author: Tumulty, J. S. C.

text:
    MANNIE JOSEPH, PLAINTIFF, v. CLIFTON MOORE, ET AL, DEFENDANTS.
    Superior Court of New Jersey Law Division.
    Decided July 31, 1968.

      Mr. Robert J. Sussman for plaintiff (Messrs. Rubin, Roigo ff & Sussman, attorneys).

      Mr. Joel N. Werbel for defendant (Mr. Samuel A. Gennet, attorney; Mr. John R. Methfessel, on the brief).
   Tumulty, J. S. C.

This matter comes before the court on motion to order the State Treasurer to pay a “fair and equitable” settlement between plaintiff and defendant Clifton Moore and the Unsatisfied Claim and Judgment Fund, pursuant to N. J. S. A. 39 :6-69, 70 and 71, involving interpretations of these provisions of N. J. S. A. 39:6-65:

“* * * that he [plaintiff] gave notice to the Board within 15 days of receiving notice that an insurer had disclaimed on a policy of insurance so as to remove or withdraw liability insurance coverage for his claim against a person or persons who allegedly caused him to suffer damages * * *” (Emphasis supplied)

The court makes the following findings of fact which, although not stipulated, are undisputed.

On March 2, 1965, at 10:42 a.m., while standing on Washington Street, Newark, New Jersey, plaintiff Mannie Joseph was struck by a 1958 Chrysler driven by defendant Clifton Moore and owned by one Katherine Mavraides. Joseph sustained injures and was hospitalized as a result.

At noon of the same day, a report of the accident was submitted to the Newark Police Department, setting forth that the motor vehicle involved was a 1958 Chrysler and listing Moore as the driver.

On April 23, 1965 suit was instituted by plaintiff against Moore, defendant operator, and Katherine Mavraides, defendant owner. On May 1, 1965 Katherine Mavraides was served with a summons and complaint. On May 5, 1965 Moore was served with summons and complaint.

On May 5, 1965 plaintiff’s attorney received a stipulation extending time to answer from DeCotiis & Morrison, which law firm had been assigned by Empire Mutual Insurance Company (Empire) to handle the defense of Clifton Moore and Katherine Mavraides. An answer was filed on June 14, 1965. Meanwhile, although he had prepared a notice of intention on May 19, 1965 for filing with the Unsatisfied Claim and Judgment Eund Board, plaintiff’s attorney did not file it under the circumstances.

On or about August 9, 1965 plaintiff’s attorney and all other parties were served with a notice of motion by DeCotiis & Morrison, returnable September 17, 1965. The notice was executed by DeCotiis & Morrison as “attorneys for Empire Mutual Insurance Company” rather than as “attorneys for Katherine Mavraides and Clifton Moore”, as theretofore.

The notice stated that an order would be sought “relieving them as counsel for Katherine Mavraides” and permitting the Empire Mutual Insurance Company to withdraw from the defense of the above entitled matter.” (Emphasis supplied). The grounds were that the answer filed on behalf of Katherine Mavraides was filed through “inadvertence and mistake concerning insurance coverage of the aforementioned Katherine Mavraides.”

The 1958 Chrysler owned by Katherine Mavraides was the same car that struck plaintiff on March 2, but Empire claimed that the Chrysler was not covered by her insurance policy with Empire. Empire claimed it had on March 2, 1965, insured, under the same policy, two motor vehicles belonging to her. The vehicles insured were a 1956 Buick four-door sedan and a 1955 Ford station wagon. These were the only automobiles owned by Katherine Mavraides which were specifically insured by Empire on the date of the accident.

Empire’s claims records reveal that on May 12, 1965 an accident was reported to Empire as having occurred on March 2, 1965, between one Mannie Joseph (plaintiff) and Clifton Moore (defendant). Moore was reported (by Newark police report of March 2, 1965) as driving the Chrysler that belonged to Katherine Mavraides.

Immediately upon receiving the claim, Empire turned it over to the law firm of DeCotiis & Morrison, counsel for Empire, for defense and handling. Subsequent investigation revealed that the car involved in the accident and driven by Clifton Moore was a 1958 Chrysler. This latter vehicle, although owned by Katherine Mavraides, was not an insured vehicle under any policy placed with Empire, as subsequently discovered by it.

Prior to the accident Katherine Mavraides had instructed her husband to place the Chrysler with Clifton Moore’s garage in Newark for repairs. After the repair work was completed Moore drove the Chrysler to a hardware store on Washington Avenue for the purpose of “purchasing a clamp” for use in the repair of another vehicle. After purchasing the clamp and reentering the car, the accident occurred between Moore and plaintiff.

Upon receipt of the foregoing notice of motion to withdraw, the attorney for plaintiff filed a notice of intention to make claim against the Unsatisfied Claim and Judgment Fund, which notice was received by the Fund August 16, 1965. The Notice was filed within 15 days of the notice of motion to withdraw (August 12, 1965) but more than 90 days from the happening of the accident. On January 4, 1966 an order was signed by Judge Kenarik, allowing the attorneys for Empire to be “relieved” as counsel for Clifton Moore and Katherine Mavraides.

Following this order, Empire sent a letter to Katherine Mavraides on January 17, 1966 by certified mail, notifying her of its withdrawal from her defense and insurance coverage, stating, among other things:

“* * * nie are disclaiming coverage for an accident that occurred on March 2, 1965, between plaintiff Mannie Joseph and Clifton Moore, the said Moore allegedly driving an automobile revealed to be a 1958 Chrysler, serial no. LC33218 and allegedly belonging to Katherine Mavraides.” (Emphasis supplied)

On February 28, 1966 another order was signed by Judge Glickenhaus, relieving the law firm of Clinton & Steinberg as attorneys for Clifton Moore due to his failure to cooperate and pay all fees, and ordering that a “true but uncertified copy of this order be sent to the Unsatisfied Judgment Claim Fund with a letter of explanation concerning this order and proceedings heretofore taken place.”

On March 2, 1966 Irving Steinberg, counsel for Clifton Moore, sent a letter pursuant to Judge Glickenhaus’ order, giving a detailed history of the litigation, including Empire’s withdrawal from coverage of Katherine Mavraides, and Stein-berg’s own withdrawal as counsel to Moore.

On August 24, 1966 an order was entered permitting the law firm of Samuel A. Gennet (who had been retained by the Fund) to file an answer on behalf of Moore. The answer was filed. On May 27, 1967 another order, signed by Judge Conklin, was entered, dismissing the complaint against defendant Katherine Mavraides on the ground that, as a matter of law, no agency existed between her and Moore.

The only defendant left in the case is Moore, who (as stated before) had driven the Chrysler without Mavraides’ permission on business of his own “to get a clamp for another car” on the day of the accident. Moore is not locatable at this time, despite attempts to subpoena him.

Nonetheless, the attorneys for plaintiff and the Fund agreed to settle the ease for $6,000, without costs. The settlement was approved by the Unsatisfied Claim and Judgment Fund Board of New Jersey.

This settlement was also confirmed by Judge Conklin, who reviewed the proceedings and found the settlement to be “fair and equitable.” He ordered judgment to be entered against Moore in the amount of $6,000, without costs, with the proviso, “although said Fund has not at this time agreed to pay this sum”. (Emphasis supplied). The judgment was entered on April 5, 1968.

Thereafter, application for payment of said amount was made on plaintiff’s behalf by notice of motion, returnable before this court. The application, pursuant to N. J. 8. A. 39:6-69, 70 and 71, sought on order directing the State Treasurer to pay plaintiff the $6,000 agreed upon in the court-approved settlement.

Plaintiff contends that he complied with all notice requirements of N. J. 8. A. 39:6-65 by sending in a notice of intention to file suit within 15 days after having received the notice of motion to withdraw on the part of DeCotiis & Morrison, the attorneys assigned to Katherine Mavraides by Empire. The Fund objects to payment, denying compliance under N. J. 8. A. 39 :6-65.

A further issue in the case is plaintiff’s contention that the Fund, by its conduct hereinbefore recited leading up to a court-approved settlement, is estopped from raising the defense of no disclaimer. The Fund denies it is so estopped, citing Danisi v. Theumling, 72 N. J. Super. 118 (App. Div. 1962).

As the facts in this case clearly demonstrate, Empire’s notice of motion was one “to withdraw.” The affidavit was entitled “Affidavit in Support of Motion to Withdratu.” (Emphasis supplied). The order by Judge Kenarik on January 4, 1966 recited:

“* * * it appearing that Empire Mutual Insurance Company does not afford insurance coverage to Katherine Mavraides or Clifton Moore.
It is on this 4th day of January, I960
ORDERED that the firm of De Ootiis & Morrison be relieved as counsel for Clifton Moore and Katherine Mavraides * * *”

Also, it is evident that Empire treated the withdrawal as a “disclaimer,” when, it (in the person of Irving Goodman, claims manager, affiant in Empire’s motion to withdraw) wrote to Katherine Mavraides on January 17, 1966, stating, in part:

“* * * We therefore advise you that toe are disclaiming coverage for an accident that occurred on March 2, 1965 between plaintiff Mannie Joseph and a Clifton Moore, the said Moore allegedly driving an automobile revealed to be a 1958 Chrysler * * * and allegedly belonging to Katherine Mavraides.” (Emphasis supplied)

In EberL v. Balter, 83 N. J. Super. 545 (Cty. Ct.) 1964), the court said:

“Broadly speaking, an insurer who, with knowledge of the facts, assumes and conducts the defense of an action outside the coverage of the policy, cannot later disclaim liability by establishing the non-coverage. Cook v. Preferred, Accident Insurance Co., 114 N. J. L. 141, 144 (E. & A. 1935). However, the insurer, having a duty to defend even groundless suits, has an immediate right and duty to make such investigation as is reasonably necessary to determine the facts in connection with the claim as well as any possible defense. Such an investigation does not waive any defense the insurer might have under the policy. Kloidt v. Metropolitan Life Insurance Co. 18 N. J. Misc. 661, 672 (Sup. Ct. 1939). The carrier must seek the facts with reasonable diligence and make its determination to perform or withdraw from the action within a reasonable period under the circumstances. Merchants Indemnity Corp. of New York v. Eggleston, 37 N. J. 114, 131 (1962); O’Dowd v. United States Fidelity & Guaranty Co., 117 N. J. L. 444, 451 (E. & A. 1937); 7A Appleman, Insurance Law and Practice, sec. 4693, p. 529 (1962).” (at p. 553, emphasis supplied)

The facts herein, reveal a “disclaimer” of liability from existing coverage and a withdrawal thereof, as admitted in the Goodman letter. The present situation is unlike that which faced the court in Krouner v. Motor Vehicle Accident Indemnification Corp., 23 App. Div. 2d 711, 257 N. Y. S. 2d 325 (App. Div. 1965), because here, the insured, Katherine Mavraides, was at fault in that she failed to notify Empire that she had purchased the Chrysler to replace the Eord under her policy of insurance. In any event, a disclaimer need not be due to some fault of the insured alone. It may be due to subsequent actions on the part of the insurance company itself, such as bankruptcy. See Pattani v. Keystone Insurance Co., 426 Pa. 332, 231 A. 2d 402 (Sup. Ct. 1967); also McCaffery v. St. Paul Fire Insurance Company, N. H., 236 A. 2d 490 (Sup. Ct. 1967), and cases cited therein.

Furthermore, from the article entitled “Unsatisfied Judgment Fund Legislation in the United States and Canada,” by Richard H. Folmar of the New Mexico Legislative Council Service, dated January 1, 1960, the following may be gleaned:

“* * * The 90-day provision may also be waived if the person proves to the court that he gave notice to the board within 15 days after he had been informed the insurer for the defendant had disclaimed on a policy so as to withdraw liability insurance coverage. Similar waiver provisions may be found in the laws of Maryland and New York. In the absence of any extenuating circumstances, failure to file the notice of intention after the accident will usually act as a bar to any future recovery from the fund.” (Emphasis supplied)

The facts also indicate plaintiff suffered a fracture of the left leg and is a member of the class designed to receive the benefits of this legislation. He ought not to be made the victim of circumstances over which he had no control. Such was not the intention of the Legislature.

The legislative policy of this section of the law, N. J. S. A. 39 :6—65, may be found on the original Assembly Bill 422, subsequently adopted into law, as seen from the following statement:

“The purpose of this bill is to increase payments to accident victims of uninsured drivers; to eliminate inequities and objectionable features that have appeared in the Unsatisfied Claim and Judgment Fund Law after 3 years of operation; to expedite payment of claims that have been settled; and to place on the uninsured motorist, who creates the problem, the principal burden of supporting the fund.” (Emphasis supplied)

This legislative intent is further supported by the Report of the New Jersey Unsatisfied Claim and Judgment Fund Board (1959), in which it was stated:

“3. R. S. 39:6-65 was also changed to permit a claimant to file a Notice of Intention within 15 days of receiving notice that an insurer had disclaimed on a policy of insurance so as to remove or withdraw liability insurance coverage 'or his claim.” (at p. 11)

In view of the foregoing, the question of estoppel need not be decided. The Fund’s position, in objecting to its own settlement, makes of the settlement a meaningless charade.

The Fund, in its charade, urges the principle of Parrot v. Chiselko, 74 N. J. Super. 138 (App. Div. 1962), that quoting: “One cannot withdraw or remove a thing which never existed” (at p. 146). On the other hand, one does not ask a court to relieve one of a nonexistent burden.

However, the court deems it unnecessary to pass on the question of estoppel at this time, having found compliance with the statute, N. J. S. A. 39 :6—65 on the facts of this case.

I also find as a fact that the letter of January 17, 1966 was first made known to the parties when it was produced in answer to the court’s order. Thus, there is an absence of fraud or collusion (as to plaintiff having influenced the contents of such letter) because plaintiff was totally unaware of such letter until after the court ordered Empire to produce its entire file (the hearing of June 14, 1968). Thereafter, the court permitted counsel to inspect the documents.

In conclusion, as the court said in Giacobbe v. Gassert, 29 N. J. 421 (1959):

“It is the obvious reason of a law that gives it life, not the strict literal sense of terms. * * * And here the statutory relief is to be accorded to all who are within the given class, as a peremptory measure of social policy; and the notice is designed to afford a timely inquiry and thus to safeguard the fund against fraud and imposition. * * *” (at p. 425).

The admonitions of Giacobbe are all heeded according to the facts in this ease. Thus, the Fund should honor its own settlement which it agrees is equitable and fair.

Motion granted.


source: Caselaw Access Project

author: Labrecque, J. A. D.

license: Public Domain

text:
    STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT, v. WILEY BELL, DEFENDANT-APPELLANT.
    Superior Court of New Jersey Appellate Division
    Argued June 17, 1968
    Decided July 2, 1968.

      Before Judges Coneord, Labrecque and Halpern.

      Mrs. Marcia R. Richman, Assistant Deputy Public Defender, argued the cause for appellant (Mr. Peter Murray, Public Defender, attorney).

      Mr. Matthew J. Scola, Assistant Prosecutor, argued the cause for respondent (Mr. Joseph P. Lordi, Prosecutor of Essex County, attorney).
   The opinion of the court was delivered by

Labrecque, J. A. D.

Defendant Wiley Bell appeals from judgments of conviction entered upon two indictments, each charging assault and battery upon a police officer acting in the performance of his duty, N. J. 8. 2A :90-4, and a single indictment charging attempted escape, N. J. 8. 2A :104-6.

We are called upon to determine (1) whether the court committed prejudicial error in instructing the jury on the defense of insanity, and (2) whether it was error to refuse to give requested instructions as to the probable disposition of an accused on a returned verdict of not guilty by reason of insanity.

A brief summary of the facts, not substantially in dispute, is as follows: At about 3:50 p.m. on July 26, 1966 Detectives Rebar and Brill of the Newark Police Department were dispatched to an apartment house at 311 Morris Avenue, Newark, to check on a complaint. There they found defendant in a second-floor apartment with a woman and her children, the woman screaming that she wanted defendant out of her apartment. The detectives identified themselves and asked defendant to leave, whereupon he gathered his clothing and left without incident.

Approximately 20 minutes after the detectives had resumed their patrol duty they returned to the same area and observed three or four children yelling from a window of the same second-floor apartment. They left their patrol car and, as they were proceeding toward the apartment for the second time, met defendant coming down the stairs. They arrested him for creating a disturbance, handcuffed him and placed him in the back seat of the patrol car.

On the way to police headquarters Rebar, who was driving, saw the right rear door open and defendant attempt to leave the vehicle. At Rebar’s warning, Grill, who was in the front passenger seat, reached over the seat and grabbed defendant as Rebar stopped the vehicle. When Grill then attempted to get into the back seat while Rebar was holding defendant, he was kicked in the face and chest. Defendant kicked, bit and scratched the detectives and continued to struggle during the rest of the trip to police headquarters.

On the following day a police surgeon’s examination revealed Rebar had sustained abrasions on his left second finger, his left forearm and his left arm; contusions of his left hand, left elbow and left shoulder; and a scratch on his right cheek, while Grill had abrasions on his right leg, his left hand and his left forearm; a contusion of his right forehead and multiple contusions about his body, and human bite marks on his right arm and right elbow.

The defense was insanity. On the basis of an extended hypothetical question incorporating defendant’s psychological background, past medical history and a psychiatric examination administered by him about eight months after the charged offense, Dr. Kesselman, a specialist in neuropsychiatry, opined that defendant, on the date of the incident, was suffering from a “psuedosociopathie schizophrenic reaction,” described as a defect of reason caused by disease of the mind, and that he was not able to understand the nature and quality of his behavior nor did he know that what he was doing was wrong.

Dr. David J. Flicker, a specialist in psychiatry and neurology, testified that on the basis of his psychiatric and brief neurologic examination of defendant on May 26, 1967, and a review of Dr. ICesselman’s medical report prepared prior to that date, he could not at the time of his examination make a diagnosis of schizophrenia, although defendant’s “record was obviously one of recidivistie, sociopathic personality.” He opined that, at the time of the examination, defendant “knew the nature and quality of his acts, knew what he was doing. He knew the difference between right and wrong, that he knew what society considered to be right and wrong * * Although Dr. Flicker could not, on the basis of the factual data before him, pass on defendant’s state of mind at the time of the offenses charged, when asked whether “a good recollection” by defendant of the alleged offenses seven months after they had occurred would aid in evaluating his state of mind at the time of the incident, he replied, “If he had a good recollection at that time in all probability he knew the nature and quality of his acts.”

Defendant objected to the trial court’s instructions to the jury on the defense of insanity and urges on appeal that the language used was misleading and prejudicial because of the negative nature of the presentation of the law on the issue. The language objected to is as follows:

“Many of the forms and degrees of mental disease which in the judgment of medical men would be regarded as insanity are rejected by the law in its administration of criminal justice. The law regards insanity as a disease of the mind. It may be temporary or permanent in its nature. But the condition must be a mental disease. It therefore rejects an emotional swell or turbulence arising from ungovernable passion which is not the result of a disease of the mind and which begins on the eve of the criminal act and ends when it is consummated.
It also rejects a moral depravity which is not the result of disease of the mind and which is based on a perverted or defective moral sense as well as the doctrine of irresistable [sic] impulse where the defendant is said to be afflicted with a state of mind which impels him to the commission of a deed while it leaves him with sufficient capacity to know the nature and quality of the act which he does and that it is wrong but notwithstanding he is unable to reframe [refrain] from doing it.”

Following this the court went on to properly charge the law of insanity in the light of the M’NagMen rule—followed in this State and not under attack by defendant here. See State v. Lucas, 30 N. J. 37, 63-72 (1959); State v. Sikora, 44 N. J. 453, 470 (1965).

We find no error in the above-quoted portion of the charge. The language used is contained in a memorandum, dated April 18, 1961, from the Chief Justice to the Judges of the Superior Court and County Courts, suggesting certain revisions in the then commonly used jury instruction with respect to legal insanity. In addition, the charge, when viewed in its entirety, clearly expresses the governing principles bearing on the defense of insanity and the jury could not have been misled. See State v. Bertone, 39 N. J. 356, 368 (1963), certiorari denied 375 U. S. 853, 84 S. Ct. 113, 11 L. Ed. 2d 80 (1963); State v. Coleman, 46 N. J. 16, 39 (1965), certiorari denied 383 U. S. 950, 86 S. Ct. 1210, 16 L. Ed. 2d 212 (1966).

In its charge to the jury the court further stated:

“In the event you find the defendant not guilty by reason of insanity you will so state in your verdict. In that event, however, you will also be required to find whether or not such insanity continues to the present day.”

See State v. Vigliano, 43 N. J. 44, 61-62 (1964). The court rejected the following request:

“Now I charge you that in the event you find that Mr. Bell was legally insane at the time of the commission of the alleged crimes, he will not be released outright and permitted to walk the streets, but, to the contrary he will be confined in a hospital for the mentally ill or some other suitable institution until that hospital or that institution has certified and the court is satisfied that Mr. Bell has recovered from his illness and will not be dangerous to himself or to others in the reasonably foreseeable future.”

We perceive no merit to defendant’s contention that the refusal to so charge was error—particularly since the requested instruction was not limited to a situation where the jury found the insanity to be continuing, N. J. 8. 2A :163-3, and was thus an incorrect statement of the law, State v. Segal, 78 N. J. Super. 273, 284 (App. Div. 1963), certification denied 40 N. J. 224 (1963). In addition, we decline to adopt the minority view, as exemplified by Lyles v. United States, 103 U. S. App. D. C. 22, 254 F. 2d 725 (D. C. Cir. 1957), certiorari denied 356 U. S. 961, 78 S. Ct. 997, 2 L. Ed. 2d 1067 (1958), 362 U. S. 943, 80 S. Ct. 809,4 L. Fd. 2d 771 (1960), 368 U. S. 992, 82 S. Ct. 610, 7 L. Ed. 2d 529 (1962), that a jury must be informed of the consequences of a verdict of not guilty by reason of insanity unless the defendant specifically requests otherwise. See also Taylor v. United States, 95 U. S. App. D. C. 373, 222 F. 2d 398 (1955); McDonald v. United States, 114 U. S. App. D. C. 120, 312 F. 2d 847, 851 (1962). Compare Pope v. United States, 298 F. 2d 507 (5 Cir. 1962), certiorari denied 381 U. S. 941, 85 S. Ct. 1776, 14 L. Ed. 2d 704 (1965). Generally speaking, the jury’s duty, as distinguished from that of the court, is to decide the issue of defendant’s guilt or innocence. The defense of insanity does no more than present a question for the jury’s consideration in determining that issue. State v. Ordog, 45 N. J. 347, 371 (1965), certiorari denied 384 U. S. 1022, 86 S. Ct. 1942, 16 L. Ed. 2d 1025 (1966). After the jury has made its determination it becomes the duty of the court, with minor exceptions not relevant here, to impose sentence or make such other disposition as is required by law. In making its determination, the jury should not be influenced by a consideration of what will be the result of its verdict, nor should its attention be distracted from its chief function. Pope v. United States, supra; State v. Hood, 123 Vt. 273, 187 A. 2d 499, 11 A. L. R. 3d 732 (Sup. Jud. Ct. 1963); State v. Park, 159 Me. 328, 193 A. 2d 1, 5 (Sup. Ct. 1963). See also Annotation, “Criminal Case — Instructions — Insanity,” 11 A. L. R. 3d 737 (1967). Cf. State v. White, 27 N. J. 158, 170-178 (1958).

We find no merit to defendant’s remaining contention that his arrest was illegal and that he therefore had a right to resist the unlawful arrest. State v. Koonce, 89 N. J. Super. 169 (App. Div. 1965).

Affirmed.


author: Matthews, J. S. C.

text:
    EDWARD P. GALLAGHER, TRADING AS THE PUB, AND ANN GUNSIOROWSKI. PLAINTIFFS, v. CITY OF BAYONNE, A MUNICIPAL CORPORATION, AND HUGH E. GREENAN, DIRECTOR OF PUBLIC SAFETY OF THE CITY OF BAYONNE, DEFENDANTS.
    Superior Court of New Jersey Chancery Division
    July 10, 1968.

      Mr. Patríele B. Conaghan for plaintiffs (Messrs. Russell and Conaghan, attorneys).

      Mr. James P. Bugan, Corporation Counsel for City of Bayonne, for defendants.
   Matthews, J. S. C.

On August 3, 1943 the governing body of the City of Bayonne adopted an amendment to its Alcoholic Beverage Control Ordinance providing:

“Section 14. No alcoholic or other beverage or food shall be served to any female except at a table where such female shall be seated. No female shall be permitted to stand or sit at a public bar at any time; nor shall minors be permitted to enter or remain in any room in which a bar is located unless the minor is accompanied by his or her own parent or guardian. This section shall not prohibit the sale of alcoholic beverages for consumption off! the licensed premises to a female over twenty-one years of age, provided she shall leave the licensed premises immediately upon consummation of such sale.”

Plaintiffs Gallagher, a tavern owner and licensee of the City of Bayonne, and Ann Gunsiorowski, a taxpayer of the City, bring this action seeking a declaratory judgment invalidating that ordinance. See N. J. S. 2A :16-50, et seq.; State v. Baird, 50 N. J. 376 (1967). Plaintiffs contend that the above quoted amendment is invalid because it is not reasonably related to the police power, and contravenes the provisions of Art. I, § Y of the New Jersey Constitution.

In seeking to uphold the ordinance, defendant City maintains that it is designed to avoid claimed social evils which result from the mingling of men and women at bars. Apparently, the amendment was brought about during World War II because of the large number of naval personnel concentrated in the Bayonne area at that time, and some unfortunate experiences which occurred in taverns and bars involving males and females during that period. In addition, the City contends that under the decision of the Appellate Division in Eskridge v. Division of Alcoholic Beverage Control, 30 N. J. Super. 472, 476 (1954), the validity of ordinances such as that under examination here are unquestionably valid.

Plaintiffs concede the existence of Eskridge and its holding to the effect that “Ordinances which forbid the serving of liquor to women except when seated at tables do not violate any constitutional right of either the licensee or the women * * but argue that the case is no longer controlling in view of the more recent decision of our Supreme Court in One Eleven Wines & Liquors, Inc. v. Division of Alcoholic Beverage Control, 50 N. J. 329 (1967).

Unquestionably, the Appellate Division in Eslcridge did sustain the validity of an ordinance similar to the one before this court, despite the fact that the opinion of the court stated that “The sole question is whether a U-shaped counter at which women are served with alcoholic beverages is a Tar’ within the meaning of the ordinance.”

In One Eleven Wines ■<& Liquors, the Supreme Court had before it several license suspension proceedings which had sustained charges made by the Division of Alcoholic Beverage Control against plaintiffs for permitting apparent homosexuals to congregate in their bars. In 1930 the State Commissioner of Alcoholic Beverage Control had adopted Buie 4 which prohibited female impersonators from congregating in-public licensed premises. In 1936 the commissioner amended Buie 5 which had been previously adopted by him to include an express prohibition of lewdness and immoral activities on licensed premises. Again, in 1950 Buie 5 was revised to include an express prohibition of “foul, filthy, indecent or obscene language or conduct.” During the years prior to 1954, the Division (formerly Department) instituted proceedings under Buie 4 on the basis of evidence that apparent homosexuals had been permitted to congregate in licensed premises. Since 1954 the Division has instituted proceedings involving such charges under Buie 5. The Supreme Court, through Mr. Justice Jacobs, unanimously reversed the license suspensions which had been affirmed by the Appellate Division, holding that the Division was not justified in disciplining licensees solely because apparent homosexuals were permitted to congregate at bars, absent a clear showing of individual acts alleged to be violative of the provisions of Buie 5 aimed at lewdness and immoral conduct within the licensed premises. In the course of its opinion the Court noted:

“When in the 1930’s the Department of Alcoholic Beverage Control first took its severe position, it acted on the assumption that the mere congregation of apparent homosexuals had to be outlawed to achieve effective control. It of course had no experience to support the assumption but it took the prohibitory course as the safer one for the then fledgling system. At the time, the interests of the patrons in question were given little consideration and were in any event overwhelmed by the then highly felt transitional need for sweeping restraint. Now, in the 1960’s, the transitional need as such is long past and it is entirely appropriate that full sweep be given to current understandings and concepts. Under them it seems clear that, so long as the division can deal effectively with the matter through lesser regulations which do not impair the rights of well behaved apparent homosexuals to patronize and meet in licensed premises, it should do so. Such narrower course would be consonant with the settled and just principle that restrictions adopted in the exercise of police powers must be reasonable and not go beyond the public need.” (at p. 341)

In its opinion in Eskridge, the Appellate Division, in upholding the suspension there involved, stated:

“The right of the Legislature or of a municipality under legislative authority to regulate the sale of intoxicants is within the police power of the State and is practically limitless. * * * ‘As it is a business attended with danger to the community, it may be * * * entirely prohibited, or be permitted under such conditions as will limit to the utmost its evils.’ ” (emphasis added) (at pp. 474^475)

I believe that a reading of One Eleven Wines & Liquors, indicates that the police power exercised in the regulation of the sale of intoxicants is not practically limitless and that it must be exercised under a rule of reason instead of arbitrary fiat, and with regard for the rights of individual patrons who desire access to licensed premises. Considering this observation, I am disinclined to follow the holding in Eskridge as determinative of the issue presently before me.

In an argument somewhat analogous to that of the Division in One Eleven Wines é Liquors, the City here contends that the mingling of males and females at a bar is in some manner deleterious to the morals of the community. Supporting data for such a conclusion are not forthcoming. In actuality, under the operation of the Bayonne Ordinance, women may be served a drink in a barroom as long as they are seated at tables, and, I am informed, may purchase package goods over a bar for consumption off premises. Eor some reason, however, a woman standing or sitting at a bar in the company of men for the purpose of being served a drink constitutes, at least in the minds of the City fathers of Bayonne, an occasion of sin.

Under the New Jersey Civil Eights Act there are the following provisions:

“if. J. S. A. 18:25-4. All persons shall have the opportunity * * * to obtain all the accommodations, advantages, facilities and privileges of any place of public accommodation * * *. This opportunity is recognized as and declared to he a civil right." (emphasis added.)

Under the provisions of N. J. S. A. 18:25-5, a place of public accommodation is defined as including any tavern or roadhouse.

Article I, § V of the New Jersey Constitution provides:

“No person shall be denied the enjoyment of any civil or military right, nor be discriminated against in the exercise of any civil or military right, nor be segregated in the militia or in the public schools, because of religious principles, race, color, ancestry or national origin.”

Under the provision of Article 10, § IV of our Constitution, the term person or persons as used therein shall be taken to include both sexes.

My reading of these two sections of the Constitution, together with the statutory declaration as to the use of public accommodations in the Civil Eights Act, leads me to the conclusion that the people and the legislature have created a clear prohibition against discrimination in this area of civil rights based on sex.

While I am satisfied that our organic and statutory law will not tolerate discrimination such as is established under the ordinance here in question, I am not unaware of the fact that the Supreme Court of the United States has, (see e. g. Goesaert v. Cleary, 335 U. S. 464, 69 S. Ct. 198, 93 L. Ed. 163 (1948), given its approval to legislation which discriminates against women with respect to access to premises in which alcoholic beverages are sold. I will not speculate as to whether such a holding would be forthcoming today, considering changes in social customs and mores. I cannot accept, however, as a general assumption that mere sexual difference is a viable classification under equal protection concept. I am sure that there are specific instances when such a basis may be used, especially those relating to gonadic reasons. In the majority of instances, however, we are dealing with the application of laws to humanity generally, and humanity quite clearly is comprised of both masculine and feminine elements. I cannot believe that anyone will deny that both men and women share the common elements of humanity. No doubt there are those who would seek to polarize men and women on the basis of sex differentiation alone, and to whom maleness would represent crude masculinity and femaleness fainting femininity. These examples, however, are not in my judgment truly representative of healthy men and women. The fully developed individual integrates such gross sexual attributes of personality within himself or herself. The truly mature male or female reflects the androgynous nature of humanity; he or she is, for example, at the same time strong and gentle, aggressive and passive, firm and compassionate. In short, each is composed of a wholesome synthesis of the elements of personality which perhaps we have been too prone to oversimplify and relegate to categories labeled male or female. In stating the similarity in which men and women share humanity, I do not, however, imply that there is only one sex, accidentally differentiated because of physical composition. I refer to the similarities as a signal for caution for those of us who would look no further than genital difference as a general support for classification on the basis of sex as being valid under law.

In any event, as I have noted above, there has been no factual showing before me (and I am sure there cannot be) which can support the legal necessity for the ordinance here under consideration. It seems apparent that the regulatory authority concerned here can deal effectively with any problem which may arise because of the existence of bars serving both men and women through existent general regulations which do not impair the rights of women to patronize licensed premises. One Eleven Wines & Liquors, Inc. v. Division of Alcoholic Control, supra. I determine that insofar as the ordinance here under review prohibits females from being served at public bars, it contravenes the Constitution of this State and the New Jersey Oivil Bights Act, specifically the provisions thereof quoted above. Judgment accordingly.

No costs to any party.


author: Feller, J. S. C.

text:
    RAYMOND W. MORTON, RICHARD M. SHOFI, AND SOUTHWEST CIVIC ASSOCIATION OF CLARK, A CORPORATION OF NEW JERSEY, PLAINTIFFS, v. MAYOR AND COUNCIL OF THE TOWNSHIP OF CLARK, A MUNICIPAL CORPORATION IN UNION COUNTY, AND THE BUILDING INSPECTOR, DEFENDANTS. MABROOK GARDENS, A CORPORATION OF THE STATE OF NEW JERSEY, PLAINTIFF, v. MAYOR AND COUNCIL OF THE TOWNSHIP OF CLARK, A MUNICIPAL CORPORATION IN UNION COUNTY, AND THE BUILDING INSPECTOR, DEFENDANTS.
    Superior Court, of New Jersey Law Division
    Decided June 28, 1968.

      Mr. George W. Morton, Jr., for plaintiffs Raymond W. Morton et at.; (Messrs. George W. Morton, Jr. and Stanley J. Mann, co-counsel for plaintiffs.

      Mr. S. Arthur Schimmel for plaintiff Mabrook Gardens (Messrs. Levy & Krauss, attorneys).

      Mr. Irvine B. Johnstone, Jr., Township attorney, for defendants.
   Feller, J. S. C.

This is an action in lieu of prerogative writs brought by citizens and taxpayers attacking the issuance of a variance by the Township of Clark permitting the erection of a garden-type apartment house in Clark’s R-150 residence zone. The application was made to the board of adjustment under N. J. S. A. 40:55-39(d). The board adopted a resolution setting forth certain facts and recommending to the township council that the variance be approved. The township council having adopted a resolution approving the variance, an action was instituted by citizens and taxpayers attacking the grant. The landowner, Mabrook Gardens, intervened in that action. The variance was subsequently rescinded by resolution of the township council and the suit of the citizens and taxpayers then dismissed without prejudice.

The landowner thereupon instituted an action in lieu of prerogative writs against the township council attacking the validity of the rescission resolution. During the pendency of that action the court on its own motion reactivated the prior action attacking the validity of the variance. The two actions have been consolidated by order of the court.

The above recited facts call for a determination of the following issues: (1) did the township council have the authority to rescind the already granted variance, and (2) was the variance in the first instance invalid as being arbitrary, capricious and unreasonable?

The validity of the rescinding resolution will first be considered.

While the legal action attacking the grant of the variance was pending, an election was held in the Township of Clark which resulted in a change of membership on the township council. When the new members assumed their office in January 1965, concern was expressed over the variance previously approved for Mabrook. As a result of this concern, the township council indicated a desire to review and reconsider the previously granted variance. Accordingly, the council, after notice to Mabrook, held a public hearing on April 26, 1965 as to why the variance should not be rescinded. It should be noted that this hearing was held a year and a day after the township council had approved the grant of the variance. Mabrook was represented at the hearing. Neither Mabrook nor the council presented any new evidence. Subsequent to this hearing, the 1964 variance was rescinded. As a result of this action, the suit previously instituted attacking the variance was dismissed without prejudice. Ma-brook then instituted this suit.

Mabrook contends that defendants mayor and council had no power under N. J. S. A. 40:55—39 (d) to reconsider and overturn their previous action in granting a variance. Even assuming such power, plaintiff argues that defendants were without jurisdiction to exercise it because of the already instituted Superior Court action challenging their grant of the variance, or in the alternative, that in exercising this power defendants acted in an arbitrary and capricious manner.

In opposition to these contentions, defendants assert that an overall examination of the laws governing zoning in New Jersey, with particular emphasis on N. J. 8. A. 40:55-39 (d) indicates that they had power to reconsider their previous decision authorizing the grant of a variance. Furthermore, the institution of a proceeding in lieu of prerogative writs challenging the grant of the variance did not, in defendants’ opinion, oust them of their power to reconsider.

Before turning to an examination of the contentions and counter-contentions of the parties, in light of the law applicable to the case, several points are worthy of mention. First, at the time of the oral argument on this matter, it became known to this court that plaintiff had abandoned its contention that it had relied on the initial grant of the variance by defendants to such an extent that the latter was es-topped from taking further action on the matter. In view of such abandonment, this matter is no longer before the court. Second, an examination of New Jersey zoning law indicates that this case presents a question of first impression. Finally, the pretrial order lists as legal issues for consideration the validity of defendants’ action in rescinding their previous grant of a variance and the question of the application of estoppel to the facts presented. As previously stated, this latter point has been abandoned, leaving only the former for consideration. The issue is whether, on the facts of this case and considering the applicable law, defendants had the power to rescind a previously granted variance.

It is the opinion of this court, for the reasons to follow, that defendants mayor and council had no authority to reconsider and rescind their previous grant of a variance to plaintiff.

N. J. 8. A. 40:55-30 outlines in broad terms the general purposes and powers of a municipality with respect to zoning. Under this carefully conceived statutory scheme it is true, as defendants contend, that the governing body of a municipality is given broad powers to enact zoning ordinances and provide for their enforcement, for the purpose of insuring the health, welfare and safety of a community. However, this broad power is primarily geared to the initial enactment of zoning ordinances and their constant review and updating subsequent to enactment — a legislative function. The actual task of administering such zoning ordinances once enacted rests in a board of adjustment created by the governing body pursuant to N. J. 8. A. 40:55-36.

This power of administration within the confines of the local ordinance is qualified in situations where a party applies for a variance to establish a “use” in an area which excludes such “use.” In such a case the board of adjustment has only the power to recommend a variance to the municipal governing body. According to the statutory scheme, if the board makes such a recommendation, then the governing body can act in one of two ways: it can either approve or disapprove. N. J. 8. A. 40:55-39 (d). If the variance is approved, the applicant is entitled to a permit to establish such a use. If not approved, then the applicant may either drop the matter or appeal the decision of the governing body by filing an action in lieu of prerogative writs within a certain time period. There is no provision in the statutory scheme for the initiation of reconsideration hearings either on the part of the applicant or the municipal governing body. In fact, in an N. J. 8. A. 40:55-39(<i) situation this court feels that the intention of the Legislature, as exhibited in its statutory enactments was to prevent such reconsideration in view of the availability of a proceeding in lieu of prerogative writs.

In Grogan v. DeSapio, 11 N. J. 308, 322, 323 (1953), the court stated that when a statutory power is ex-excised in a manner that could not have been within the contemplation of the Legislature, and produces a result that could not have been foreseen by it, such exercise of power must be restrained within proper bounds by being held void. See also Donohue v. Campbell, 98 N. J. L. 755, 763 (E. & A. 1923). In support of the principle that a statute should not be construed to permit its purpose to be defeated by evasion, see State v. Hand, 71 N. J. L. 137, 141 (Sup. Ct. 1904); Haber v. Goldberg, 92 N. J. L. 367, 374 (E. & A. 1918). Further, in an investigation of the law in this respect, the purpose of the statute must be examined as well as the practical results flowing from its enforcement. McCarter v. McKelvey, 78 N. J. L. 3, 9 (Sup. Ct. 1909), affirmed sub nom. Attorney-General v. McKelvey, 78 N. J. L. 621, 623 (E. & A. 1910). Statutory language is to be construed keeping in mind the context of the whole statute, its purposes, and the circumstances under which the words were employed, giving them their generally accepted meaning unless a contrary intent is clear. This rule would seem to be applicable here in the construction of N. J. S. A. 40:55-39(0!).

This court takes the position it does while recognizing fully the doctrine of inherent administrative reconsideration set forth in Mackler v. Board of Education, 16 N. J. 362 (1954). The question in issue in Madder, was the reopening by a local board of education of disciplinary proceedings against its business manager. The court allowed such reconsideration in the absence of a statute prohibiting it, and in the absence of a final decision by the board. This absence of a final decision seems to have been the key aspect of the case, for the court, quoting In re Plainfield-Union Water Co., 14 N. J. 296, 305, said: Careful attention must be given to the italicized language. Great weight is apparently laid to the retention of control of the proceedings and the absence of vested rights in any one party. If these are the key factors necessary for the exercise of the inherent power of administrative reconsideration and review, then the inherent power could not be exercised on the facts of the present case. The municipal governing body did make a decision, i. e., it approved the recommendations of the board of adjustment and thereby granted the variance pursuant to its power under N. J. 8. A.' 40:55-39 (d).

“Administrative determinations are subject to reconsideration and revision by the agency itself, and a rehearing and the taking of new evidence to that end, so long as it retains control of the proceedings and the rights have not vested. This is an inherent power.” (at p. 369) (Emphasis added).

Referring back to the language of N. J. S. A. 40:55—39 (d), it gives the governing body power to act one way or the other. In short, it must “approve or disapprove such recommendation.” It is the opinion of this court that from the language used in N. J. 8. A. 40:55-39(d), it was the legislative intention that a municipal governing body, having made one decision, cannot reconsider and make another one. Obviously, the effect of an “approve or disapprove” clause is to permit one course of action and not two. In this light, the doctrine set forth in Handlon v. Belleville 4 N. J. 99 (1950) is on point. The court there said that “administrative tribunals possess the inherent power of reconsideration of their judicial acts, except as qualified by statute.” (Emphasis added). Defendants’ inherent power of reconsideration is qualified by the terms of N. J. 8. A. 40:55-39 (d).

The approval or disapproval by a governing body of a recommendation for a variance made by a board of adjustment is not a legislative function. It is a guasi-judieial function. This is clearly explained in Bathhopf, The Law of Zoning and Planning (3d ed. 1964), c. 46, § 2:

“A board of appeals has no power to revieio its own decision by vacating or rescinding or altering it when made, since its function is quasi-judicial. * * * It may, however, consider a new application for the same relief if either the plans submitted or the condition affecting the property have substantially changed.
The prior denial of a variance is evidence of the arbitrariness of a subsequent grant thereof, where the facts and circumstances are virtually unchanged from those previously ewisting and no good reason is shown for the change of position.” (Emphasis added)

In. Hoffman v. Fraad, 130 Misc. 667, 224 N. Y. S. 694 (Sup. Ct. 1927), affirmed 221 App. Div. 841, 224 N. Y. S. 819 (App. Div. 1927) a summary proceeding was brought by a landlord against a tenant and others for the possession of leased premises. From a final order awarding the premises to the tenants, and from an order denying the landlord’s motion for a new trial, the landlord appealed. Defendants sought to contest the validity of the orders of the fire commissioner and to defend their position by endeavoring to introduce evidence of a reopening of their appeal, the issuance of a certificate of occupancy, and the approval by the board of standards and appeals, upon the reopening of their appeal, of the plans of the tenants as originally submitted. The court, in reversing and ordering a new trial, stated:

“* * * the board had no jurisdiction to reopen the determination theretofore made by it, or to pass upon the same after it had once decided the tenant’s appeal. * * * the board has no power to reopen an appeal once decided.” (Emphasis added)

The court further held, at page 702, that the board, having no jurisdiction to reopen the appeal they had once decided, its determination upon such reopening was absolutely void. Moreover, the facts on which the reopening was granted were substantially the same as were before the board which rendered the former decision.

In Heyman v. Walsh 137 Misc. 278, 242 N. Y. S. 517 (Sup. Ct. 1930), a motion was brought for a peremptory order of mandamus to compel Walsh and others to rescind the reopening of an application for a variance of a building zone resolution. The resolution which denied the application fox variation recited that the board “deems that the applicant is not entitled to relief * * Nevertheless, application was made for reopening the matter on the very same theory and on the identical facts, with the single exception that the original proposal to extend the building three feet at the front was withdrawn. The court held that the board of standards and appeals was without jurisdiction to reopen the application for variation of the building zone resolution on substantially identical facts. See also Riker v. Board of Standards and Appeals, 225 App. Div. 570, 234 N. Y. S. 42 (App. Div. 1929).

The case of Hall v. Walsh, 137 Misc. 448, 243 N. Y. S. 602 (Sup. Ct. 1927), involved an application for a writ of certiorari against the chairman of the board of standards and appeals. In dismissing the order of certiorari, and in confirming the determination of the board, the court stated:

“The board having decided an appeal has no power to open the matter and rehear it on the same facts. * * * When, however, a new appeal comes to the board from a new ruling, the matter must be passed upon. I am not prepared to hold that in such a case the decision need not consider the prior determination. If the facts and situation were the same in both appeals, the prior decision would seem to be binding and require a similar holding in the later appeal. But if there had been a substantial change the matter would be open for a new determination. Whether there was such a change would be primarily for the board to determine, fat pp. 602, 603; emphasis added)

The case of Bright v. Zoning Board of Appeals of Town of Fairfield, 149 Conn. 698, 183 A. 2d 603 (Cir. 1962), was one involving an appeal by property owners from the action of the zoning board in granting an application for a zoning regulation variance allowing a country club to construct a swimming pool and golf course on residentially-zoned land. The court held:

“* * * a zoning board of appeals should not be permitted to revoke its former action unless there has been a change in conditions or new considerations materially affecting the merits of the subject matter have intervened.” (At p. 606).

See also Fiorilla v. Zoning Board of Appeals, 144 Conn. 275, 279, 129 A. 2d 619. (Sup. Ct. Err. 1957). Among the reasons proffered by the court in support of the above principle was simply that such a practice should be discouraged, since it would permit interested parties to be unduly harassed and injured through being called upon to contest repeated and frequently recurring agitations pertaining to the same subject matter.

The court in Bright, citing the case of Sipperley v. Board of Appeals on Zoning, 140 Conn. 164, 167, 98 A. 2d 907 (Sup. Ct. Err. 1953), stated that since the record did not disclose either that there had been a change in conditions or that other considerations materially affecting the merits of the subject matter had intervened and no vested rights had arisen, the board was “impotent to reverse itself.” (At page 606).

Black v. Westside Development Company, 106 Ga. App. 378, 126 S. E. 2d 901 (Ct. App. 1962), involved a proceeding on application for a zoning variance. An appeal was taken from the grant of a variance by the board of adjustment on a rehearing, and the court held that the board had no authority to grant a rehearing on an appeal to it from denial of a zoning variance.

In Chapmald Realty Corp. v. Board of Standards, 76 N. Y. S. 2d 296 (Sup. Ct. 1948), an action was brought to compel respondents to grant petitioner a variation of a zoning resolution so as to permit the use of a certain site for parking and storage of motor vehicles. Eespondents moved to dismiss the order of certiorari and to sustain and confirm the determination of respondents’ denial of the variation. The court stated that the board of standards and appeals has no power to open a proceeding for a permit for a variation of a zoning resolution and to rehear it on the same facts, unless there was a showing of new or different facts or conditions.

People ex rel. Swedish Hospital v. Leo, 120 Misc. Rep. 355, 198 N. Y. S. 397 (Sup. Ct. 1923), was a case wherein the superintendent of buildings had refused a permit for the erection or extension of a garage. The interveners had appealed to the board of standards and appeals. A committee of that board, appointed for the purpose of examining the premises in question, reported that the appeal should not be granted. Thereafter, a resolution was adopted by a vote of 4-3 affirming the decision of the superintendent of buildings in denying a permit to the interveners. The board of appeals then reopened the proceeding without any reason disclosed by the records. The relator objected to the proceeding on the ground that there was no power in the board to reopen the proceeding after it had been closed by a denial of the application. The court said:

“The question of the right of the board of appeals to rehear an application after it had once been denied is squarely presented upon these applications. This board is a quasi-judicial body. * * * The general rule, therefore is, that such a board is not vested with the power to reopen and rehear a proceeding which has once been terminated.” 198 N. Y. S., at p. 399; (emphasis added)

It then went on to say:

“The board of appeals can in no sense act other than in a quasijudieial capacity. It does not perform a single administrative or legislative act. As its name implies, it is an appellate tribunal. It passes upon matters formally brought to its attention, much the same as courts. It hears evidence and argument, and decides controversies as the evidence dictates. It cannot act without some evidence. The record here shows that it denied this application for good reason and upon sufficient evidence to sustain its conclusion. There was not a scintilla of evidence presented to the board to warrant it in changing its final disposition of this proceeding. Presumably it had thoroughly 'considered the matter before it. A committee of its members had viewed the premises and they had heard the parties in favor of and in opposition to the application. . They acted judicially, and adopted one of the only two courses open to it, namely to grant or deny the application. The judgment of the majority of the board dictated a denial of the application, and its action in so doing should not be again reviewed, because of a whim on the part of some of the members of the board. Were such a course generally followed, there would be no finality to a proceeding.” (Ibid., at p. 400; emphasis added)

43 G. J. 356 states as follows:

“Sect. 405 (f) REHEARING. When the board of appeals is considered a (¡"ncm-judicial tribunal, the general rule is that such a board is not vested with the power to reopen and rehear a proceeding which has once been terminated, at least in the absence of mistake in the prior proceedings. The power of the board to review the decision or determination of an inferior official, on the motion of one of its members does not confer the power to review, on such motion an appeal once heard or determined by the board.”

Miles v. McKinney, 174 Md. 551, 199 A. 540, 117 A. L. R. 207 (Ct. App. 1938), was a proceeding for a permit to erect a gasoline filling station and certain appurtenances in Baltimore City. A protest was filed. An order was issued granting the permit, thereby annulling a previous order of the board of zoning appeals of Baltimore City. On appeal, a motion to dismiss was granted, the court stating:

“* * * the Board has the right to correct errors in its decisions caused by fraud, surprise, mistake or inadvertence which any agency exercising judicial functions must have to adequately perform its duties. Whether it has the right to reconsider its decision in a case tohich it has heard and decided, reopen the ease and try it again, where there is no jrtvud, mistake, surprise or inadvertence is another question." (199 A. 540, at p. 546; emphasis added)

The court further said that the board had finally decided the case on March 23, 1937 by unanimously voting a resolution which refused the permit and denied the petition, and that it could not thereafter reopen the proceeding. The court held that, viewing the board of appeals as a grosi-judicial tribunal, the general rule is that such a hoard is not vested with the power to reopen and rehear a proceeding which has once been terminated, at least in the absence of mistake in the prior proceedings. Otherwise there would be no finality to the proceeding; the result would be subject to change at the whim of members, or due to influence exerted upon them or other undesirable elements tending to uncertainty and impermanence. (At p. 546; emphasis added).

Thus, after considering the above-cited cases, it would seem that in a situation where the governing body acts in a g"Mfflsi-judicial capacity, it is not vested with the power to reopen and rehear a proceeding which has once been terminated, at least in the absence of fraud, mistake, or substantial change in the prior proceedings. Otherwise, as the court said in Miles v. McKinnery, above there would be no finality to the proceedings and the result would be subject to change at the whim of the members or due to influence exerted upon them and other elements tending to uncertainty and impermanence. This rule seems to be applicable to the facts in this case.

Plaintiff’s main contention is that defendants were without jurisdiction to exercise any power to overturn their previous decision in granting the variance, for the reason that an action was already instituted in the Superior court. Assuming arguendo that the township council did have the right to rescind a variance granted one year previously, this court is of the opinion that such power could not be exercised at the time, due to the fact that a Superior Court proceeding in lieu of prerogative writs was instituted by plaintiffs shortly after April 27, 1964. The institution of that action divested the township council of jurisdiction. The following cases evidence the present law in New Jersey with respect to this matter.

In Kramer v. Board of Adjustment, Sea Girt, 80 N. J. Super. 454 (Law Div. 1963), an action was instituted challenging the validity of a variance recommended by the board of adjustment and granted by the governing body. The court, in holding that the resolution recommending the granting of the zoning variance was void for failure to comply with the Right-to-Know Law, stated that the board’s capacity to deal with the matter while it is pending before the court was at best a very limited one. Stated more succinctly, it was the opinion of the court that under the facts of the case, while the suit challenging the validity of the board’s recommendation to grant a variance was pending in the Superior Court, the board was without jurisdiction to talce further action except on remand by the court. (At p. 463; emphasis added).

The case of In re Plainfield-Union Water Co., 14 N. J. 296 (1954), was one involving a proceeding upon application by a water company for the approval of plans for obtaining additional subsurface water supply. The Water Policy and Supply Council of the State Department of Conservation and Economic Development approved. The objector appealed. The Supreme Court, affirmed the decision, holding that the evidence sustained the council's finding as to the public need for making additional sources of water supply available to the applicant, and that the proper method for doing so>' was within the province of the council. It said:

“The filing of the notice of appeal invoices the jurisdiction of the appellate tribunal. * * * And, by the same token, the appeal divest& the lower eoxirt of jurisdiction save as reserved by the statute of rule. [Citations], Jurisdiction is restored by the mandate of the-appellate court, but not in derogation of the judgment of the appellate tribunal embodied therein.” (At p. 302; emphasis added)

The following New York cases are pertinent:

In Riker v. Board of Standards and Appeals of the City 225 App. Div. 570, 234 N. Y. S. 42 (App. Div 1929), the New York court was faced with a fact situation similar t» the one presented here. The applicant in Rilcer, supra, was successful in getting approval of his application to build ai “use" in a district which was restricted against such use. After the application was approved, a suit was instituted challenging the approval. While the suit was pending, the Board of Appeals which had approved the application decided to reopen the case. This it did, and after a second hearing it rescinded its previous grant of approval. Thereafter the suit was dismissed. After the rescission, the applicant filed a suit challenging the validity of the rescission and the New York court declared the rescission to be unauthorized and void. The court, in so holding, stated the following principles which this court deems applicable to the first issue in the instant case:

“We conclude that the rescission and setting aside of its former decision by the board of standards and appeals was unauthorized and void. The function of that board is a gwasi-judicial one, and it is not empowered to review its own decision by vacating or rescinding or altering it when made, and besides, the certiorari order of the Supreme Court had removed the tohole proceeding to its jurisdiction and, the power of the hoard of standards and appeals had thereby been terminated.
The board of standards and appeals, after a hearing had, adopted a resolution granting an appeal from the building superintendent and permitted the erection of a business building in a residence district, and this certiorari order sought a review of that decision.
* * * * * * *
This reopening of the appeal from the superintendent of buildings which the board had once decided, and their determination upon such reopening were absolutely void. No section of the statute defining the board’s powers gives it any authority so to act as to effect a review or rescission of its own prior decision, except when additional facts are presented. The jurisdiction of the board by its statutory mandate is limited to hearing and determining appeals. When guosi-judicial bodies act under their granted powers, their determination is final unless reversed by a superior body.” (At pp. 43, 44).

In Watkins v. Gormley, 59 N. Y. S. 2d 747 (Sup. ct. 1945), an application was made pursuant to Article 78, Civil Practice Act to review a determination of the respondents, constituting the local planning board, made at a special meeting rescinding a resolution it had passed at a special meeting held a month before.

Petitioner contended that the planning board was without authority to reopen the matter and rescind its first resolution. In dealing with that contention, the court announced the following rule:

“Unless new conditions have arisen since the first determination so as to constitute the application for reconsideration as based virtually upon a new state of facts, the Board of Appeals has no right to reopen the proceedings and set aside its former decision.” (at p. 749)

Petitioner argued that jurisdiction of the entire matter was removed to the Supreme Court by the order of certiorari which was issued to review the granting of the resolution. In answer to this, the court quoted the Bilcer case and said:

“* * * the certiorari to review a decision of the Board removes the entire proceeding from its jurisdiction and terminates the powers of the said Board.” (at p. 749; emphasis added)

Accordingly, the court granted the petition, thereby rescinding all acts, determinations and resolutions of the board.

Therefore, on the basis of the facts in this case and considering all of the applicable law, it is the opinion of this court that defendants’ action in reconsidering and rescinding a variance previously approved for plaintiff is void and without effect. The court is of the further opinion that the defendants’ action is null and void for the further reason that the institution of the proceeding in lieu of prerogative writs in the Superior Court shortly after April 37, 1964 divested the township council of jurisdiction.

The validity of the variance in the first instance will now be considered.

[The court reviewed the record and concluded that the board’s recommendation and the governing body’s grant of a variance was arbitrary, capricious and unreasonable under N. J. 8. A. 40:55-39 (d), and reversed.]