author: Yanoff, J. D. C.

text:
    INTEGRITY INSURANCE CO., A CORPORATION DULY LICENSED BY THE DEPARTMENT OF BANKING & INSURANCE, PLAINTIFF, v. HAYES DAVIS, DEFENDANT.
    District Court, Essex County
    Decided October 12, 1971.

      Mr. Fred Dubowsky for plaintiff.

      Mr. Paul B. Thompson for defendant (Messrs. Lamb, Blake, Hutchinson £ Dunne, attorneys).
   Yanoff, J. D. C.

The facts here are stipulated. On June 24, 1966 defendant (buyer) purchased an automobile from Allen Pontiac, Inc. (Allen). To secure the unpaid balance of the price, the buyer executed a promissory note and retail installment security agreement. Both instruments are printed forms. The note states that it is payable at the Bank of Nutley (bank). The security agreement contains an assignment to the bank. Both were in fact assigned to the bank on or about June 24, 1966. The security agreement provides that the buyer shall provide “dual protection” insurance and also:

If buyer fails (after exercising privilege) to supply insurance on the motor vehicle or is unable to acquire insurance or Seller or subsequent holder is unable to purchase dual protection insurance, Seller or subsequent holder may purchase a single interest insurance policy on the motor vehicle, and Buyer shall pay the premium therefor to Seller on demand (or, if Seller permits, in equal installments concurrently with the installments of the ^unpaid balance then remaining payable hereunder) and until such full payment the amount of said premium unpaid shall constitute an additional part of the obligation to be paid under this contract.

The stipulation indicates that the bank had a master insurance policy on automobiles upon which it had a security interest. The policy required that individual certificates be issued for each automobile. The coverage under the policy was against

* * * loss of or damage to the automobile, hereinafter called loss, caused by collision of the automobile with another object or by upset of the automobile while the automobile is in the lawful possession of a retail Purchaser or Borrower under a bailment lease, conditional sale, mortgage or other encumbrance.

The master policy contained also the following provision:

The company waives right of subrogation against the Purchaser or Borrower in respect to any claim paid under this coverage.

The bank obtained a certificate as to the automobile on or about October 10, 1966, for a premium of $51.69 for the first year. Only the interest of the bank in the automobile was- protected by the policy. No charge for the premium was made against the buyer.

Prior to November 1, 1966, no date being specified, the automobile was involved in an accident which resulted in damage in the amount of $936.49. Eor reasons which are not questioned, the bank repossessed and sold the automobile pursuant to its rights under the security agreement. The validity of the repossession and sale are not questioned. As the result there was a deficiency on account of which buyer made payments, leaving an unpaid balance of $1,264.01.

Thereafter, in January 1967 plaintiff Integrity Insurance Co. paid the bank the sum of $1,230.21 and received an oral assignment of its claim aaginst the buyer. Integrity now sues the buyer for that sum.

Integrity takes the position that it paid the bank as a result of the assignment and not under its policy obligations, and that in consequence it is not subject to the policy provision relinquishing its subrogation rights.

Integrity’s brief suggests that there was a question as to whether the loss was covered by the endorsement received by the bank from Integrity, “since the date of loss was unknown to the bank and was unable to be confirmed by the plaintiff.” As to this the stipulation is silent. The reasonable inference is that Integrity paid money to the bank because it felt it had some exposure on the policy. Purchase of accounts receivable of questionable collectibility is hardly a normal insurance company investment, even though it may technically have the right to do so under N. J. S. A. 17:24r-1(g)-

Integrity argues that if the buyer is held to be covered by the insurance policy, he will get something for which he has not paid, and will therefore be unjustly enriched. On the other hand, if Integrity, which has been paid a premium for the policy, makes no payment under it, but recovers more than the loss from the buyer, it also may be unjustly enriched.

It is apparent that the bank and Integrity had a choice as to whether to treat the transaction as an assignment or payment under the policy. The mere fact that there was an oral assignment between a bank and an insurance company is enough to set the mind in operation. That an insurance company paid more than it was obligated to pay under the policy does not allay the suspicion. If there was doubt as to insurance coverage, why did not the parties determine the matter by litigation or arbitration, as is the normal practice? I cannot escape the conclusion that the bank and Integrity agreed to consider the transaction an assignment, and not a payment under the policy, because it was more advantageous for them.

The fact that the bank did not charge the buj^er for the insurance cannot be held against the buyer. The contract gave the bank full power to charge the buyer and to secure payment of the additional indebtedness under the security agreement.

The security agreement is clearly a contract of adhesion. See Unico v. Owen, 50 N. J. 101 (1967); Henningsen v. Bloomfield Motors, Inc., 32 N. J. 358 (1960). The great likelihood is that the buyer neither read, nor if he read could have understood the technical terms of this contract. Under the circumstances he is entitled, at the least, to the benefit of those contract provisions which are of advantage to him. Had he been a prud'ent business man and read the contract, it would have been reasonable for him to assume that if he did not get insurance, the bank would do so at his expense. The language in Mayfair Fabrics v. Henley, 97 N. J. Super. 116 (Law Div. 1967), aff’d Natell v. Henley, 103 N. J. Super. 161 (App. Div. 1968), is pertinent:

It is also settled that, if possible without doing violence to the plain meaning of the language used, a court will endeavor to give a construction to a contract which is most equitable to both parties and which will not give to one party an unfair or unreasonable advantage over the other. Washington Construction Co. Inc., v. Spinella, 8 N. J. 212 (1951); Tessmar v. Grosner, 23 N. J. 193 (1957). [at 123]

There the court held that a lease .which explicity exculpated a landlord from liability to the tenant should be held to mean that the tenant is also relieved from liability to the landlord because both parties agreed to insure their own property. The court said, “Their agreement should be construed to accord with the understanding of reasonable businessmen.” There is no reason why there should not be a similar construction here, at least to the extent of holding that since the bank covered the ear by insurance, even though not obligated to do so, the buyer is entitled to the benefit of it.

The security agreement is governed by the Uniform Commercial Code, which provides in pertinent part:

Every contract or duty within this Act imposes an obligation of good faith in its performance or enforcement. IN. J. S. A. 12A :l-203]

The Uniform Commercial Code defines “good faith” as “honesty in fact in the conduct or transaction concerned.” N. J. S. A. 12A:1--201(19). The precise meaning of these terms has given rise to extensive discussion. Eisenberg, “Good Faith Under The Uniform Commercial Code — A New Look At An Old Problem,” 54 Marquette L. Rev. 1 (Winter, 1971); Summers, “Good Faith in General Contract Law And The Sales Provisions Of The Uniform Commercial Code,” 54 Va. L. Rev. 195 (March 1968). Both writers point out that the obligation of “good faith” in contract performance is not new. Eisenberg (at 2) refers to the definition of good faith in the Code as “nebulous.” Both he and Summers suggest:

Good faith, as judges generally use the term in matters contractual, is best xmderstood as an “excluder” — a phrase with no general meaning or meanings of its own. Instead, it functions to rule out many different forms of bad faith.

It is clearly the law that performance in “good faith” is implied as a matter of general contract law, but there is little point in a discussion of such cases, which offer little specific guidance in this situation. Cases under the Code are more pertinent. These demonstrate that the words “good faith,” as used in the statute, however nebulous they may be, have sufficient scope to warrant the conclusion that in this case Integrity’s conduct violated the statutory standard. In T & W Ice Cream, Inc. v. Carriage Barn, Inc., 107 N. J. Super. 328 (Cty. Ct. 1969), the holder of a security instrument was barred from recovery for a deficiency against endorsers because notice of sale had not been delivered to the endorsers in compliance with the requirements of the Code, although notice had been sent to the maker. The court said:

* * Therefore, because of the failure of the notice to fit within the provisions of N. J. S. A. 12A:1-201 (26) and because of the requirement of N. J. S. A. 12A:l-203 that “Every contract or duty within this Act imposes an obligation of good faith in its performance or enforcement,” the court holds that the notice given by T & W Ice Cream to Carriage Barn cannot be imputed to the accommodation endorsers, Nuckel and Sergent. [at 335-336]

See also Urdang v. Muse, 114 N. J. Super. 372 (Cty. D. Ct. 1971), in which declaration of a default under an acceleration provision in a retail installment sales contract after rejection of a tender of $900 on account of an indebtedness of $1180.71 was considered a breach of the Code obligation of good faith.

In Skeets v. Universal C. I. T. Credit Corp., 335 F. 2d 846 (3 Cir. 1964), a finance company, by its conduct, had led an automobile dealer to believe that loans would be renewed even though cars were missing on ear check. The court held that the obligations of good faith imposed by the court prevented the finance company from exercising its rights under the security agreement. The court said:

In the present case a jury could not easily avoid the conclusion that it would be grossly improper and inconsistent with good faith dealing for a secured creditor, aware that his debtor had defaulted on currently due loan repayments, to persist in assurance that he was about to make further advances of needed operating capital, and then, without notice, exercise his security rights to seize the delinquent debtor’s entire stock in trade, [at 851]

Other cases in which the Code provision has been held to impose obligations of good faith are: Theo. Hamm Brewing Co. v. First Trust & Savings Bank, 103 Ill. App. 2d 190, 242 N. E. 2d 911 (App. Ct. 1968); Thompson v. United States, 408 F. 2d 1075 (8th Cir. 1969).

It is sufficient that intelligent businessmen would have understood this contract as meaning that the buyer would be covered by any insurance actually obtained. In my view, the Bank’s action in converting a transaction which clearly contemplated insurance, into an assignment which would have the effect of depriving the buyer of the waiver of subrogation provision, was not “good faith.” The consequences of this determination are that both the Bank and Integrity, which stands in the position of the bank, cannot be heard to argue that Buyer has been unjustly enriched by such an interpretation of the contract, particularly since Integrity itself will be unjustly enriched by a contrary interpretation.

Finally, the buyer argues that the fact that Integrity chose to denominate the transaction “an assignment”, makes it nonetheless a payment under the policy, and therefore subject to the waiver of subrogation provision. Although the question seems not to have been decided in New Jersey, decisions in other jurisdictions support the buyer’s position. A leading case is Meyers v. Bank of America, etc., Ass’n, 11 Cal. 2d 92, 77 P. 2d 1084 (Sup. Ct. 1938). There plaintiff’s office manager forged the names of payees on checks and misappropriated the proceeds upon payment by the bank. Plaintiff was reimbursed by the surety company, which had a right to subrogation under its bond. At the time of reimbursement plaintiff assigned his cause of action against the bank to the surety. The surety, pursuant to the assignment, brought action against the bank for wrongfully paying on the forged endorsements. It was held error to grant judgment in plaintiff’s favor on the ground that defendant bank was innocent of wrongdoing.

The California court treated the case as one of subrogation despite the assignment and balanced the equities between the surety and the bank. In determining that the case should be treated as one of subrogation rather than assignment the court quoted from 60 C. J. 749 as follows:

On the other hand, it seems that, if the surety is not entitled, to subrogation, an assignment by the creditor will be ineffectual to give the surety a right of subrogation he would not otherwise have. [77 P. 2d at 1086; emphasis added]

At the same page the court said:

Under these eases the conclusion seems inevitable that one who asserts a right of subrogation, whether by virtue of an assignment or otherwise, must first show a right in equity to be entitled to such subrogation, or substitution, and that where such right is clearly shown by the application of equitable principles, an assignment adds nothing to his x-ight thereto. Othexrsvise stated, whereby the application of equitable principles, a surety has been foxxnd not to be entitled to subrogation, an assignment will not confer upon him the right to be so substituted in an action at law upoix the assignment. His rights must be measured by the application of equitable principles in the first instance, his recovery being dependable upon a right in equity, and not by virtue of an asserted legal right under an assignment. With these conclusion as a premise, we shall proceed to an examination of the line of cases relied upon by appellant bank as authority for its contention that in equity respondent has no right of subrogation under the facts of this case.

Meyers, supra, was followed in this respect in American Surety Co. v. Western Surety Co., 71 S. D. 126, 22 N. W. 2d 429 (Sup. Ct. 1946); Oxford Production Credit Assn. v. Bank of Oxford, 196 Miss. 50, 16 So. 2d 384 (Sup. Ct. 1944); American Surety Co. v. Bank of California, 133 F. 2d 160 (9th Cir. 1943); United States Fidelity & Guaranty Co. v. First National Bank in Dallas, 172 F. 2d 258 (5th Cir. 1949).

In its ultimate holding that the surety could not recover because the paying bank was innocent of wrongdoing, Meyers is at variance with Standard Accident Ins. Co. v. Pellecchia, 15 N. J. 162 (1954) in which it was held under facts similar to those before the California Court, that the surety may recover from the innocent bank only if it is itself free from inequitable conduct. However, Standard Accident Ins. Co. does not impeach the rule laid down in Meyers, supra, and the other cited cases, that a subrogee may not improve his position by taking an assignment.

This having been determined, it is clear that plaintiff must be viewed as a subrogee and that as such its rights are completely barred. Ganger v. Moffett, 8 N. J. 73 (1951); Mayfair Fabrics v. Henley, supra.

Plaintiff is entitled to be in the same position as if it had properly performed the contract, but no better. Defendant has already paid much more than the insurance premium on account of the so-called “deficiency”. There will therefore be a judgment for defendant.


source: Caselaw Access Project

author: McKenzie, J. D. C.

license: Public Domain

text:
    FREEDOM FINANCE CO., INC., A CORPORATION OF THE STATE OF NEW YORK, PLAINTIFF, v. ALEX FLECKENSTEIN AND MARION M. FLECKENSTEIN, DEFENDANTS.
    District Court Union County
    Decided October 12, 1971.

      Mr. John 8. Oiava, attorney for plaintiff.

      Mr. Robert Brotman, attorney for the defendants (Union County Legal Services Corp.).
   McKenzie, J. D. C.

Plaintiff recovered judgment against defendants in the total sum of $1,162.32 on March 11, 1971. The judgment not having been paid, plaintiff applies for an order directing defendants to pay out 10% thereof of their income.

It appears that defendant’s only substantial source of income is a monthly pension in the sum of $247.85, received by defendant husband under the Railroad Retirement Act (45 U. 8. C., § 228a et seq.), and a $42.51 monthly pension from the Pennsylvania Railroad Co. Although plaintiff disputes this, its allegations of additional income are based on suspicion rather than facts and are therefore rejected.

The Railroad Retirement Act of 1937, under which the defendant husband receives his pension, provides in part as follows:

Notwithstanding any other law of the United States, or of any State, Territory, or the District of Columbia, no annuity or pension payment shall bn assignable or be subject to any tax or to garnishment, attachment, or other legal process under any circumstances whatsoever, nor shall the payment thereof be anticipated. [45 77. S. 0., § 2287]

The question presented to the court is whether the section cited prohibits the relief sought by plaintiff, who takes the position that a court order directed to the pensioner to make payments from income to the judgment creditor is not included in the exemption.

It has been said there is a division of authority as to whether exemptions continue to apply to pension payments once they have reached the hands of the pensioner. 35 G. J. 8., Exemptions, § 43. However, an analysis of the eases indicates that each ease necessarily turns on the construction of the specific exemption statute involved. Thus where the former federal statute (U. 8. Rev. 8tai., § 4747) governing all pensions for government employees provided for an exemption which by its terms was limited to payments still in the pension office or in the course of transmission to the employee, it was held that the exemption status was lost when it reached the pensioner. McIntosh v. Aubrey, 185 U. S. 122, 22 S. Ct. 561, 46 L. Ed. 834 (1902). See also Asbury Park and Ocean Grove Bank v. Dam, 16 N. J. Misc. 285 (Dist. Ct. 1935).

Similarly, where the exemption applied to “payments due” under the Workmen Compensation Act, N. J. 8. 34:15-29, it was held not to protect such payments after receipt by the claimant. Beierlein v. Faulkner, 15 N. J. Misc. 313 (Dist. Ct. 1937). On the other hand, a contrary result was indicated where the statute concerning veterans’ pensions provided for exemption “either before or after receipt by the beneficiary.” State v. Monaco, 81 N. J. Super. 448 (Law Div. 1963).

Plaintiff relies on Boylan v. Joyce, 123 N. J. L. 130 (1939), construing the exemption in our act for police and fire department pension funds, N. J. 8. 43:13-9, and holding that the exemption does not apply once the monies have reached the pensioner. While that case might be distinguished because of the difference in the language employed in the respective statutes, suffice it to say that Boylan has not been followed or cited by any subsequent case and must be considered as having withered on the vine. Thus, in Fischer v. Fischer, 13 N. J. 162 (1953), our Supreme Court, interpreting the same exemption, permitted the garnishment of the pension by the wife under an alimony order, but made it clear that this was due to the favored suitor class of the pensioner’s wife. Justice Helier, writing for the majority, said:

* * * it is abundantly clear that the policy of the immunity provision is to shield the pensioner against the coercive remedial and executorial processes available to creditors, and thus to secure the pensioner and his family against improvidence and want, [at 167]

Plaintiff also relies on the Pennsylvania case of Commonwealth v. Berfield, 160 Pa. Super. 438 (Super. Ct. 1947), the only case brought to the attention of the court interpreting the specific provision in question in the present ease, and allowing legal process against the pension funds. However, there again the party seeking the funds was the wife of the pensioner, attempting to enforce an order for support. The Pennsylvania court also was specific that the relief was granted to her only because the support obligation of the pensioner arises from the marital status and the legal unity of husband and wife, rather than from a debt founded on contract, concluding:

* * * a wife may look to a fund payable to her husband hotoever safeguarded by law, or by the language of its creation, from attachment by others. [Emphasis added]

The portion of that opinion holding that the purpose of the exemption is “solely” to relieve the government agency of the burden in the handling of funds which would result if legal process attached is not in accord with the philosophy concerning such statutes as expressed by our New Jersey Supreme Court, as cited above.

The purpose of statutory construction is to bring the operation of the statute within the apparent intent of the Legislature. Nagy v. Ford Motor Co., 6 N. J. 341 (1951). Thus, the construction of the statute may be enlarged or restrained according to the evident sense of the lawgiver. State v. Mair, 39 N. J. Super. 18 (App. Div. 1956).

It is the policy in New Jersey to favor exemptions from civil process in eases of pension funds, and such exemptions should therefore be liberally construed in favor of the pensioner. Hoffman v. Hoffman, 8 N. J. 157 (1951); 31 Am. Jur. 2d, Exemptions, § 97 at 415; cf. Guardian Loan Co. of Plainfield v. Baylis, 112 N. J. Super. 44 (Dist. Ct. 1970). The purpose of the exemption is to protect from dissipation the usually small amounts which pensioners and their families receive to carry them through their later years, when often they have little if any income from other sources. See Thiel v. Thiel, 41 N. J. 446 (1964); Fischer v. Fischer, supra; State v. Monaco, supra; Essex County Welfare Bd. v. Philpott, 104 N. J. Super. 280 (Law Div. 1969), rev’d on other grounds 59 N. J. 75 (1971). It is noteworthy in the latter case that, in reversing the lower court, the Supreme Court pointed out that the funds for which the exemption was disallowed were accrued moneys rather than current benefits necessary for the recipient’s support and maintenance. 59 N. J. at 83.

And it is obviously no solace to one existing on a marginal financial basis to be told that he is protected because only 10% of his income is to be directed to the payment of a judgment. Therefore, to allow the relief requested by plaintiff would obviously thwart the beneficial purposes intended by Congress in providing an exemption for pension funds paid to retired railroad men.

This court therefore adopts the view that the intent of the exemption in question is not limited to the funds before they reach the pensioner, but also covers monies derived from the pension payments in the hands of the pensioner.

There is authority for the view that the exemption even continues as to real or personal property purchased with pension fund proceeds, insofar as the same can be traced and identified. Yates County Nat. Bank v. Carpenter, 119 N. Y. 550, 23 N. E. 1108 (Ct. App. 1890); 31 Am. Jur. 2d, Exemptions, § 97. However, it is not necessary to determine this issue in the present case.

The motion for an order to pay out of income is therefore denied.


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

text:
    WILLIAM T. WATSON, PLAINTIFF-APPELLANT, v. JOHN J. FARRELL, CHIEF EXAMINER AND SECRETARY OF THE NEW JERSEY STATE CIVIL SERVICE COMMISSION, DEFENDANT-RESPONDENT.
    Superior Court of New Jersey Appellate Division
    Submitted October 5, 1971
    Decided October 18, 1971.

      Before Judges Sullivan, Leonard and Cakton.

      Mr. George B. Wiggs attorney for appellant.

      Mr. George F. Kugler, Jr., Attorney General of New Jersey, attorney for respondent {Mr. David 8. Litwin, Deputy Attorney General, of counsel and on the brief).
   The opinion of the court was delivered by

Sullivan, P. J. A. D.

William T. Watson was declared ineligible to take the promotional examination for the position of Deputy Eire Chief, Jersey City, because he had not served as a Battalion Chief in a permanent capacity for at least 12 months immediately preceding the announced closing date for filing applications for such examination as required by N. J. A. C. 4:8-6(2).

Watson had received a permanent appointment as Battalion Chief on December 29, 1969. The announcement by Civil Service of a promotion examination for Deputy Eire Chief was on August 28, 1970 and fixed a closing date of September 25, 1970.

Watson filed an application to take this examination in which he acknowledged that he had not served as a Battalion Chief in a permanent capacity for 12 months prior to the closing date, hut claimed that he had served as a Battalion Chief on an acting or temporary basis from June 26, 1969 up to the date of his permanent appointment as Battalion Chief. Watson contended that his overall service as a Battalion Chief, 6 months acting and 9 months permanent, satisfied Civil Service requirements. Civil Service, as heretofore noted, ruled that he was not eligible to take the promotion examination. The appeal is from such ruling.

Appellant contends that (1) his temporary and permanent service as Battalion Chief satisfied Civil Service requirements; (2) if N. J. A. G. 4:8-6 (2) be construed to exclude his temporary service, it is arbitrary and unreasonable and must be declared invalid; and (3) that he was entitled to a hearing as to the adequacy of his de facto performance as Battalion Chief.

We find no merit in any of appellant’s contentions. Good reason exists for requiring an employee to serve some specified time in a lower class before becoming eligible for promotion. Consequently, the underlying statute, N. J. 8. A. 11:22-34, empowers Civil Service to fix a minimum time of service in the lower class as a condition of eligibility for taking a promotional examination. Pursuant thereto, Civil Service has adopted a uniform regulation which provides that to qualify for promotional examination an applicant must have been employed in the lower class for at least one year after regular appointment. Ho basis for declaring this rule to be arbitrary and unreasonable has been shown.

We also conclude that appellant’s temporary or de facto service may not be considered as satisfying the one-year service requirements. Civil Service has little control over temporary or acting employees and has no practical way of determining the value of whatever experience they might have gained since it cannot be certain of the duties performed. Since temporary appointments lack safeguard controls by Civil Service, it has never considered service under a temporary appointment to be a substitute for service under a permanent appointment. We concur.

Appellant argues that he was entitled to a hearing as to the adequacy of his de facto experience as Battalion Chief. However, the basic facts are undisputed and since we agree that, as a matter of policy, service in a temporary or acting capacity cannot be considered in determining appellant’s eligibility, there was no need for a hearing.

Affirmed.

      New Jersey Administrative Code.


author: Per Curiam.

text:
    STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT, v. HARRY NELSON, DEFENDANT-APPELLANT.
    Superior Court of New Jersey Appellate Division
    Argued September 27, 1971
    Decided October 20, 1971.

      Before Judges Coneoed, Matthews and Eeitz.

      Mr. Stanley G. Van Ness, Public Defender, argued the cause for appellant {Mr. Richard Newman, Designated Counsel, of counsel and on the brief).

      Mr. Rollin S. Neal, Assistant Prosecutor, argued the cause for respondent.
   Per Curiam.

We find no error in the denial of an acquittal at the end of the State’s case or at the close of the whole case. The State’s case would have been thin had defendant not elicited on cross-examination of Officer Mc-Clutchy that the witness had received a complaint from Mr. Doolan, who told him that three black men were coming to his home in Borgenfield at about 7 p.m. in a car with New York license plates to sell heroin to Doolan’s son. That proof, taken along with all the other evidence, justified a denial of the motion for acquittal.

Defendant contends that since the State adduced the testimony of Frazier, one of the alleged conspirators, who purported to exculpate defendant of any knowledge of the purpose of the trip to New Jersey, it is conclusively bound thereby, even though inculpatory testimony was also adduced by the State. He cites United States v. Vazquez, 319 F. 2d 381 (3 Cir. 1963). The case is not authority for the proposition asserted. The court there held that where a government witness’ testimony negated an essential incriminating fact it was bound thereby “since nowhere in the record is it [the testimony] contradicted” (at 386). Here contradictory inferences were available from the proofs other than Frazier’s testimony. On principle, we do not agree with the rule projected by defendant. If the State conscientiously adduces all available testimony, including some which is exculpatory if believed but which is of debatable credibility, it ought not to be foreclosed of the opportunity to seek a conviction on other proof which is affirmatively incriminatory.

Defendant’s second ground of appeal is the court’s granting, over objection, of the State’s request that defendant roll up his sleeves and exhibit his arms to the jury. We agree this was improper in the absence of any representation by the State that such exposure would show narcotics needle marks. However, we find no prejudice in view of the State’s assertion, which defendant is not able to controvert, that when the arm was exhibited no needle marks were apparent. Earlier in the trial defendant had failed to object when the State offered proof that at the time of the arrest defendant showed symptoms of being under the influence of narcotics. Defendant’s intimation that admission of such proof was plain error does not have our concurrence. When the charge is conspiracy to possess and sell a narcotic drug it would seem that the fact of defendant’s being under the influence of a drug at the time of the overt act is not irrelevant. We do not find the exclusionary principle of State v. Mathis, 47 N. J. 455, 471-472 (1966), to be a persuasive analogy.

Affirmed.


author: Goldmann, P. J. A. D.

text:
    STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT, v. DANIEL YORK, JR., DEFENDANT-APPELLANT.
    Superior Court of New Jersey Appellate Division
    Argued October 18, 1971
    Decided October 22, 1971.

      Before Judges Goldmann, Collester and Mintz.

      Mr. Matthew M. Keshishian argued the cause for appellant (Messrs. Krugman, Ohapniclc, Grimshaw & Dubow, attorneys).

      Mr. Fred H. Kumpf, Deputy Attorney General, argued the cause for respondent (Mr. George F. Kugler, Jr., Attorney General, attorney).
   The opinion of the court was delivered by

Goldmann, P. J. A. D.

Defendant was indicted for unlawful possession of heroin, in violation of N. J. 8. A. 24:18-4. Prior to trial lie moved to suppress the evidence, claiming it was the result of an unlawful search and seizure. The motion was denied, defendant tried to a jury, found guilty, and sentenced to a state prison term of 4-6 years and fined $100.

On this appeal defendant first argues that the trial judge erred in denying his motion to suppress because the police did not have probable cause to search and arrest. Their search and seizure, he avers, violated his constitutional rights, and therefore the glassine packet containing the heroin in question should not have been admitted in evidence.

At the hearing on defendant’s motion to suppress the court heard the testimony of two of the three arresting officers, members of the Paterson Narcotics Squad, whose qualifications and credentials were stipulated by defense counsel. Officer Clark testified that just before noon of June 23, 1969 he was on routine patrol in an unmarked police car with two other members of the squad, Officers Brejaclc and Hutchinson, in the area of Bridge Street, Paterson. There is a heavy traffic of narcotics users in that area, at least 100 narcotics arrests having been made there in the last year. Clark said that he and other members of the narcotics squad had had defendant under surveillance for several days prior to the event in question since he was suspected of being involved in the narcotics traffic because of his association in the area with known narcotics violators. When the witness saw defendant walking north on Bridge Street he and his two companions decided to follow him, and when defendant went into a candy store they circled the block, got out of the patrol car, and positioned themselves behind a building at the intersection of Bridge and Godwin Streets, north of the store. Defendant eventually left the store and walked north on Bridge toward the corner where the officers were concealed. Clark testified that he had noticed a young man walking some foirr or five feet behind defendant. When defendant reached the corner the officers stepped out from their hiding place and came up to defendant, surprising him. They saw him turn around, hand a folded handkerchief to the young man behind him and heard defendant say something to him. The youth was about to put the handkerchief into his pocket when the officers moved in on the pair. Officers Clark and Brejack intercepted defendant, and Officer Hutchinson stopped the youth and without resistance confiscated the handkerchief. Clark testified that at that moment he saw a glassine packet of white powder fall from the handkerchief. The youth identified himself as Harry Robinson. A search of defendant revealed no contraband.

The trial judge permitted Clark, over defense counsel’s objection, to testify to a statement Robinson had made to the officers, within defendant’s presence and hearing. What Robinson said was that he had never seen defendant before and that defendant gave him a handkerchief and told him to put it in his pocket. The judge held the statement part of the res gestae, i. e., part of the surrounding circumstances under which the seizure took place, and allowed it on the issue of whether the search and seizure was reasonable.

Officer Hutchinson corroborated Clark’s testimony, adding that defendant looked in the direction of the officers when they started toward him, just before the attempted transfer. The young man attempted to put the handkerchief, balled up in his fist, into his pocket, but then stopped and released it to Hutchinson. The officer placed him under arrest, searched him and found nothing.

Based on this testimony the trial judge ruled there was probable cause for the search, and that the search and seizure was reasonable. He found that there was considerable narcotics traffic in the area; defendant had been, and at the time in question was, under surveillance for traffic in narcotics, and the sudden transfer of the handkerchief was in itself a suspicious transaction. These conclusions were stipulated by defense counsel. The trial judge denied the suppress motion.

The first trial resulted in a mistrial when defendant chose not to continue with 11 jurors, after one of them had become ill. Eobinson testified for the State at that trial.

The first day of the second trial consisted of Officer Brejack’s testimony, which corroborated that of the officers who had testified at the suppress motion hearing. On the second trial day, and just before the jury entered the courtroom, defense counsel notified the judge that defendant requested permission to address the court. The judge twice warned defendant that anything he said could be used against him, and that what he was doing was against the advice of his attorney. Defendant nonetheless still desired to address the court, and accordingly was permitted to do so. He then advised the judge that the trial should be stopped because Eobinson had decided to change his prior testimony and tell the truth. After some discussion the judge inquired of the prosecutor if he was ready to take Eobinson’s testimony. It was decided to have Eobinson testify out of the presence of the jury. After he was sworn the trial judge cautioned him as to the consequences of his failure to tell the truth under oath. Eobinson then testified that it was he who was in actual possession of the heroin at all times; he did not know defendant; defendant had not given him anything, and the handkerchief was his. He added that Officer Clark grabbed Mm, took the heroin out of his pocket, and told him to say that defendant had given the packet to Mm. Eobinson admitted he had lied at the first trial.

The prosecution moved for a mistrial — a motion we find startling, to say the least. Defense counsel (not present counsel), with equally remarkable obtuseness, objected, stating that he did not consider the prosecutions’ surprise a sufficient ground for a mistrial. lie asked that the trial continue. Shortly after this, defense counsel, suddenly recognizing the advantage that would be his, withdrew his objection and said he would rely upon the judge’s discretion. The judge thereupon asked the prosecutor whether he was aware of the effect should the mistrial motion bo granted, and when he answered in the negative the trial was recessed so that he might confer with his superiors to learn what the consequences would be. Eollowing the recess the prosecutor, now enlightened, withdrew the motion. Defense counsel stated that he had no objection. The jury was then brought back and the trial continued with the State calling the other two arresting officers, who testified substantially as they had on the motion to suppress. The State closed its case without calling Robinson to the witness stand.

Robinson was the first witness for the defense. On direct examination he testified substantially as he had that morning out of the presence of the jury, adding that he was a narcotics user himself. On cross-examination the prosecutor questioned him as to the contents of a signed statement he had given the police at the time of his arrest, pointing up the conflicts between his testimony and that given at the first trial with respect to the events leading up to the arrest. Defendant then took the witness stand in his own behalf and substantially corroborated Robinson’s testimony.

We are satisfied that the motion to suppress was correctly denied in light of what the arresting officers knew and saw at the time in question, and which we have detailed earlier in this opinion. There was every reason for the officers to have probable cause to believe that a crime was being or had been committed. To hold otherwise would fly in the face of the “factual and practical considerations of every day life on which reasonable men, not legal technicians act.” Brinegar v. United States, 338 U. S. 160, 175, 69 S. Ct. 1302, 93 L. Ed. 1879 (1949), cited and quoted with approval in State v. Burnett, 42 N. J. 377, 386-387 (1964).

As the court in State v. Romeo, 43 N. J. 188, 203 (1964), observed, the traffic in drugs is carried on “cautiously and furtively and in as many different ways and by as many conceivable methods as human ingenuity can devise in order to escape detection and criminal consequences.” It is within this framework that we must view what happened here. The officers were acting on something more than mere raw suspicion; what they knew of the area and defendant’s associations, as well as what they observed, shows that what they did was well grounded in the totality of the facts and circumstances of the case. See State v. Contursi, 44 N. J. 422, 430-431 (1965); State v. Miller, 47 N. J. 273, 278 (1966). In considering the totality of circumstances there must be included the knowledge and specialized experience narcotics squad officers have as to the methods and devices of narcotics users.

Wo find without any support in the record defendant’s claim that the arrest occurred when the officers first stepped out from behind the building and approached him, before any transfer had taken place.

Defendant suggests that the search of Eobinson was unreasonable and therefore constitutionally prohibited. We need go no further than to say that what Officer Hutchinson did was reasonable in light of the facts and circumstances already outlined. He and his colleagues acted upon an entirely reasonable premise, when they saw defendant turn and give the handkerchief to Eobinson, that more than just a handkerchief was involved and that in all probability there was an attempt to transfer narcotics.

What was done here was, moreover, necessary to preserve the evidence from possible destruction or removal — a result which certainly would have been invited had the officers been obliged to first obtain a search warrant. The situation was urgent; the officers cannot be faulted for acting upon the practical knowledge they had gained in narcotics work and which informed them as to how readily this type of evidence can be gotten rid of. Cf. State v. Santos, 101 N. J. Super. 98 (App. Div. 1968), certif. den. 52 N. J. 171 (1968).

Defendant further claims that there was an abuse of judicial discretion when the trial judge allowed defendant and Eobinson to testify outside the presence of the jury •—• this, he says, to the State’s advantage and his detriment. A defendant should not be permitted to raise as error a course of action in which he persisted against the advice of counsel and the trial judge’s warnings, and which resulted in precisely what he desired and urged. We note that no objection was made to defendant’s addressing the court or to Robinson’s testifying. If the matter is to be considered at all, it must be under the plain error rule, B. 2:10-2. We can see no possible reason for applying that rule, concluding as we do that what happened did not result in a manifest denial of justice to defendant.

Defendant asserts that the trial judge usurped the jury’s function of determining the credibility of witnesses when he heard the testimony of Robinson out of its presence, after learning that he had changed his story. How this procedure could have influenced the jury escapes us; it was still left for the jury to decide whether to believe or disbelieve Robinson.

Defendant also urges error because the trial judge allowed a recess so that the prosecuting attorney might consult his superiors as to the consequences that would follow upon the granting of his mistrial motion. Again, defendant did not object. To apply the plain error rule would be unreasonable, for we find it difficult to see how the trial judge’s exercise of discretion, which resulted in the very end desired by defendant, can now be urged as an abuse of discretion. Here, too, we find no unjust result visited upon defendant.

Affirmed.


author: Kilkenny, P. J. A. D.

text:
    STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT, v. MACK WADE, DEFENDANT-APPELLANT.
    Superior Court of New Jersey Appellate Division
    Argued September 28, 1971
    Decided October 19, 1971.

      Before Judges Kilkenny, Labbecque and Lane.

      Mr. Louis Ruprecht argued the cause for appellant (Messrs. McGlynn, McGlynn, Ruprecht & Graham, attorneys, by designation of the Public Defender of the State of New Jersey.)

      Mr. John P. Goceljdk, Assistant Prosecutor, argued the cause for respondent (Mr. Joseph D. J. Gourley, Passaic County Prosecutor, attorney.)
   The opinion of the court was delivered by

Kilkenny, P. J. A. D.

Defendant was found guilty by a jury of robbery, N. J. S. A. 2A:141-1. He was sentenced to be confined in the New Jersey State Keformatory for Males, Youth Eeception and Correction Center at Yardville, for an indeterminate term. Defendant appeals from the judgment of conviction.

Before considering the several grounds advanced for a reversal, we summarize the factual background as demonstrated by the trial testimony.

On January 12, 1970, about 4 p.m., Ada Wilkes was walking in the road up Buffalo Avenue, in Paterson, the sidewalks being covered with ice and snow. She was on her way home, after having mailed a letter. She was facing the traffic when a car sped by her with two Negro occupants. It was a dark blue car with a black vinyl top bearing New York license plates. When she came to the intersection of Buffalo and Earitan Avenues, it stopped very abruptly. “The door opened and one of these negro fellows got out, left the door open. The driver of the car remained in the car. He kept racing the engine.”

The fellow who left the car walked toward Mrs. Wilkes, brushed her arm, “his eyes just pierced me.” She immediately became suspicious. He asked her if she knew where a Nutley Street was and, though she replied “no,” he kept asking the question two or three times while he kept looking at her and at her purse. He then “flipped” her in the air. He punched her in her right breast, knocked her to the ground, fractured two ribs and caused other painful injuries. After having seized Mrs. Wilkes’ purse, the assailant leaped to the open door of and entered the waiting and engine-roaring car, which then sped away.

Mrs. Wilkes was able to identify her assailant and did so at detective headquarters a very short while after the police caught up with the get-away car near the scene of the robbery. She also identified her purse which the police had found on the floor in the front of the car when they arrested the two Negroes — the actual robber of Mrs. Wilkes and the defendant who was then driving the ear. She was not able to identify defendant as the driver of the car who had kept its engine running and roaring at the scene of the robbery.

At the time of the robbery, Officers Torres and Robinson of the Paterson Police Department were on plain clothes duty in the vicinity of the incident in an unmarked car. After receiving a call over the car radio giving a description of the automobile used in the robbery and the details of the "mugging,” they observed nearby a Pontiac matching the description of the automobile, with New York license plates and two Negro male occupants. This was about a five-minute drive away from the scene of the robbery. Police Officer Torres identified defendant Wade in court as the driver of this car. Defendant was asked at the point of stoppage by the police for driver’s license and registration first and could not produce either. A purse, later identified by Mrs. Wilkes at headquarters and at trial as the one taken from her, was seen by the police on the floor in the front of the car on the passenger side. Defendant and the passenger were thereupon arrested and brought to headquarters. The purse was there turned over to Detective Zdanis.

Officer Robinson corroborated the testimony of Officer Torres as to receiving the dispatch over the radio, observing the car with New York license plates and two Negro male occupants, following the car, stopped by a red light, approaching it, seeing defendant in the driver’s seat (identified in court as the driver), seeing the purse in the front of the car on the floor (also identified in court), forcing the car door open, which defendant had tried to lock and which Robinson opened by force, handcuffing the men and then bringing them to headquarters.

Robinson testified, out of the presence of the jury, that “at the scene of apprehension” he personally advised defendant as to his rights and also advised him at headquarters. The advice was that defendant “had the right to remain silent * * * anything he said would be and could be held against him in a court of law. If he didn’t have an attorney we would supply one to him.” Robinson stated that defendant said at the scene that he understood his rights and nothing else “until he got to headquarters.” There, Detective Zdanis advised defendant similarly as to his rights in Robinson’s presence and defendant stated he understood his rights and would accept being interrogated. Robinson did not hear the interrogation.

Officer Torres testified out of the presence of the jury that, on the way to headquarters, defendant “said that he was driving the car. He didn’t hit the lady, it was his buddy who did it.” The trial judge found specifically that defendant was not properly advised of his rights at the scene of the arrest for want of completeness and excluded all admissions made prior to the complete recital of his rights at police headquarters, where his rights were fully read to defendant from a chart on the board. He found, however, that “the oral statements [at headquarters were] voluntary and admissible.”

During the course of Officer Torres’ testimony before the jury, he stated:

I was tliere when he said that he didn't assault the lady. He was— his partner, he was waiting in the car. He drove the car. I heard that. I heard when he admitted to the stolen car. (Emphasis added).

Defense counsel thereupon moved for a mistrial on the ground that the statement was “entirely irrelevant to this ease,” as well as being inflammatory and prejudicial to defendant. The prosecutor suggested that the matter “can be cured by proper instruction from the Court”; and he added that this one utterance “is not prejudicial to cause a mistrial.” The trial court denied the motion for a mistrial on the ground that the State was permitted to offer evidence for the purpose of establishing motive, plan, the absence of mistake or accident.

Defendant, according to testimony of Detective Zdanis who questioned him at headquarters, orally stated to the detective “that he was driving the car. Robert Davis took the purse to get money to buy gas for the ear.” On the voir dire examination of Detective Zdanis, conducted without the jury’s being present, the detective had also testified that defendant had orally told him that the vehicle itself had been stolen and the purse was taken to get gas money for the car. However, the prosecutor cautioned the detective that when the jury returned he was “not to mention anything about the stolen car.” The detective complied therewith in his testimony before the jury.

Defendant testified in his own behalf. He stated that he was given a ride by Davis, who let him drive. They were stopped by the police shortly thereafter. He denied ever having made any statements to the police.

I

Defendant contends initially that the trial judge never specifically found that defendant made the admissions to which Detective Zdanis testified. Although the trial judge referred to the statements as “alleged,” he did find they were voluntary and admissible. Implicit in such a finding is that defendant made those statements. The issue of fact was for the jury. This contention is spurious.

Likewise is the assertion that a finding, if made, is against the weight of the evidence. State v. Johnson, 42 N. J. 146, 161 (1964). A trial judge’s findings of fact “should not be disturbed unless they are so wholly unsupportable as to result in a denial of justice * * Greenfield v. Dusseault, 60 N. J. Super. 436, 444 (App. Div.), affirmed o.b. 33 N. J. 78 (1960). Such is not the situation here. In the instant case there was sufficient evidence to support the findings. An investigating officer heard the oral admissions of defendant. The fact that his report notes no such oral admissions does not make the finding “so wholly unsupportable as to result in a denial of justice.”

II

Defendant also maintains that, since the admission — in the police ear •— was held inadmissible because of a failure to satisfy Miranda v. Arizona, 384 U. S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966), the second one at headquarters, though after Miranda compliance, must also be excluded. The rationale is that the second admission was tainted. Defendant argues that once he had admitted his involvement no elucidation as to Ms rights could properly equip him to exercise those rights. See United States ex rel. B. v. Shelly, 305 F. Supp. 55 (S. D. N. Y. 1969), affirmed 430 F. 2d 215 (2d Cir. 1970). In that case, a sixteen-year-old boy, after a night of drinking at a family wedding, had stolen a car in the company of a friend. They were stopped by the police and attempted to escape but defendant was apprehended. After insufficient Miranda warnings, he was questioned and admitted his guilt; the warnings were immediately properly given and he again repeated the story. The court held all admissions should have been excluded.

[W|hen a suspect, in the rapid sequence of events present here, has already admitted his guilt, he will he far less likely to give intelligent consideration to later requests to waive his right to remain silent and to have counsel present, since he will regard them as meaningless. Id. at 218.

See also State v. Dickson, 82 N. M. 408, 482 P. 2d 916 (Ct. App. 1971).

In United States v. Bayer, 331 U. S. 532, 67 S. Ct. 1394, 91 L. Ed. 1654 (1947), defendant confessed prior to being properly arraigned. That confession was excluded, but one given after arraignment was admitted. Though affirming the action, the court indicated: “In such a sense, a later confession always may be looked upon as fruit of the first.” Id. at 540, 67 S. Ct. at 1398. The court also indicated that the mere fact that defendant had been disabled from making a usable confession at one time would not make him permanently disabled. The disability could be removed.

Thus, in United States v. Shea, 436 F. 2d 740 (9th Cir. 1970), the court held that a second confession was admissible where proper Miranda warnings intervened. The court said:

Here, the illegal taint, if any, of the first confession was completely removed by the full explanation to appellant of his Miranda rights prior to his making the second statement, the only one received in evidence. Id. at 742.

Defendant cites State v. Johnson, 106 N. J. Super. 295 (App. Div. 1969), to support his position. There at the outset of the interrogation defendant, unadvised of his rights, was asked if he knew “anything” about a certain robbery. Instead of a simple affirmative, non-inculpatory answer, he replied that he wanted to make a “clean sweep.” Before he could say anything more, he was then fully advised of his rights and, notwithstanding, make a statement. It was held by a divided vote of our court that the ultimate confession “was tainted by the poisonous tree of the illegally accomplished initial, general self-incrimination by defendant.” Id. at 299. The dissenting judge stated, however, that the original response was not barred by Miranda in that it was not the result of “interrogation.” Significantly, the Supreme Court reversed for the reasons set forth in the dissent. 55 N. J. 331 (1970). They added that the evideuce did not “support a finding that the warnings were ineffective on the thesis that the defendant felt The cat was already out of the bag.’ ”

Nor is Westover v. United States, 384 U. S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966), applicable. In that case defendant, unadvised of his rights, had been questioned at length by local police. The EBI were called in and, shortly after he was advised of his rights, he confessed. The court held that, in light of the impact of the continuous period of questioning while unadvised, an intelligent waiver of constitutional rights could not be assumed.

In the instant case, defendant’s rights were fully and completely explained to him at the police station and yet he consented to the “'questioning.” The trial judge found that he understood those rights and that the statement was voluntary. The second statement can therefore be considered to be free from the taint of the first.

The evidence herein was properly admitted.

Ill

Defendant next argues that the court erred in not explaining to the jury the burden of proof to be borne by the State in establishing that defendant had waived his rights prior to making the statement. The trial court clearly explained the three-fold finding which the jury had to make, namely, (1) that the defendant made the statement after he was advised of his constitutional rights, (2) that the defendant knowingly and intelligently waived such rights, and (3) the statement was given voluntarily. Although he did not emphasize it at that point, it was fully explained to the jury that the burden of proof was on the State to prove the elements of the crime beyond a reasonable doubt.

Moreover, no objection was made or exception taken. It does not appear that the jury was misled, and the error, if any, did not have the clear capacity to bring about an unjust result. B. 2:10-2.

IV

Defendant also complains that the court did not charge larceny or larceny from the person. There were no requests to charge these crimes. Nor was there evidence which would support either of them. It is uncontroverted that Mrs. Wilkes was “robbed.” The controverted issue in the case was the identity of the man driving the car. Nor is there any evidence that the assailant “exceeded authority” in robbing. The failure to charge these lesser crimes does not demand a reversal.

V

Defendant claims that the prosecutor’s use of terms “mugging” to describe the robbery, and “criminal” in referring to defendant, denied him a fair trial. It is significant that the term “mugging” was first used by Mrs. Wilkes, and that defendant did have a prior conviction. Even if the prosecutor’s remarks were considered improper, it is difficult to see them as so exceeding the bounds of fairness and propriety as to require a reversal. The criminal trial is not conducted with the sobriety of a lecture hall, and both defense attorney and prosecutor will make appeals to the emotions. State v. Johnson, 31 N. J. 489, 510-511 (1960); see also State v. Wilson, 57 N. J. 39, 50 (1970). We find no valid basis for a reversal because of the claimed improper conduct on the part of the prosecutor.

VI

The trial judge held that the testimony by Officer Torres that he heard defendant refer to the automobile driven by him as “stolen,” was in fact admissible under Rules of Evidence, rule 55, citing State v. Kociolek, 23 N. J. 400 (1957), and State v. Smith, 55 N. J. 476 (1970). Under that rule evidence of other crimes is admissible “to prove some other fact in issue including motive, intent, plan, knowledge, identity, or absence of mistake or accident.” In the instant case, the trial judge found that the fact that defendant admitted the auto had been stolen showed a “plain” or “motive” since the victim had been robbed to obtain money to pay for gas. However, it does not so follow logically. The status of the car as stolen or owned adds nothing to the issue of defendant’s involvement in the robbery. The rule was intended to have been utilized carefully and evidence admitted only where absolutely necessary. See Report of the New Jersey Supreme Court Committee on Evidence, 103 (1963). This evidence should not have been admitted.

However, in light of the overwhelming evidence of defendant’s guilt it would be difficult to consider this reversible error. If the jurors believed the testimony of the officers that the confession was made, they would find defendant guilty. If they believed defendant, that he was an innocent companion and never made a statement, the status of the car would not affect his innocence. In light of the other evidence — the uncontradicted proof of the robbery and the strong circumstantial evidence demonstrative of defendant’s participation therein — admission of this challenged item of evidence should not be considered reversible error under the totality of the proofs herein. R. 2:10-2; cf. Harrington v. California, 359 U. S. 250, 89 S. Ct. 1726, 23 L. Ed. 2d 284 (1969).

The judgment of conviction is affirmed.


text:
    EVA GRANT, PETITIONER-RESPONDENT AND CROSS-APPELLANT, v. BLAZER COORDINATING COUNCIL OF YOUTH DEVELOPMENT, RESPONDENT-APPELLANT AND CROSS-RESPONDENT.
    Superior Court of New Jersey Appellate Division
    Argued October 12, 1971
    Decided October 26, 1971.

      Before Judges Goldmann, Collestek and Mintz.

      Mr. Martin B. Wallerstein argued the cause for respondent-appellant (Messrs. Morgan, Melhuish, Monaghan, Mc-Coid and Spielvogel, attorneys).

      Mr. Irving Silverman argued the cause for petitioner-respondent (Messrs. Jacobson and Silverman, attorneys).
   Per Curiam.

This is a workmen’s compensation case. Respondent appealed to the County Court from the determination of the Division of Workmen’s Compensation. The County Court modified petitioner’s award by excluding from its computation the $84 monthly welfare payment she was receiving prior to and during the course of her employment.

Respondent appeals from the whole of the County Court judgment. Petitioner cross-appeals contending that the County Court erred in reducing the original award.

Respondent contends: (1) petitioner was not its employee when she sustained her injury; (2) error in the amount of the counsel fee awarded to petitioner’s counsel, and (3) the entire counsel fee should not have been assessed against it. The County Court opinion reported in 111 N. J. Super. 125 (1970) fully recites the salient facts essential to a resolution of the respective appeals.

We conclude that the County Court’s determination of the existence of an employer-employee relationship and the modification of the award was reasonably reached on sufficient credible evidence present in the record considering the proofs as a whole, with due regard to the expertise of the Judge of Compensation and his opportunity to appraise the credibility of witnesses. Close v. Kordulak Bros., 44 N. J. 589 (1965).

The Division of Workmen’s Compensation allowed petitioner’s attorney a fee of $300 based upon an award of $1,525.50, and assessed $180 of the fee against respondent and $120 against petitioner. This allowance was within the 20% statutory limit, N. J. S. A. 34:15-64, and the respective assessments were within the sound discretion of the Judge of Compensation. However, when the County Court properly reduced petitioner’s award to $678, the $300 attorney’s fee it allowed obviously exceeded the maximum statutory allowance.

Accordingly, the counsel fee is reduced to $135. The County Court in its discretion assessed the entire attorney’s fee against respondent. We perceive no reason to disturb it.

Affirmed as modified.


author: Lane, J. A. D.

text:
    STATE OF NEW JERSEY IN THE INTEREST OF W. J.
    Superior Court of New Jersey Appellate Division
    Argued October 13, 1971
    Decided October 20, 1971.

      Before Judges Kilkenny, Laeeecqtje and Lane.

      Mr. Herbert I. Waldman, Assistant Deputy Public Defender, argued the cause for appellant (Mr. Stanley G. Van Ness, Public Defender, attorney; Mr. Waldman, of counsel and on the brief).

      Mr. Martin B. Kayne, Assistant Prosecutor, argued the cause for respondent (Mr. Joseph D. J. Gourley, Passaic County Prosecutor, attorney; Mr. Kayne, on the brief).
   The opinion of the court was delivered by

Lane, J. A. D.

Juvenile, 17 years old, pleaded not guilty to two complaints charging him with breaking and entering. Complaint No. J-2262-69 charged that on May 14, 1970 he broke into a Mr. Softee truck with four other juveniles and stole $26. Complaint No. J-2267-69 charged that the juvenile and three others broke and entered the Club Social Rosareno with intent to steal on May 14, 1970. The trial court found that both complaints were sustained, declared the juvenile a delinquent and after reviewing his extensive record committed him to the New Jersey Reformatory (now Youth Correctional Institution Complex).

Juvenile argues that complaint No. J-2267-69 should not have been sustained because the only admissible evidence supporting it was Ms uncorroborated confession and that, therefore, the matter should be remanded for resentencing.

During the investigation of the breaMng and entering of the Mr. Softee truck, the juvenile started to tell the investigating officer “about a break and entry the night before at the Eosareno Social Club, 180 Passaic Street, and he named as his accomplices there, [sic]” Thereafter the juvenile gave the police a written statement concerning the breaking and entering of Club Social Eosareno. It was upon this statement that the trial court found the charge sustained.

Juvenile argues that the State introduced no proof of the alleged breaking and entering at the Club Social Eosareno other than his confession and that since the State failed to offer any independent corroborative proof that the crime did occur and that the juvenile was responsible, the adjudication of delinquency based on that complaint was unlawful.

An uncorroborated extra-judicial confession cannot provide the evidential basis to sustain a conviction for crime. State v. Lucas, 30 N. J. 37, 51 (1959). Cf. State v. Ordog, 45 N. J. 347, 364 (1964), cert. den. 384 U. S. 1022, 86 S. Ct. 1942, 16 L. Ed. 2d 1025 (1966). This rule has been applied to juvenile proceedings. State in the Interest of B. D., 110 N. J. Super. 585, 595 (App. Div. 1969); aff’d o. b. 56 N. J. 325 (1970). Cf. State in the Interest of Carlo, 48 N. J. 224, 236 (1966).

The standard determining the necessary quantum of corroboration was thoroughly discussed in State v. Lucas, 30 N. J. 37, 51-58, supra. Justice Burling noted that there were two views. One view was that the State must offer independent proof of the corpus delicti. The other view was that the extrinsic proof need not touch on the corpus delicti but must be of such a nature as to give the confession an aura of authenticity. In defining corpus delicti, the court noted the three basic elements in proof of any crime: occurrence of loss or injury; criminal causation of the loss or injury (i. e., the crime was committed by someone) ; defendant’s identity or connection with the crime (i. e., that the defendant did in fact commit the crime). The court then noted that it had been suggested that the correct definition of corpus delicti referred only to the fact of specific loss or injury, thus placing on the State the burden of proving only that the crime occurred. 7 Wigmore, Evidence (3d ed. 1940), § 2072 at 401. The prevailing view, however, was that the term corpus delicti also comprehends the second element, i. e., someone’s criminality. The court then noted that cases in New Jersey have held that a confession, corroborated by independent proof of the corpus delicti, will support a conviction for the crime. If such proof is lacking, it will suffice if the confession is corroborated by other evidence tending to strengthen the confession so that the criminal agency as well as defendant’s connection with the crime may be proven by the confession itself. Justice Burling then held that the State must introduce independent proof of facts and circumstances which strengthen or bolster the confession and tend to generate a belief in its trustworthiness, in addition to independent proof of loss or injury :

It might be argued that the State ought also to prove criminal agency before a confession be considered as evidential, in order to assure that confession was not the imaginary product of a mentally diseased or deficient mind. But if criminal agency must be proven aliunde the confession, why not the defendant’s connection with the crime? There seems to be little difference in kind between convicting the innocent where no crime has been committed and convicting the innocent where a crime has been committed, but not by the accused. Yet, no jurisdiction imposes such a requirement, for that would in effect inverse the rule and render the confession merely corroborative of a crime independently proven. Indeed, it is ofttimes more likely that persons giving false confessions because of mental disease or defect will confess to crimes where there is abundant proof of the two elements of the corpus delicti but where there is no proof as to the perpetrator. The danger is not so much that such persons will confess to non-criminal occurrences but rather to crimes committed by some one other than themselves. Under such circumstances the confessor is probably afforded greater protection by the requirement that the State must introduce such independent corroborative proof of facts and circumstances tending to generate a belief in the trustworthiness of the confession than he is by the rule requiring independent proof of the corpus delicti.
Confessions, like other admissions against interest, stand high in the probative hierarchy of proof. It is for this reason that the law imposes various safeguards designed to assure that the confession is true. But safeguards for the accused should not be turned into obstacles whereby the guilty can escape just punishment. No greater burden should be required of the State than independent corroborative proof tending to establish that when the defendant confessed he was telling the truth, plus independent proof of the loss or injury. [30 N. J. at 57-58]

In State v. Hill, 47 N. J. 490 (1966), the defendant appealed from a murder conviction. One of his arguments was that the State failed to sustain its burden of proving the corpus delicti by failing to show that the victim’s death occurred as a result of some criminal agency. In discussing the required proof of corpus delicti, Justice Schettino said in dictum:

* * * As stated in State v. Lucas, 30 N. J. 37, 53 (1959) there are three basie elements in the proof of a crime: (1) the occurrence of loss or injury, (2) criminal causation of that loss or injury and (3) the identity of the defendant as the perpetrator of the crime. However, it is firmly established in this State that the term corpus delicti embraces only the first two of these elements — loss or injury and criminal causation. State v. Portee, 46 N. J. 239 (1966); State v. Greely, 11 N. J. 485 (1953); State v. GleitsmaNN, 62 N. J. Super. 15 (App. Div.), certif. denied 33 N. J. 386 (1960), 7 Wigmore, Evidence (3d ed. 1940) § 2072, p. 401. Notes, 13 Vand. L. Rev. 561 (1960); 103 U. Pa. L. Rev. 638 (1955).

Thus the term corpus delicti is not and should not be a shorthand way of attacking the sufficiency and the weight of the State’s proof concerning the manner and means by which the crime was committed. It is clear that the corpus delicti is proved where the State, aliunde a confession, has produced facts and circumstances from which the jury can infer that a loss has occurred and that that loss was caused by or was a result of a criminal act. State v. Lucas, supra; State v. Greely, supra. See 41 C. J. S. Homicide § 312, p. 16. [47 N. J. at 496]

The language in State v. Hill, supra, would seem to indicate that all that was required of the State where a confession is involved is a showing of facts sufficient to indicate a loss had occurred and that the loss was caused by a criminal act. However, that case did not involve a confession.

In State v. Lucas, supra, 30 N. J. 37, defendant appealed from a judgment of conviction entered pursuant to a jury verdict of murder in the first degree. The murder had occurred as a result of a fire set by defendant. One of the grounds of appeal was that the trial court erred in denying a motion for acquittal at the end of the State’s case. Defendant had confessed, and the issue was whether the State’s independent corroborative proof was sufficient to present a jury question. Defendant’s confession contained several explicit details referring to the occurrence of the crime. The State’s proofs independently corroborated each detail. Defendant alleged the fire occurred in the office of the rectory of a church. The State introduced proof indicating that that was the origin of the fire. Defendant accurately described the layout and contents of the office, including “paper books” on the mantel. The State’s proofs provided a similar description of the office. By his own admission defendant had never been in the room before. Defendant described chairs lined up against the wall. The State showed those chairs had been in the rectory office only for several months prior to the fire. Defendant alleged he threw on the fire gasoline carried in a glass bottle. The State’s evidence showed eight fragments of glass found in the office at a point where the fire was believed to have occurred. Defendant said he poured gasoline over some “paper books.” The State proved that charred telephone books were found on the floor in the office. In addition, after making his confession, defendant reenacted the manner in which he said he started the fire. The court noted the “spontaneity” of this re-enactment further corroborated the confession. Apparently, at no time had the State supplied defendant with facts of the crime during the interrogation process. The court found that the facts recited in defendant’s confession could only have been known by the one who started the fire. There was not in the record any evidence tending to explain how the defendant acquired the incriminating information which he recited to the police. In fact, the State offered testimony that one of its officers gave defendant false information concerning the fire in order to test the veracity of the confession.

In State v. Ordog, supra, 45 N. J. 347, defendants had confessed and were convicted of murder in connection with a robbery. On appeal they argued that denial of a judgment for acquittal was error because there was insufficient corroboration of the confessions. The confessions contained exact details of the crime. The State’s witnesses, including a co-defendant, gave corroborative testimony as to the kind of weapons used, the number and position of persons at the scene of the crime, the fact that one defendant took the wallets, the amount of the share of the robbery and the fact that the defendants went to a diner on Eoute 130 after the murder. The court found there was sufficient corroborative evidence.

In State v. Ordog, 45 N. J. 347, and State v. Lucas, 30 N. J. 37, the State’s independent proofs clearly established the trustworthiness of the confessions involved and the occurrence of the loss or injury.

In State in the Interest of B. D., supra, 110 N. J. Super. 585, the court found the confessions involved lacked substantial corroboration and standing alone wore insufficient evidence of guilt. In addition, the court found that the facts on the record created serious doubts as to the voluntariness and trustworthiness of the confessions and that they should have been excluded. The juvenile had appealed from an adjudication by the Juvenile Court finding that he had committed acts of juvenile delinquency. The facts showed that two victims had been stabbed to death. The only proof connecting the juvenile with the killings was his confessions. The independent proofs of the State established the facts of the crime. The State argued that since these facts were similar to those contained in the confessions, the test of corroboration had been met. The court rejected this argument, noting that the confessions contained practically no verified details other than the statements of having stabbed the two victims. In addition, the court noted that the part of the confessions referring to one of the killings was inconsistent with the autopsy report. The juvenile said he wielded the knife in his left hand; the autopsy report indicated the knifing was done by a right-handed person. The court noted that many of the facts of the crime had been told to the juvenile by the officers before his confessions. The juvenile testified that before his confessions the police had been after him constantly. In order to get them “off his back” he confessed, piecing together the details of the crime from what he had been told by the officers. Since the record contained a rational explanation of how the juvenile knew the facts of the killings, no real inference of trustworthiness could be drawn from any consistency shown.

To sustain a conviction based upon a confession the State must show that the confession is trustworthy by proof of facts and circumstances independent of the confession and that the loss or injury confessed to did in fact occur.

Here the independent evidence offered by the State to corroborate the complaint of breaking and entering the Club Social Rosareno is not sufficient to corroborate the confession. It consisted of the hearsay testimony by a police officer that he had a report of the breaking and entering which named the juvenile as a participant. The officer also testified that a janitor of the club had seen the juvenile in the area. There was no testimony at all corroborating any of the details in the confession, i. e., that two other persons were with the juvenile, that they broke in through the hack window by pushing the wood in, that they searched a desk and took some money out, that they did not actually take away any money or liquor because they were scared off. At the very best the proof indicated that there was a report of a breaking and entering at the club and that the juvenile might have been seen in the area. There is nothing to corroborate the trustworthiness of the confession. There is very little to corroborate the fact of the loss or injury. The State did not meet the standard of State v. Lucas, supra, 30 N. J. 37. The adjudication of delinquency based on the complaint of breaking and entering the Club Social Eosareno must be reversed.

We call attention to Chief Justice Weintraub’s comments in his concurring opinion in State in the Interest of Carlo, supra, 48 N. J. 224. In that case the court found inadmissible as evidence certain involuntary confessions given by two juveniles. The court held that the constitutional safeguard of voluntariness governing the use of confessions applies to juvenile proceedings. Chief Justice Weintraub in concurring said:

* * * because of the ease with which some boys may yield to suggestion, I would insist upon a quantum of corroboration we do not now demand with respect to confessions of adults. [48 N. J. at 245]

The State concedes that if the finding on complaint J-2267-69 is reversed, the juvenile is entitled to resentencing.

The order of the Passaic County Juvenile and Domestic Eelations Court sustaining complaint No. J-2267-69 and the adjudication of delinquency based on that complaint is reversed. The matter is remanded for resentencing.


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

text:
    HARRY J. STANCHAK, PLAINTIFF-APPELLANT, v. CLIFFSIDE PARK LODGE NO. 1527 LOYAL ORDER OF MOOSE, INC., AND DANTE CAPORALE, DEFENDANTS-RESPONDENTS.
    Superior Court of New Jersey Appellate Division
    Argued September 27, 1971
    Decided October 20, 1971.

      Before Judges Confokd, Matthews and Ekitz.

      Mr. William A. Fasolo argued the cause for appellant (Mr. Milton T. Lasher, attorney).

      Mr. Martin J. Loftus argued the cause for respondents (Messrs. Loftus, Schauer & Ouozzi, attorneys).
   The opinion of the court was delivered by

Conford, P. J. A. D.

This is an action by a broker for damages for breach by defendant fraternal organization (“Lodge”) of an agreement between them for him to secure a purchaser of the Lodge property at a stated price. The most substantial defensive issue raised below was whether defendant in fact engaged plaintiff for the stated purpose. The trial court, sitting without a jury, found for defendant on that issue, and added other grounds for entering judgment against plaintiff.

Erom the entirety of the proofs the following facts appear. Plaintiff had been engaged by Dyn Manufacturing and Packaging Corp. (“Dyn”) to find it a building for expansion of its activities. Hearing that defendant’s nearby lodge building might be for sale, Dyn had plaintiff approach one Caporale, secretary of the Lodge, on the subject. The latter invited plaintiff to a meeting of the executive committee to present his proposition. According to the minutes of an April 28, 1969 meeting of that committee, Caporale reported having been approached by “Real Estate Broker * * * Stanchak quoting he has a buyer for our premises,” and Caporale was instructed to advise plaintiff to appear at the May 5 meeting to submit his proposal.

The pertinent portion of the minutes of the May 5 meeting, certified by Caporale, read as follows:

Harry A. Stanchak Cliffside Park Real Estate Broker was admitted to explain Ms attendance he quotes on previous by [sic] verbal remarks he had a buyer if we were in the market of selling and his price was 40 to 45,000 dollars, the Officers set [sic] that if a sale was in the making the price would be at least 60,000 dollars plus Brokers fees. He was advised that the proposal would be studied and he would be advised within the next few days. Stanchak left about his business and Officers resulmed [sic] their Business. Secretary was then advised to advise that the sale price would be 60,000 dollars plus Brokers fees if a sale was consummated.

The substance of the foregoing was supported by testimony of plaintiff. Caporale testified, on cross-examination, in reference to the May 5 meeting.

Q. They [the Lodge committee] were ready to sell it for $60,000 provided Stanchak was paid commissions by someone other than the Moose? A. Well, at that time that’s what they decided, yes.

Presumably executing the instructions given him at the May 5 meeting, Caporale on May 13, 1969, on the letterhead of the Moose organization, wrote Stanchak as follows:

RE: Property
220 Walker St.
Cliffside Park, N. J.
Dear Sir:
Confirming discussion with you on Monday May 5th regarding sale of the above, after a meeting of all the Officers in the past few days, 1 am directed to submit the following,
Rock bottom price is $60,000.00 plus necessary fee due yon.
Very truly yours,
/s/ Dante Caporale Dante Caporale,
Secretary.

On receipt of the letter Stanehak telephoned Caporale to request an opportunity to explore the proposal, which was granted, and then communicated with and received authorization from the president of Dyn, Mr. Erie, to notify the Lodge of his willingness to buy on the terms stated. He agreed further to pay Stanehak a $2,000 brokerage fee. Thereupon, on May 15, 1969, Stanehak wrote the defendant, attention of Caporale, as follows:

Gentlemen:
I received your letter of May 15, 1969, in which you state the price for the property at 220 Walker Street, Oliffside Park, is $60,000., plus necessary fees due me.
This is to confirm my telephone conversation with Mr. Caporale, Secretary, on May 15, 1969 at 11:45 am and also at 1:25 PM, that my client, Mr. Walter E. Erie, President, of the Dyn Mfg. & Pkg. Corporation of the Dyn Bldg. 281-87 Palisade Avenue, Oliffside Park, N. J., has agreed to pay the price you requested in your letter of May 13, 1969, of $60,000.
Mr. Caporale informs me that the Honorable Walter H. Jones of Hackensack, is the attorney who represents your Lodge.
I requested Mr. Walter E. Erie to have his attorney contact Mr. Jones to proceed with this matter.
Thanking you for your cooperation, I am,
Very truly yours,
Harry J. Stanehak Jr.

Stanehak testified he telephoned the office of Mr. Jones and was told the contract of sale was being drawn. Sometime thereafter, however, Caporale told him “the deal is not being consummated,” and a secretary in the Jones office, in the absence of the associate handling the matter, confirmed that fact to Stanehak. The “factual and legal contentions” of defendant, as set out in the pretrial order, state: “Thereafter [after the sending of the May 13, 1969 letter] it was determined [by the Lodge] that the difficulty in obtaining new premises for lodge meetings made it inadvisable to sell no matter how much money was offered.”

In July 1969, eoncededly to fortify plaintiff’s legal foundation for the present claim, Erie on behalf of Dyn signed a proposed form of contract of sale and purchase of the property for $60,000, specifying Stanchak as the owner’s agent and incorporating the purchaser’s agreement to pay Stanchak a $2,000 commission. This form of agreement was not submitted to the Lodge for signature, obviously because the latter had already unequivocally signified it had changed its mind about selling.

Brie testified that Dyn had the necessary finances and had been fully prepared to buy the property for cash in the amount of $60,000, as well as to pay the commission of $2,000, and was still ready to do so at the time of the trial in December 1970.

In rendering decision for defendant, the trial judge stated his reasons and findings: (1) the letter from the Lodge of May 13, 1969 did not constitute an authorization of plaintiff as broker under the brokerage statute of frauds, N. J. 8. A. 25 :l-9. The fact that the purchaser was to pay the commission relieved the seller of any obligation under the letter; (2) it was incumbent on the purchaser to submit a contract of sale to the seller which it never did; (3) plaintiff never produced a purchaser ready, able and willing to buy on terms fixed by the owner as such terms were never agreed upon between seller and purchaser; (4) the purchaser never entered into a binding contract with the owner (citing Ellsworth Dobbs, Inc. v. Johnson, 50 N. J. 528 (1967)), and it is immaterial who was responsible for failure of completion of the transaction.

We are of the opinion that the court erred in each of these conclusions and that plaintiff was entitled to recover $2,000 in damages from defendant on the undisputed facts and reasonable inferences therefrom.

I

The letter of May 13, 1969 satisfies the statute of frauds. It identifies the property, the seller, the broker and the price. Although it does not specify “the rate of commission on the dollar or the amount of the commission,” to quote the act, a proposal which states a net price to the owner or that the purchaser is to pay the broker’s commission is uniformly held to comply with the statute. Mendles v. Danish, 74 N. J. L. 333 (Sup. Ct. 1907); 12 Am. Jur. 2d Brokers, § 49 at 810.

Beyond satisfaction of the requirements of the statute, the writing must signify an engagement of the broker to sell the property on behalf of the owner. However, the writing need not expressly use language of authorization, see Clark v. Griffin, 95 N. J. L. 508 (E. & A. 1921), if authorization is fairly implied by the writing. In determining whether such implication is warranted from the words used in the writing, however, it is permissible, and sometimes, as here, essential to scrutinize the surrounding circumstances. Cf. Garden State Plaza Corp. v. S. S. Kresge Corp., 78 N. J. Super. 485 (App. Div. 1963), certif. den. 40 N. J. 226 (1963).

Defendant asserts the intent of the letter of May 13, 1969 was merely to apprise the broker that if it should decide to sell the property at any time in the future it would not take a lower price than $60,000 net, but that it was not presently authorizing the broker to secure a purchaser at that price. The trial judge did not find such an intent, and the proofs as to the circumstances leading up to the sending of the letter do not support the hypothesis. Indeed, to the contrary. Erom the minutes of the meetings of the executive committee of April 28 and May 5, particularly the latter, it is apparent that plaintiff wanted to know whether the Lodge would sell at that time, and for what price. He was not soliciting an expression as to what price the Lodge would expect if it decided to sell at some indefinite, indeterminable later date. He had a purchaser ready to buy then at a satisfactory price. He was expressly told on May 5 he would be given an answer “within the next few days.” After he left the meeting the committee told Oaporale to inform plaintiff that the “sale price” would be $60,000 plus broker’s fees. The letter of May 13, 1969 to Stanchak substantially executed that instruction. The minutes and the letter, in the light of all the circumstances, are instinct with an unequivocal message to Stanehak that the Lodge would sell at that time, and that he was authorized on its behalf to attempt to secure a purchaser on those terms. Caporale’s testimony on cross-examination, quoted above, nails down that intent. That being so, the Lodge made itself liable to the broker for his lost commissions if he produced a purchaser ready, able and willing to buy on those terms, and the Lodge later backed out of the deal because of a change of heart. This is hornbook law, which, as will be seen, was not altered by the decision or rationale of the Dobbs case, supra.

The fact that the broker entered the negotiations as an emissary of a prospective purchaser does not negate the hypothesis of the seller obligating itself to the broker by authorizing him to procure a purchaser on specified terms. It is the essence of the realty brokerage business for the broker to attempt to match up purchaser prospects with seller prospects from his lists of both. Such lists and the broker’s time and efforts are his stock in trade, and it is common knowledge of sellers and buyers of realty that if the broker brings the parties together on mutually acceptable terms he expects a commission for his labor. Harris v. Perl, 41 N. J. 455, 462 (1964), quoted in Dobbs, 50 N. J. at 558. Thus, in the absence of a special agreement otherwise, the seller engaging the broker will render himself liable to the broker for the stipulated commission, or for damages, if the seller wrongfully repudiates the deal after the broker has done his part, notwithstanding that it was the purchaser who engaged the broker originally. Clark v. Griffin, supra, is illustrative; after the broker there contacted the owner on behalf of a prospective purchaser the owner wrote the broker, inter alia, “Tell your man to make me an offer”.

II

The trial court erred in reading Dobbs, supra, necessarily to require the entry by the principals into a binding contract of sale before tbe broker could recover from the seller after producing a purchaser willing to contract on the seller’s terms, the deal thereafter being frustrated by the seller’s unjustified repudiation. The generality of the decided cases, and the particular facts of Dobbs, involved situations wherein the broker had in fact effected an executed contract of sale between the principals and the deal thereafter fell through without fault of the seller. Dobbs, in rejecting the prior rule that the broker was in such case entitled to recover his commission upon the signing of the contract, and in announcing that thereafter the seller would not be liable to the broker if the contract failed of consummation by closing of title without wrongful conduct of the seller, thus articulated both the rejected and the new rule in terms of the situation in which a contract has been entered into by the principals. 50 N. J. at 543, 547, 561.

But neither the holding nor the ratio decidendi of Dobbs implies a rejection of the view exemplified by Owen v. Riddle, Ex’r, 81 N. J. L. 546 (E. & A. 1911) and Marschalk v. Weber, 11 N. J. Super. 16 (App. Div. 1950), that where the broker has procured a purchaser willing and able to buy on the seller’s terms as stated to the broker, and there is a failure of the principals to enter into a formal contract of sale by reason of the seller’s fault, as, e. g., where he had subsequently changed his mind (as in Marschalk, supra), the seller is liable to the broker. And see, generally, in accord: 12 Am. Jur. 2d, Brokers, § 183 at 923. Evidence of the Dobbs court’s concordant view is provided by its apparently approving reference to the out-of-state cases which hold that where the broker sues the owner “because of an alleged unreasonable refusal to enter into a contract of sale [emphasis by the Supreme Court] with the proffered willing and able customer," the broker must show financial ability of the purchaser to perform at the closing of title. 50 N. J. at 544. (In the instant case the plaintiff has made such a -showing).

It is thus plain that the trial court erred in assigning as one ground for denial of recovery the fact that the principals did not enter into a formal contract of sale. The same conclusion applies to the assigned reason that the purchaser did not submit a contract to the seller. Apart from the fact that no authority is cited that such is the purchaser’s duty, the subsequent flat refusal of the defendant to do any business with the purchaser excused whatever tender might otherwise have been called for by the purchaser vis-avis the seller. Cf. 55 Am. Jur., Vendor and Purchaser, § 344 at 772; 49 Am. Jur., Specific Performance, § 144 at 167; and see Salvatore v. Trace, 109 N. J. Super. 83, 92-93 (App. Div. 1970), aff’d o.b. 55 N. J. 362 (1970). The fact that here any subsidiary terms of a contract over and above those of parties, property and price were not negotiated was not the fault of the purchaser, who was clearly willing to negotiate on'any other necessary terms, including time of performance, but entirely that of the defendant.

Precisely apposite to the present case is the general view that where the broker’s employment authorization from the owner specifies he is to look for his compensation to the purchaser, the employer will nevertheless be liable to the broker in damages if he procures a purchaser ready, able and willing to buy on the seller’s terms but the seller renders it impossible for the broker to collect from the purchaser by wrongful refusal to complete the deal negotiated; in such case there is a violation by the seller of an implied collateral agreement with the broker to perform the sales agreement negotiated. 12 Am. Jur. 2d, Brokers, § 163 at 902.

Reversed with directions for remand and entry of judgment in the Law Division in favor of plaintiff and against defendant in the sum of $2,000 plus interest from July 1, 1969 and costs.

      We do not of course imply that on this record the purchaser had a cause of action against the Lodge. Our discussion relates only to the broker’s claim against the seller.