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

text:
    BURLINGTON COUNTY COLLEGE FACULTY ASSOCIATION, PLAINTIFF, v. BOARD OF TRUSTEES, BURLINGTON COUNTY COLLEGE, ET AL., DEFENDANTS.
    Superior Court of New Jersey Law Division
    Decided May 23, 1972.

      Mr. William S. Greenberg for plaintiff (Messrs. Sterns & Greenberg, attorneys).

      Mr. Myron H. Gottlieb for defendants (Messrs. Kessler, Tutele and Gottlieb, attorneys).
   Martino, A. J. S. C.

Plaintiff seeks a declaration as to the intent and interpretation of the New Jersey Employer-Employee Relations Act and particularly N. J. S. A. 34:13A-5.3, which among other matters provides:

* * * representatives designated * * * shall be the exclusive representatives for collective negotiation concerning the terms and conditions of employment of the employees in such unit. * * * Proposed new rules or modifications of existing rules governing -working conditions shall, be negotiated with the majority representative before they are established.

Plaintiff contends that the college calendar fits the category set forth in said statute when it refers to “proposed new rules or modifications of existing rules governing working conditions,” and further, that the college calendar is a “terms and conditions of employment of the employees” which requires negotiation as a part of the contractual relationship between the faculty and its employer, defendant college.

A close reading of N. J. S. A. 34:13A-5.3 indicates that it provides on the one hand that proposed new rules or modification of existing rules governing working conditions be negotiated, and on the other hand that terms and conditions of employment be negotiated in good faith.

Defendant institution contends that the college calendar is the establishment of educational policies which should remain within its control and is not mandatorily negotiable.

The matter being heard without a jury, the court makes the following findings of facts and conclusions of law pursuant to R. 1:7-4.

The president of plaintiff association, who was also the chief negotiator, testified that the first year negotiations were entered into was for 1970-71. Among the matters negotiated were salaries, faculty load, grievances, personnel files, sick and sabbatical leaves, parking privileges, offices for faculty members and certain other minor items. The school board representatives refused to negotiate a calendar. A contract was nevertheless agreed upon for 1970-71. The following year another contract was entered into after negotiations, but again the school board refused to negotiate on the school calendar. A calendar controls the number of weeks in an academic year. The college offers evening courses and the college controls what members of the faculty shall work these courses. He stated that a calendar was important to a faculty member because a calendar could permit members of a faculty to arrange to attend other schools for the purpose of earning additional scholastic degrees, would permit teachers to plan to attend European countries which could add to their experiences in particular subjects which they taught, viz., England, the Shakespeare locale, Spain for the language and customs and so forth; that calendars sometimes are set up for a period of time which might affect the time allotted for the proper teaching of subjects to students who are eligible for admittance to a community college; that the efforts to have the school board consider suggestions for the calendar were refused. The suggestions which were typed and offered to the school board for the years and rejected for consideration were marked in evidence. One of these calendars was passed upon by a defendant witness, a qualified educator, who felt it was a favorable type of calendar.

A representative of the New Jersey Educational Association, of which organization plaintiff is an affiliate, testified as an expert in the field of school contract negotiations. He had experience in negotiations on calendars for other faculties. His organization assisted in the passage of N. J. S. A. 34:13A-1 et seq. He testified he had examined all the calendars of the county colleges in this State. He made up a chart, admitted in evidence, on which was diagramed the length of work time that was required under the various calendars he examined. He found that Bergen County worked 9 days less than Burlington under its calendar; Brookdale College (Monmouth County) worked 31 days less; Camden worked 39 days less; Cumberland worked 17 days less; Essex worked 41 days less; Gloucester worked 15 days less; Mercer worked 12 days less; Middlesex worked 16 days less; Ocean worked 21 days less; Somerset worked 28 days less and Hnion worked 8 days less. No effort was made to dispute these findings by testimony which had a basis in fact.

Defendant produced a witness who was the negotiator for the board of trustees. He said he refused to negotiate the calendar with plaintiff’s representative because the board of trustees felt that the calendar was a management prerogative; that a calendar was prepared for all types of members of the college community, such as students, noninstructional persons and others who were concerned with the college’s welfare.

The president of the college testified that the calendar was prepared by studying other calendars for similar or like institutions; that the board of trustees felt that students and taxpayers also had to be taken into consideration in the preparation of the calendar; that a governance structure was created at the college, from which was established a calendar committee consisting of representatives of the students, the faculty, deans in the college and administrative personnel; that faculty members on the calendar committee were appointed by the faculty; that the new calendar has had some suggestions from that committee for adjustment of the 1972-73 calendar; that he has given some recommendations made by the calendar committee to the board of trustees. He feels that ¿here is a relationship between the calendar and the budget, and that the board of trustees feels that the calendar is a management prerogative. He personally feels that the committees functioning in the college is a better way to prepare a calendar than direct negotiations with plaintiff’s representatives. He had met with the calendar committee on three or four occasions. He stated there are many types of calendars, not only within the State but throughout the United States. He felt that he was to follow the dictates of the board of trustees, which felt that the calendar was a management prerogative. He conceded that the Board of Higher Education, Department of Higher Education, was not concerned with a school calendar and did not have to approve a calendar, and the only reason such a calendar was filed with that Board was to satisfy that Department a minimum of 30 weeks of instruction, exclusive of registration and final examination periods, would be provided for that year.

Another witness called by defendant, who was plaintiff’s negotiator and who testified for it, was asked about the members of the faculty who were members of the calendar committee, and it was shown that of the six faculty members who were on this committee, three were representative of management and three were members of plaintiff association but were not delegated to serve on that committee by the association.

The final witness called by defendant was a professor of higher education at the University of Florida. For 12 years he was Director of Community Colleges in the State of Florida, which office he left in 1968. He has been consulted on community colleges in various parts of the United States. He has been working with the officials at the Burlington County College since it was first conceived. He has had many conversations with the college president and members of the faculty of Burlington College. He has had no experience with labor negotiations because Florida has never had an employer-employee relations act. He defined a calendar as the way a year is divided up. He stated there is a wide divergence of calendar types in the United States in institutions of higher learning. He was never consulted about the Burlington County College calendar. He agreed that there is quite a distinction between a calendar and a curriculum. He cannot conceive of any calendar that could be developed which would serve all colleges. He admitted that one of the calendars proposed by plaintiff organization in earlier negotiations and rejected was a good one.

He was not asked what in his expert opinion would be the interpretation of “terms and conditions of employment” or the expression “working conditions,” as outlined in the Employer-Employees Relations Act of this State.

The jurisdiction of the court to pass upon this question arises from the failure of the Legislature to clearly define another course for plaintiff to pursue in order to afford it a remedy under these circumstances. The court's jurisdiction is not in dispute. See Burlington County Evergreen Park Mental Hosp. v. Cooper, 56 N. J. 579 (1970).

Bargaining demands are divided into three categories. They are either mandatory, voluntary or illegal subjects of negotiatons. N. L. R. B. Wooster Division, v. Borg-Warner Corp., 356 U. S. 342, 78 S. Ct. 718, 2 L. Ed. 2d 823 (1958). There is an obligation on the part of the employer and the representatives of the employees to bargain with each other with respect to the terms and conditions of employment and working conditions. The duty is limited to those subjects and that area. Neither party is legally obligated to yield. As to other matters, however, each party is free to bargain or not to bargain, and to agree or not to agree.

A supplement to the New Jersey Employer-Employee Relations Act, N. J. S. A. 34:13A-8.1, effective July 1, 1968, reads:

Nothing in this act shall be construed to annul or modify, or to preclude the renewal or continuation of any agreement heretofore entered into between any public employer and any employee organization, nor shall any provision hereof annul or modify any statute or statutes of this State. [Emphasis added]

County colleges are a creature of statute. Their maintenance, control and operation rests with the law responsible for their existence, N. J. S. A. 18A:64A—1 et seq. Among other provisions, a board of trustees shall he responsible for their management and control. N. J. S. A. 18A :64A—11. The general powers of the hoard of trustees is to determine the educational curriculum and program of the college. N. J. S. A. 18A:64A-12(d). The board of trustees appoints and fixes the compensation and term of office of the president of a college, who shall be the executive officer of the college and an ex oficio member of the board of trustees, N. J. S. A. 18A:64A-12(e); makes and promulgates rules and regulations not inconsistent with the provisions of the statute or with the rules and regulations of the Board of Higher Education that are necessary and proper for the administration and operation of a county college and implements the provisions of the statute, and exercises all other powers, not inconsistent with the provisions of the statute or with the rules and regulations of the Board of Higher Education which may be reasonably necessary or incidental to the establishment, maintenance and operation of a county college. N. J. S. A. 18A:64A-12(o), (p).

A “calendar” is defined as a system by which the beginning, length and division of the civil year are fixed and by which days and longer divisions of time (as weeks, months and years) are arranged in a definite order. A “curriculum” is defined as the whole body of courses by an educational institution or one of its branches, while a “program” is defined as a plan determining the offerings of an educational institution. See Webster’s Third International Dictionary (1967). The words “educational curriculum and program” referred to in the Statute apparently are meant to refer to the same subject matter.

A calendar which determines when an employee shall commence work and the period he shall continue in the performance of his work would certainly seem to be within the term and conditions of employment. It is conceded by all parties that hours and wages are compulsory items for bargaining, and certainly hours and wages must be determined by the period of time such work must be performed. A curriculum which would appear to rest entirely with the board of trustees should not be confused with a calendar.

An argument broached by defendant institution is that to permit the calendar to be negotiated on a strict employer-employee relationship will result, in great measure, in a disregard of the best interests of those whom the college exists to serve, i. e. the students. There is no reason to conclude that the negotiation of the parties would eliminate any permissive participation by students. Similarly, there appears no logical reason to eliminate qualified faculty members from that discussion. Blocker, Plummer and Richardson in The Two Year College: A Social Synthesis (1965), wrote:

It must be pointed out that there are many individual faculty members who are interested and active in educational innovations and who develop — with or without encouragement from the administration — new concepts and procedures which improve and enrich the educational processes in their classrooms. Although these efforts may not be apparent to any other than those intimately related to the college, the significance of such work should not be underestimated. The impact of these finite changes might, in the long run, stimulate major educational policy changes affecting the entire college, [at 109]

In Joint School District No. 8, City of Madison v. Wisconsin Employment Relations Board, etc., 37 Wis. 2d 483, 155 N. W. 2d 78 (1967), the Wisconsin Supreme Court held that a school calendar was the subject of compulsory negotiations. The Wisconsin statute refers to the right to confer and to negotiate on the question of “wages, hours and conditions of employment.” Our statute refers to “terms and conditions of employment of the employee”—hardly a distinction with a difference. The Wisconsin court went on to add that many items and restrictions in a school calendar required to be met by statute cannot be changed by negotiations. That court said:

The contents of the curriculum would be a different matter. Subjects of study are within the scope of basic educational policy and additionally are not related to wages, hours and conditions of employment.

As previously indicated, under the provisions of N. J. S. A. 18A:64A-12(o) and (p) the rules of the board of trustees are not to be inconsistent with the provisions of the statute or with the rules and regulations of the Board of Higher Education, and the board of trustees may exercise all other powers not inconsistent with the powers of this statute or with the rules of the Board of Higher Education which may be reasonably necessary or incidental to the establishment, maintenance and operation of a county college.

Nothing in the aforementioned statute refers to a calendar, while it does provide that the board of trustees has the power “to determine the educational curriculum and program of the college.” It is conceded that the Board of Higher Education does not by its rules need to approve a calendar.

In Libby, McNeill & Libby v. Wisconsin Employment Relations Comm’n, 48 Wis. 2d 272, 179 N. W. 2d 805 (1970), the Wisconsin Supreme Court held that while the management decision in that ease was not a mandatory subject of collective bargaining, the decision and its “effects” were distinct issues, and concluded:

It is well established that where the employment relationship is threatened by a unilateral economic move by the employer, the Federal Courts and the National Labor Relations Board have found an enforceable duty to bargain over the impact of that decision on the employees. [Cited cases omitted; emphasis added]

The phrase “terms and conditions of employment” is no doubt susceptible of diverse interpretations. In common parlance the conditions of a person’s employment are most obviously the various physical dimensions of his working environment. What one’s hours are to be, what amount of work is expected during those hours, what periods of relief are available, would all seem “conditions” of one’s employment. Fibreboard Paper Products Corp. v. N. L. R. B., 379 U. S. 203, 85 S. Ct. 398, 13 L. Ed. 2d 233 (1964).

The board of trustees need not surrender its discretion in determining calendar policy nor come to an agreement in the collective bargaining sense. The board must, however, confer and negotiate, and this includes a consideration of the suggestions and reasons of the faculty representatives. There is no duty upon the board to agree against its judgment with the suggestions, and it is not a forbidden practice for the school board to determine in its own judgment what the school calendar should be even though such course of action rejects the faculty’s wishes. The refusal may place the board in a position where, under the rule of the New Jersey Public Employment Eelations Commission, it will result in the appointment of a mediator and, upon his failure to resolve the impasse, a fact-finding board. However, the fact-finders, if adverse to the board, are not binding upon it. The force of the fact-finding procedure is public opinion, and the legislative process thrives on such enlightment in a democracy. Joint School District No. 8, City of Madison v. Wisconsin Employment Relations Board, etc., supra; see also N. J. A. C. 19:12-1 to 19:12-15.

It is, therefore, concluded that an analysis of the facts and their application to N. J. S. A. 34:13A-1 et seq. and 18A:64A-1 et seq. requires that defendant board of trustees of the Burlington County College negotiate the format of the college calendar 'with plaintiff’s representatives.


source: Caselaw Access Project

author: Toscano, J. C. C.

license: Public Domain

text:
    KATHERINE M. LAURIA, PETITIONER, v. BOROUGH OF RIDGEFIELD, RESPONDENT-APPELLANT, v. BOROUGH OF CLIFFSIDE PARK, RESPONDENT-RESPONDENT.
    Bergen County Court
    Decided May 16, 1972.

      Messrs. Meyner <& Wiley, attorneys for respondent-appellant Borough of Ridgefield.

      Messrs. Carpenter, Bennett & Morrissey, attorneys for respondent-respondent, Borough of Cliffside Park.
   Toscano, J. C. C.

This action is an appeal by the Borough of Ridgefield from that part of a final judgment which, by an order of June 30, 1970, dismissed Ridgefield’s petition against the Borough of Cliffside Park.

The two parties in this appeal, the Boroughs of Ridgefield and Cliffside Park, have submitted the following agreed statement of facts to the Division of Compensation:

At 4:00 a.m. on Sunday, October 15, 1967, the Cliffside Park Fire Department, (hereinafter “Cliffside”) consisting of paid and volunteer firemen, responded to an alarm regarding a fire at 515 Anderson Avenue, Cliffside Park, the premises of Cardinal Lanes. In the course of fighting the fire, Cliffside summoned other municipalities with whom it is associated in the East Bergen Mutual Aid. The municipalities in the group are: Cliffside Park, Englewood Cliffs, Fairview, Fort Lee, Leonia, Palisades Park, Ridgefield and Box 54 Club “Honorary”. The Ridgefield Fire Department (hereinafter “Ridgefield”) responded and was assisting in the operation when the north wall collapsed, injuring members of the Ridgefield, Fairview and Cliffside Park Fire Department, and killing five members of the Ridgefield squad, one of whom was petitioner’s decedent, James Lauria. At the time of the accident, .the Fort Lee Fire Department was also on the scene, with the Fair-view Fire Department arriving later.
The Mutual Aid By-Laws provided, by their terms, that the “Chief or Commanding Officer of town requesting aid is in charge of all towns and coordinators responding to the alarm”. In the within matter, Chief John Nagel, a paid fireman of Cliffside Park, was, under the terms of the agreement, in charge of fighting the fire and, in fact, directed and controlled the activities of the Ridgefield Fire Department and others assisting in combating the blaze.
The Mutual Aid By-Laws concerned herein do not provide for reimbursement by the summoning municipality of any payments made by another municipality to a member of its fire department, or to his widow or other dependent, on account of injuries sustained or death suffered by him in the course of rendering mutual aid in extinguishing a fire in the summoning municipality.
Petitioner filed a claim for compensation against her decedent’s employer, the Borough of Ridgefield, and is presently receiving benefits from Ridgefield. Ridgefield filed a claim against Cliffside Park contending that Cliffside Park is a co-employer of the petitioner’s decedent, Mr. Lauria.

After filing the claim against Cliffside Park on April 16, 1968, Ridgefield sought to join the other municipalities that are members of the East Bergen Mutual Aid, and obtained the order of April 7, 1969 to that effect. There followed a rather complex set of procedural steps that culminated in an order of January 30, 1970 dismissing the petitions against Cliffside Park and the other municipalities. At that time Judge Rosenthal found “no basis of liability in this Court as relates to the Borough of Cliffside Park.” The order was later reduced to judgment by the order presently under attack, dated June 30, 1970 and signed July 1, 1970 by Judge Rosenthal.

Again, there followed additional procedural measures, resulting in a final judgment against Ridgefield in favor of petitioner’s decedent, entered on April 29, 1971. Ridgefield now asks this court to hold that Cliffside Park was either the sole employer or the joint employer of the petitioner’s decedent.

There is no statutory provision precisely on point that is dispositive in this case. Both parties to the controversy have engaged in extensive analysis of the pertinent statutory framework in order to determine whether the aiding or the summoning municipality either bears absolute liability or is precluded from liability for the injuries of petitioner’s decedent.

It is the position of Ridgefield, the aiding borough, that the statutes are inconclusive on the above issue. As a result, the court should look to common law and decide the instant case on an ad hoc basis, keeping in mind the announced legislative policy to foster mutual aid agreements. Additionally, Ridgefield argues that petitioner’s decedent falls within the definition of an “authorized worker” in N. J. S. A. 34:15-43 for the purposes of finding Cliffside Park, the summoning borough, liable.

Cliffside Park, on the other hand, stresses that an underlying policy of all workmen’s compensation statutes is to establish certainty in identifying the employer to whom an injured employee can look for relief, and by whom insurance must be obtained in order to provide such relief. Ad hoc determinations of liability contravene this policy. In any event, an application of common law principles, and even of N. J. S. A. 34:15-43, to the situation at hand would not dictate a finding that Cliffside Park is liable.

This court is of the opinion that the resolution of the matter at bar must be primarily founded upon an interpretation of the pertinent statutes. A municipal corporation is a creature of the State Legislature. Its powers are derived from, and its boundaries are established by, the Legislature. Such boundaries mark the limit of the municipality’s jurisdiction and authority, and no extramural authority exists unless expressly granted. Good Deal of Ivy Hill, Inc. v. Newark, 32 N. J. 263, 266-267 (1960).

Consequently, only statutory law, and not common law, can enumerate the powers and responsibilities of a municipality and geographically limit their exercise. The mandate of our State Constitution to liberally construe statutes pertaining to municipalities, N. J. Const. (1947), Art. IV, § VII, par. 11, does not connote an extension of the statutory phraseology as commonly used. Grogan v. De Sapio, 11 N. J. 308, 316 (1953).

In the case at hand the applicable statutory phraseology is found in various provisions of chapters 34 and 40. According to N. J. S. A. 34:15-43, every volunteer fireman injured in the line of duty shall be compensated under the Workmen’s Compensation Law. N. J. S. A. 34:15-74 requires that every municipality provide compensation insurance for volunteer firemen who are under the control of that municipality. However, if a volunteer fire company is located outside of the boundaries of a municipality that it serves, and that contributes to its support, then said municipality need not provide insurance coverage when the municipality in which the company is located provides such.

In its reply brief Ridgefield quoted the legislative statement annexed to N. J. S. A. 34:15-74, expressing the following legislative intent:

* * * to assure insurance coverage for all such workers and to eliminate duplication for such coverage where the fire companies or rescue squads serve more than one municipality or fire district.

Apparently, prior to the enactment of the above statute there must have been some uncertainty as to whether a municipality contributing to and served by an out-of-town fire company was an employer for the purposes of the Workmens Compensation Law. The Legislature was not interested in which municipality carried the insurance, as long as the firemen were fully, yet not doubly, covered. Of course, the municipality that carried the insurance would be the one responsible for making compensation payments. The municipality in which a fireman is injured is not automatically liable as an employer.

The instant situation is far less ambiguous than that envisoned in N. J. S. A. 34:15-74, since both boroughs are required by statute to provide full coverage for all of their own volunteers. If each member of a mutual aid agreement had to provide coverage for any fireman that might be injured within its borders, there would be, in this instance, duplication four times over, seeing that eight municipalities are involved.

Nevertheless, N. J. S. A. 40:47-68, while making it lawful for municipalities to enter into mutual aid contracts to extinguish fires in emergencies, also permits such contracts to provide for reimbursement for payments lawfully made to a fireman’s dependents. It has been stipulated that the contract in issue does not provide for this type of reimbursement.

In the absence of the above statute, a municipality would be without authority to reimburse an out-of-town aiding fireman under a mutual aid contract. Municipalities are still without authority to make such reimbursements when there is no contractual obligation to do so. The bald authority to make contractual reimbursements would be ineffectual without the authority to raise by taxation and appropriate the necessary sums, as is granted by N. J. S. A. 40:47-72.

This taxing power is expressly limited to reimbursements made pursuant to a mutual aid contract. In New Jersey the power of taxation is vested in the Legislature. Municipalities have no comparable power except to the extent plainly delegated to them by the Legislature. Salomon v. Jersey City, 12 N. J. 379, 383 (1953). There has been no delegation of taxing power for reimbursements not provided for by contract.

When a municipality is not under contract to render emergency mutual aid, it can still lawfully do so under N. J. S. A. 40:47-12.1. Should its firemen be injured or killed in the summoning municipality, they are entitled to pension rights and compensation as if injured in the aiding municipality. In other words, a municipality’s authority to provide relief for its own volunteers extends beyond its geographical boundaries.

The fact that there was a contract in the case at bar does not make N. J. S. A. 40:47-12.1 inapplicable. Since there was no contract provision for relief payments, that portion of the above statute that extends the aiding municipality’s authority to take care of its own should be controlling. Ridgefield points out that this statute, as it stood at the time of petitioner’s decedent’s death, did not expressly state “workmen’s compensation.” A 1968 amendment included workmen’s compensation with the other benefits. Ridgefield argues that the amendment should be given prospective effect only, and cites the cardinal rule of statutory interpretation:

* * * words in a statute ought not to have a retrospective operation unless they are so clear, strong and imperative that no other meaning can be annexed to them, or unless the intent of the legislature cannot otherwise be satisfied. [Connell v. Carpenter, 9 N. J. Super. 236, 241 (App. Div. 1950)]

This court feels that the amendment discloses the intent of the Legislature when N. J. S. A. 40:47—12.1 was initially enacted. Although the amendment affects substantive rights, it clarifies rather than creates them, due to the fact that all volunteer firemen already had a right to workmen’s compensation, and their respective municipalities had a responsibility to provide for such.

It is the decision of this court that there is no statutory authority for a summoning municipality to reimburse out-of-town firemen injured within its borders. Ridgefield refers to N. J. S. A. 40:47-29, which grants an aiding municipality immunity for damages it causes within the summoning municipality, as an example of the legislative concern in fostering mutual aid agreements. This concern, though, has not been expressed with respect to damages sustained by the aiding municipality. Without express statutory authority to that effect, this court cannot hold Cliffside Park liable.

In conformity with the above analysis, the common law principles of special employer and co-employer are irrelevant and inapplicable. Still, this court feels that petitioner’s decedent acted as an employee of Ridgefield while answering the emergency fire in Cliffside Park, and never entered the employ of Cliffside Park.

The finding that petitioner’s decedent was exclusively employed by Ridgefield at the time of the fire precludes a determination that petitioner’s decedent was an “authorized worker” of Cliffside Park within the scope of N. J. S. A. 34:15-43, because he was not subject to the control of Cliff-side Park’s fire company. Contrary to the situation in Volek v. Deal, 83 N. J. Super. 58 (App. Div. 1964), petitioner’s decedent was authorized to attend the Cliffside Park fire by virtue of the fact that he was an authorized employee of Ridgefield.

In line with the above determination, see Kuntzwiller v. City of West Lafayette, 108 Ind. App. 474, 29 N. E. 2d 1007 (Ind. App. Ct. 1940), where the court found that the risk of being injured in a summoning municipality was an incident of a fireman’s employment in a municipality that was a member of a mutual assistance contract. In reaching the same conclusion as does this court, the court in Nelson v. Borough of Greensville, 181 Pa. Super. 488, 124 A. 2d 675 (Pa. Super. Ct. 1956), distinguished between the direct supervision and immediate control of the chief of the aiding fire company over his own men from the coordinating function of the chief of the summoning fire company with respect to the activities of all the fire companies on the scene of the emergency.

Eor the foregoing reasons, the judgment below is affirmed.


author: Per Curiam.

text:
    STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT, v. THOMAS BUCHAN, DEFENDANT-APPELLANT.
    Superior Court of New Jersey Appellate Division
    Submitted May 15, 1972
    Decided May 25, 1972.
    Before Judges Contort», Matthews and Fritz.

      Mr. George L. Pauk, attorney for appellant.

      Mr. George F. Kugler, Jr., Attorney General, attorney for respondent (Mr. Fred H. Kumpf, Deputy Attorney General, of counsel and on the brief).
   Per Curiam.

Defendant was accused of larceny of a scale worth under $200, in violation of N. J. S. A. 2A:119-2. After a preliminary bearing in Marlboro Township Municipal Court (Monmouth County), defendant waived indictment and trial by jury. Thereafter he was convicted of attempted larceny in municipal court and fined $50 plus $15 court costs. He thereupon appealed his conviction to the Monmouth County Court. The County Court judge dismissed the appeal, finding the County Court to be without jurisdiction. The County Court judge found that the proper forum for the appeal from municipal court, where the defendant waived indictment and a trial by jury, to be the Appellate Division of the Superior Court. The matter is presently before us on direct appeal. We reverse.

All appeals from judgments of conviction in a court of limited jurisdiction are to be taken to the County Court, R. 3 :23-2, unless leave to appeal to the Appellate Division is granted under the provisions of R. 2:2-3(b). See State v. Yaccarino, 3 N. J. 291 (1949). The only restriction contained in our practice related to such appeals where the conviction is for an indictable offense is that the appeal shall not operate as a consent for the complaint to be amended to charge an indictable offense. R. 3:23-8(c).

We acknowledge with appreciation the objective and careful presentation of this matter by the Attorney General.

Reversed and remanded to Monmouth County Court for a trial de novo on the record.


text:
    LESTER JONES, JR., ET AL., PETITIONERS-APPELLANTS, v. ROBERT KOLBECK, ET AL., DEFENDANTS-RESPONDENTS.
    Superior Court of New Jersey Appellate Division
    Submitted May 16, 1972
    Decided May 25, 1972.

      Before Judges Labrjeoque, Kolovsky and Alloobn.

      Mr. Martin L. Haines for the appellants (Dimon, Haines & Bunting, attorneys).

      Mr. John 8. Fields for the respondents Kolbeck, et al. {Boolcbinder, Fields & Ferri, attorneys).

      Mr. William, V. Webster, Jr. for the respondent Board of Education of Lumherton Township (Parker, McCay & Criscuolo, attorneys).
   Per Curiam.

There is neither constitutional nor statutory prohibition against an individual at one and the same time holding and exercising the office of member of the board of education of one public school district, and holding and performing the duties of the position or employment of teacher in the schools of a different public school district. Contrary to the suggestion of plaintiffs, the provisions of N. J. S. A. 18A :12-2 contain no such proscription, expressly or impliedly.

We are satisfied also that there is no inherent incompatibility between the two posts under the common law. No conflict or inconsistency exists in the functions of the two in the sense of one being “subordinate to another, or subject to its supervision or control, or the duties clash.” Reilly v. Ozzard, 33 N. J. 529, 543 (1960); Kobylarz v. Mercer, 130 N. J. L. 44 (E. & A. 1942). See, 3 McQuillin, Municipal Corporations, (3rd ed. rev’d 1963), § 12.67. Although it may he that there is a possibility that conflicts of interest may arise from time to time, this is not unique to the present situation. In any event, the test is “incompatibility in the functions or duties of office,” rather than a mere possibility of a conflict of interests. Reilly v. Ozzard, supra, 33 N. J. at 549. Compare, Griggs v. Princeton Borough, 33 N. J. 207 (1960).

Nor does mere membership in the New Jersey Education Association disqualify a person from membership on a local board of education —• any more than membership in any other professional or labor organization constitutes a disqualification. While the law demands complete honesty and integrity in the exercise and performance of the duties of every public office, position or employment, that requisite does not necessitate or contemplate a severance of all ties and associations with persons and organizations that may espouse a particular philosophy or position on any one or more of the many facets of public affairs that the local agency of which the individual is a member is called upon to administer.

Inasmuch as defendant members of the board of education were sued by reason of such membership, they are entitled to have their counsel fee on the trial and on the appeal borne by the board of education, in accordance with N. J. S. A. 18A:12-20.

Affirmed.


text:
    PROCEEDING ON THE INITIATIVE OF THE COMMISSION TO DETERMINE WHETHER TO REVOKE, CANCEL OR SUSPEND THE LICENSE OF SAM BUFANIO (HA-2262) RESIDING AT 10 CLOVER STREET, NUTLEY, NEW JERSEY, AS A HIRING AGENT; CASE RHA-84 AND IN THE MATTER OF THE APPLICATION OF HELD WAREHOUSE AND TRANSPORTATION CORP. FOR A LICENSE AS A HIRING AGENT FOR SAM BUFANIO (HA-2393) RESIDING AT 10 CLOVER STREET, NUTLEY, NEW JERSEY; CASE HA-57 AND PROCEEDING ON THE INITIATIVE OF THE COMMISSION TO DETERMINE WHETHER TO REVOKE, CANCEL OR SUSPEND THE TEMPORARY PERMIT OF SAM BUFANIO (HA-2393) RESIDING AT 10 CLOVER STREET, NUTLEY, NEW JERSEY, AS A HIRING AGENT. CASE RHA-85
    Superior Court of New Jersey Appellate Division
    Argued May 9, 1972
    Decided May 26, 1972.

      Before Judges Lewis, Halpekn and Loba.

      Mr. Edwin- J. McCreedy argued the cause for appellant (Messrs. Gonant, Halberstadter and McGuire, attorneys).

      Mr. Robert A. Pin argued the cause for respondent (Mr. William P. Sirignano, Executive Director and General Counsel, Mr. Irving Málchman, Assistant to General Counsel, Mr. Leonard S. Picariello, Assistant Counsel, Waterfront Commission of Yew York Harbor, on the brief).
   Per Curiam.

This is an appeal from an order of the Waterfront Commission which denied the application of Held Warehouse and Transportation Corp. for a license for Sam Bufanio as a hiring agent, and which revoked his existing license and temporary permit.

Appellant contends the testimony which he gave during an investigatory interview conducted by the Commission was improperly admitted into evidence at the Commission’s hearing in that he had been denied the right to counsel during such investigations. He further contends that the failure of the Commission to advise him of his right to counsel under the circumstances herein compels a reversal of its decision, particularly in view of the rules and regulations of the Commission which' permit counsel to he present during such investigations.

It is clear there is no constitutional basis upon which to require that a person appearing before an administrative agency he apprised of his right to have counsel present. David v. Strelecki, 51 N. J. 563 (1968); State v. Williams, 59 N. J. 493 (1971). In the absence of a statute or administrative rule or regulation to the contrary, courts are reluctant to allow representation bjr counsel in administrative proceedings of a purely investigatory nature. See Annotation, 33 A. L. R. 3d 229 (1970), § 2(a) at 239; §6(b) at 249; Cooper, State Administrative Law (1965) 330; In re Groban, 352 U. S. 330, 77 S. Ct. 510, 1 L. Ed. 2d 376 (1957).

Nor do we agree with appellant’s contention that a provision in an administrative agency regulation providing that a person subject to an investigation under oath is entitled to counsel necessarily imposes upon the agency an obligation to advise the subject of the interview as to such a right. See Annotation, 33 A. L. R. 3d 229 (1970), § 2(a), at 239-240, nn. 4-5, and Ussi v. Folsom, 254 F. 2d 842 (2 Cir. 1958).

To extend Miranda to a situation such as the one before the court would be stretching it beyond its applicability. Bufanio appeared voluntarily, without subpoena, and answered questions under oath, not while in “custody” but only as part of the investigatory process of the Commission.

The Commission’s order in this matter was not in any manner arbitrary, capricious or unreasonable. Its findings that Bufanio did not possess good character and integrity within the meaning of the Waterfront Commission Act are supported by the record and hence the sanctions imposed upon appellant by the Commission do not constitute excessive punishment.

Affirmed.


text:
    THE LONG BRANCH DIVISION OF THE UNITED CIVIC AND TAXPAYERS ORGANIZATION, A CORPORATION OF THE STATE OF NEW JERSEY, VINCENT J. McCUE AND EDGAR DINKELSPIEL, PLAINTIFFS-APPELLANTS, v. DR. JAMES R. COWAN, COMMISSIONER OF HEALTH OF THE STATE OF NEW JERSEY, DR. MAURICE G. KOTT, ACTING COMMISSIONER OF THE DEPARTMENT OF INSTITUTIONS AND AGENCIES OF THE STATE OF NEW JERSEY, AND RICHARD RUSSO, DEPUTY DIRECTOR OF THE DEPARTMENT OF HEALTH, DIVISION OF NARCOTIC CONTROL, AND THE CITY OF LONG BRANCH, A MUNICIPAL CORPORATION OF THE STATE OF NEW JERSEY, DEFENDANTS-RESPONDENTS.
    Superior Court of New Jersey Appellate Division
    Argued May 8, 1972
    Decided May 30, 1972.

      Before Judges Sullivan, Leonard and Carton.

      Mr. Michael D. Schottland argued the cause for appellants (Messrs. Ghamlin and Schottland, attorneys).

      Mr. Joseph Clayton, Assistant Deputy Attorney General, argued the cause for respondents Dr. James R. Cowan, Dr. Maurice G. Kott and Richard Russo (Mr. George F. ICugler, Jr., Attorney General, attorney; Mr. Stephen Skillman, Assistant Deputy Attorney General, of counsel; Mr. Jonathan Weiner, Assistant Deputy Attorney General, on the brief).

      Mr. Robert L. Mauro argued the cause for respondent City of Long Branch.
   Per Curiam.

Involved in this declaratory judgment action is the right of the State of New Jersey, through the State Department of Health, Division of Narcotic and Drug Abuse Control (Department), to establish a residential narcotic rehabilitation and treatment center in Long Branch (City) for drug users from throughout the State, without approval of the City, the local Board of Adjustment or Planning Board.

Plaintiffs, citizens and taxpayers, sought to enjoin the establishment of the center. The City, named as a defendant, filed an answer admitting all of plaintiffs’ allegations and joined in their request for relief. The Attorney General, as attorney for the three State officials designated as defendants, moved to dismiss plaintiffs’ complaint on the ground that it failed to state a cause of action upon which the relief sought could be granted. Following argument, the court granted the motion and dismissed the complaint. The court found that the charge of arbitrary and unreasonable state action had not been alleged, but even if it had, it could not constitute the basis of a cause of action since it also found that the State’s immunity was absolute.

Plaintiffs’ complaint alleges the following: On or about July 11, 1971 certain named state officials announced the State’s intention to purchase a building on Chelsea Avenue in Long Branch, which formerly housed a parochial school, from the owners thereof, the Sisters of Charity of Saint Elizabeth. The property is located in a residential zoning area and the surrounding neighborhood is made up of primarily one—or two-family residences, medical offices, a church, a synagogue and two elementary schools. Thereafter state representatives attended a public meeting in Long Branch and explained the intended program to, and answered questions of, interested citizens. On February 23, 1971 the city passed a resolution opposing the “proposed drug center site.” On May 19, 1971 the State completed its purchase for the sum of $150,000 and is presently renovating the building for its contemplated use. The State did not apply for a “use variance” or for “site plan approval.”

Plaintiffs and the city first contend that the Department does not have statutory authority to own and operate a residential drug rehabilitation center. This contention lacks merit. Although the Narcotic and Drug Abuse Control Act of 1969, N. J. S. A. 26:2G-1 to 16), does not contain a specific authorization, the statute does give the Department broad powers to formulate a “comprehensive plan for the * * * development * * * of adequate services and facilities for the prevention and control of drug addiction and the diagnosis, treatment and rehabilitation of drug addicts” and “to * * * develop, establish * * * and conduct unified programs” and “within the amount made available by appropriation therefor implement and administer such programs.” N. J. S. A. 26:2G—5(a) and 5(b). L. 1971 c. 96, effective April 8, 1971, appropriated funds to the Department specifically designated for the purchase and operation of facilities “for drug addicts and abusers.” Part of this appropriated sum was used to purchase the instant premises. Thus, we find that the Department has statutory authority to own and operate a residential drug rehabilitation center such as is here contemplated.

Plaintiffs’ assertion that the Department is subject to local zoning or planning control is likewise without merit. Considering the extent of the present-day state-wide drug problem and the policy considerations which surrounded the enactment of N. J. S. A. 26:2G etc., together with all other pertinent factors, we conclude that the Legislature intended to cloak the Department with immunity from such local control. See Rutgers v. Piluso, 60 N. J. 142, 152—153 (1972).

N. J. S. A. 40:55—1.13 does not include the Department among the public agencies which are thereby first required to secure planning board approval. Cf. N. J. Turnpike v. Sisselman, 106 N. J. Super. 358, 365-367 (App. Div. 1969).

However, such immunity is not completely unbridled; it must be exercised in a reasonable fashion so as not to arbitrarily override all important legitimate local interest. Rutgers v. Piluso, supra, at 153. Here plaintiffs and the city objected to the location of the drug center in a residential area, close to a church, a synagogue and a grammar school. Plaintiffs in their complaint assert that the Department, in selecting the present site, acted in “complete and total disregard of the needs and desires of the local government and citizens” and have “ignored the local wishes and have proceeded on a course of forcing the City * * * and its residents to accept its plan at this location.” Although the complaint does not specifically charge that the Department acted unreasonably or arbitrarily, the above-quoted language clearly implies such conduct and sets forth a colorable claim thereof. They were entitled to a hearing thereon.

Under these circumstances we are of the opinion that justice will best be served by our retaining jurisdiction and remanding this matter to the trial court, so that a hearing may be held, within 30 days of the date hereof, on the sole issue of whether the Department acted unreasonably or arbitrarily in selecting the instant site. The burden shall be upon plaintiffs and the city to prove such conduct. The remand judge shall make and file detailed findings of fact and conclusions of law upon the remanded issue. Within five days thereafter, plaintiffs and the city shall file joint or separate letter briefs. Department shall file an answering letter brief within five days thereafter. We shall advise counsel whether further oral argument is desired.

Remanded to the trial court to proceed in accordance herewith. Jurisdiction retained.


text:
    HELEN M. SHILOWITZ, PLAINTIFF-RESPONDENT AND CROSS-APPELLANT, v. STEPHEN SHILOWITZ, INDIVIDUALLY AND WITH JUSTIN O. HARRIS, AS EXECUTORS OF AND TRUSTEES OF TRUSTS CREATED IN THE LAST WILL AND TESTAMENT OF CHARLES SHILOWITZ, DECEASED, DEFENDANTS-APPELLANTS AND CROSS-RESPONDENTS.
    Superior Court of New Jersey Appellate Division
    Argued April 18, 1972
    Decided May 30, 1972.

      Before Judges Larrecque, Kolovsky and Allcorn.

      Mr. Albert G. Besser argued the cause for the appellants (Messrs. Hannoch, Weisman, Stern & Besser, attorneys).

      Mr. Thomas J. Brady argued the cause for the respondent (Mr. Paul J. Modarelli, on the brief; Messrs. Milton, Keane & DeBona, attorneys).
   Per Curiam.

Other than as to the matters hereinafter noted, the determination of the trial court is affirmed essentially for the reasons contained in the opinion of Judge Lynch, 115 N. J. Super. 165.

Although we are in accord with the conclusion of the trial judge that plaintiff is not entitled to exoneration for all or any part of the difference between the principal sum of the Bowery Savings Bank mortgage and the unpaid principal balance due on the previous mortgage, we reach that conclusion on the single ground that decedent never became personally liable to the Bowery for the mortgage indebteness. Absent decedent’s personal liability, the widow is not entitled to exoneration without regard to whether or not decedent’s estate was enhanced as a result of the mortgage loan. McLenahan v. McLenahan, 18 N. J. Eq. 101 (Ch. 1866); Campbell v. Campbell, 30 N. J. Eq. 415 (Ch. 1879).

In the course of this appeal defendants advanced the argument that if the widow’s dower interest is not to be charged with any part of the portion of the required quarterly mortgage payments applied toward the amortization of the mortgage principal, she should be chargeable with a sum equivalent to one-half of the interest on the full amount of the balance of the principal of the mortgage indebtedness as it existed at the time of decedent’s death undiminished by any reduction arising from the payments on account of principal made by or on behalf of the remaindermen subsequent to decedent’s death. Despite the failure of defendant to raise the issue before the trial court, the point is sufficiently compelling equitably as to require a disposition on the merits by this court.

The widow has a dower right only in the equity of redemption as it existed at the time of her husband’s death. If the widow is charged with only one-half of the actual interest which accrues and is paid on the constantly reducing principal balance, the value of her dower interest is correspondingly increased as a result of the payments made on account of the principal — payments of principal made not by the widow, but out of funds belonging to the remaindermen. The consequent enrichment to the widow would be unjustifiable indeed, as well as contrary to established law. Swaine v. Perine, 5 Johns. Ch. 482, 493, 1 N. Y. Ch. 1148 (Ch. 1821); 4 Pomeroy’s Equity Jurisprudence (5th ed. 1941), § 1223; 4 Kent’s Commentaries (14th ed. 1896) 47; 4A Thompson, Real Property (1961 rep. ed.), § 1901 at 40-42; 5 Powell, Real Property (1971), § 668 at 129—135; 1 Scribner, Dower (2d ed. 1883), §§ 26-28; Restatement, Property, § 132.

In light of the foregoing, during her lifetime the widows dower interest in the rents and profits of this real estate is chargeable with a sum equal to one-half of the interest on the full balance of the mortgage indebtedness as it existed at the date of decedents death, at the rate of interest fixed by the terms of the mortgage as it accrues —• instead of with one-half the actual amount due and payable on account of interest on the declining principal balance.

Except as so modified, the judgment of the Chancery Division is affirmed in all respects.


text:
    BOROUGH OF ROSELLE, PLAINTIFF-APPELLANT, v. SANTONE CONSTRUCTION CO., INC., DEFENDANT-RESPONDENT.
    Superior Court of New Jersey Appellate Division
    Submitted May 15, 1972
    Decided May 31, 1972.

      Before Judges Sullivan, Leonard and Carton.

      Mr. Irving F. Strum, attorney for appellant.

      Messrs. Post and Staub, attorneys for respondent (Mr. John N. Post, on the brief).
   Per Curiam.

The municipal court adjudged defendant-builder guilty of violating an ordinance of the Borough of Boselle which required use of plaster or plaster board on all partitions and interior walls except basements and cellars. The court imposed a fine of $100 per day until defendant remedied the situation. On appeal the County Court affirmed the conviction but suspended the sentence. The municipality appeals.

We find no merit in the argument advanced by the municipality that the power to suspend sentences conferred in N. J. S. A. 2A:168-1 does not apply to corporate defendants. Corporations, although artificial persons, are entitled to rights under our laws. We note that under N. J. S. A. 1 :1-2 the word “person” is defined to include corporations. The term “defendant” as used in N. J. S. A. 2A:168-1 must be construed to include corporations. The imposition of a penalty or its suspension was within the discretion of the court.

Furthermore, we note that plaintiff-municipality has stated that it is “primarily interested in compliance with the municipal ordinance and not punishment.” If the municipality’s main interest is compelling compliance with its building code, other remedies are available.

It should be pointed out that this is an appeal by the municipality, apparently in the interest of the State, seeking to review the suspension of sentence on a criminal conviction. It is at least doubtful whether such rights exist in the light of State v. Lanish, 103 N. J. Super. 441 (1968), aff’d o. b. 54 N. J. 93 (1969).

Affirmed.


author: Byrne, J. S. C.

text:
    RICHARD O’CONNELL, GUARDIAN AD LITEM OF DANIEL O’CONNELL, AN INFANT, AND RICHARD O’CONNELL, INDIVIDUALLY, PLAINTIFFS, v. FOREST HILL FIELD CLUB, DEFENDANT.
    Superior Court of New Jersey Law Division
    Decided May 31, 1972.

      Mr. Harold G. Smith for plaintiffs (Messrs. Wilentz, Goldman & Spitzer, attorneys).

      Mr. John B. La Vecchia for defendant (Messrs. Hughes, McElroy, Connell, Foley & Geiser, attorneys).
   Byrne, J. S. C.

This matter has come before the court on a motion by the defendant for summary judgment by reason of a statutory immunity provided by N. J. S. A. 2A:42A-2 and 3. The action is for personal injury to the plaintiff, Daniel O’Connell, an infant, through his guardian ad litem, Richard O’Connell, and by Richard O’Connell, individually.

Defendant is an unincorporated association that owns certain premises upon which it operates a golf course. On March 27, 1969, the infant plaintiff and his companions entered upon defendant’s premises while playing. At this time, there was an excavation hole on the premises which was part of a project to construct a dry well. While playing on the premises the infant plaintiff fell into the said hole, thereby suffering serious injuries.

The plaintiffs contend that the premises were not properly supervised or maintained by the defendant and that defendant failed to provide proper warning of the danger at the work site. Defendant’s position is that it owed no duty to the plaintiff, and further, that the action is barred by the Landowners Liability Act, N. J. S. A. 2A:42A-2 et seq., under which this motion is brought. The pertinent statutes read in part as follows:

N. J. S. A. 2A:42A-3

An owner, lessee or occupant of premises, * * *' owes no duty to keep the premises safe for entry or use by others for sport and recreational activities, or to give warning of any hazardous condition of the land or in connection with the use of any structure or by reason of any activity on such premises to persons entering for such purposes * * *.

and N. J. S. A. 2A:42A-2

As used in this act “sport and recreational activities” means and includes : hunting, fishing, trapping, horseback riding, training of dogs, hiking, camping, picnicking, swimming, skating, skiing, sledding, tobogganing and any other outdoor sport, game and recreational activity including practice and instruction in any thereof.

No New Jersey court has yet dealt with the scope of this legislative protection. The law of this State concerning injuries to infant trespassers has been that which was enunciated in the Restatement, Torts, § 334, which was adopted in Strang v. South Jersey Broadcasting Co., 9 N. J. 38 (1952). There the court stated that

“[T]he general rule of liability covers in particular trespassing children of tender years who because of immaturity are wanting in the discretion and judgment essential to their own security. “Where trespass upon the land is foreseeable, and the condition involves an unreasonable risk of death or serious bodily injury to the trespassing child, the possessor of the land is liable, [at 45]

The court continued in the Strang case to justify the policy as an exception to the common law rule of non-liability to trespassers. Specifically, the court pointed out:

The doctrine represents a prudent and essential accommodation of the landowner’s right to the use of his land and society’s interest in the humane and the protection of the life and limb of its youth and the individual’s interest in personal security * * *. Human safety is of far greater concern than unrestricted freedom in the use of land.

Forest Hill Field Club contends that the Legislature has overturned this line of cases by enacting 2A:42A-2 and 3. Defendant’s position is premised on the fact that the infant plaintiff came onto the premises while engaging in outdoor recreational activity. This the defendant theorizes is sufficient to bring the situation within the scope of control afforded by the act. In order to ascertain the correctness of this position it is necessary to first examine “legislative intent” of 2A :42A-2.

The act in question (L. 1968, c. 73) replaced N. J. S. A. 2A:42A-1 originally enacted in 1962. The 1968 act was intended to broaden the former act which protected owners of agricultural land or woodlands from liability for injuries to hunters or fishermen. There is, however, nothing in the legislative history of the act to show that the Legislature intended it to apply to an infant trespasser. The most likely interpretation that could be placed on the act is that it was intended to protect the landowners from liability to sportsmen who come upon their property, be they licensees or trespassers. The original act limited the scope to hunters and fishermen, but the Legislature finding that to be inadequate in this day where people have more leisure time and various recreational activities abound, it enacted the more comprehensive law. Yet nowhere is there any indication that it should apply to the situation at hand. There is no legislative history, no statement attached to the bill as introduced, no- statement by the Governor when the bill was signed into law indicating an intent to substantially modify the line of cases from Strang, supra, to date.

While the act in question does not alter the common law duty toward adult trespassers, it does alter the duty owed to licensees in that it reduces the owner’s obligations. In this respect it must be considered an exception to the growing tendency of courts to enlarge the landowner’s duty in respect to negligence. This act then being in derogation of common law must, therefore, be strictly construed. Foy v. Dayko, 82 N. J. Super. 8 (App. Div. 1964); Department of Labor and Industry v. Asbury Metropolitan Hotel Co., 80 N. J. Super. 486 (App. Div. 1963). In Jasiczek v. Penna. R. R., 90 N. J. Super. 380 (App. Div. 1966), a 14-year-old boy who was trespassing upon a train was injured when he came into contact with a low high-voltage line while trying to evade the brakeman who had seen him. The applicable statute, N. J. S. A. 48:12-152 reads in part:

Any person injured by an engine or car while walking, standing or playing on a railroad or by jumping on or off a car while in motion shall be deemed to have contributed to the injury sustained and shall not recover therefor any damages from the comi>any owning or operating the railroad.

The trial court had held the statute to bar the plaintiff’s claim, but the Appellate Division, in reversing, stated that “[t]he statute plainly speaks in terms of an injury by an engine or car.”

The plaintiff here, according to the pleadings, was an infant trespasser in the typical sense of the Strang line of eases. He was age 3, lived near the defendant’s property, is known to have trespassed onto defendant’s property and fell into a dangerous excavation. These allegations hardly meet the definitions as to immunity provided by N. J. S. A. 2A:42A-2 et seq. Healing v. Security Steel Equipment Corp., 51 N. J. Super. 123 (App. Div. 1958).

The motion for summary judgment is therefore denied.


author: Huot, J. D. C.

text:
    PALISADE WEST ASSOCIATES, PLAINTIFF, v. MARTIN ARANOW AND SYLVIA ARANOW, DEFENDANTS.
    Bergen County District Court
    Decided May 26, 1972.

      Mr. Jay Q. Marshall, Attorney for Plaintiff.

      Mr. Martin Aranow, pro se.

   Huot, J. D. C.

This is a landlord-tenant action wherein plaintiff seeks possession on the grounds of nonpayment of rent. Defendants concede that the rent reserved under a lease dated March 1, 1973 was not paid for the months of April and May 1973. However, defendants did tender for the months in question the amount of the rent reserved in their prior lease which expired March 31, 1973. The prior rent was $430 a month. The new rent is $476 a month. Additional parking charges are not involved in this contest.

The tenants raise the following defenses:

1. The landlord failed to comply with the notice requirements of section 301.501 et seq. of the rules and regulations of the Cost of Living Council. 6 CFR § 301.501 (12/30/71).

2. The rental increase charged by the landlord is in excess of that permitted by said rules and regulations.

3. They should be allowed a set-off against the rent for interest due them, which accrued on their security deposit under the expired lease.

The landlord admits that the notice to the tenants does not strictly comply with section 301.501 et seq., but argues that the section was complied with in substance if not in form. It also contends that it strictly followed the formula prescribed to arrive at the new rental of $476 a month. In regard to the third defense, the landlord contends that a tenant is not entitled to set-off interest due on money deposited as security in an interest-bearing account, as required by L. 1971, c. 223.

The notice given by the landlord and admittedly received by the tenants was dated January 26, 1972 and reads as follows:

OFFICE OF THE UNDERSIGNED
Suite 1002
147 West 42nd Street
New York, N. Y. 10036
Phone (212) 524-0563
Dated : January 26, 1972
Mr. (s) Martin Aranow Apt. 6-D
2185 Lemoine Avenue
Fort Lee, N. J. 07024
Dear Mr. Aranow:
As of the 29th of December, 1971, a statement was issued by the Price Commission outlining the procedures and regulations which are to govern rent increases during the President’s Freeze.
Please, therefore, consider this as notification that as of April 1, 1972 , your new rental will be $476.00 , and is within the allowed percentage of 8% plus 2.5% permitted within your ¡building.
Old Rent: $430.00
Increase: 46.00
New Rent: $476.00
The apartments for which renewals were written during the base rent period and upon which the computations for Bridge Plaza Towers were determined, are as follows:
4-H, 3-J, 8-J, 4-K, 4-Ij, 7N
All apartments wliich rent for $500.00 or more have been exempted from the above controls. For your further information, we have attached a copy of statement issued by the Price Commission.
Very truly yours,
FORT BRIDGE COMPANY
A. Stern
AS/ag
Enel.

Attached to said notice was a photostated article entitled “Price PaneFs Statement on Rules on Rent,” and contains the sub-legend “Special to The New York Times.” It purports to be from Washington on December 30. At the beginning of this article this introduction appears: “Following is the text of the supplemental guidance on rent regulations issued today by the Price Commission.” There then follows a press release explaining the action of the Price Commission, a copy of which is annexed hereto.

Section 301.502, “Notification”, provides in pertinent part:

In the case of a proposed rent increase to which the present lessee of the residence or other real property would be subject—
(a) Requirement of 30-daps’ notice.
The lessor must notify the lessee of the proposed rent increase at least 30 days before the date it is to become effective;
(b) Contents of notice. The notice shall be in writing and shall set forth —
(1) The amount of the monthly rent before and after the proposed increase;
(2) The percentage increase and dollar amount of the proposed increase;
(3) The effective date of the proposed increase;
(4) The amount of the proposed increase which is attributable to capital improvements, State and local real estate taxes, and State and local fees, levies and charges for municipal services, and any increase allowable under § 301.102(a) (1) ;
(5) The base rent and an explanation of the manner in which the base rent was determined, including identification of units involved and dates and amounts of transactions where applicable;
(6) The method of computation of the proposed increase; and
(7) The following statements:
(A) You have the right to examine the documentation which supports this proposed rent increase in order to satisfy yourself that the proposed rent increase is in accordance with the rent regulations prescribed by the Price Commission. This documentation is located at _______________________________________________: and may be inspected upon request between the hours of .......... through ......... on -------------------------------
(specify days of week).
(B) If you do not understand the basis for this increase or believe that the increase is not allowable under the rent regulations of the Price Commission, advise us and we will arrange a suitable meeting time with you at a location convenient to your residence to discuss the proposed increase and explain its justification.
. (C) It is hereby declared under the penalties of perjury that the foregoing statements and facts are true to the best of my (our) knowledge and belief; and that the increase in your rent is not in violation of the Economic Stabilization Regulations.

The first question presented to the court is whether the letter of January 26, 1972 and the photostatic attachment comply with the requirements of section 301.502. This court has authority to entertain the defense of noncompliance with Price Commission regulations. Brookchester Inc. v. Matthews, 118 N. J. Super. 565 (Cty. D. Ct. 1972).

Subsection (a) and subdivisions (1), (2) and (3) of subdivision (b) were complied with by the notice. The notice was given January 26, 1972, which is more than 30 days before the increase would become effective. It was in writing. It set forth the amount of the rent before and after the proposed increase. It set forth that the increase was a total of 10.5% (8% allowed percentage and 2.5% permitted within that building) and the dollar amount of the increase.

However, the notice did not set forth the information required by subsection (b) (4). Nor did it set forth the base rent nor the manner in which the base rent was determined; nor the dates and amounts of transactions involved in the determination as required by subsection (b)(5), although it did identify certain units used in such determination (only one of which appears to be proper for such use).

Further, the notice did not set forth the method of computation specified by subsection (b)(6), nor did it contain the statement which subsection (b) (7) requires.

There is no doubt that the information made obligatory by subsections (b) (4), (5), (6) and (7) of 301.502 was not contained in the notice. The landlord, however, contends that the photostat attached to the notice gives sufficient information to be considered substantial compliance with the regulation, and that subsection (b) (4) is satisfied by the notice stating that the new rent “is within the allowed percentage of 8%, plus 2.5% permitted within your building.”

The 2.5% is allowed by section 301.102. The failure to indicate any increase attributable to “capital improvements, State and local real estate taxes” and the like may be fairly read as negativing any portion of the increase for those items. In this case no claim is made for such increase and, therefore, the failure to include such information in the notice cannot be violative of the regulation.

The determination of compliance with subsection (b) (5), (6) and (7), however, presents a different situation. The photostat attached to the notice explains how to compute an increase in rent, but neither it, nor the notice, tells the tenants that the landlord used such method or what numbers were used in the formula. The photostat sets forth the tenants’ right to question the increase and to see the landlord’s documentation. However, it does not set forth the location of those documents, the times when they are available for inspection, or the opportunity to have a meeting with the landlord. Neither the notice nor the photostat contain a declaration “under the penalty of perjury” as to the truth of the statements in the notice.

Subsequent to the receipt of the notice the tenants wrote the landlord by letter dated February 2, 1972 expressing a belief that the landlord may be in error and requesting to see the rental record books. By letter dated February 7, 1972 the landlord advised the tenants of the availability of the rental books and its willingness to permit inspection by them. Thereafter, by letter dated March 1, 1972 the landlord advised the tenants as follows:

OFFICE OF THE UNDERSIGNED
Suite 1002
147 West 42nd Street
New York, N. Y. 10036
Phone (212) 524-0563
March 1, 1972
Mr. Martin Aranow Apt. 6-L
2185 Lemoine Avenue
Fort Lee, N. J. 07024
Daer Mr. Aranow:
We did make an attempt to determine which leases were signed during the base period and found that the leases which would be eliminated because they may have been signed earlier, would, in all fairness, have to be replaced by others which, although signed during the base period, have a later renewal date.
This would mean going through all the files and the formula determined from such a search would still be an arbitrary one, since the signing dates are not always available. As you can see, it is an impossible situation.
In all probability the percentage rate would not be much different from what we have determined, since increases were made at about the same rate right along.
As you can understand, we are quite anxious to comply with Federal regulations and though the latest rulings are quite complicated and apparently open to interpretation, we feel that our “formula” is an equitable one.
Very truly yours,
PALISADES WEST ASSOCIATES
A. Gellis
AG/s
Enc.
P.S. We are enclosing the lease you requested. Please sign and return with your check to cover additional security, $66.00.

These subsequent communications, the landlord contends, should be considered as supplemental compliance with the notice requirement and a cure to whatever defects may have existed in the original notice. Certainly, all communications were 30 days before the effective date of the rent increase. However, these supplemental advices were the result of the letter of defendants dated February 2, 1972. The court takes judicial notice that the defendant Martin Aranow is president of the New Jersey Tenant Organization and recognizes the validity of his claim, as expressed in the letter of February 2, 1972, that he has “more than an average knowledge of the guidelines.” Defendants’ position and personal knowledge cannot be a determining factor in the interpretation of the rules and regulations, for the law must apply equally to all tenants. What the law requires of a landlord and a tenant must be the criteria, not the personal knowledge of each individual. If a tenant’s familiarity with the requirements were to excuse a landlord from compliance with the regulations, then the landlord’s lack of such knowledge should also excuse him from compliance. Obviously, this may not be.

The notice of January 26, 1972, with the attached photostat, fails to strictly comply with the requirements of section 301.502. Is this failure fatal to a rent increase?

Section 301.501 provides:

No person may increase a rent, with respect to any transaction after December 28, 1971, involving a lease or implied contract of occupancy of a residence or other real property, unless he has complied with this subpart, regardless of whether the increase is otherivise allowable under this part. [Emphasis added]

The sub-part referred to pertains to the procedures for rental increases of which section 301.502 is a part. The underlined words express the policy of the Price Commission and is reaffirmed in section 301.102:

(a) Gene,ral. When a residence or other real property becomes occupied after December 28, 1971, a person may charge, offer to charge, or give notice of intent to charge, a monthly rent in excess of the base rent, after notification pursuant to § 301.501, only to the extent that the monthly rent does not exceed the sum of the base rent, plus * * * [Emphasis added]

The words are clear. There is no ambiguity or need for interpretation. The notice must be given, must contain each element set forth in section 301.502 and must contain the statement in the words required by section 301.502 (b)(7)(A), (B), (C).

This determination makes it unnecessary to consider the other defenses.

The notice given to the tenants herein did not comply with the regulations. The rent increase is invalid. The complaint seeking possession is dismissed without prejudice to the rights of the landlord to seek further compliance with the rules and regulations pertaining to rent increases.

The tenants have deposited the sum of $952 with the clerk of the court pending this determination. The clerk will forward $860 to the tenants' landlord as the rent due for April and May 1972, and return $92 to them.


text:
    LILLIAS BERZITO, PLAINTIFF-RESPONDENT, v. VINCENT GAMBINO, DEFENDANT-APPELLANT.
    Superior Court of New Jersey Appellate Division
    Argued April 24, 1972
    Decided June 2, 1972.

      Before Judges Collesteb, Mintz and Lynch.

      Mr. Joseph J. Triarsi argued the cause for appellant (Messrs. Pisano & Triarsi, attorneys).

      Mr. Nicholas J. Schuldt argued the cause for respondent.
   Per Curiam.

Defendant appeals from a judgment awarding plaintiff a rental rebate in the amount of $1,180. The judgment was subsequently amended to $973.75 by allowing defendant credit in the sum of $206.25 for rent due from plaintiff for the period August 27, 1970 to November 14, 1970.

Defendant owns a two-story brick dwelling consisting of two apartments in Elizabeth. In June 1968 plaintiff rented the first floor apartment. About September 1, 1968 the larger second floor furnished apartment became vacant. Plaintiff inspected it and orally agreed to rent same as furnished at a weekly rental of $35 with heat, hot water and gas supplied. She testified that defendant agreed to make the apartment “livable” and to make certain specific repairs, it having been left in a deplorable condition by the prior tenants.

The trial judge’s opinion recites that plaintiff defaulted in the payment of the weekly rent as of February 23, 1970. On June 18, 1970, on a trial for summary dispossession of plaintiff for non-payment of rent, the trial judge found that plaintiff-landlord (defendant in the present proceeding) had breached the warranty of habitability, and reduced the rental to $75 per month retroactive to February 23, 1970. Plaintiff and her three children finally vacated the premises on November 14, 1970.

Defendant testified that the apartment had been condemned and a “sticker” posted to this effect. Subsequently defendant rehabilitated the apartment. The premises were then reinspected by the building inspector in February 1968. The inspector removed the condemned notice, and apparently a certificate of occupancy was issued. The apartment was then rented to two sisters for about three months. They left it in a dirty condition but the furniture was still good. Defendant further testified that plaintiff rented the premises “as is” and that plaintiff extensively damaged the furniture and the premises.

In this proceeding the plaintiff-tenant seeks to recover a portion of the rent paid from October 1968 to February 23, 1970 on the theory that she never received what she had impliedly bargained for. Her complaint alleges that she had impliedly bargained for an apartment at a rental worth $35 weekly, but the fair rental value of what she received was only about $75 monthly. Defendant counterclaims for the amount of the rent remitted to plaintiff in the summary dispossession proceeding.

The trial court found that defendant promised plaintiff that he would make the premises “livable” and “agreed to make specific repairs.” The trial court stated that the premises were in fact substantially uninhabitable. In support of this conclusion the trial court noted the following deficiencies:

* * * few screens, some ripped; no storm windows; missing windows boarded up; gaps in window panes, sash and door frames; no radiators in two of the four rooms; holes in floors and walls; falling plaster; bath tub resting on wooden blocks; inoperable electric fixtures; sewage backup in cellar, and infestation by roaches and rodents. As an example of how one problem aggravated another, the regulator for the oven, which was a main source of heat, had to be replaced, but the gas company refused to do so until the roaches had been exterminated. In addition, the furniture with which the apartment was furnished was discarded by the tenant without objection from the landlord. [114 N. J. Super. at 127-128]

However, the record indicates that all the furniture except for one chest of drawers was placed in the basement by plaintiff on an unspecified date. Defendant testified that he had purchased new furniture in February 1968, but “* * * it wasn’t new anymore after she got through with it.”

Accepting the finding of the trial court of an express agreement by defendant to render the premises “livable” and to make specific repairs, we note that plaintiff’s major complaint was the roach infestation. She purchased cans of spray which she used unsuccessfully. Defendant testified he furnished extermination service from time to time. The sewage backups were apparently caused by foreign objects deposited in the house sewer line which was cleared by plumbers engaged by defendant, although according to plaintiff defendant was dilatory in removing the sewer remains from the basement. More importantly, we note that although plaintiff stated that she complained of the conditions to defendant, she lived in the apartment for one j^ear before making any complaint to the municipal authorities. At that time she admits that defendant told her that she “had to get out” because she was costing him money.

The trial judge predicated his finding in favor of plaintiff on the ground that defendant violated an express covenant to make the premises livable and to make specific repairs rather than upon a violation of an implied warranty of habitability. Since there is sufficient credible evidence in the record to support this determination, we accept same. State v. Johnson, 42 N. J. 146 (1964); Greenfield v. Dusseault, 60 N. J. Super. 436 (App. Div. 1960), aff’d o.b. 33 N. J. 78 (1960).

A tenant’s right to claim a constructive eviction will be lost if he does not vacate the premises within a reasonable time after the right comes into existence. Reste Realty Corporation v. Cooper, 53 N. J. 444 (1969). This principle was reaffirmed in Marini v. Ireland, 56 N. J. 130 (1970). There the tenant was in possession of an apartment under a one-year lease in a two-family duplex building in Camden. The court held that in a residential letting the landlord is held to an implied covenant against latent defects, which is another way of saying habitability and livability fitness. The tenant was permitted, after notice to the landlord and his failure to remedy the situation, to repair a vital facility and to offset the cost of such repairs against the- rent. This ruling was designed to afford a tenant in these days of housing shortage an alternative remedy to that of constructive eviction, but the court (at 146-147) significantly observed:

This does not mean that the tenant is relieved from the payment of rent so long as the landlord fails to repair. The tenant has only the alternative remedies of making the repairs or removing from the premises npon such a constructive eviction [Emphasis added]

In Academy Spires, Inc. v. Brown, 111 N. J. Super. 477 (Cty. D. Ct. 1970), the court drew a distinction between uninhabitability and “amenities” and in the course of its opinion noted that the landlord failed to supply heat, hot water, elevator and garbage disposal service to a ninth floor apartment in a 400 unit apartment complex. Failure to supply such things is a breach of the implied covenant of habitability for which a diminution in the monthly rent would be allowed. However, malfunction of Venetian blinds, water leaks, wall cracks, lack of painting are “amenities” and do not come within the category of uninhabitability. Such items will not be considered in diminution of the rent. The court concluded that a tenant in a 400 unit apartment complex can hardly be expected to make vital repairs such as to the elevator service, to render the premises- habitable. Hence, the doctrine pronounced in Marini, supra, was extended to grant the tenant an abatement in the rent in lieu of making repairs.

Clearly a portion of the patent defects complained of by plaintiff were "amenities.” In any event, we deem it significant that plaintiff was only a weekly tenant. She did not have to rely upon constructive eviction to vacate the premises. Nevertheless, despite all the shortcomings found by the trial court, plaintiff remained in possession until November 14, 1970.

As already noted the final rent payment prior to the summary dispossess proceeding on June 18, 1970 was on Eebruary 23, 1970. Thus, plaintiff was then approximately 16 weeks in arrears. She made no repairs and asserted that she remained there only because of the critical housing shortage. Although her son-in-law urged her to try and find a more suitable apartment, there is no competent proof to indicate that she actually made any effort to do so. The sole evidence on this point was the hearsay testimony of defendant that it was only after he asked plaintiff to vacate the premises that she told him she had unsuccessfully sought another apartment. Plaintiff received an allotment from the County Welfare Board (Board) which included the rent in full which she paid defendant. There is no indication in the record that she ever complained to the Board or enlisted the aid of auv agency to find an apartment for her. We cannot conclude from the record that plaintiff in fact endeavored to find other quarters.

The present trend of the law is in the direction of consumer protection. Henningsen v. Bloomfield Motors, Inc., 32 N. J. 358 (1960). The necessity for consumer protection in situations involving over-reaching upon the underprivileged is particularly recognized in N. J. S. A. 56:8-1 et seq. and Kugler v. Romain, 58 N. J. 522 (1971). This trend has been extended to landlord-tenant relationships. Academy Spires, Inc. v. Brown, supra at 484; cf. Javins v. First National Realty Corporation, 428 F. 2d 1071, 1079 (D. C. Cir. 1970), cert. den. 400 U. S. 925, 91 S. Ct. 186, 27 L. Ed. 2d 185 (1970).

However, just as we must be mindful of the housing shortage and the plight of the tenant, we should be cognizant of the problems confronting the landlord. An equitable balance needs to be struck between these competing interests.

As observed in Marini, supra, so here, plaintiff had alternative remedies — repair or remove within a reasonable time. Perhaps it may be unrealistic to have éxpected plaintiff, a weekly tenant receiving welfare benefits, to make repairs and offset same against the rental payments. She probably was unaware of any such right. However, when it became or should have become apparent to her that defendant would not make the agreed upon repairs, she should have sought other quarters and terminated her weekly tenancy upon one week’s notice. 26 N. J. Practice (LeWine, Landlord and Tenant Law), § 3203 (1962).

We conclude that the summary dispossess proceeding in which plaintiff was allowed a substantial diminution in the rental for a period of almost nine months effected an equitable disposition of the parties’ respective claims and that neither party is entitled to any further relief.

Reversed.


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    HANNAH SAMUELSON, PLAINTIFF-RESPONDENT, v. VALERIE QUINONES, DEFENDANT-APPELLANT.
    Superior Court of New Jersey Appellate Division
    Argued May 9, 1972
    Decided June 7, 1972.

      Before Judges Lewis, Harpers and Lora.

      Mr. Richard E. Blumberg, Staff Attorney, argued the cause for appellant (Newark-Essex Joint Law Reform Project, Mr.. Harris David, Director, and Mr. Stanley Varón and Mr. Edwo/rd Jasie, Newark Legal Services Project, attorneys).
    Mr. Emil H. Block argued the cause for respondent.
   Per Curiam.

Plaintiff landlord instituted summary dispossess proceedings in the Essex County District Court claiming nonpayment of $220, representing two months rent. Defendant tenant sought an abatement alleging numerous defects, disrepairs and uninhabitable conditions of the demised premises, including the lack of heating facilities.

The subject apartment was a small four-room basement unit which defendant had rented for the past %y2 years initially at a rental of $90 per month which was subsequently raised to $100 and then to $110 per month. At no time were there any heating fixtures or facilities in said basement apartment, the only source of heat being a gas range. The trial judge disallowed any abatement with respect to the lack of heating facilities, but did allow an abatement of $30 per month, or a total of $60, for defective conditions relating to the gas range, kitchen sink, pipe leakage, broken window, cracked walls, hanging bathroom door, cracked and chipped plaster.

Defendant-appellant’s main argument (in seeking a total abatement of rent) is that the trial judge erred in his conclusion that abatement of rent is not proper where certain conditions upon which such abatement is sought to be predicated existed at the inception of the letting and were observable by the tenant, notwithstanding the fact that such conditions violate a municipal housing ordinance.

Here, the municipal ordinance provides that no dwelling unit shall be rented or occupied unless such heating fixtures or apparatus are properly installed and conform to the municipal ordinances.

In suppoxt of total abatement, appellant urges: (1) that rental of the premises in violation of the municipal housing code constituted a violation of the covenant of habitability, the housing code constituting the standard by which to measure habitability; (2) that rental of the premises in violation of the housing code was an illegal contract unenforceable by the courts; and (3) that enforcement of the contract where there was a violation of the housing code would be against the State’s public policy of protection of urban low-income tenants.

Our courts have not heretofore interpreted Marini v. Ireland, 56 N. J. 130 (1970), to mandate a complete rent abatement where conditions at the inception of the tenancy, of which the tenant has notice, violate local housing code regulations. Nor have they enunciated a policy of utilizing such •codes as the standard by which to judge whether the landlord’s implied covenant of habitability has been satisfied.

Marini imposed upon each landlord an implied covenant .against latent defects, and explained such a covenant as follows:

Actually it is a covenant that at the inception of the lease, there are no latent defects in facilities vital to the use of the premises for residential purposes because of faulty original construction or deterioration from age or normal usage. And further it is a covenant that these facilities will remain in usable condition during the entire term of the lease. [56 N. J. at 144]

Latent defects were also involved in Reste Really Corp. v. Cooper, 53 N. J. 444 (1969), and Academy Spires, Inc. v. Brown, 111 N. J. Super. 477 (Cty. Ct. 1970) (which pointed out that it was not a ease where a housing code explicitly prohibited rental of the premises in violation thereof).

In Berzito v. Gambino, 114 N. J. Super. 124, 128-129 (Cty. Ct. 1971), the trial judge indicated that a tenant who agreed in effect to accept the premises “as is” should not be allowed to obtain an agreement from the landlord as to the rent to be paid, take possession, and then require repairs and improvements by the landlord.

Javins v. First National Realty Corp., 138 U. S. App. D. C. 369, 428 F. 2d 1071, cert. den. 400 U. S. 925, 91 S. Ct. 186, 27 L. Ed. 2d 185 (1970), presented the question whether housing code violations which arise during the term of the lease have any effect upon the tenant’s obligation to pay rent. The court held that a warranty of habitability measured by the standards set out in the local housing regulations is implied by operation of law into leases of urban dwelling units covered by those regulations, and that breach of this warranty gives rise to the usual remedies for breach of contract. The Javins court relied upon Brown v. Southall Realty Co., 237 A. 2d 834 (D. C. App. 1968), which held that unsafe and unsanitary conditions in violation of the local housing code existing at the beginning of the tenancy and known to the landlord rendered any lease of those premises illegal and void, in stating that the basic validity of every housing contract depends upon substantial compliance with the housing code at the beginning of the lease term.

The court further held the fact finder must determine what portion, if any or all, of the tenant’s obligation to pay rent was suspended by the landlord’s breach; if no part is found to have been suspended, then a judgment for possession may issue; on the other hand, if the entire rental obligation had been extinguished by the landlord’s total breach, then the action for possession based on non-payment of rent must fail.

The approach formulated in Brown and Javins has been used in some other jurisdictions. See, for example, Longenecker v. Hardin, 264 N. E. 2d 878 (Ill. Ct. App. 1970) (code violations at the inception of the lease agreement renders the lease illegal and void); Morbeth Realty Corp. v. Rosenshine, 67 Misc. 2d 325, 323 N. Y. S. 2d 363 (Civ. Ct. 1971) (warranty of habitability is measured by the standards set out in housing code); also Jack Spring, Inc. v. Little, 280 N. E. 2d 208 (Ill. Sup. Ct. 1972); but cf., Posnanski v. Hood, 46 Wis. 2d 172, 174 N. W. 2d 528 (Sup. Ct. 1970) (which refused to imply the housing code regulations into lease agreements).

William J. Davis, Inc. v. Slade, 271 A. 2d 412 (D. C. App. 1970), discussed what, if any, compensation a landlord is entitled to receive from his tenant for the use and occupancy of the premises where the lease is void and illegal. The court stated that since the lease is void ab initio, a tenant occupying premises under a Brown lease becomes a tenant at sufferance from the time he first takes possession; that this tenancy, unlike the tenancy attempted by the lease, is legal; hence the normal rule denying gwasi-contractual recovery should not be followed; and that although the landlord is entitled to nothing for what he gave the tenant under the lease, he is entitled to the reasonable value of the premises in its condition as it was when occupied. See also Amanuensis, Ltd. v. Brown, 65 Misc. 2d 15, 318 N. Y. S. 2d 11 (Civ. Ct. 1971), in which the court stated that a persuasive case can be made for reducing rent in proportion to the gravity of the housing code violations.

While Marini and its progeny in New Jersey have not gone so far as to incorporate local housing codes into every lease agreement, the violation here involved (lack of heating apparatus) clearly goes to the issue of habitability. Neither Marini nor Javins stand for the proposition that a breach of implied warranty or a violation of a building code or ordinance mandates a 100% abatement of rent; rather, Marini emphasizes the application of equitable principles.

We take judicial notice of the fact that there is an acute shortage of low-income housing in the City of Newark, and that such housing which exists is frequently not in full compliance with the city’s housing ordinances and building codes. We must also recognize the hard practical facts of life that if landlords, under existing conditions, were to be deprived of all rents because of noncompliance with such ordinances and building codes there would be far fewer available low income housing units •— landlord would either abandon their properties, or if they spent the money needed to comply with the ordinances and codes the amount or rent they would have to charge would price low income tenants out of the market. The problem seems to be almost insoluable.

On balance, we feel the trial judge should have determined the reasonable value of the demised premises, with its lack of heating facilities, and thereafter should have deducted therefrom the $30 per month by way of abatement for the defective conditions he found to exist therein. Any and all adjustments are to be made as of the date of the summary dispossess proceeding. Marini v. Ireland, 56 N. J. at 146-147. While this approach is not a complete answer to the difficult problems involved, it appears to us to furnish an equitable basis for relief.

We note in passing, that part of the problems presented can be best handled by the city in the enforcement of its ordinances and codes.

Remanded to the Essex County District Court for further proceedings in accordance with this opinion.