motion judge’s ruling as a determination of the admissibility in evidence of the data involved. Therefore the trial judge was free to pass upon admissibility at the trial.

Since the merits of the evidence question involved have not been argued on the appeal we are in no position to express an opinion thereon.

The judgment is reversed and the cause is remanded for a new trial.

Kolovsky, J. A. D.,

dissenting. The claims for relief asserted by plaintiff Association Group Life, Inc. (AGL) against Catholic War Veterans of the United States of America (CWV), both that charging breach of contract and that alleging malicious interference with plaintiff’s prospective economic advantage, are bottomed on a letter dated March 2, 1963, drawn by plaintiff’s attorney and signed by the officers of CWV. The letter warrants reproduction in full:

Association Group Life, Inc.
2022 Morris Avenue
Union, New Jersey.
Gentlemen:
Confirming our agreement with you and for and in consideration of One ($1.00) Dollar and other valuable consideration receipt of which is hereby acknowledged, it is agreed that:
1. Association Group Life, Inc., is hereby authorized to solicit our members and their families for a special program of life insurance being offered by the North American Life & Casualty Company of Minneapolis, Minnesota. [NAL]
2. We agree to make available to you annually during the period of existence of this organization a written list of names and addresses of all our members.
3. The undersigned certify that this agreement and the signing hereof was authorized by resolution at a regular National Board meeting of the Catholic War Veterans of the United States of America on March 2, 1963.
/s/ Edward F. McElroy_
Edward F. McElroy, National Commander
/s/ Gerald M. Collins_
Gerald M. Collins, Adjutant General
/s/ Cresenzie W. Castaldo Cresenzi W. Castaldo, National Judge Advocate & Chairman of Insurance Committee.

The letter specifies no term or duration for the arrangement provided thereby beyond that to be implied from the fact that it authorized solicitation “for a special program of life insurance” then offered by UAL, a program which, it may be noted, actually existed only until June 28, 1965 when the benefits thereafter payable under the group policy were substantially reduced by UAL.

The majority opinion rejects CWY’s contention that the arrangement evidenced by the letter of March 2, 1963 was terminable at will, but agrees that “it was never contemplated that [OWY] should forever be bound to AGL on the agreement between them.” The majority opinion concludes that the “fair and reasonable interpretation of the agreement * * * was that the arrangement should endure as long as mutually satisfactory to the parties, but not for less than a reasonable time.”

I query whether it is proper to fail to give full effect to the language of the writing limiting the arrangement to the “special program of insurance” then being offered by UAL.

But even accepting arguendo the majority’s interpretation of the agreement, I am nonetheless of the view that the trial court acted properly in taking the case against CWV from the jury. In my opinion, the circumstances revealed by the record in this case were such as to mandate a finding that CWV acted within its rights when by notice dated March 26, 1966 it terminated the arrangement as of June 30, 1966, more than three years after it had been entered into.

Application of the standard for determining when a motion for judgment should be granted at the close of the proofs in a jury case, (see Franklin Discount Co. v. Ford, 27 N. J. 473, 487 (1953)), satisfies me that in view of all that had transpired between March 1963 and March 1966, the proofs precluded a jury finding that a reasonable time had not expired by March 1966.

Further, it appears without contradiction that by March 1966 the arrangement was no longer satisfactory to CWV. Nothing in the proofs would support a finding that CWV’s repeated expressions of dissatisfaction were not in good faith; quite the contrary. That dissatisfaction stemmed in part from the 1965 reduction in policy benefits, a factor whose materiality was recognized by AGL itself for, as its officer Witzberg testified, early in 1966

We went out and solicited other companies in order to get another carrier for this case figuring we could move it from North American into another company that would provide the benefits back again and we were successful in doing so.

(It may be noted that nothing in the arrangement between AGL and CWV would have compelled CWV to accept the new program which AGL says it was prepared to offer.)

An even more significant factor was CWV’s expressed dissatisfaction with AGL’s administration of the life insurance program. High among the reasons for such dissatisfaction was the fact that during the period of almost three years between March 1963 and March 1966 AGL had enrolled only some 1700 of CWV’s 43,000 members in the life insurance program with only 140 additional members being enrolled in the period from July 1964 to March 1966.

AGL’s failure to enroll more members in the life insurance program was of vital significance to CWV. It appears, without contradiction, that its arranging for such a program, which resulted in monetary gain only to AGL and NAL, was motivated by a desire to offer-to its membership a program of life insurance which would be beneficial to its members and would serve to hold CWV’s existing membership and attract new members.

Whether AGL’s alleged deficiencies in performance were of such magnitude as to justify termination for cause were this a contract for a definite term is irrelevant to the issues presented. What is relevant is that the uncontradicted proofs show that CWV acted in good faith in determining to undertake itself the administration of the group life insurance program if NAL would agree, as it thereafter did, to restore the original benefits of the group policy. The proofs afford no basis for inferring that CWV’s decision was motivated by the fact that the arrangement between it and NAL contemplated that CWV would receive for its services and expenses in promoting and administering the insurance program an amount substantially equivalent to the amount which AGL would have received if the original arrangement had continued.

I would hold that the relevant proofs established as a matter of law that CWV did not breach its contract when it terminated its arrangement with plaintiff and that its doing so, and its entering into a new arrangement with NAL was “in the exercise of [its] equal or superior right,” (Louis Schlesinger Co. v. Rice, 4 N. J. 169, 181 (1950)), so as to preclude the claim that it maliciously interfered with plaintiff’s prospective economic advantage.

So, too, I would hold that NAL’s participation in the new arrangement with CWV affords no basis for holding it liable in tort to plaintiff. I agree with the majority that the provisions of the broker’s agreement between NAL and AGL bar successful maintenance of an action for breach of contract by AGL against NAL.

I would affirm the judgments in favor of both defendants.