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nj/1016862.json

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+"{\"id\": \"1016862\", \"name\": \"STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT, v. TRAVIS MOORE, DEFENDANT-APPELLANT\", \"name_abbreviation\": \"State v. Moore\", \"decision_date\": \"2003-03-12\", \"docket_number\": \"\", \"first_page\": \"241\", \"last_page\": \"253\", \"citations\": \"358 N.J. Super. 241\", \"volume\": \"358\", \"reporter\": \"New Jersey Superior Court Reports\", \"court\": \"New Jersey Superior Court, Appellate Division\", \"jurisdiction\": \"New Jersey\", \"last_updated\": \"2021-08-10T18:25:04.289692+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT, v. TRAVIS MOORE, DEFENDANT-APPELLANT.\", \"head_matter\": \"817 A.2d 419\\nSTATE OF NEW JERSEY, PLAINTIFF-RESPONDENT, v. TRAVIS MOORE, DEFENDANT-APPELLANT.\\nSuperior Court of New Jersey Appellate Division\\nSubmitted January 8, 2003\\nDecided March 12, 2003.\\nBefore Judges KING, LISA and FUENTES.\\nYvonne Smith Segars, Public Defender, attorney for appellant (Alyssa Aiello, Assistant Deputy Public Defender, of counsel and on the brief).\\nPeter C. Harvey, Acting Attorney General, attorney for respondent {Steven J. Zweig, Deputy Attorney General, of counsel and on the brief).\", \"word_count\": \"3940\", \"char_count\": \"24158\", \"text\": \"The opinion of the court was delivered by\\nLISA, J.A.D.\\nThis appeal requires us to determine whether eluding an officer, N.J.S.A. 2C:29-2b, is elevated from a third-degree to second-degree crime where the defendant's unlawful conduct creates a risk of death or injury to himself, but to no one else. We hold it does not.\\nAfter a trial by jury, defendant was convicted of second-degree eluding and sentenced to seven-years imprisonment. The jury acquitted defendant of possession of a controlled dangerous substance (CDS), N.J.S.A. 2C:35-10a(l), and possession of a CDS with intent to distribute, N.J.S.A. 2C:35-5a(l) and -5b(3). The judge who presided over the jury trial adjudicated the motor vehicle charges arising out of the incident. R. 3:15-3(a)(2). The judge found defendant guilty of careless and reckless driving, but merged the careless with the reckless conviction, and the reckless with the second-degree eluding conviction. The judge found defendant not guilty of failure to wear a seatbelt, operating a motor vehicle with tinted windows and possession of a CDS in a motor vehicle.\\nA person is guilty of third-degree eluding who operates a motor vehicle on a street or highway, who knowingly flees or attempts to elude a police or law enforcement officer after receiving a signal from the officer to bring the vehicle to a full stop. N.J.S.A. 2C:29-2b. The offense is elevated to a second-degree crime \\\"if the flight or attempt to elude creates a risk of death or injury to any person.\\\" Ibid. The State tried the case on the theory that defendant created a risk of death or injury to himself, but to no one else. The judge denied defendant's motion at the end of the State's case, R. 3:18-1, to dismiss the second-degree eluding charge (and, implicitly, to submit only the third-degree charge to the jury).\\nThe judge instructed the jury that the enhancing element would be satisfied if \\\"the flight or attempt to elude created a risk of death or injury to any person and that person would include and is alleged to be the defendant himself.\\\" He reiterated, \\\"In order to find this element, you must determine that there was at least one person put at risk by the defendant's conduct and that would be according to the State's allegations the defendant himself.\\\" The jury verdict sheet correspondingly asked the jurors, if they found defendant guilty of third-degree eluding, to further determine if defendant's conduct \\\"created a risk of death or injury to the defendant.\\\"\\nOn appeal, defendant contends the trial judge's instruction on second-degree eluding improperly broadened the scope of the offense, thereby violating defendant's right to due process of law. We agree with this contention and now reverse.\\nAt 12:15 a.m. on January 12, 2001, Lt. Auker, in uniform and patrolling in a marked police car, observed a car traveling at a high rate of speed in the opposite direction on Industrial Road in Carteret. Auker made a U-turn and activated his overhead lights. He estimated the vehicle's speed at close to sixty miles per hour in a forty miles per hour zone. The vehicle pulled over without incident. The distance from the point of Auker's initial observation of the vehicle to the point of the stop was about one-half of a mile, and the elapsed time between those events was less than one minute.\\nAs Auker exited his ear and approached the stopped vehicle, he observed a lone occupant, later determined to be defendant. According to Auker, as he approached defendant's car he placed his hand on his gun and unsnapped the restraint, but never removed it from the holster. He did this for his safety because of the late hour and because defendant leaned towards the glove compartment. According to defendant, Auker unholstered his gun, pointed it in defendant's face and addressed him using a racial epithet. Under either version of this interaction, defendant then sped away from the scene. Defendant contends he panicked and left in fear of the officer. The State urges an inference that defendant left because there was CDS in the car, which he did not want to be discovered.\\nAuker returned to his car and began a pursuit, with his overhead lights and siren on. Auker knew of a sharp curve in the roadway and consciously held down his speed to about fifty to fifty-five miles per hour. He \\\"backed off' hoping defendant would slow down. Auker radioed for back-up, who he instructed to proceed to an intersection beyond the curve, where they could intercept defendant. Defendant accelerated rapidly, reaching a speed estimated by Auker of sixty to seventy miles per hour. After traveling about one-half of a mile from the initial stop in less than one minute, defendant did not successfully negotiate the curve. His car left the road, striking a utility pole and severing it in half. There may have been some snow or ice on the roadway that may have contributed to the crash. Defendant was seriously injured and was removed to the hospital by a medivac helicopter.\\nCDS was found in the wrecked car. The car was owned by defendant's brother. Defendant testified he had just borrowed it to drive home and had no knowledge of the presence of CDS. The jury apparently accepted this testimony.\\nAuker testified that traffic in the area was \\\"very light.\\\" There was no testimony about any other vehicles actually in the area during the course of the eluding, nor of any pedestrians. This portion of Industrial Road is a \\\"fairly wide roadway\\\" in an industrial area. The State did not contend that Auker, who prudently drove at a safe speed, was placed at risk.\\nThus the circumstances do not provide a basis upon which an inference could reasonably be drawn that \\\"people were likely to be in the area and that they were put at risk of death or injury by defendant's eluding.\\\" State v. Wallace, 158 N.J. 552, 560, 730 A.2d 839 (1999). Certainly, there was no direct proof of people in the area. The State did not seek to avail itself of the permissive inference in N.J.S.A 2C:29-2b, which allows a jury to infer that a defendant creates a risk of death or injury to any person if the defendant's conduct involves a violation of chapter 4 of Title 39. The only such violation the State alleged during the course of the eluding was reckless driving, based only on excessive speed. A permissive inference charge was not given. Therefore, whether \\\"any person\\\" in N.J.S.A 2C:29-2b includes the defendant is squarely presented.\\nThe term \\\"any person\\\" seems simple. Literally, it encompasses all natural persons, N.J.S.A 2C:l-14g, without exclusion. The literal meaning of the term, therefore, without regard to its context, does not exclude defendant, and therefore includes him. Context, however, cannot be disregarded. The Code of Criminal Justice uses the same term in contexts where the defendant is plainly not included. See, e.g., N.J.S.A 2C:12-1.2a (Endangering an injured victim is accomplished by defendant causing bodily injury to \\\"any person.\\\"); N.J.S.A. 2C:12-2b(2) (Although N.J.S.A 2C:12-2 is entitled \\\"Recklessly Endangering Another Person,\\\" subsection b(2) makes it a crime to entice \\\"any person\\\" to take \\\"any treat, candy,----\\\"); N.J.S.A 2C:13-5a(3) (Criminal coercion is committed if, with purpose unlawfully to restrict another's freedom of action, defendant exposes a secret which would tend to subject \\\"any person\\\" to hatred, contempt or ridicule, etc.); N.J.S.A. 2C:21-16 (Securing execution of documents by deception is accomplished where it affects or is likely to affect the pecuniary interest of \\\"any person.\\\"); N.J.S.A 2C:27-3a(l) (A defendant who threatens unlawful harm to \\\"any person\\\" with purpose to influence a decision, etc. by a public official, etc., commits an offense); N.J.S.A. 2C:37-2a(l) (A defendant promotes gambling who accepts money or property pursuant to an agreement with \\\"any person\\\" to participate in gambling activity). Defendant points to such Code sections to support his argument that the terms \\\"any person,\\\" \\\"anyone,\\\" \\\"another,\\\" and \\\"another person\\\" are used interchangeably throughout the Code.\\nWhere statutory language is clear and unambiguous, it is our duty to enforce it as written. State v. Toth, 354 N.J.Super. 13, 19, 804 A.2d 565 (App.Div.2002). Where the language of a statute is susceptible of more than one meaning, however, resort must be had to extrinsic sources to determine the correct meaning. State v. Hoffman, 149 N.J. 564, 578, 695 A.2d 236 (1997). In these circumstances, such items as \\\"legislative history, committee reports, and contemporaneous construction may be used to help resolve any ambiguity and to ascertain the true intent of the Legislature.\\\" Ibid. We conclude that the term \\\"any person,\\\" in the context of N.J.S.A. 2C:29-2b, is susceptible to two meanings, one which includes the defendant and one which does not.\\nOur conclusion is premised on (1) examples such as those we have listed which demonstrate different meanings for the term throughout the Code; (2) the use by the Legislature, in some instances, of language specifically including a defendant, rather than using the \\\"any person\\\" language. See, e.g., N.J.S.A. 2C:30-2 (Official misconduct is committed when a defendant engages in the proscribed activity with purpose to obtain a benefit \\\"for himself or another\\\"); and (3) the general and common notion that victim-oriented criminal conduct is typically measured by harm or a threat of harm caused by the actor to others, not to him or herself. We therefore look beyond the literal meaning of the term to glean its correct meaning.\\nWhen the Code was originally adopted in 1979, eluding was not a separate offense, but was encompassed within the offense of resisting arrest under N.J.S.A. 2C:29-2. State v. Wallace, supra, 158 N.J. at 557, 730 A.2d 839. By L. 1981, c. 290, \\u00a7 28, effective September 24, 1981, N.J.S.A. 2C:29-2b was added to create the separate offense of eluding, which was restricted to the use of motor vehicles and was graded only as a disorderly persons offense. Ibid.\\nBy L. 1989, c. 84, \\u00a7 1, effective May 31,1989, N.J.S.A. 2C:29-2b was strengthened by adding a mandatory loss of driving privileges for violators. The grading of the offense was not changed, and no enhancement was added if the violator created a risk of death or injury. The legislative history accompanying this enactment evidenced concern for danger to the violator as well as others. The sponsors' statement stated:\\nA motorist fleeing or attempting to elude a police officer may create a dangerous situation for himself, the police officer and other drivers in the vicinity. Fatal accidents have been caused by persons driving a motor vehicle in an attempt to evade police officers. The purpose of this bill is to discourage persons from placing themselves and others in danger by using a motor vehicle to elude police or law enforcement officers.\\n[Sponsor's Statement, Assembly No. 1825.]\\nA Star-Ledger article, included in the bill's official legislative history, quotes the bill's co-sponsor, Assemblyman Robert Franks, as stating, \\\"A driver who flees or speeds off in an attempt to escape apprehension can create a dangerous situation for himself, the police and other motorists in the vicinity.\\\" Matthew Reilly, Governor enacts law permitting hearsay evidence in child abuse cases, Star-Ledger, June 2, 1989. The desired deterrent effect was accomplished, however, by increasing the penalty, not by enhancing the offense if the undesirable risk was created.\\nBy L. 1991, c. 341, \\u00a7 3, effective January 7, 1992, N.J.S.A. 2C:29-2b was amended to introduce, for the first time, an enhanced offense if the offender's eluding conduct \\\"creates a risk of death or injury to any person.\\\" This amendment also included the permissive inference provision. Eluding remained a disorderly persons offense, and the enhanced offense was graded as a fourth-degree crime. As originally proposed, the amendatory language was: \\\"except that, if the flight or attempt to elude creates a substantial risk of injury to another, the person is guilty of a crime of the fourth degree.\\\" (Emphasis added). Senate, No. 1192, PreFiled For Introduction in the 1990 Session, First Reprint. The bill passed the Senate in this form on March 29, 1990 and was then referred to the Assembly Judiciary, Law and Public Safety Committee. Legislative Index.\\nOn March 7, 1991, that Committee recommended a change in the amendatory language, to provide: \\\"except that, a person is guilty of a crime of the fourth-degree if the flight or attempt to elude creates a risk of death or injury to any person.\\\" (Emphasis added) Senate, No. 1192, Pre-Filed For Introduction in the 1990 Session, First Reprint. On December 2, 1991 the Assembly passed the bill in its amended form; the Senate passed the amended bill on December 9, 1991; and it was finally approved in that form on January 7, 1992. Legislative Index. The State argues: \\\"The fact that the Legislature specifically rejected the term 'to another,' replacing it with the phrase 'to any person,' conclusively establishes that it specifically intended that creating a risk of death or injury to the eluding party be included within the [enhanced] offense.\\\"\\nOther portions of the legislative history of this bill contradict the State's position. The March 7, 1991 Committee Statement explaining the Committee's recommended amendments states the bill would upgrade eluding to a fourth-degree offense if it creates a risk of death or injury to \\\"any person.\\\" The Statement continues, \\\"As amended, there shall be a permissive inference that a flight or attempt to elude in a motor vehicle creates a risk of death or injury to another if the conduct involves a violation of chapter 4 of Title 39.\\\" (Emphasis added.) Assembly Judiciary, Law and Public Safety Committee Statement to Senate, No. 1192, with committee amendments, Dated: March 7,1991. The amended bill uses the \\\"any person\\\" term in the permissive inference provision. The Committee Statement thus provides support for defendant's position that the Legislature uses the terms interchangeably.\\nThe State also relies on a News Release issued by the Office of the Governor on January 7, 1992, which states: \\\"The law aims to address a problem that has grown more severe in recent years: deaths and injuries caused by people fleeing from police.\\\" Office of the Governor, New Release, January 7,1992. The State argues \\\"[t]here is no indication that the Legislature was less concerned if the death and injury caused by people fleeing from police happened to occur to the people doing the fleeing.\\\"\\nBut a closer look at the News Release and another item in the legislative history reveals otherwise. The News Release states that \\\"[t]he legislation was supported by county prosecutors and by police organizations\\\" and that even \\\"[i]n cases where no one is killed or injured, but the risk of that happening is created\\\" the new law upgrades the eluding offense from a disorderly persons offense to a fourth-degree crime. Ibid. A news article contained in the official legislative history sheds light on the incident that inspired the bill and the kind of risks that underlie the support of the law enforcement community:\\n[The sponsors'] bills were proposed because of police chases in the late 1980's that ended with the deaths of innocent drivers who were killed by fleeing suspects. One was Desere M. LaCrosse, 19, who was driving through Toms River one night in November 1988 when her car was struck by a vehicle whose driver was fleeing from a Seaside Heights officer.\\nCounty prosecutors and police organizations supported the new law because they saw a growing willingness by criminal suspects to risk other people's lives by leading police on car chases, officials with the governor's office said.\\n[Press Statehouse Bureau, Drivers who run from, police face harsher penalties, Asbury Park Press, Jan. 8,1992 (emphasis added).]\\nContrary to the State's contention, the history accompanying this bill includes no concern for the well-being of the offender, but only for that of others. The history relates an overriding concern for the well-being of innocent third parties as the impetus and purpose of the bill. Thus, while the bill's amendment during the legislative process is significant, it is by no means conclusive of the intention proffered by the State. The legislative intent is somewhat mixed.\\nN.J.S.A. 2C:29-2b was next amended by L. 1993, c. 219, \\u00a7 5, effective August 2, 1993, which upgraded disorderly eluding to a third-degree offense and upgraded the enhanced offense from fourth-degree to second-degree. There is no change in the \\\"any person\\\" language in the statute. Thus the statutory amendments themselves add nothing to our analysis of the legislative intent. We do find significance, however, in the legislative history of this amendment.\\nThe Sponsor's Statement, the Assembly Judiciary, Law and Public Safety Committee Statement and the Senate Judiciary Committee Statement all say this:\\nUnder present law, the offense of eluding a law enforcement officer while in operation of a motor vehicle is punishable as a disorderly persons offense----If the eluding results in the creation of a risk of injury or death to another person, eluding is presently graded as a crime of the fourth degree____This bill would upgrade eluding from a disorderly persons offense to a crime of the third degree____ If the offense creates a risk of injury or death, the bill would grade eluding as a crime of the second degree....\\n[Sponsor's Statement to Senate, No. 1205 (emphasis added); Assembly Judiciary, Law and Public Safety Committee Statement to Senate, No. 1205 with committee amendments, Dated April 5, 1993 (emphasis added); Senate Judiciary Committee Statement to Senate, No. 1205, Dated: October 8,1992 (emphasis added).]\\nThese official statements indicate that the legislators amending the law deemed its present status, after the previous amendment, to require creation of the risk of death or injury to \\\"another person\\\" to sustain the enhanced offense. The Governor's bill-signing statement echoed this sentiment: \\\"This bill puts the brakes on a frightening and dangerous act. Suspects who lead police on high speed chases put everyone around them at risk of injury or death.\\\" Office of the Governor, News Pelease, August 2,1993 (emphasis added).\\nAt best, the legislative history is ambiguous. The difference between a third and second-degree crime is substantial. The two grades of crimes do not constitute a mere continuum, the former carrying a potential ordinary term prison sentence of three to five years and the latter five to ten years. N.J.S.A. 2C:43-6a(3) and - 6a(2). A defendant convicted of third-degree eluding is not subject to a presumption of imprisonment. N.J.S.A. 2C:44-1e; State v. Pineda, 227 N.J.Super. 245, 250-51, 546 A.2d 578 (App.Div.1988), aff'd in part, rev'd in part, 119 N.J. 621, 575 A.2d 855 (1990). A defendant convicted of second-degree eluding, even if a first offender, is subject to a presumption of imprisonment, which is rarely overcome. N.J.S.A. 2C:44-1d; State v. Jabbour, 118 N.J. 1, 570 A.2d 391 (1990). The substantial disparity in consequences emphasizes the need for clarity in differentiation of the offenses. See N.J.S.A. 2C:l-2a(4) and (5).\\nDefendant argues that interpretation of the \\\"any person\\\" term to include him is an overbroad construction which denies him of due process. Penal statutes must be strictly construed. State v. Valentin, 105 N.J. 14,17, 519 A.2d 322 (1987). This rule \\\"has at its heart the requirement of due process. No one shall be punished for a crime unless both the crime and its punishment are clearly set forth in positive laws.\\\" Id. at 17-18, 519 A.2d 322 (quoting In re Suspension of DeMarco, 83 N.J. 25, 36, 414 A.2d 1339 (1980)). \\\"Penal laws cannot be extended by implication or intendment. Where more than one reasonable interpretation may be made, or where the language is ambiguous \\u2014 and the ambiguity is not manufactured by the defendant \\u2014 the construction must be drawn against the state.\\\" State v. Valentin, supra, 105 N.J. at 18, 519 A.2d 322 (citing State v. Carbone, 38 N.J. 19, 23-24, 183 A.2d 1 (1962); 3 Sands Sutherland Statutory Construction \\u00b6 59.03 at 6-7.)\\nOur Supreme Court has commented on the Legislature's intended scope of protection in the eluding statute:\\nWe are satisfied that the Legislature intended to protect all persons by the eluding statute, including the police officers occupying the chasing vehicle and any person in the eluding vehicle, as well as any people who could potentially be exposed to death or injury along the chase route. In our view, the statute was designed to punish those who elude the police and actually cause injury or death, as well as those whose unlawful conduct creates a possibility of injury to others.\\n[State v. Wallace, supra 158 N.J. at 560, 730 A.2d 839 (emphasis added).]\\nThe State relies on the first quoted sentence; the defense on the second. The Court in Wallace did not have the occasion to consider the issue now before us. We read the passage in its entirety and its context. In the sentence preceding the quoted passage, the Court expressed its disagreement with the conclusion in State v. Dorko, 298 N.J.Super. 54, 688 A.2d 1109 (App.Div.), certif. denied, 150 N.J. 28, 695 A.2d 670 (1997), that the State must prove the presence of a member of the public in the vicinity of the chase who was exposed to injury. The Court thus expressed in the first quoted sentence a more expansive view, to include the pursuing police officers and occupants of the eluding vehicle. The second quoted sentence states that those subject to enhanced punishment are individuals whose unlawful conduct creates a possibility of injury to others. It is illogical that the two are one and the same. Thus the expansive view stops short of including the defendant. We therefore conclude that \\\"any person in the eluding vehicle\\\" refers to that vehicle's passengers.\\nIn its present form, in light of the legislative history and correlative Code provisions, we cannot find a legislative intent to include the offender in the protected class. In the absence of an express and definitive provision making clear that the offender is subject to enhanced punishment as a result of creating a risk of harm to him or herself, we decline to impute such a meaning. We doubt that an ordinary citizen of average intelligence would ascribe such a meaning to the statute as presently written. State v. Valentin, supra, 105 N.J. at 19, 519 A.2d 322. This is an appropriate ease in which to invoke the doctrine requiring strict construction against the State of a penal statute.\\nDefendant's conviction of second-degree eluding is vacated. Defendant's motion to withhold from the jury second-degree eluding and submit to it only third-degree eluding should have been granted. The jury's finding of defendant's guilt of third-degree eluding is not challenged and remains undisturbed. The matter is remanded for resentencing on the third-degree eluding offense.\\nReversed and remanded.\\nThe prosecutor described the area in her opening as \\\"that portion oi Carteret when you are heading north on the Turnpike you see all the oil, the big round oil tankers right in that area.\\\"\\nThe careless driving charge, also based only on excessive speed, was for defendant's driving before the initial stop.\\nVacation of the second-degree eluding conviction may result in \\\"unmerging\\\" the reckless driving conviction and imposing a separate sentence for that offense. State v. Pennington, 273 N.J.Super. 289, 295, 641 A.2d 1085 (App.Div.), certif. denied, 137 N.J. 313, 645 A.2d 141 (1994).\"}"

nj/103372.json

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+"{\"id\": \"103372\", \"name\": \"Jane M. Wright, administratrix &c. of George M. Wright, deceased, et al., appellants, v. William L. Wright, respondent\", \"name_abbreviation\": \"Wright v. Wright\", \"decision_date\": \"1893-11\", \"docket_number\": \"\", \"first_page\": \"637\", \"last_page\": \"637\", \"citations\": \"51 N.J. Eq. 637\", \"volume\": \"51\", \"reporter\": \"New Jersey Equity Reports\", \"court\": \"New Jersey Court of Errors and Appeals\", \"jurisdiction\": \"New Jersey\", \"last_updated\": \"2021-08-10T18:10:21.548441+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Jane M. Wright, administratrix &c. of George M. Wright, deceased, et al., appellants, v. William L. Wright, respondent.\", \"head_matter\": \"Jane M. Wright, administratrix &c. of George M. Wright, deceased, et al., appellants, v. William L. Wright, respondent.\\nOn appeal from a decree advised by Vice-Chancellor Pitney, whose opinion is reported in Wright v. Wright, 6 Dick. Ch. Rep. 476.\\nMessrs. Grey & Grey, for the appellants.\\nMr. John W. Wescott and S. Morris Waln (of Philadelphia), for the respondent.\", \"word_count\": \"88\", \"char_count\": \"563\", \"text\": \"Per Curiam.\\nDecree affirmed, for reasons given in the court of chancery.\\nFor affirmance \\u2014 The Chief-Justice, Abbett, Depue, Reed, Van Syckel, Krueger, Smith \\u2014 7.\\nFor reversal \\u2014 Dixon, Phelps \\u2014 2.\"}"

nj/12124174.json

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+"{\"id\": \"12124174\", \"name\": \"THE STATE v. JAMES R. NUGENT ET AL.\", \"name_abbreviation\": \"State v. Nugent\", \"decision_date\": \"1908-11-09\", \"docket_number\": \"\", \"first_page\": \"84\", \"last_page\": \"89\", \"citations\": \"77 N.J.L. 84\", \"volume\": \"77\", \"reporter\": \"New Jersey Law Reports\", \"court\": \"New Jersey Supreme Court\", \"jurisdiction\": \"New Jersey\", \"last_updated\": \"2021-08-10T22:38:58.411774+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before Justices Ruud, Beegek and Vooi\\u00fctees.\", \"parties\": \"THE STATE v. JAMES R. NUGENT ET AL.\", \"head_matter\": \"THE STATE v. JAMES R. NUGENT ET AL.\\nArgued June 3, 1908\\nDecided November 9, 1908.\\n1. An indictment charging that defendants unlawfully combined, united, federated, conspired and bound themselves to do an unlawful act, charges a conspiracy without the use of the words \\u201cthe defendants did agree \\u2018together.\\u2019 \\u201d\\n2. Fraudulent voting at an election, whether consisting of - voting disqualified persons, repeating, or voting under the names of other voters, is a perversion or obstruction of the due administration of law, which, by the Crimes act (Pamph. L. 1808, p. 805. \\u00a7 37). as amended\\u2019by the act of 1899 (Pamph. L.. p. 214), is made the subject of a criminal conspiracy.\\n3. Aiding and abetting in the false registration of a person is a sufficient overt act in the execution of conspiracy to have such a person fraudulently vote at: the following election.\\nOn application for a writ of certiorari to bring into this court an indictment found by the Essex county grand jury against several defendants for conspiracy.\\nBefore Justices Ruud, Beegek and Vooi\\u00fctees.\\nFor the application, Samuel Kalisch.\\nFor the state, Louis flood.\", \"word_count\": \"1902\", \"char_count\": \"10968\", \"text\": \"The opinion of the court was delivered by\\nReed, J.\\nThe indictment in question charges that the defendants did unlawfully and wickedly combine, unite, confederate. conspire and bind themselves by agreement to unlawfully and corruptly procure one W. B. to vote at a specified general election in the sixth election district of the second ward of the city of Newark, well knowing the said W. B. not to be a qualified voter in said election district at that election.\\nIt is insisted that regardless of other objections to the indictment, the words employed are not apt to charge a crim inal conspiracy. The alleged defect pointed out is that the words \\\"the defendants did bind themselves by an agreement\\\" docs not necessarily import that the agreement was between themselves, but leaves open the possibility that the agreement might have been between each defendant and some third person or persons.\\nThere is no doubt that the forms in indictments for conspiracy contain the charge that the defendants did agree together, or that the defendants did among themselves conspire and agree together, but it seems impossible to ascribe to the other words, \\\"combine, confederate, conspire\\\" any meaning other than that the defendants mutually engaged to accomplish the purposes charged. When it is said that A and B confederated or conspired to do an act, the words seem to have a well defined significance. The etymological, technical and popular significance of these words when predicated of iwo or more persons is that they reciprocally engage to assist in a common enterprise, and the enterprise being common, and the will of all the defendants being common, the agreement is common and between each and all of the defendants. This is the equivalent for agreeing together to perform the act.\\nBesides, the charge is couched in the language of section 37 of the Crimes act as amended by the act of 1899. Pamph. L., p. 214. This section does not merely indicate the punishment for a crime known to common law, but defines the crime itself.\\nI therefore think the statement of conspiracy from the point of view in which it is attacked is sufficient.\\nIt is again insisted that the indictment does not show that the defendants conspired to commit a crime in the county of Essex. Assuming that such a charge was essential under the statute, it nevertheless appears in the indictment. The general purpose of the conspiracy, as set out, was to procure disqualified persons to vote, and to procure qualified persons to vote in more than one election district, and to vote upon names other than their own upon a general election held in this state on a certain date, but the specific charge is that they conspired to procure a certain person to vote in a certain election district in Essex county. This fixes the place where the purpose of the conspiracy was to be executed.\\nConspirators may be indicted in the jurisdiction where the conspiracy was entered into (Dealy v. United States, 152 U. S. 539), and this indictment charges it to have been in the county of Essex. The rule is that conspirators may be indicted either in the county in which they first entered into the unlawful combination, or in any other county in which, in pursuance of it, an overt act was performed. 1 Bish. Cr. L., \\u00a7 61.\\nBut it is said that it is not charged that the conspiracy was to commit a crime; that as the crime of conspiracy is limited by section 37 of the act concerning crimes, as that section was amended in 1899 (Pamph. L., p. 214), the only ground upon which this indictment can stand is that the purpose to be accomplished by the conspiracy is the commission of a crime, and it is insisted that while the purposes to be accomplished were crimes under section 2 of the act of 1905 (Pamph. L., p. 224), yet that section has been repealed by a later act passed in 1905 (Pamph. L., p. 386), the thirty-fifth section of which later act, it is insisted, provides for the sole punishment of acts, which under the previous acts were crimes, the punishment being a penalty to be recovered in a civil action.\\nIt is to be observed that the legislation contained in section 35 of the later act seems to be entirely aside from the purpose indicated in the title of the act. The purchase of voting machines and the regulation of the use of voting machines can hardly be said to express a purpose to legislate for the punishment of illegal voting, which punishment has always been provided for in the Crimes act, or in the act to regulate elections.\\nBut the question of repealer is unimportant. It is unimportant because the assumption that the indictment is valid only if it charges a design to commit a crime is untenable. Assuming for the purpose of defendants' argument that section 37 of the Crimes act as amended in 1899, page 214, covers the whole field of criminal conspiracy; that this section, notwithstanding State v. Norton, 3 Zab. 33, excludes any matter as the subject for a criminal conspiracy save those pointed out in the statute, yet the matters included within this statute are not confined to a combination to commit a crime. One of the purposes, a combination to effect which is a conspiracy is, in the language of this section, \\\"a design to commit an act for the perversion or obstruction of justice, or the clue administration of the laws.\\\"\\nNow the fraudulent voting at an election, whether in the shape of voting disqualified persons, repeating, or voting upon the names of other voters, is a perversion or obstruction of the due administration of law. It is as palpably so as was the tampering with ballot boxes, dealt with in the case of State v. Moschell, 24 Vroom 498; affirmed, 25 Id. 390. In that case an indictment for conspiracy was sustained upon these grounds. Therefore, it would not matter whether these acts of fraudulent voting were criminal or penal acts, or neither criminal nor penal, they were in any respect per-versive of the due administration of the law. It is true that the instrument does not charge that the defendants conspired to commit an act for the perversion or obstruction of justice, or the due administration of the law. But it does charge specific facts which bring the defendants within the ban of the statutory language, and charges those facts so as to inform them with absolute certainty of the character and nature of the specific charges, and this was all that was requisite. State v. Thatcher, 6 Vroom 445; State v. Startup, 10 Id. 423.\\nAgain, it is insisted that no overt act is properly pleaded. The overt acts pleaded are that the defendants in pursuance of their conspiracy, aided and abetted the disqualified persons, whom they had conspired to have vote, to falsely register their names, or the names of others, on a certain registry list, as persons qualified to vote.\\nIt is first said that there is no charge that such persons voted or offered to vote, and secondly said that there is a distinct statutory provision for punishing a person who shall counsel the registration of any name of any person knowing him not to be entitled to a vote, and that there is also a distinct. provision for punishing anyone who shall counsel a person to vote on election date\\nIn the first place, the act which the defendants conspired to effect need not be accomplished. If there was a design to procure a disqualified person to vote, followed by an overt act in pursuance of that design, the conspiracy was complete, although for some reason its purpose failed and the person did not actually vote.\\nSecondly, the fact that there is a provision for punishing ihe counseling to false registration, or counseling to false voting, in no way impairs lire charge of a conspiracy to procure a disqualified person to vote, and the charge of procuring such person to register, as an overt act. Indeed, it may be observed that counseling by a single person is quite distinct from the combined counseling of several persons.\\nIt is the power and consequently the danger that springs from tire union of influence of many minds and wills to bring about the result that constitutes the criminality of a conspiracy.\\nRespecting the essential act in execution of the joint design required by the statute, we think that ihe registration is such a step in the assertion of the right to vote, and in the equipment of the person asserting the right, with the privilege of voting, that where there is a design to vote fraudulently, then a fraudulent registration is an act taken in the execution of that purpose.\\nIt follows that the aiding and abetting in the false registration of W. B. was an overt act in carrying into execution the design to procure W. B. to vote at the following election.\\nIt is again objected that an election district is not a political division of the state of which the court will take judicial notice; that therefore the charge of a design to procure a person to vote in a certain numbered election district in a certain ward in a city, is insufficient for want of certainty.\\nWhether the court will take judicial notice of the location of an election district, is one of evidence and not of pleading, and we think that a description of the election district by number and ward was sufficiently certain without setting out the boundaries of the district.\\nIt is again insisted that the indictment is multifarious, in that it charges a design having a multitude of objects to be accomplished. But this objection is answered by the opinion of Chief Justice Beasley in Noyes v. State, 12 Vroom 418. The requirements of an overt act in no way modifies the principle that the confederacy is a single act, and that it may include in its purpose any number of particulars.\\nOur consideration, therefore, of these and other points urged on behalf of the application leads us to the conclusion that the application must he refused.\"}"

nj/12144741.json

@@ -0,0 +1 @@
+"{\"id\": \"12144741\", \"name\": \"MATILDA L. VAN NESS, ADMINISTRATRIX OF LEVI VAN NESS, DECEASED, PLAINTIFF IN ERROR, v. NORTH JERSEY STREET RAILWAY COMPANY, DEFENDANT IN ERROR\", \"name_abbreviation\": \"Van Ness v. North Jersey Street Railway Co.\", \"decision_date\": \"1909-06-14\", \"docket_number\": \"\", \"first_page\": \"551\", \"last_page\": \"556\", \"citations\": \"77 N.J.L. 551\", \"volume\": \"77\", \"reporter\": \"New Jersey Law Reports\", \"court\": \"New Jersey Court of Errors and Appeals\", \"jurisdiction\": \"New Jersey\", \"last_updated\": \"2021-08-10T22:38:58.411774+00:00\", \"provenance\": \"CAP\", \"judges\": \"For reversal\\u2014The CHANCELLOR, GARRISON, Swayze, TRENCHARD, PARKER, BergeN, Yooriiees, MlNTlTRN, Bo-gert, VredeNburgh, Yeoom, Dill, J.J. 18.\", \"parties\": \"MATILDA L. VAN NESS, ADMINISTRATRIX OF LEVI VAN NESS, DECEASED, PLAINTIFF IN ERROR, v. NORTH JERSEY STREET RAILWAY COMPANY, DEFENDANT IN ERROR.\", \"head_matter\": \"MATILDA L. VAN NESS, ADMINISTRATRIX OF LEVI VAN NESS, DECEASED, PLAINTIFF IN ERROR, v. NORTH JERSEY STREET RAILWAY COMPANY, DEFENDANT IN ERROR.\\nSubmitted December 7, 1908\\nDecided June 14, 1909.\\n1. Plaintiff\\u2019s intestate, while crossing a trolley track at a crosswalk on foot, was struck and killed by a trolley car. Evidence given during the course of the trial justified the inference that deceased and the motorman saw each other ; that deceased stopped before going on the track and the motorman applied the brake and reduced the speed of the car, and then, observing that deceased had halted, released the brake and applied the power just as deceased, who had observed the reduced speed of the car, again started to cross. Held, following Van Gott v. JSforth Jersey St. Ry. Co., 43 Vroom 229, that the questions of negligence of the motorman and contributory negligence of deceased were both properly submitted to the jury.\\n2. Error in refusing to nonsuit at the close of plaintiff\\u2019s case for lack of proof is rendered harmless when such proofs are after-wards supplied during the trial.\\nOn error to the Supreme Court, whose opinion is reported in 46 Vroom 273.\\nFor the plaintiff in error, Edward Kenny.\\nFor the defendant in error, Leonard J. Tynan.\", \"word_count\": \"1862\", \"char_count\": \"10207\", \"text\": \"The opinion of.the court was delivered by\\nPARKER, J.\\nIf it were conclusively shown that the accident that caused the death of plaintiff's intestate took place in the manner and under the circumstances set forth in the opinion of the Supreme Court, we should in all probability concur in the finding of that court.\\nA careful examination of the evidence, however, satisfies us that the Supreme Court erred in holding that the plaintiff's presentation of the case was not helped by any evidence given for the defendant.\\nThe plaintiff's evidence indicated that the deceased, while^ attempting to cross the street on a crosswalk, was prevented from doing so by a car going northwardly on the nearer track and had to wait until it had passed, and without paying any attention to a southbound car on the further track, or being unaware of its approach, stepped across the nearer track and directly in front of the southbound car. This state of facts would probably bring the case within the lines of Eagen v. Jersey City, Hoboken and Paterson Street Railway Co., 45 Vroom 699; Shuler v. North Jersey Street Railway Co., 46 Id. 824, and Hageman v. North Jersey Street Railway Co., 45 Id. 279, cited in the opinion below, and since affirmed in this court, 46 Id. 939.\\nEven on the plaintiff's case, however, we think the Supreme Court assumed one fact as conclusively shown as to which there was at least a substantial dispute. The opinion stated that the accident occurred about seven-thirty p. m., when it was yet quite light. One witness, Carnelli, testified for plaintiff that it was between eight and half-past eight. Winant, a cabman, who saw the man being dragged under the car, testified that he was on his way to the Central railroad station just below to answer a call for eight-thirty, and, as he did not have much time, had sent his partner ahead to get the call while he took the blanket off his horse. If, as the jury might well have found in view of this evidence, the hour was nearly eight-thirty p. m., it is plain that it could not have been so light as was assumed by the court below, and if, by reason of the dusk, the car was not so plainly visible, it may have been a jury question as to whether the deceased saw it or ought to have seen it in season to avoid the accident.\\nBut it is unnecessary to dwell on this aspect of the case, because, in our judgment, the evidence for the defendant cured the error, if there was error, in the trial court's refusal to nonsuit, and justified a submission of the case to the jury. On that evidence there were two theories open to the jury\\u2014 one, that the deceased waited until the northbound car passed him, and then undertook to cross the track when the southbound car was about fifty feet away, going about six miles an hour. This was the testimony of the witness Niedemeier and of the witness Tracy, except as to the distance of the car, to which Tracy did not testify. The other theory is that arising from the motorman's testimony, that the northbound car had not passed at all before the accident, but that the car which struck deceased was in plain sight; that deceased evidently saw it while standing on the northbound track, and, while the northbound car was also approaching him, undertook to exercise his judgment as to crossing in front of the southbound car. It may be that the motorman was right as to the northbound car; it may be that he confused it with another car that followed, for cars are very frequent at that point; but all the defendant's testimony points to the inference that Van Ness did see the car that struck him; that he halted as if to let it go by and at about the same instant the motorman applied his brake, and then seeing Van Ness, standing, released it and put on his power again just as deceased, apparently having observed the slowing of the car, started again to cross in front of it and was caught because the car took on increased speed instead of continuing to slow up. Samuel Kalisch, who was inside the car, testified to a burst of speed; the conductor said the car slackened, and he thought a wagon was in the way, and looked out for one, then heard the brake ratchet, and noticed a little burst of speed and then the car came to a stop. The motorman and Tracy both testified on direct examination that deceased stopped on the northbound track and the car slowed up, and then the car started ahead again before deceased attempted to cross. Examined by the court, the motorman testified further as follows :\\n\\\"Q. You say that this man that was crossing the street stopped and looked at you?\\n\\\"A. Yes, sir.\\n\\\"Q. Where was he when he stopped and looked at you?\\n\\\"A. He was on the rail.\\n\\\"Q. On what rail ?\\n\\\"A. I was on two over here and he was on this third one [indicating].\\n\\\"Q. He was on the rail of the northbound track that was nearest to your track ?\\n\\\"A. Nearest to my car; yes, sir.\\n\\\"Q. And then what did he or you do next?\\n\\\"A. What did he do next after he stood?\\n\\\"Q. Or what did you do\\u2014what next happened ?\\n\\\"A. When I seen him stand, then I started\\u2014I was winding the brake when he was crossing and I saw he was standing, and I thought it would be all right.\\n\\\"Q. When you saw him stand what did you do ?\\n\\\"A. Then I started to feed the ear up again; I thought he would stand there.\\n\\\"Q. You mean you gave it more speed ?\\n\\\"A. More power; I had shut off entirely at that time, and when I seen him standing I fed the car up.\\n\\\"Q. As you gave the car more speed and went on, what did he do ?\\n\\\"A. He stepped right in front of me; lie made about two or three steps, right in the middle.\\n\\\"Q. And where did he get to?\\n\\\"A. He got right in the middle of the car, right in the middle of the fender.\\\"\\nTracy also modified his testimony on cross-examination.\\n\\\"Q. You saw him stop for one car to pass?\\n\\\"A. Yes, sir.\\n\\\"Q. And then what else?\\n\\\"A. Well, he kind of stopped, and then the motorman slacked up, you know, and he started over in front of the car.\\n\\\"Q. As he was coming over the car that hit him stopped, did it ?\\n\\\"A. It didn't exactly stop; it slacked up.\\n\\\"Q. Slacked up ?\\n\\\"A. Yes, sir.\\n\\\"Q. Slacked up right there, and then the man went on?\\n\\\"A. Yes, sir.\\n\\\"Q. And then the car hit him?\\n\\\"A. Yes, sir.\\\"\\nFrom this testimony it is a fair inference that deceased, led by the action of the motorman in slackening speed, to believe that he was to be allowed to cross, attempted to do so before speed was again put on. It was for the jury to say which version they believed. Hayward v. North Jersey Street Railway Co., 45 Vroom 678. But even if deceased did not start until just after the power was applied, the court would not be justified in nonsuiting for contributory negligence. We are unable to distinguish the case in this aspect, either in principle or in material facts, from Van Cott v. North Jersey Street Railway Co., 43 Id. 229, decided by this court, in which it appeared that plaintiff stopped at the sounding of the bell, the car slackened and then increased its speed, and plaintiff then started forward again. Plaintiff was a minor, but this fact is not adverted to in the opinion as bearing on the question of contributory negligence. A similar state of facts, except that plaintiff was driving a horse and wagon, was considered in Weinberger v. North Jersey Street Railway Co., 44 Id. 694, also decided in this court in which the Van Cott case was cited and approved.\\nWe think the evidence above quoted justified the jury in drawing inferences similar to those stated in the opinion in the Van Cott case, pages 230, 231, and that the negligence of the motorman and of the deceased were both questions for the jury. In that case, as in this, the evidence to support the witnesses came into the case after a motion to nonsuit, and the rule there applied is applicable here. Bostwick v. Willett, 43 Vroom 21.\\nThe fact, if it was a fact, that the northbound car had not passed at the time of the accident, would make no difference in this result. If it was approaching, it was still too far away to require any. inference of negligence in law to be drawn from the act of deceased in standing on the track in front of it, for according to the motorman's testimony the fenders of the two cars were together when he stopped, and all the proof showed that the car had gone from the First Church crossing, where the accident occurred, to a point in front of a restaurant, some seventy-five to one hundred feet away, before stop ping, and at the time of the accident the northbound car must have been much further away.\\nThe case was submitted to the jury under general instructions appropriate to this state of facts. This submission, under the circumstances, was proper. The judgment of the Supreme Court reversing that of the Circuit Court will be reversed, and the judgment of the Circuit Court affirmed.\\nFor affirmance\\u2014None.\\nFor reversal\\u2014The CHANCELLOR, GARRISON, Swayze, TRENCHARD, PARKER, BergeN, Yooriiees, MlNTlTRN, Bo-gert, VredeNburgh, Yeoom, Dill, J.J. 18.\"}"

nj/12460665.json

@@ -0,0 +1 @@
+"{\"id\": \"12460665\", \"name\": \"STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT, v. JOSE CARRANZA, A/K/A JOSE LACHIRA, DEFENDANT-PETITIONER\", \"name_abbreviation\": \"State v. Carranza\", \"decision_date\": \"2017-10-16\", \"docket_number\": \"079348\", \"first_page\": \"208\", \"last_page\": \"208\", \"citations\": \"231 N.J. 208\", \"volume\": \"231\", \"reporter\": \"New Jersey Reports\", \"court\": \"Supreme Court of New Jersey\", \"jurisdiction\": \"New Jersey\", \"last_updated\": \"2021-08-10T20:45:40.615522+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT, v. JOSE CARRANZA, A/K/A JOSE LACHIRA, DEFENDANT-PETITIONER.\", \"head_matter\": \"174 A.3d 510\\nSTATE OF NEW JERSEY, PLAINTIFF-RESPONDENT, v. JOSE CARRANZA, A/K/A JOSE LACHIRA, DEFENDANT-PETITIONER.\\nC-190 September Term 2017\\n079348\\nOctober 16, 2017\", \"word_count\": \"65\", \"char_count\": \"443\", \"text\": \"ON PETITION FOR CERTIFICATION\\nTo the Appellate Division, Superior Court:\\nA petition for certification of the judgment in [ A-XXXXXX-XX ] having been submitted to this Court, and the Court having considered the same;\\nIt is ORDERED that the petition for certification is denied.\"}"

nj/12460701.json

@@ -0,0 +1 @@
+"{\"id\": \"12460701\", \"name\": \"ROBERT D. FERGUSON, KANSA INTERNATIONAL CORPORATION, LTD., BANKRUPTCY ESTATE, MILO FAMILY LIMITED PARTNERSHIP, IMIPOLEX LLC, AND OMPHALOS, LLC, PLAINTIFFS-RESPONDENTS, v. TRAVELERS INDEMNITY COMPANY, DEFENDANT-PETITIONER, AND EXECUTIVE RISK SPECIALTY INSURANCE COMPANY, DEFENDANT\", \"name_abbreviation\": \"Ferguson v. Travelers Indemnity Co.\", \"decision_date\": \"2017-10-16\", \"docket_number\": \"079243\", \"first_page\": \"229\", \"last_page\": \"229\", \"citations\": \"231 N.J. 229\", \"volume\": \"231\", \"reporter\": \"New Jersey Reports\", \"court\": \"Supreme Court of New Jersey\", \"jurisdiction\": \"New Jersey\", \"last_updated\": \"2021-08-10T20:45:40.615522+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"ROBERT D. FERGUSON, KANSA INTERNATIONAL CORPORATION, LTD., BANKRUPTCY ESTATE, MILO FAMILY LIMITED PARTNERSHIP, IMIPOLEX LLC, AND OMPHALOS, LLC, PLAINTIFFS-RESPONDENTS, v. TRAVELERS INDEMNITY COMPANY, DEFENDANT-PETITIONER, AND EXECUTIVE RISK SPECIALTY INSURANCE COMPANY, DEFENDANT.\", \"head_matter\": \"174 A.3d 523\\nROBERT D. FERGUSON, KANSA INTERNATIONAL CORPORATION, LTD., BANKRUPTCY ESTATE, MILO FAMILY LIMITED PARTNERSHIP, IMIPOLEX LLC, AND OMPHALOS, LLC, PLAINTIFFS-RESPONDENTS, v. TRAVELERS INDEMNITY COMPANY, DEFENDANT-PETITIONER, AND EXECUTIVE RISK SPECIALTY INSURANCE COMPANY, DEFENDANT.\\nC-135 September Term 2017\\n079243\\nOctober 16, 2017\", \"word_count\": \"86\", \"char_count\": \"633\", \"text\": \"ON PETITION FOR CERTIFICATION\\nTo the Appellate Division, Superior Court:\\nA petition for certification of the judgment in [ A-XXXXXX-XX ] having been submitted to this Court, and the Court having considered the same;\\nIt is ORDERED that the petition for certification is denied, with costs.\"}"

nj/12511236.json

@@ -0,0 +1 @@
+"{\"id\": \"12511236\", \"name\": \"STATE of New Jersey, Plaintiff-Respondent, v. Arthur F. WILDGOOSE, Defendant-Petitioner.\", \"name_abbreviation\": \"State v. Wildgoose\", \"decision_date\": \"2019-07-11\", \"docket_number\": \"C-1061 September Term 2018; 082429\", \"first_page\": \"166\", \"last_page\": \"166\", \"citations\": \"213 A.3d 166\", \"volume\": \"213\", \"reporter\": \"West's Atlantic Reporter, Third Series\", \"court\": \"New Jersey Court of Errors and Appeals\", \"jurisdiction\": \"New Jersey\", \"last_updated\": \"2021-08-27T20:58:09.224733+00:00\", \"provenance\": \"Fastcase\", \"judges\": \"\", \"parties\": \"STATE of New Jersey, Plaintiff-Respondent,\\nv.\\nArthur F. WILDGOOSE, Defendant-Petitioner.\", \"head_matter\": \"STATE of New Jersey, Plaintiff-Respondent,\\nv.\\nArthur F. WILDGOOSE, Defendant-Petitioner.\\nC-1061 September Term 2018\\n082429\\nSupreme Court of New Jersey.\\nJULY 11, 2019\\nORDER\", \"word_count\": \"56\", \"char_count\": \"372\", \"text\": \"A petition for certification of the judgment in A-002303-17 having been submitted to this Court, and the Court having considered the same;\\nIt is ORDERED that the petition for certification is denied.\"}"

nj/1310855.json

@@ -0,0 +1 @@
+"{\"id\": \"1310855\", \"name\": \"ELLIOTT ROBBINS AND JERSEY CITY ASSOCIATION FOR THE SEPARATION OF CHURCH AND STATE, PLAINTIFFS-APPELLANTS, v. CITY OF JERSEY CITY, A MUNICIPAL CORPORATION, ET ALS., DEFENDANTS-RESPONDENTS\", \"name_abbreviation\": \"Robbins v. City of Jersey\", \"decision_date\": \"1957-01-21\", \"docket_number\": \"\", \"first_page\": \"229\", \"last_page\": \"243\", \"citations\": \"23 N.J. 229\", \"volume\": \"23\", \"reporter\": \"New Jersey Reports\", \"court\": \"Supreme Court of New Jersey\", \"jurisdiction\": \"New Jersey\", \"last_updated\": \"2021-08-10T19:01:45.126834+00:00\", \"provenance\": \"CAP\", \"judges\": \"For affirmance \\u2014 Chief Justice Vanderbilt, and Justices Heher, Oliphant, Wachenfeld, Burling, Jacobs and Weintraub \\u2014 7.\", \"parties\": \"ELLIOTT ROBBINS AND JERSEY CITY ASSOCIATION FOR THE SEPARATION OF CHURCH AND STATE, PLAINTIFFS-APPELLANTS, v. CITY OF JERSEY CITY, A MUNICIPAL CORPORATION, ET ALS., DEFENDANTS-RESPONDENTS.\", \"head_matter\": \"ELLIOTT ROBBINS AND JERSEY CITY ASSOCIATION FOR THE SEPARATION OF CHURCH AND STATE, PLAINTIFFS-APPELLANTS, v. CITY OF JERSEY CITY, A MUNICIPAL CORPORATION, ET ALS., DEFENDANTS-RESPONDENTS.\\nArgued December 3, 10, 1956\\nDecided January 21, 1957.\\nMr. Aaron Marder argued the cause for the plaintiffs-appellants.\\nMr. James F. X. O\\u2019Brien argued the cause for the defendant-respondent Seton Hall College of Medicine and Dentistry (Messrs. James F. X. O\\u2019Brien and James P. Mylod, attorneys).\\nMessrs. McCarter, English & Studer, attorneys for defendant-respondent George A. Fuller Co. (Mr. Augustus C. Studer, Jr., of counsel).\\nMr. James A. Tumulty, Jr., Corporation Counsel of the City of Jersey City, attorney for defendant-respondent City of Jersey City (Mr. Francis X. Hayes, Assistant Corporation Counsel, of counsel).\\nMr. Frederick J. Gassert, Hudson County Counsel, attorney for defendant-respondent County of Hudson (Mr. Lewis B. Eastmead, Assistant County Counsel, of counsel).\", \"word_count\": \"4029\", \"char_count\": \"24471\", \"text\": \"The opinion of the court was delivered by\\nBurling, J.\\nThe instant complaint in lieu of prerogative writ sought to attack the validity of certain leases negotiated between defendants. City of Jersey City and Seton Hall College of Medicine and Dentistry, a body corporate of this State and an educational institution. Following entry of summary judgment for the defendants the plaintiffs pursued an appeal in the Superior Court, Appellate Division, and we certified the cause prior to a review below.\\nJersey City owns and operates a large Medical Center. It is a vast physical plant consisting of ten main buildings. The financial burden attending the operation of the center has not been a light one. Enormous \\\"yearly deficits\\\" have been the rule without exception.\\nEarly in 1954 the city officials caused a study to be made, the end in view being to economize the operation through consolidation of services into compact building units. The facilities of the Center were in excess of the public requirements. Inefficiency resulted by spreading the operation throughout the numerous buildings rather than concentrating the use to an area proportionate to the need. Heating and maintenance of an entire building proved unwarranted where only half the building was in use.\\nBy effecting a consolidation of the operation it was thought that the large Clinic building might be vacated and leased. The city was interested in renting this 16 story structure to a public or private interest which would use the facility as a medical and dental school. There had been previous attempts to lease a part of the center to the Federal and State Governments for this purpose. With this project in mind the city, through public advertisement, invited any duly accredited college or university to submit proposals for the use of the Clinic building as a medical and dental school. A prospectus was compiled and distributed to interested parties.\\nThere were responses to the invitation. Among them was that of Seton Hall College of Medicine and Dentistry. Negotiations were entered into between this institution and the city which resulted in the entire Clinic building being leased to the college for a term of 50 years at an annual rental of $275,000.\\nThe date of the Clinic building lease was December 10, 1954. On the following December 16 a complaint in lieu of prerogative writ was filed by one John Gimenez, a taxpayer of Jersey City, attacking the validity of the lease. Gimenez was the nominee of a group called the \\\"Jersey City Fact Finding Committee\\\" which sponsored and paid for the suit.\\nThe complaint in the Gimenez suit sought to have the lease voided on several grounds: absence of competitive bidding, inadequate consideration, and a charge that the Clinic building was presently needed for a public use. The suit ended in a summary judgment for the city and college and no appeal was taken. A further charge that the city was illegally delegating the management and operation of the Medical Center to a sectarian institution (the college being associated with the Roman Catholic Church) was, in effect, dismissed without prejudice for the reason that the city and the college had not entered a management agreement although the lease contemplated a working accord for the management of or the rendition of professional services to the Center.\\nFollowing the termination of the Gimenez action the city sought to interest the college in surrendering three floors of the Clinic building and to accept in lieu thereof an equal amount of space in the nearby Isolation building which at the time was completely vacant. This plan, the record advises, would save the city an estimated expenditure of some $300,000 in transferring the out-patient clinics from the Clinic building to other buildings and would also serve to benefit both patients and students alike if the clinics were operated in the same building as the medical school. It was proposed that the Isolation building be used as the dental school and the city would reserve space there for a dental clinic. This suggestion was the subject of negotiation between the respective parties, the college at first rejecting the overture. Finally, on November 28, 1955, the change in plan was effected by a lease of a portion of the Isolation building to the college and a release by the latter of the first three floors of the Clinic building.\\nThe college authorities geared their plans to the fall of 1956 as the opening date for classes. Renovations were commenced in December 1955, and by February 1956 the cost of alterations had reached $187,000. The architectural firm submitted a bill on account for $50,000. The college obligated itself for laboratory equipment in a sum over $200,000, and clerical and administrative expense approximated $50,000.\\nThe instant complaint was filed on February 8, 1956, sponsored by the same interests who underwrote the Gimenez suit but now incorporated as the Jersey City Association for the Separation of Church and State. The present attack presents the same contentions raised in the Gimenez suit but now has two targets \\u2014 the Clinic building lease and the Isolation building lease. Defendants did not file an answer but moved for summary judgment with supporting affidavits. Plaintiffs filed a cross-motion for summary judgment. The trial court gave judgment to defendants, generally upon the ground that the Gimenez suit was res judicata as to the lease of the Clinic building and that the same decision had a stare decisis effect upon the validity of the Isolation building lease. The question of whether the city was illegally delegating management control of the medical center to a sectarian institution, which is plaintiffs' principal cause of concern, was again thought to be premature inasmuch as no management agreement had yet been resolved.\\nOn this appeal plaintiffs contend the leases to be void (1) for lack of advertising and competitive bidding; (2) because the declaration by resolution that the buildings are not needed for a public use is untrue; (3) because the consideration received for the leases was inadequate, thereby constituting a municipal gift in violation of N. J. Const. 1947, Art. VIII, Sec. III, pars. 2 and 3. The charge that the city is illegally delegating the management of the Medical Center is renewed, and the constitutionality of L. 1955, c. 22 (N. J. S. A. 30:9-23.6 et seq.), providing for various types of hospital affiliation agreements between governmental bodies and colleges of medicine and dentistry, is attacked. Defendants' position is simply to raise a bar to these charges through invocation of res judicata, estoppel and laches, and the 30 day rule of the in-lieu procedure. They insist the issue of a management contract is still premature.\\nIt is necessary to consider three basic questions in the disposition of this appeal:\\n1\\u2014 Was advertising and competitive bidding required in the execution of these leases?\\n2\\u2014 Is there a procedural bar which would foreclose consideration of questions going to the adequacy of the monetary consideration and the alleged public need for retaining these buildings for municipal hospital services? And, if not, do the supporting affidavits on the motions for summary judgment present a genuine issue of fact on these matters?\\n3\\u2014 Are the issues surrounding a management agreement and the constitutionality of L. 1955, c. 22 premature?\\n(Initially it may be noted that the defense of res judicata pertains only to the lease of the Clinic building by virtue of the former Gimenez suit. Defendants concede there is no res judicata effect attributable to the lease of the Isolation building. Both leases are inseparably intertwined from a factual aspect. Because the case is resolved upon other grounds in favor of the defendants it is not necessary or essential to consider the sufficiency of this defense.)\\nQuestion 1.\\nJersey City contends the instant leases were executed under the authority of B. S. 40:176-11 which empowers \\\"first class cities\\\" to lease any land or building not needed for public use for a term not exceeding 50 years. The statute in terms does not require advertisement and competitive bidding. Plaintiffs argue that B. 8. 40:60-26 and 42, originating in the Home Rule Act, L. 1917, c. 152, supply the necessary procedural steps which require public competition. They strongly rely upon our decision in Asbury Park Press v. City of Asbury Park, 19 N. J. 183 (1955).\\nAsbury Park Press is not controlling. There we were dealing with a particular type of municipal property, i. e., public parks, recreation grounds or place of public resort which had received special statutory treatment. R. S. 40:61-36 (L. 1937, c. 172); R. S. 40:61-l(y) and (li) (L. 1917, c. 152, Art. XXXVI, sec. 13, as am. L. 1933, c. 355, sec. 1). The holding was that these aforementioned enactments (which required advertisement and competitive bidding) were to be read in pari materia with R. S. 40 \\u00a1179-116 which did not in terms require that procedure.\\nThe question remains, however,- whether plaintiffs are correct in stating that R. S. 40 :60-26 and 42 require adherence to a bidding procedure and if so, the effect of these statutes upon the first-class city provision, R. S. 40 :176-11.\\nIn Waring Realty Co. v. Murphy, 125 N. J. L. 360 (Sup. Ct. 1940) the former Supreme Court recognized that R. S. 40:176-11 fixed no particular form for the exercise of the leasing power. See also Child v. Board of Comm'rs of City of Newark, 8 N. J. Misc. 597 (Sup. Ct. 1930). R. S. 40:60-42, originating in the Home Rule Act of 1917, empowers every municipality to lease unneeded property to one who will pay the \\\"highest rent therefor,\\\" but the decision in Asbury Park Press, supra, 19 N. J., at page 192, noted that bidding was not expressly required under that statute. R. S. 40:60-26, as am. L. 1948, c. 245, also originat ing in the Home Rule Act, concerns the sale of lands or buildings not needed for public use \\\"or any right or interest therein.\\\" The latter statute provides several methods of negotiating disposition of public property, all geared to manifest the best interest of the municipality. Two methods require advance advertising.\\nThe crucial inquiry is whether the lawmakers intended a sale of \\\"any right or interest therein\\\" (B. S. 40:60-26) to encompass a lease of public property. It may be fairly argued that B. S. 40:60-42 as well as B. S. 40:176-11 merely define a basic power, and that B. 8. 40:60-26 denominates the procedure to be followed. This interpretive possibility, used in a different statutory context, was a major factor in Asbury Park Press, supra, 19 N. at page 197. Plaintiffs have not traced their argument to this point of inquiry and we feel it unnecessary to decide the matter at this time.\\nWe discern from the record that the desire of Jersey City to effect a lease of a portion of the Medical Center to an educational institution which would bring Hew Jersey its first medical school was well known. Proposals were invited through advertisement in many newspapers. Extensive renovations were undertaken following the disposition of the Gimenez suit and, as previously noted, Seton Hall College had invested a large sum of money in this undertaking by the time the present plaintiffs saw fit to challenge the legality of the program. Here the power of lease was within Jersey City's essential jurisdiction by virtue of statute, B. 8. 40:176-11. Any arguable defect in the procedure of negotiation, if indeed advertising and competitive bidding were required, is foreclosed from attack by the plaintiffs for their failure to promptly present their case which would have served as a warning signal to the college in the huge expenditure involved in a project of such magnitude. See Summer Cottager's Ass'n of Cape May v. City of Cape May, 19 N. J. 493 (1955). Further, the complaint was filed more than 60 days following the accrual of the right which stemmed from the execution of the Isolation building lease. Plaintiffs do not contend that they were uninformed of this event. R. R. 4:88-15 (a) required action within 30 days of the accrual of the right and the defendants are entitled to the protection of the rule.\\nQuestion 2.\\nPlaintiffs contend that the 30-day limitation of R. R. 4:88-15 (a) does not preclude a meritorious consideration of the alleged inadequacy of the yearly rental under the leases because if the charge is sustained a constitutional prohibition against gifts by municipalities is violated. N. J. Const. 1947, Art. VIII, Sec. III, pars. 2 and 3; see Jamouneau v. Local Government Board, 6 N. J. 281 (1951). Similarly, it is said that because the two buildings were in fact needed for a public use the leases are completely void as ultra vires the municipal power.\\nWe have recognized that the time limitations on the in-lieu procedure may not apply where substantial constitutional questions are raised. Holloway v. Pennsauken Township, 12 N. J. 371 (1953); McKenna v. New Jersey Highway Authority, 19 N. J. 270 (1955). The doctrine of estoppel may be applicable, however, In re Buckeye Pipe Line Co., 13 N. J. 385 (1953). An inquiry of considerable importance is the measure and nature of the actor's reliance which has been placed upon the non-action of the party who brings the belated challenge; and so far as a municipal body is concerned it is significant for purposes of estoppel to examine the basic jurisdiction relied upon. Compare V. F. Zahodiakin Engineering Corp. v. Zoning Board of Adjustment of City of Summit, 8 N. J. 386 (1952), with Summer Cottagers' Ass'n of Cape May v. City of Cape May, supra. But see Marini v. Borough of Wanaque, 37 N. J. Super. 32, 40-41 (App. Div. 1955). The general proposition that exceptions to the time limitations imposed upon the in-lieu procedure should be but exceptionally condoned, and only in the most persuasive circumstances, remains the same. Consider B. B. 1:27B(d). See the provocative editorial note at 10 Rutgers L. Rev. 673 (1956). The attainment of substantial justice in particular cases should not be interpreted as dilution of the principle. For example, the fact that plaintiffs have also sought injunctive relief in the instant matter does not persuade us that the 30-day limitation should not be applicable. Compare Thornton v. Village of Ridgewood, 17 N. J. 499, 508-510 (1955).\\nInvocation of time limitations in the instant case will not preclude substantial justice, for any supposed merit to the plaintiffs' cause of action was stripped of significance when their position was revealed on the cross motions for summary judgment.\\nThe two allegations raised in the complaint which might have been the focal point fox a genuine factual dispute were the charges of inadequate consideration and untruth in the conclusion of the city's governing body that the buildings were not needed for a public use. Defendants filed no answer but gave notice of motion for summary judgment with supporting affidavits.\\nThese moving papers pointed out that the operation of the Medical Center resulted in enormous yearly deficits. In 1954, when the Clinic building was leased, the city was using but eight floors of this 16-story structure. The Isolation building was completely vacant when it was declared unneeded for public use. The record states that the subsequent reshuffling of lease accommodations whereby the city retained three floors of the Clinic building to house the outpatient clinics obviated an expenditure of $300,000 in moving and installation costs. From this it can hardly be concluded that the Clinic building was in fact essential to the public use. For are we free to state unequivocally that a consideration of $275,000 annual rental is per se inadequate. It is a return which the city would not otherwise have realized through a continued municipal operation.\\nPlaintiffs filed a cross-motion for summary judgment. The only moving paper having any relevance here is that of George G. Hollingshead, the president of the Jersey City Association for the Separation of Church and State. Based upon \\\"information and belief\\\" the affidavit alleges that the Clinic building has a value of $3,000,000 and that the city, after performing certain obligatory services under the lease, will net no more than $125,000 annually; that the dental clinic in the Medical Center has been closed and the psychiatric facilities have been removed to another location. The source of the information is not revealed and we have no other alternative but to place it in the category of hearsay, and thus it is insufficient to oppose defendants' motion for summary judgment. R. R. 4:58-6; see Ash v. Frazee, 37 N. J. Super. 542, 547-548 (App. Div. 1955).\\nThe Hollingshead affidavit also alleges that the matters set forth therein are peculiarly within the knowledge of the officials of Jersey City and the college. In certain situations there may be reason to be solicitous of this factor. See, e. g., Monmouth Lumber Co. v. Indemnity Ins. Co. of North America, 21 N. J. 439 (1956). This is not always the case. R. R. 4:58-7 provides:\\n\\\"Should it appear from the affidavits of a party opposing the motion that he cannot for reasons stated present by affidavit facts essential to justify his opposition, the court may deny the motion or may order a continuance to permit affidavits to be obtained or depositions to be taken or discovery to be had, or may make such other order as is just.\\\"\\nDenial of a motion for summary judgment is not required where something more than hearsay opposition might well have been developed through additional affidavits or the taking of depositions, thereby engendering a genuine factual dispute. See Judson v. Peoples Bank & Trust Co. of Westfield, 17 N. J. 67, 76 (1954).\\nThe summary judgment procedure, R. R. 4:58, brings two opposing philosophies of the judicial process into focus. On the one hand is the desire to afford every litigant who has a bona fide cause of action or defense the opportunity to fully expose his case. In support of this philosophy our appellate courts have taken the position that summary judgments are to be cautiously granted, Devlin v. Surgent, 18 N. J. 148, 154 (1955), and the party opposing the motion indulgently treated by resolving all doubts in favor of trial, West Side Trust Co. v. Gascoigne, 39 N. J. Super. 467, 470 (App. Div. 1956).\\nOil the other hand, protection is to be afforded against groundless claims and frivolous defenses, not only to save antagonists the expense of protracted litigation but also to reserve judicial manpower and facilities to cases which meritoriously command attention. See, generally, Asbill and Snell, \\\"Summary Judgment Under the Federal Rules\\u2014 When an Issue of Fact is Presented,\\\" 51 Mich. L. Rev. 1143, 1143 to 1145 (1953).\\nIt is often difficult to foster the necessary balance between these opposing principles. Where, however, a prima facie right to a summary judgment exists, neither principle is sacrificed in requiring the party opposing the motion for summary judgment to demonstrate by competent evidential material that a genuine issue of fact exists, or, where this is impossible within the time allowed, to seek a continuance of the motion for the purpose of submitting additional affidavits or depositions. Accord, Taub v. Taub, 9 N. J. Super. 219 (App. Div. 1950); Fvans v. Rohrbach, 35 N. J. Super. 260, 268-269 (App. Div. 1955); certification denied Fvans v. Matthews, 19 N. J. 362 (1955); VanDyke v. Carol Building Co., 36 N. J. Super. 281, 287-288 (App. Div. 1955). It should be a rare case where nothing whatsoever is submitted to contest the motion. See Asbill and Snell, supra, 51 Mich. L. Rev., at 1165-1166.\\nHere the Hollingshead affidavit did not measure up to the evidential standard required by R. R. 4:58-6 and plaintiffs did not request a continuance for the purpose of substantiating their charge of inadequate consideration or that the leased property was needed for a public use. The appropriate time to make a request for continuance is at the very outset of the hearing on the motion by an unequivocal statement to that effect. Here, however, plaintiffs' counsel informed the trial court that he was prepared to argue the summary judgment issue at any time, and the theory of the presentation was that defendants' motion should be denied and plaintiffs' motion granted. At one stage of the argument it was suggested that plaintiffs had not had time to substantiate their allegations by taking depositions of the city and college officials, but little countenance can be given to this utterance, coming as it did after counsel had previously and categorically advised the conrt that deposition of the motions was in order.\\nWe conclude that entry of summary judgment on defendants' motion therefor- was properly granted, not only in view of procedural limitations but also because no genuine factual dispute existed upon the matter which might arguably have overcome the 30-day rule.\\nQuestion 3.\\nThe main thrust of plaintiffs' case and apparently their chief concern is the belief that certain religious dogmas of the Eoman Catholic Church will be manifested in the operation of the city's clinics should management of these public facilities be delegated to the college. This anxiety has led to the allegation that the city is illegally delegating the management and operation of the Medical Center to the college.\\nClearly the lease contemplates a working accord between the city and the college in the management of or the rendition of medical services to the Medical Center. Eor example, paragraph 20 of the Clinic building lease provides:\\n\\\"20. It is further understood and agreed that if, at any time after the commencement date of this lease, there should fail to exist an agreement between City and College, providing for the management by College of the Jersey City Medical Center, or providing for professional services to be rendered by College to the Jersey City Medical Center, then and in that event College shall have the option to terminate this lease by giving ninety (90) days' notice in writing to City of its intention to so terminate for the aforesaid reason, and if within said 90 day period City and College shall not enter into an agreement as aforesaid, satisfactory to both City and College, then on the tenth day following said 90-day period this lease and the term thereof shall expire and come to an end.\\\"\\nThe moving papers of defendants in support of their motion for summary judgment and the representation of counsel established that no management agreement has been entered. The purported issue is thus premature and there is no occasion to presently consider the matter. Eor the same reason it is unnecessary to presently assay the constitutional validity of L. 1955, c. 22 (N. J. S. A. 30:9-23.6) which provides for various types of hospital affiliation agreements between governmental bodies and schools of medicine and dentistry. It is sufficient to state that if such an agreement is reached it will not be beyond the pale of judicial review as to any constitutional questions which plaintiffs may conceive to be present. The defendants have been fully aware of the plaintiffs' concern on this point ever since the Gimenez suit.\\nThe judgment will be affirmed for the reasons stated in this opinion.\\nFor affirmance \\u2014 Chief Justice Vanderbilt, and Justices Heher, Oliphant, Wachenfeld, Burling, Jacobs and Weintraub \\u2014 7.\\nFor reversal \\u2014 Hone.\"}"

nj/1310931.json

@@ -0,0 +1 @@
+"{\"id\": \"1310931\", \"name\": \"EVA HARTMAN, ADMINISTRATRIX, ETC., PLAINTIFFS-RESPONDENT, v. CITY OF BRIGANTINE AND COUNTY OF ATLANTIC, DEFENDANTS-PETITIONERS\", \"name_abbreviation\": \"Hartman v. City of Brigantine\", \"decision_date\": \"1956-12-10\", \"docket_number\": \"\", \"first_page\": \"59\", \"last_page\": \"59\", \"citations\": \"23 N.J. 59\", \"volume\": \"23\", \"reporter\": \"New Jersey Reports\", \"court\": \"Supreme Court of New Jersey\", \"jurisdiction\": \"New Jersey\", \"last_updated\": \"2021-08-10T19:01:45.126834+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"EVA HARTMAN, ADMINISTRATRIX, ETC., PLAINTIFFS-RESPONDENT, v. CITY OF BRIGANTINE AND COUNTY OF ATLANTIC, DEFENDANTS-PETITIONERS.\", \"head_matter\": \"EVA HARTMAN, ADMINISTRATRIX, ETC., PLAINTIFFS-RESPONDENT, v. CITY OF BRIGANTINE AND COUNTY OF ATLANTIC, DEFENDANTS-PETITIONERS.\\nDecember 10, 1956.\\nSee same ease below: 42 N. J. Super. 247.\\nMessrs. Lloyd, Horn, Megargee & Steedle and Mr. Harry Miller for the petitioners.\\nMr. Josiah E. DuBois, Jr., and Mr. Madison S. DuBois for the respondent.\", \"word_count\": \"52\", \"char_count\": \"353\", \"text\": \"Granted.\"}"

nj/1315419.json

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+"{\"id\": \"1315419\", \"name\": \"ALENE S. AMMOND v. MICHAEL KEATING\", \"name_abbreviation\": \"Ammond v. Keating\", \"decision_date\": \"1977-05-17\", \"docket_number\": \"\", \"first_page\": \"285\", \"last_page\": \"285\", \"citations\": \"74 N.J. 285\", \"volume\": \"74\", \"reporter\": \"New Jersey Reports\", \"court\": \"Supreme Court of New Jersey\", \"jurisdiction\": \"New Jersey\", \"last_updated\": \"2021-08-10T18:20:57.493825+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"ALENE S. AMMOND v. MICHAEL KEATING.\", \"head_matter\": \"ALENE S. AMMOND v. MICHAEL KEATING.\\nMay 17, 1977.\", \"word_count\": \"19\", \"char_count\": \"110\", \"text\": \"Petition for certification denied. (See 150 N. J. Super. 5)\"}"

nj/1315865.json

@@ -0,0 +1 @@
+"{\"id\": \"1315865\", \"name\": \"MARK T. ENSSLIN, PETITIONER-APPELLANT, v. BOARD OF TRUSTEES, POLICE AND FIREMEN'S RETIREMENT SYSTEM, RESPONDENT-RESPONDENT\", \"name_abbreviation\": \"Ensslin v. Board of Trustees\", \"decision_date\": \"1998-05-11\", \"docket_number\": \"\", \"first_page\": \"333\", \"last_page\": \"339\", \"citations\": \"311 N.J. Super. 333\", \"volume\": \"311\", \"reporter\": \"New Jersey Superior Court Reports\", \"court\": \"New Jersey Superior Court, Appellate Division\", \"jurisdiction\": \"New Jersey\", \"last_updated\": \"2021-08-10T21:29:29.853816+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"MARK T. ENSSLIN, PETITIONER-APPELLANT, v. BOARD OF TRUSTEES, POLICE AND FIREMEN\\u2019S RETIREMENT SYSTEM, RESPONDENT-RESPONDENT.\", \"head_matter\": \"709 A.2d 1344\\nMARK T. ENSSLIN, PETITIONER-APPELLANT, v. BOARD OF TRUSTEES, POLICE AND FIREMEN\\u2019S RETIREMENT SYSTEM, RESPONDENT-RESPONDENT.\\nSuperior Court of New Jersey Appellate Division\\nArgued November 6, 1997\\nDecided May 11, 1998.\\nBefore Judges MUIR, Jr., KESTIN and CUFF.\\nJoseph Licata, argued the cause for appellant (Loccke & Correia, attorneys; Mr. Licata, of counsel and on the brief).\\nSusanne Culliton, Deputy Attorney General, argued the cause for respondent (Peter Vemiero, Attorney General, attorney; Mary C. Jacobson, Assistant Attorney General, of counsel; Ms. Culliton, on the brief).\", \"word_count\": \"1682\", \"char_count\": \"10871\", \"text\": \"The opinion of the court was delivered by\\nKESTIN, J.A.D.\\nPetitioner appeals from a final decision of the Board of Trustees (Board) of the Police and Firemen's Retirement System (PFRS) denying his application for an ordinary disability retirement. We reverse.\\nBackground facts relating to the matter are recited at length in a prior opinion, Ensslin v. Township of North Bergen, 275 N.J.Super. 352, 646 A.2d 452 (App.Div.1994) (Ensslin I). In that consolidated appeal, we affirmed the decision of the Merit System Board upholding petitioner's termination from service as a police officer, as modified to reflect a resignation in good standing. We also affirmed the dismissal of petitioner's Law Division action alleging handicap discrimination in violation of the Law Against Discrimination (LAD). The Supreme Court denied certification. 142 N.J. 446, 663 A.2d 1354 (1995).\\nOn February 17, 1995, shortly after certification was denied, petitioner filed his application for an ordinary disability retirement. On May 17, the Board rejected the application on the ground that petitioner was ineligible because he was not \\\"a member in service.\\\" The Board secretary advised petitioner that he was entitled to request formal review of the determination. On June 28,1995, petitioner sought formal reconsideration. The final decision denying the application followed on August 20, 1996.\\nThe material facts are undisputed. Petitioner's last pension contribution as a member of PFRS was July 31,1988, the effective date of his termination as a North Bergen police officer. More than four years later, on September 22, 1992, while petitioner's suits were still pending before the Merit System Board and the Law Division, the Division of Pensions and Benefits sent petitioner a letter advising that his membership account would expire if he did not return to public service by November 22,1992. The letter was sent to an old address and never reached petitioner.\\nThe Board denied petitioner's application for an ordinary disability retirement on the ground it was untimely. That determination was expressed as based on the interplay of two statutes which the Board characterized as clear and unambiguous. N.J.S.A. 43:16A-3(3) provides that membership in PFRS ceases, inter alia, \\\"if more than 2 years have elapsed from the date of [the member's] last contributions to the system[.]\\\" N.J.S.A. 43:16A-6(1) provides that an application for an ordinary disability retirement is to be made \\\"by a member in service\\\" or on his behalf. The Board held, as a matter of law, that petitioner did not meet these statutory requirements, and ruled that it was \\\"without discretion or authority to deviate from the statutory mandate.\\\"\\nThe gravamen of petitioner's joined claims in his prior actions was \\\"that his disability, although preventing him from performing all of the functions of a police sergeant, did not prevent him from performing the essential functions of the job with reasonable accommodation.\\\" Ensslin I, supra, 275 N.J.Super. at 359, 646 A.2d 452. On that basis, he resisted North Bergen's effort to terminate his employment, and contended that, under the LAD and on other grounds, he was entitled to such reasonable accommodation as would enable him to continue functioning as a police officer with the rank of sergeant.\\nPetitioner's fundamental contention in asserting his claims before the Merit System Board and the Law Division, based upon his rights under both the statutes and regulations governing public employment and the standards of the LAD, may be expressed in the language of N.J.S.A 43:16A-6(1). He argued that he was not so \\\"incapacitated for the performance of his usual duty and of any other available duty\\\" as to be considered disabled, if reasonable accommodations were made. In applying for an ordinary disability retirement, petitioner would have been required to establish the contrary proposition, ie., that he was disabled and could not function in his position even with reasonable accommodation. The statutory standard provides, in full, that a member qualifies if:\\nmentally or physically incapacitated for the performance of his usual duty and of any other available duty in the department which his employer is willing to assign to him and that such incapacity is likely to be permanent and to such an extent that he should be retired.\\n[Ibid.]\\nIn order to be considered for an ordinary disability pension, petitioner was required to file a verified application containing his own \\\"statement supporting [his] claim for disability retirement\\\" which would satisfy the requirements of N.J.S.A 43:16A-6(1). No extraordinary exercise of imagination is involved in envisioning that any such sworn statement, made before the employment action and ciyil suit were concluded, could have been used effectively to defeat petitioner's claims in those proceedings. Moreover, petitioner's claims in his litigation could have been used, as effectively, to negate the proposition he was required to establish in order to qualify for an ordinary disability pension. Clearly, therefore, while the central issue of fact and law in petitioner's termination proceeding and civil action remained in dispute \\u2014 through the conclusion of the appellate process \\u2014 he was effectively precluded from taking the contrapositive position in a pension application. See, e.g., Division of Gaming Enforcement v. Gonzalez, 142 N.J. 618, 632, 667 A.2d 684 (1995) (\\\"[T]he doctrine of judicial estoppel . 'bar(s) a party to a legal proceeding from arguing a position inconsistent with one previously asserted.' \\\"). A result requiring petitioner to have forfeited the employment and LAD claims he was actively pursuing in order to preserve his pension entitlement, before any decision was made in either connection, would negate both the liberality required in construing the public employee pension statutes, see Uricoli v. Police and Firemen's Retirement Sys., 91 N.J. 62, 70-73, 449 A.2d 1267 (1982); Masse v. Public Employees Retirement Sys., 87 N.J. 252, 259-61, 432 A.2d 1339 (1981), and the pensions systems' obligations to deal fairly with their members. See Fiola v. New Jersey Treas. Dept., 193 N.J.Super. 340, 351, 474 A.2d 23 (App.Div.1984). Cf. Galligan v. Westfield Centre Serv., Inc., 82 N.J. 188, 192-93, 412 A.2d 122 (1980) (\\\"Unswerving, 'mechanistic' application of statutes of limitations would at times inflict obvious and unnecessary harm upon individual plaintiffs without advancing . legislative purposes. On numerous occasions we have found 'such particular circumstances as to dictate not the harsh approach of literally applying the statute of limitations but the application of the more equitable and countervailing considerations of individual justice.' A 'just accommodation' of individual justice and public policy requires that 'in each case the equitable claims of opposing parties must be identified, evaluated and weighed.' Whenever dismissal would not further the Legislature's objectives in prescribing the limitation, the plaintiff should be given an opportunity to assert his claim.\\\") (citations omitted); SMB Assocs. v. Department of Envtl. Prot., 264 N.J.Super. 38, 59, 624 A.2d 14 (App.Div.1993), aff'd, 137 N.J. 58, 644 A.2d 558 (1994) (\\\"[A]n agency has inherent power to waive de minimis violations of objective standards.\\\"). Manifestly, had the issue of petitioner's substantive entitlement to an ordinary disability pension come before the Board while his litigation was pending, it would have been appropriate and fair for action on the pension application to have been deferred until common questions relating to petitioner's employment rights were resolved by adjudication.\\nAside from considerations of fairness and equity, it is clear enough that the two-year standard of N.J.S.A. 43:16A-3(3) is not jurisdictional, especially in the circumstances presented here. See SMB Assocs., supra, 264 N.J.Super. at 59, 624 A.2d 14; Fiola, supra, 193 N.J.Super. at 348, 351, 474 A.2d 23. If it were, the September 22, 1992 letter from the Division of Pensions and Benefits, more than four years from the date of petitioner's last contribution, advising him that his membership would expire sixty days thence if he did not return to public service before, would not have been possible. In this regard, we are guided by the agency's construction of its own statute in the day-to-day administration of its affairs. See In re Union County Prosecutors, 301 N.J.Super. 551, 561, 694 A.2d 289 (App.Div.1997); Lally v. Public Employees' Ret. Sys., 246 N.J.Super. 270, 273, 587 A.2d 303 (App.Div.), certif. denied, 126 N.J. 332, 598 A.2d 890 (1991); Szczepanik v. New Jersey Treas. Dept., 232 N.J.Super. 491, 504, 557 A.2d 705 (App.Div.1989).\\nWe have, furthermore, been given no reason to apprehend that a determination favoring petitioner would in any way impair the fiscal integrity of the PFRS system or fund or stretch them beyond fair legislative design. See Stevens v. Public Employees' Ret. Sys., 309 N.J.Super. 300, 303, 706 A.2d 1191 (App.Div.1998); DiMaria v. Public Employees' Ret. Sys., 225 N.J.Super. 341, 354, 542 A.2d 498 (App.Div.), certif. denied, 113 N.J. 638, 552 A.2d 164 (1988); Fiola, supra, 193 N.J.Super. at 350, 474 A.2d 23. In the absence of any such likelihood, the Board's decision in this matter must be seen to have been unduly rigid. See Cammarata v. Essex County Park Comm'n, 26 N.J. 404, 411, 140 A.2d 397 (1958) (\\\"Authority delegated to an administrative agency should be construed so as to permit the fullest accomplishment of the legislative intent. The purpose of the statute is not to be frustrated by an unduly, narrow interpretation.\\\") (citation omitted); New Jersey Housing & Mtge. Fin. Agency v. Moses, 215 N.J.Super. 318, 324, 521 A.2d 1307 (App.Div.), certif. denied, 107 N.J. 638, 527 A.2d 460 (1987).\\nFinally, we note that, in response to our inquiry at oral argument, counsel for the Board has advised that petitioner may choose to apply the balance of his PFRS account to purchase credits in his current Public Employee's Retirement System account. This is an option available to petitioner if he elects to withdraw his application for an ordinary disability retirement from PFRS.\\nReversed.\"}"

nj/1317834.json

@@ -0,0 +1 @@
+"{\"id\": \"1317834\", \"name\": \"STATE OF NEW JERSEY v. JAY MIZRAHI\", \"name_abbreviation\": \"State v. Mizrahi\", \"decision_date\": \"1977-11-22\", \"docket_number\": \"\", \"first_page\": \"590\", \"last_page\": \"590\", \"citations\": \"75 N.J. 590\", \"volume\": \"75\", \"reporter\": \"New Jersey Reports\", \"court\": \"Supreme Court of New Jersey\", \"jurisdiction\": \"New Jersey\", \"last_updated\": \"2021-08-10T17:42:49.989075+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"STATE OF NEW JERSEY v. JAY MIZRAHI.\", \"head_matter\": \"STATE OF NEW JERSEY v. JAY MIZRAHI.\\nNovember 22, 1977.\", \"word_count\": \"20\", \"char_count\": \"117\", \"text\": \"Petition for certification denied. (See 149 N. J. Super. 143)\"}"

nj/1351331.json

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+"{\"id\": \"1351331\", \"name\": \"STATE OF NEW JERSEY v. BRIAN STEIGLER\", \"name_abbreviation\": \"State v. Steigler\", \"decision_date\": \"1984-11-07\", \"docket_number\": \"\", \"first_page\": \"179\", \"last_page\": \"179\", \"citations\": \"99 N.J. 179\", \"volume\": \"99\", \"reporter\": \"New Jersey Reports\", \"court\": \"Supreme Court of New Jersey\", \"jurisdiction\": \"New Jersey\", \"last_updated\": \"2021-08-10T20:03:02.250418+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"STATE OF NEW JERSEY v. BRIAN STEIGLER.\", \"head_matter\": \"STATE OF NEW JERSEY v. BRIAN STEIGLER.\\nNovember 7, 1984.\", \"word_count\": \"14\", \"char_count\": \"92\", \"text\": \"Petition for certification denied.\"}"

nj/1353204.json

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+"{\"id\": \"1353204\", \"name\": \"STATE OF NEW JERSEY v. THOMAS PARKS v. BOARD OF FIRE COMMISSIONERS\", \"name_abbreviation\": \"State v. Parks\", \"decision_date\": \"1986-07-11\", \"docket_number\": \"\", \"first_page\": \"510\", \"last_page\": \"510\", \"citations\": \"105 N.J. 510\", \"volume\": \"105\", \"reporter\": \"New Jersey Reports\", \"court\": \"Supreme Court of New Jersey\", \"jurisdiction\": \"New Jersey\", \"last_updated\": \"2021-08-11T00:08:39.507104+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"STATE OF NEW JERSEY v. THOMAS PARKS v. BOARD OF FIRE COMMISSIONERS.\", \"head_matter\": \"STATE OF NEW JERSEY v. THOMAS PARKS v. BOARD OF FIRE COMMISSIONERS.\\nJuly 11, 1986.\", \"word_count\": \"19\", \"char_count\": \"118\", \"text\": \"Petition for certification denied.\"}"

nj/1353360.json

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+"{\"id\": \"1353360\", \"name\": \"JUDY COLEMAN, PETITIONER-RESPONDENT, v. CYCLE TRANSFORMER CORP., RESPONDENT-APPELLANT\", \"name_abbreviation\": \"Coleman v. Cycle Transformer Corp.\", \"decision_date\": \"1986-11-14\", \"docket_number\": \"\", \"first_page\": \"285\", \"last_page\": \"297\", \"citations\": \"105 N.J. 285\", \"volume\": \"105\", \"reporter\": \"New Jersey Reports\", \"court\": \"Supreme Court of New Jersey\", \"jurisdiction\": \"New Jersey\", \"last_updated\": \"2021-08-11T00:08:39.507104+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"JUDY COLEMAN, PETITIONER-RESPONDENT, v. CYCLE TRANSFORMER CORP., RESPONDENT-APPELLANT.\", \"head_matter\": \"JUDY COLEMAN, PETITIONER-RESPONDENT, v. CYCLE TRANSFORMER CORP., RESPONDENT-APPELLANT.\\nArgued May 13, 1986\\nDecided November 14, 1986.\\nGeorge J. Kenny argued the cause for appellant (Connell, Foley & Geiser, attorneys; Frank A. Lattal, on the brief).\\nDavid S. Sussman argued the cause for respondent (Ralph B. Sussman, attorney).\", \"word_count\": \"3842\", \"char_count\": \"23225\", \"text\": \"The opinion of the Court was delivered by\\nCLIFFORD, J.\\nIn this workers' compensation case the judge of compensation dismissed the claim petition because \\\"the accident did not arise out of the employment The Appellate Division, in an unreported opinion, reversed and remanded on the strength of Chen v. Federated Dep't Stores, 199 N.J.Super. 336 (App. Div.1985). We granted certification, 102 N.J. 399 (1986), to review that determination. We reverse.\\nI\\nOn December 21, 1983, petitioner, Judy Coleman, was employed as an inspector-tester by respondent, Cycle Transformer Corporation (Cycle). As was her custom she had lunch, which she had brought with her from home, in the lunchroom set aside by her employer on its premises for that purpose. The dining area was not an elaborate facility: it contained only tables, chairs, a coffee and soda machine, and a refrigerator. The employer neither served nor provided any food. Petitioner, who was free to dine on or off the premise\\u00e1, was not paid for her half-hour lunch break. It was after she had finished her lunch that petitioner experienced a bizarre mishap, which she described as follows:\\nI was done eating. I went to light a cigarette. I struck the match and as I went to turn my head to the right to talk to one of my co-workers, you know, the tip of my hair caught the match and my hair went up in flames.\\n*\\n[A] couple of the co-workers there beat out the fire, put the fire out. Once the fire was out I \\u2014 I had this chemical on my hair.' I had a new growth of hair underneath, so the hair burned down so much and then burned out, the fire went out with them beating it.\\nThe chemical to which petitioner referred was actually two products \\u2014 one, called S Curl Activator, is \\\"something like a perm\\\" and had been applied by a beauty parlor some five months previously; the other, Stay Soft Flow Activator, had been put on by petitioner that morning, to \\\"keep the curl in [her] hair in place.\\\" Although we gather that petitioner has brought suit against the manufacturers of those products, their role, if any, in causing the accident or injury is not evidenced by this record. We therefore attach no significance on this appeal to the presence of those preparations.\\nPetitioner's workers' compensation claim sought benefits for facial and head burns, scarring, and neuropsychiatric and dermatological disabilities. Judge McNatt concluded that the accidental touching of a lighted match to the petitioner's hair by the petitioner's own hand was not \\\"reasonably incidental\\\" to her employment. He concluded: \\\"Neither the tasks of her employment, nor the place where she was eating her lunch at the time, nor any act on the part of any of her co-employees caused her injury,\\\" and therefore \\\"the accident did not arise out of\\\" the employment.\\nOn appeal, the Appellate Division read Chen v. Federated Dep't Stores, supra, 199 N.J.Super. 336, to hold \\\"unequivocally\\\" that \\\"injuries occurring on the employer's premises during a regular lunch hour arise in the course of employment and are solely remediable under the Workers' Compensation Act.\\\" Because the court below viewed the facts in this case as \\\"legally indistinguishable\\\" from those in Chen, in which plaintiff was injured while shopping on her employer's premises during a lunch break, it concluded that Chen was \\\"dispositive\\\" and held that \\\"Coleman's injuries in this case arose out of and in the course of employment.\\\" The Appellate Division therefore reversed and remanded to the Division of Workers' Compensation for a determination of the nature and extent of disability.\\nII\\nDean Larson reminds us that \\\"[t]he heart of every compensation act, and the source of most litigation in the compensation field, is the coverage formula.\\\" 1 A. Larson, Workmen's Compensation Law, \\u00a7 6.10 (1985) (hereinafter Larson). New Jersey, like most other states, adopted its formula from the British Compensation Act, with its requirement of \\\"accident arising out of and in the course of employment.\\\" Larson, supra, at \\u00a7 6.10. Our Workers' Compensation Act, N.J.S.A. 34:15-1 to -127, provides in pertinent part:\\nWhen employer and employee shall by agreement, either express or implied, accept the provisions of this article compensation for personal injuries to such employee by accident arising out of and in the course of employment shall be made by the employer without regard to the negligence of the employer .\\n[N.J.S.A. 34:15-7 (emphasis supplied).]\\nAccording to Dean Larson, \\\"[f]ew groups of statutory words in the history of law have had to bear the weight of such a mountain of interpretation as has been heaped upon this slender foundation.\\\" Larson, supra, at \\u00a7 6.10.\\nThe task of construction is made easier by breaking the phrase \\\"in half, with the 'arising out of' portion construed to refer to causal origin, and the 'course of employment' portion to the time, place, and circumstances of the accident in relation to the employment.\\\" Ibid; see Rafferty v. Dairymen's League Coop. Ass'n, 16 N.J.Misc. 363 (Dep't of Labor, Workmen's Comp. Bureau 1938):\\nThe words \\\"out of\\\" relate to the origin or cause of the accident; the words \\\"in the course of,\\\" to time, place and circumstances under which the accident takes place. The former words relate to the character of the accident, while the latter words relate to the circumstances under which the accident takes place. An accident comes within the latter words if it occurs while the employee is doing what a man so employed may reasonably do within a time during which he is employed and at a place where he may reasonably be during the time to do that thing. The accident, in order to arise \\\"out of\\\" the employment, must be of such nature the risk of which might have been contemplated by a reasonable person when entering the employment, as incidental to it. A risk is incidental to the employment when it belongs to or is connected with what a workman has to do in fulfilling his contract of service.\\n[Id. at 366.]\\nAs Dean Larson cautions, even though each test must be \\\"independently applied and met[,] it should never be forgotten that the basic concept of compensation coverage is unitary, not dual, and is best expressed in the term 'work connection.' \\\" Larson, supra, at \\u00a7 6.10.\\nIll\\nThe burden of construction is eased somewhat in this case, for we do not discern a difficult problem in respect of the \\\"in the course of\\\" component of the formula. We need pause on it only long enough to observe that our law on this point is well settled: \\\"[a]n employee need not actually be working in order to meet the 'course of employment' test.\\\" Mikkelsen v. N.L. Indus., 72 N.J. 209, 212 (1977). The court in Mikkelsen cited with approval a line of New Jersey cases that have extended the protection of the Workers' Compensation Act to \\\"injuries sustained within the scope of the work-period and the work-place while the employee was engaged in personally motivated, but customary, or reasonably expectable activities.\\\" Ibid. Here, petitioner's injuries were sustained on the employer's premises and during a regular lunch hour, circumstances that have long been held to fall within the course of employment. See Chen v. Federated Dep't Stores, supra, 199 N.J.Super. at 338, and authorities cited there. The mishap was occasioned by petitioner's smoking \\u2014 a personally-motivated activity, to be sure, but one that was customary and reasonably to be expected. See Secor v. Penn Serv. Garage, 19 N.J. 315, 321 (1955) (injuries that occur during minor deviations such as smoking are generally sufficiently related to employment as not to be barred by the \\\"in the course of\\\" requirement); Larson, supra, at \\u00a7 21.40 (\\\"practically all cases hold that smoking does not constitute a departure from the employment .\\\"). Hence, petitioner was \\\"in the course of\\\" her employment when the accident occurred.\\nIY\\nThe more substantial question is whether petitioner's accident \\\"arose out of\\\" her employment. This simply worded phrase has given rise to \\\"a mass of decisions turning upon nice distinctions and supported by refinements so subtle as to leave the mind of the reader in a maze of confusion.\\\" Note, \\\"Arising 'out of' and 'in the Course of' the Employment Under the New Jersey Workmen's Compensation Act,\\\" 20 Rutgers L.Rev. 599 (1966) (hereinafter Note) (quoting Herbert v. Samuel Fox & Co., [1916] 1 A.C. 405, 419). We view this appeal, however, as relatively straightforward, not encumbered by such distinctions, refinements, or confusion.\\nThe requirement that a compensable accident arise out of the employment looks to a causal connection between the employment and the injury. It must be established that the work was at least a contributing cause of the injury and that the risk of the occurrence was reasonably incident to the employment. Note, supra, 20 Rutgers L.Rev. at 601. Although a number of tests have been devised for determining the requisite connection, see Larson, supra, at \\u00a7 6.20 to 6.60, the \\\"but for\\\" or positional-risk test is now a fixture in New Jersey law. E.g., Howard v. Harwood's Restaurant Co., 25 N.J. 72, 82 (1957). Essentially, that test asks \\\"whether it is more probably true than not that the injury would have oc curred during the time and place of employment rather than elsewhere.\\\" Id. at 83. Unless it is more probable that the injury would not have occurred under the normal circumstances of everyday life outside of the employment, the necessary causal connection has not been established. Ibid.\\nThe \\\"but for\\\" or positional-risk doctrine includes as one of its components the nature of the risk that causes injury to the employee. Those risks that are \\\"distinctly associated\\\" with the employment are easy to identify: they include\\nall the obvious kinds of injury one thinks of at once as \\\"industrial injury.\\\" All the things that can go wrong around a modem factory, mill, mine, transportation system or construction project \\u2014 machinery breaking, objects falling, explosives exploding, tractors tipping, fingers getting caught in gears, excavations caving in and so on \\u2014 are clearly in this category and constitute the bulk of what not only the public but perhaps also the original draftsmen of compensation acts had in mind as their proper concern.\\n[Larson, supra, at \\u00a7 7.10, quoted in Howard v. Harwood's Restaurant Co., supra, 25 N.J. at 84.]\\nNew Jersey recognizes a second category of risks \\u2014 those described as \\\"neutral.\\\" Howard v. Harwood's Restaurant Co., supra, 25 N.J. at 84. Neutral risks have been defined as \\\"uncontrollable circumstances\\\" and \\\"do not originate in the employment environment\\\" but rather \\\"happen to befall the employee during the course of his employment.\\\" Ibid.; see also Larson, supra, at \\u00a7 6.50 (neutral risks are \\\"neither personal to the claimant nor distinctly associated with the employment.\\\"). As common examples of neutral risks the Howard opinion offers \\\"acts of God, such as lightning,\\\" and the fallen arrow in Gargiulo v. Gargiulo, 13 N.J. 8 (1953). In Gargiulo, an employee, while at work in the back yard of his employer's store, was injured when struck by an arrow that a neighborhood boy had shot in the general direction of a tree on the employer's property. The employee received compensation because \\\"but for\\\" the employment, he would not have been in the line of fire and therefore would not have been hit. Id. at 13.\\nIn addition to the risks \\\"distinctly associated\\\" with the employment and the \\\"neutral\\\" risks there is a third category of risks \\u2014 those personal to the employee. Risks falling within this classification do not bear a sufficient causative relationship to the employment to permit courts to say that they arise out of that employment. Howard v. Harwood's Restaurant, supra, 25 N.J. at 84; Larson, supra, at \\u00a7 7.20. As this Court said in Howard, \\\"[i]n these situations, the employment connection with the injury is minimal; it is the personal proclivities or contacts of the employee which gives rise to the harm, so that even though the injury takes place during the employment, compensation is denied.\\\" 25 N.J. at 85.\\nFor reasons that will apjpear, we conclude that petitioner's case falls into this last category.\\nV\\nThe principles in the foregoing section, although easily articulated, have not lent themselves to consistent ease of application. See generally Note, supra, 20 Rutgers L.Rev. at 601-03 (discussing \\\"troublesome\\\" cases under the \\\"arising out of\\\" requirement). The cases involving idiopathic falls \\u2014 those brought on by a purely personal condition unrelated to the employment, such as a heart attack or epileptic seizure \\u2014 illustrate the point. See, e.g., George v. Great Eastern Food Prods., Inc., 44 N.J. 44 (1965); Henderson v. Celanese Corp., 16 N.J. 208 (1954); Reynolds v. Passaic Valley Sewerage Comm'rs., 130 N.J.L. 437 (Sup.Ct.1943), aff'd o.b., 131 N.J.L. 327 (E. & A.1944).\\nIn Reynolds the employee, a watchman, suffered an epileptic seizure, which caused him to fall against a small pot stove in a shanty furnished by the employer, as a result of which his face was seared by the hot stove. Both the Compensation Bureau and the Common Pleas Court found as a fact that \\\"the cause of the petitioner's face coming in contact with the stove was not his tripping over the chair in the shanty or other like occurrence but was an epileptic seizure which he suffered and which was unconnected with his employment.\\\" 130 N.J.L. at 440. On appeal the Supreme Court applied the \\\"sound rule\\\" that \\\"whenever conditions attached to the place of employment or otherwise incident to the employment are factors in the catastrophic combination, the consequent injury arises out of the employment.\\\" Id. at 443. The record disclosed that \\\"[t]he pot stove was furnished by the employer\\\" and \\\"[t]he thing that occurred was connected with the service the employee had to perform in fulfilling his contract Id. at 441-442. Therefore, \\\"the use of the shanty, with the pot stove, was incidental to his employment.\\\" Id. at 442. The Supreme Court concluded that the accident arose out of the employment, ibid, a conclusion adopted by the Court of Errors and Appeals, 131 N.J.L. 327.\\nIn Henderson v. Celanese Corp., supra, 16 N.J. 208, the petitioner-employee again experienced an epileptic seizure, as a result of which he fell. Unlike the employee in Reynolds, however, Henderson struck nothing on his way down. He simply fell unimpeded to the concrete floor. This Court held that the accident did not arise out of the petitioner's employment, and differentiated Reynolds on the basis that the concrete floor was neither one of the conditions attached to the place of employment nor, in the language of Reynolds, a factor in the \\\"catastrophic combination.\\\" Id. at 212. The Court concluded that it was just as probable that the same injury would have occurred outside of the employment, id. at 214. A minority of the Court would have awarded compensation because \\\"the accidental injury here was attributable in a substantial part to one of the conditions of employment, the concrete floor Id. at 215.\\nThe view of the Henderson dissenters ultimately prevailed in George v. Great Eastern Food Prods., Inc., supra, 44 N.J. 44. There the employee's fall, in which he suffered a fractured skull that later caused his death, originated in a cardiovascular condition. Id. at 45. Again, as in Henderson, the employee struck nothing until his head hit the level concrete floor. Ibid. The Court, however, found little rational support for Henderson's distinction between those falls that involved striking a machine or a table on the way down and those in which the fall was directly to a concrete floor. Id. at 47. \\\"Either no consequence of an idiopathic fall should bring compensability or the nature of the result alone should be looked to as the determinant.\\\" Ibid. In allowing recovery the Court overruled Henderson and held that an accident arises out of the employment \\\"when it is due to a condition of the employment \\u2014 i.e., a risk of this employment The petitioner's impact with the concrete floor \\\"clearly [met] that test.\\\" Id. at 48.\\nThe same cannot be said of the accident and injury in the case before us. No condition of the lunchroom played any role, in petitioner Coleman's setting her hair on fire or in the nature and extent of her injury. No employment-related instrumentality, such as the stove in Reynolds, supra, 130 N.J.L. 437, or the concrete floor in Henderson, supra, 16 N.J. 208, and George, supra, 44 N.J. 44, influenced the occurrence itself or the nature and extent of the resultant injury. Unlike Gargiulo, supra, 13 N.J. 8, in which the requirements of the employee's task took him into the line of fire of an errant arrow, no circumstances of this petitioner's employment was causally related to the unhappy introduction of match to hair. The fact that the accident happened while she was on her employer's premises was the sheerest happenstance, wholly insufficient to supply the necessary nexus between the employment and the accident.\\nTo hold otherwise would be to equate an \\\"incident of employment\\\" with a coincidence. There is not the slightest suggestion that it is more probable that the accident would not have occurred under the normal circumstances of everyday life outside of the employment, or that if it had occurred at, say, petitioner's home or in a public restaurant's smoking section or in any of the various other places that those who choose to smoke are still permitted to do so, the resultant injury would somehow have been less severe. See Howard v. Harwood's Restaurant Co., supra, 25 N.J. at 83. Quite simply, it was the respondent's personal proclivity for smoking, coupled with an unfortunate bit of inattention, that produced the harm. See Howard, supra, 25 N.J. at 85. That the harm was encountered in the course of petitioner's employment serves to satisfy only the first part of the test; the arising out o/requirement cannot be met in the circumstances presented by this record.\\nThe so-called \\\"smoking\\\" cases are consistent with our analysis and with the result on this appeal. In Secor v. Penn Serv. Garage, supra, 19 N.J. 315, the petitoner, a garage attendant, spilled gasoline on his work clothes while performing his employment duties. According to petitioner, when he lit a match preparatory to lighting a cigarette, his clothes burst into flames and he was injured. This Court held that the accident arose out of the petitioner's employment: \\\"The spilling of gasoline on his clothes was a risk incident to his employment and but for its occurrence Secor would not have been injured Id. at 323. In Steel Sales Corp. v. Industrial Comm'n, 293 Ill. 435, 127 N.E. 698 (1920), the accident arose out of employment when petitioner's clothing, coated with oil from his job, caught fire when matches in his pocket were lit by petitioner's bumping into a locker. In Hill-Luthy v. Industrial Comm'n, 411 Ill. 201, 103 N.E.2d 605 (1952), however, compensation was denied when petitioner, while engaged in his employment of driving a truck, attempted to light a cigarette and the match head flew off into his eye. The Supreme Court of Illinois concluded that \\\"[t]he use of matches or the act of smoking was in no way incidental to the employment. The risk encountered was entirely divorced from it, and was one to which the general public is equally exposed while performing such acts in homes or elsewhere for personal enjoyment and comfort.\\\" Id. at 202, 103 N.E.2d at 606. The result in each of the foregoing was determined by the presence or absence of a risk of the employment or a condition thereof but for which the accident would not have happened \\u2014 oily clothes, gasoline, matches striking an employee locker \\u2014 an element that is essential to an award of compensation but one that is entirely absent from this case. But see Puffin v. General Elec. Co., 132 Conn. 279, 43 A.2d 746 (1945) (divided court held dangers of smoking while wearing fluffy angora sweater to be incident of employment).\\nThere remains only the need to address Chen v. Federated Dep't Stores, supra, 199 N.J.Super. 336. Unlike the court below, we do not find Chen dispositive of the instant appeal. Indeed, if Chen is of any pertinence, it is only in the limited sense that the case involves the issue of whether the Workers' Compensation Act was the exclusive remedy for an employee who sustained an accident during her lunch break while shopping on her employer's department store premises, when she tripped over a clothes hanger that lay on the floor. Plaintiff, seeking to bring a civil action against her employer, argued that the employment relationship had been severed by reason of the fact that she was shopping at the time of the accident. In affirming summary judgment for the store-employer, the Appellate Division concluded that nothing in the 1979 amendments to the Workers' Compensation Act, which contain a \\\"new definition of travel to and from work in most circumstances.\\\" 199 N.J.Super. at 338, affected the compensability of on-premises lunchtime injuries. Here is the heart of the opinion:\\nThe occasion of plaintiff's shopping at Abraham & Straus was her employment there. It was convenient for her and beneficial to her employer. No doubt, lunchtime shopping was encouraged by the employer, perhaps even by the allowance of price discounts. An injury in these circumstances was ruled compensable in Wilson v. Sears Roebuck & Co., 14 Utah 2d 360, 384 P.2d 400 (1963). In our view, lunchtime shopping is an on-premises activity that benefits the employer and should not militate against compensability.\\n[Ibid.]\\nNowhere does Chen approach the \\\"arising out of employment\\\" issue on which the instant appeal hinges; indeed, that critical phrase is not to be found in the Chen opinion, and nothing in that opinion suggests that the issue that engages our attention here was raised there, even tangentially. We have no reason on this appeal, therefore, to disturb Chen's holding.\\nVI\\nThe judgment of the Appellate Division is reversed, and the judgment of the Division of Workers' Compensation in favor of respondent-appellant is reinstated.\\nFor reversal \\u2014 Chief Justice WILENTZ, and Justices CLIFFORD, HANDLER, POLLOCK, O'HERN, GARIBALDI and STEIN \\u2014 7.\\nOpposed \\u2014 none.\\nDean Larson observes that\\n[illustrations of [neutral risk] may be drawn from a wide variety of controversial cases. A man hard at work in the middle of a factory yard may be hit by a stray bullet out of nowhere, bit by a mad dog, stabbed by a lunatic running amuck, struck by lightning, thrown down by a hurricane, killed by enemy bomb, injured by a piece of tin blown from someone's roof, shot by a child playing with an air rifle, murdered as a result of mistaken identity, felled by debris from a distant explosion, or blinded by a flying beetle.\\n[Larson, supra, at \\u00a7 7.30.]\"}"

nj/1356350.json

@@ -0,0 +1 @@
+"{\"id\": \"1356350\", \"name\": \"GARALD T. LEE v. CNA INSURANCE COMPANY AND ALLSTATE INSURANCE COMPANY\", \"name_abbreviation\": \"Lee v. CNA Insurance\", \"decision_date\": \"1986-03-11\", \"docket_number\": \"\", \"first_page\": \"489\", \"last_page\": \"489\", \"citations\": \"103 N.J. 489\", \"volume\": \"103\", \"reporter\": \"New Jersey Reports\", \"court\": \"Supreme Court of New Jersey\", \"jurisdiction\": \"New Jersey\", \"last_updated\": \"2021-08-10T19:59:53.031188+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"GARALD T. LEE v. CNA INSURANCE COMPANY AND ALLSTATE INSURANCE COMPANY.\", \"head_matter\": \"GARALD T. LEE v. CNA INSURANCE COMPANY AND ALLSTATE INSURANCE COMPANY.\\nMarch 11, 1986.\", \"word_count\": \"18\", \"char_count\": \"122\", \"text\": \"Petition for certification denied.\"}"

nj/1372329.json

@@ -0,0 +1 @@
+"{\"id\": \"1372329\", \"name\": \"AMERICAN FIRE AND CASUALTY COMPANY, PLAINTIFF-APPELLANT, v. NEW JERSEY DIVISION OF TAXATION, DEFENDANT-RESPONDENT (TWO CASES); WEST AMERICAN INSURANCE COMPANY, PLAINTIFFAPPELLANT, v. NEW JERSEY DIVISION OF TAXATION, DEFENDANT-RESPONDENT (TWO CASES); OHIO CASUALTY CO., PLAINTIFF-APPELLANT, v. NEW JERSEY DIVISION OF TAXATION, DEFENDANT-RESPONDENT; PRUCO LIFE INSURANCE COMPANY, PLAINTIFF-APPELLANT, v. DIRECTOR, DIVISION OF TAXATION, DEFENDANT-RESPONDENT\", \"name_abbreviation\": \"American Fire & Casualty Co. v. New Jersey Division of Taxation\", \"decision_date\": \"2005-03-09\", \"docket_number\": \"\", \"first_page\": \"434\", \"last_page\": \"462\", \"citations\": \"375 N.J. Super. 434\", \"volume\": \"375\", \"reporter\": \"New Jersey Superior Court Reports\", \"court\": \"New Jersey Superior Court, Appellate Division\", \"jurisdiction\": \"New Jersey\", \"last_updated\": \"2021-08-10T22:40:47.116708+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"AMERICAN FIRE AND CASUALTY COMPANY, PLAINTIFF-APPELLANT, v. NEW JERSEY DIVISION OF TAXATION, DEFENDANT-RESPONDENT (TWO CASES). WEST AMERICAN INSURANCE COMPANY, PLAINTIFFAPPELLANT, v. NEW JERSEY DIVISION OF TAXATION, DEFENDANT-RESPONDENT (TWO CASES). OHIO CASUALTY CO., PLAINTIFF-APPELLANT, v. NEW JERSEY DIVISION OF TAXATION, DEFENDANT-RESPONDENT. PRUCO LIFE INSURANCE COMPANY, PLAINTIFF-APPELLANT, v. DIRECTOR, DIVISION OF TAXATION, DEFENDANTRESPONDENT.\", \"head_matter\": \"868 A.2d 346\\nAMERICAN FIRE AND CASUALTY COMPANY, PLAINTIFF-APPELLANT, v. NEW JERSEY DIVISION OF TAXATION, DEFENDANT-RESPONDENT (TWO CASES). WEST AMERICAN INSURANCE COMPANY, PLAINTIFFAPPELLANT, v. NEW JERSEY DIVISION OF TAXATION, DEFENDANT-RESPONDENT (TWO CASES). OHIO CASUALTY CO., PLAINTIFF-APPELLANT, v. NEW JERSEY DIVISION OF TAXATION, DEFENDANT-RESPONDENT. PRUCO LIFE INSURANCE COMPANY, PLAINTIFF-APPELLANT, v. DIRECTOR, DIVISION OF TAXATION, DEFENDANTRESPONDENT.\\nSuperior Court of New Jersey Appellate Division\\nArgued December 8, 2004\\nDecided March 9, 2005.\\nBefore Judges FALL, PAYNE and C.S. FISHER.\\nRichard D. Pomp of the Connecticut bar, admitted pro hac vice, argued the cause for appellants American Fire and Casualty Company, Ohio Casualty Company and West American Insurance Company, (McDermott, Will & Emery, attorneys; Mr. Pomp and Margaret C. Wilson, on the brief).\\nMichael A. Guariglia, argued the cause for appellant Prueo Life Insurance Company (McCarter & English, attorneys; Mr. Guar-iglia, of counsel, and Open Weaver Banks, on the brief).\\nCarol Johnston, Senior Deputy Attorney General, argued the cause for respondent (Peter C. Harvey, Attorney General, attorney; Michael J. Haas, Assistant Attorney General, of counsel; Ms. Johnston, on the brief).\\nAlthough Judge Payne was not present at oral argument, she listened to the audio recording of the argument before participating in the decision.\", \"word_count\": \"8929\", \"char_count\": \"55787\", \"text\": \"The opinion of the court was delivered by\\nPAYNE, J.A.D.\\nIn American Fire and Casualty Co. v. Director, Div. of Taxation, 21 N.J.Tax 155 (2003), a judge of the Tax Court affirmed, against challenges by foreign domiciled insurers, the methodology utilized by the Director, New Jersey Division of Taxation (Director) for calculating the State's retaliatory insurance tax* so as to recapture the benefits to foreign insurers that otherwise would be provided by the State's premium tax cap. The decision, applied in principle in thirteen actions, was appealed in the actions before us, which we decide together. We reverse.\\nNew Jersey imposes two taxes of relevance to this appeal: a premium tax and a retaliatory tax. The premium tax statute, codified at N.J.S.A. 54:18A-1 to -11, requires that all domestic and foreign insurance companies pay an annual tax \\\"based on net premiums on contracts of insurance covering property and risks located within this State written during the calendar year ending December 31 next preceding.\\\" N.J.S.A. 54:18A-l(a). The tax for non-life insurers is presently set at 2.1% of taxable premiums in this State. N.J.S.A. 54:18A-2(a). The same rate applies to life and health insurance companies. N.J.S.A. 54:18A-3(a).\\nHowever, the premium tax statute contains a premium cap provision, applicable both to property and casualty and to life and health insurers, that is unique to New Jersey. See N.J.S.A. 54:18A-6. That statute, enacted in 1945 (L. 1945, c. 132, \\u00a7 6) provides in essence that if the premiums collected by a company and its affiliates that are taxable in New Jersey exceed twelve and one-half percent of the \\\"total premiums collected by the company and all of its affiliates during the same year on all policies and contracts of insurance, whenever and wherever issued,\\\" then the premiums taxable in New Jersey \\\"shall not exceed\\\" twelve and one-half percent of the company's total premiums. The manifest intent of the cap is to attract capital and \\\"provide!] insurance companies with incentive to voluntarily write significant amounts of business in New Jersey.\\\" Senate Committee on Labor, Industry and Professions Statement to Senate Bill No. 2395 \\u2014 L. 1985, c. 294. Because the statute, which creates a tax incentive, is not limited to New Jersey companies, it does not constitute a preference that, as we will explain in Part IV of this opinion, would be constitutionally prohibited on equal protection grounds.\\nIn 1985, when the statute was amended to require that an insurer include not only its own taxable premiums wherever earned, but also those of its affiliates, so as to prevent the recent phenomenon of centralization of New Jersey business in a single New Jersey domiciled affiliate that would technically qualify for the cap, the true purpose of the statute was expressed in the following terms:\\nThe limitation on the maximum amount of premium tax payable was intended to be available to those insurance companies, domestic or foreign, which made a substantial commitment to New Jersey and contribution to its economy as evidenced by the percentages of overall business written in this State compared to elsewhere. Typically, insurance companies qualifying for the limitation had significant numbers of New Jersey employees providing service to policyholders and claimants residing here, paid substantial sums of real property taxes, maintained deposits in local banks, invested considerable funds in local securities and companies and generally contributed to the economy by utilizing other local services and businesses.\\n[Ibid.]\\nNew Jersey's retaliatory tax, enacted in 1950 and codified at N.J.S.A. 17:32-15, has a wholly different purpose. That statute, stripped to its essentials, provides:\\nWhen by the laws of any other state . any premium or income or other taxes . are imposed upon New Jersey insurance companies . doing business in such other state . which are in excess of such taxes . imposed upon insurance companies . of such other state . doing business in New Jersey . so long as such laws continue in force the same premium or income or other taxes . shall be imposed upon insurance companies . of such other state . doing business in New Jersey.\\nThis retaliatory tax applies solely to foreign (out-of-state) or alien (out-of-U.S.) insurers.\\nAlthough the manner of implementation of the statute is not entirely clear from its language, what the statute in effect is intended to do is to permit the imposition of an additional tax upon foreign insurers domiciled in states whose premium tax rate exceeds that of New Jersey in an amount equivalent to the difference between the foreign and the New Jersey tax rate. Thus if, for instance, Ohio imposed a premium tax at a rate of 2.5% and New Jersey imposed a premium tax at a rate of 2.1%, Ohio domiciled insurers writing business in New Jersey would be subject to an additional retaliatory tax at a rate of 0.4%.\\nSuch retaliatory taxes have now been enacted in all states except Hawaii, and their constitutionality has been affirmed by the United States Supreme Court. See Western and Southern Life Ins. Co. v. State Bd. of Equalization of California, 451 U.S. 648, 101 S.Ct. 2070, 68 L.Ed.2d 514 (1981). As explained by Justice Brennan in that decision, the retaliatory tax at issue (as here) was based upon a model statute drafted by the insurance industry and adopted in similar form elsewhere. Id. at 669, 101 S.Ct. at 2083, 68 L.Ed.2d at 531.\\nAlthough variously expressed, the principal purpose of retaliatory tax laws is to promote the interstate business of domestic insurers by deterring other States from enacting discriminatory or excessive taxes. A survey of state retaliatory tax laws summarized:\\n\\\"[Wlhatever their character, it is obvious . that their ultimate object is not to punish foreign corporations doing business in the state, or retort the action of the foreign state in placing upon corporations of the enacting state doing business therein burdens heavier than those imposed upon corporations of such foreign state doing business in the enacting state, but to induce such foreign state to show the same consideration to corporations of the enacting state doing business therein as is shown to corporations of such foreign state doing business in the enacting state.\\\" Annot., 91 A.L.R. 795 (1934).\\n[Id. at 668-69, 101 S.Ct. at 2083, 68 L.Ed.2d at 531.]\\nIn essence, the purpose of retaliatory taxes is to alleviate tax burdens for those companies conducting interstate insurance business by placing pressure upon states to lower their tax rates to levels encountered elsewhere, thereby promoting interstate commerce. Their purpose is not to raise revenue. Id. at 669-70, 101 S.Ct. at 2083-84, 68 L.Ed.2d at 531. As we stated in Employers' Fire Ins. Co. v. Director, Division of Taxation, 6 N.J.Tax 613 (App.Div.1984):\\nRetaliatory tax laws are a fact of life in the existence of any insurance company that does business on a national level____Although such statutes may incidentally produce revenue, the primary purpose sought to be achieved is to compel the foreign state imposing greater costs to lower the \\\"premium or income or other taxes, . fees, fines, penalties, licenses, deposit requirements or other obligations,\\\" or to remove any \\\"prohibitions or restrictions . imposed upon\\\" the insurance companies of the domiciliary state.\\n[Id. at 615-16 (citations omitted).]\\nThe State's retaliatory tax and premium cap provisions thus have different goals: the former is designed to operate so as to level the playing field for insurance companies engaged in interstate business thus encouraging that business; the latter, to give New Jersey a competitive advantage in attracting foreign insurer investment and increased insurance capacity.\\nNew Jersey's premium tax cap and retaliatory tax statutes do not provide an explicit mechanism for their implementation in instances in which both are applicable, and nothing in the legislative history suggests that the Legislature considered the issues potentially arising from possible variations in the method of their dual implementation. This litigation has brought those issues into focus.\\nTo illustrate them, we adopt the numerically simplified examples set forth in the brief submitted on behalf of plaintiffs American Fire and Casualty Company and West American Insurance Company, since their essential accuracy has not been disputed.\\nIf a foreign insurer received premiums of $500,000 on its New Jersey business and was ineligible for the premium tax cap, its premium taxes would be $10,500 (2.1% x $500,000).\\nIf a foreign insurer received New Jersey premiums of $500,000 and nationwide premiums of $1,000,000, thereby qualifying it for New Jersey's premium tax cap, its taxes would be reduced by $7,875. (12.5% of $1,000,000 = 125,000 x 2.1% = $2,625; $10,500-$2,625 = $7,875.)\\nIf a foreign insurer, eligible for the benefits of the premium tax cap, is domiciled in a state with a higher premium tax rate than that of New Jersey (assume 2.5%), then that insurer should be subject to New Jersey's retaliatory tax. However, an issue arises as to how that tax should be computed.\\nThe Director takes the position that utilization of the premium tax cap reduces the effective rate of New Jersey's premium taxes below 2.1%, since a smaller amount of premiums is being taxed than has actually been written in the State. He then contends that this reduction in New Jersey's effective tax rate must be recaptured by increasing the rate of retaliatory tax assessed or by applying a retaliatory tax to the full amount of premiums written by the foreign insurer in New Jersey and then subtracting the actual taxes paid pursuant to the cap. Thus, utilizing the prior example of a foreign insurer with $1,000,000 premiums nationwide and $500,000 premiums in New Jersey, subject to a retaliatory tax as the result of a tax rate of 2.5% in its state of domicile, the Director would calculate the retaliatory tax as $500,000 (total New Jersey premiums) x 2.5% (domiciliary tax rate) = $12,500-$2,625 (New Jersey tax as capped) = $9,875.\\nUnder the Director's interpretation, a partial recapture of the premium tax cap would occur even if the state of domicile of the foreign insurer had a lower tax rate than that of New Jersey (assume 1.8%). Utilizing the prior example, the Director would calculate the tax payable in the domiciliary state as $500,000 (total New Jersey premiums) x 1.8% = $9,000-$2,625 (New Jersey tax as capped) = $6,375 in retaliatory taxation.\\nThe Director does not treat a tax credit in a manner similar to his treatment of the tax cap for retaliatory tax purposes, although the tax cap in many respects resembles a credit, which is the common financial incentive utilized by states to attract the business of foreign insurers. Unlike his treatment of the cap, he does not seek to apply a retaliatory tax to recapture any credits. Thus an inconsistency in his position arises for which no sound justification can be discerned.\\nThe plaintiff insurers, in contrast, contend that the benefits of the tax cap should be preserved. Accordingly, American Fire, West American and the other appellant insurers forming part of the Ohio Casualty group argue that the retaliatory tax should be calculated by subtracting New Jersey's rate from that of the domiciliary state, resulting in 0.4% and multiplying it by the amount of New Jersey gross premiums ($500,000) to yield $2,000. Alternatively, they calculate the retaliatory tax by subtracting the gross premium taxes in New Jersey absent the cap ($500,000 x 2.1% = $10,500) from Ohio's taxes on that amount ($500,000 x 2.5% = $12,500) for a total retaliatory tax of $2,000.\\nWhereas the Ohio Casualty insurers utilize taxes on gross premiums as the basis for their computation, Pruco advocates a symmetrical comparison of its capped premiums as taxed in New Jersey and as theoretically taxed in its domiciliary State, thereby utilizing a net premium tax approach. Neither has directly opposed the view of the other.\\nBy calculating the tax utilizing the Director's methodology, the foreign insurer with a domiciliary rate of 2.5% loses $7,875 ($9,875-$2,000), which is the exact amount that the insurer benefited as the result of the applicability of the premium tax cap in the Ohio Casualty example. The foreign insurer with a domiciliary rate of 1.8% loses $6,375, since it would not otherwise be subject to a retaliatory tax. Accordingly, the benefit of the tax cap is wholly recaptured or significantly reduced. Because a domestic insurer is not subject to New Jersey's retaliatory tax, no such recapture can occur. Thus, the issues become whether New Jersey's statutory scheme requires that result and whether that scheme, as applied, is constitutional.\\nI.\\nBefore further addressing the issues raised by this appeal, we briefly set forth the factual and procedural history leading to this litigation.\\nPlaintiffs American Fire and West American are insurers in the Ohio Casualty group of companies. American Fire is an Ohio corporation, whereas West American is an Indiana corporation. Both are eligible to claim a premium tax cap. American Fire is incorporated in a state that has a tax rate higher than that of New Jersey of 2.5%. Although West American was incorporated in a state with a statutory tax rate that is lower than New Jersey's (2.0%), the rate is higher than the effective rate in New Jersey as calculated by the Director. Thus, West American, too, was deemed subject to a partial recapture of savings resulting from the premium tax cap.\\nIn 2001, the two insurers recognized that the manner in which the Director calculated premium and retaliatory taxes deprived them of some or all of the benefit of New Jersey's premium tax cap. Accordingly, they sought refunds for retaliatory taxes paid in prior years. After their refund requests were denied by the Director in final determinations issued on July 12, 2001, they appealed to the Tax Court. Other insurance companies in the Ohio Casualty group that were likewise denied refunds by the Director also challenged his determination. Their appeals, along with other appeals by American Fire and West American, were stayed while the court consolidated and then resolved the actions instituted by American Fire and West American under docket numbers 4714-01 and 4715-01. On December 2, 2003, after considering cross-motions for summary judgment premised on stipulated facts, the court affirmed the determination of the Director in the written decision cited at the beginning of this opinion. Thereafter, the court consolidated the remaining ten Ohio Casualty cases, and on January 30, 2004, again affirmed the Director's determination for the reasons given in its December 2, 2003 opinion. On appeal, the lead American Fire and West American matters were assigned docket number A-2708-03T2, whereas the other Ohio Casualty cases were assigned docket number A-3676- 03T3. We address the issues raised in those appeals, which are identical, simultaneously.\\nAn appeal arising in the same fashion and raising similar issues was filed by Pruco Life Insurance Company, an Arizona corporation, challenging a March 28, 2003 determination by the Director, affirmed in a March 23,2004 Tax Court decision based substantially on the grounds set forth in its December 2, 2003 decision in the Ohio Casualty cases. Pruco's case was docketed in the Tax Court as 4508-03 and has been assigned appellate docket number A-4455-03T2. It, too, will be addressed in this opinion.\\nThe main difference between the Pruco case and the two lead Ohio Casualty cases is that the retaliatory tax provision applicable to life and health insurance companies such as Pruco is N.J.S.A. 17B:23-5. The text of that statute is in relevant respects substantially similar to that of N.J.S.A. 17:32-15, applicable to the Ohio Casualty companies. Pruco, like West American, is incorporated in a state with a lower statutory premium tax rate (2.0%) than New Jersey's and thus would not ordinarily be required to pay retaliatory taxes. The premium tax cap set forth in N.J.S.A. 54:18A-6 is applicable to Pruco as well as the other appellants.\\nII.\\nIn reaching its decision to affirm the determination of the Director, the tax judge first sought to interpret the intent of the Legislature in passing the premium tax cap and retaliatory tax statutes, and from that analysis, he concluded that \\\"[t]he history of the cap and retaliatory tax statutes suggests that neither statute should affect the interpretation of the other.\\\" American Fire, supra, 21 N.J.Tax at 166. The conclusion was based upon the maxim that the Legislature is presumed to be aware of existing legislation when enacting another statute (see Mahwah Tp. v. Bergen Cty. Bd. of Taxation, 98 N.J. 268, 279, 486 A.2d 818, 823-24, cert. denied sub nom., Borough of Demarest v. Mahwah Tp., 471 U.S. 1136, 105 S.Ct. 2677, 86 L.Ed.2d 696 (1985)) and on the fact that, despite sequential passage of the cap and retaliatory tax statutes and the existence of amendments to each, neither referred to the other. Further, the court noted the participation of members of the insurance industry in proposing amendments to the cap statute enacted in 1985, yet the absence in a contemporaneous memorandum by the Commissioner of Insurance, Hazel F. Gluck, to the Chief of Staff and Counsel to the Governor, dated April 22, 1985, of any reference to the policy of the cap or retaliatory tax or any potential conflict between the two. American Fire, supra, 21 N.J.Tax at 166.\\nThe failure of the Legislature, in enacting the retaliatory tax statute and in amending it and the cap statute, to address the conflict between the statutes asserted by plaintiffs, and the omission of any discussion of the issue in the Gluck Memorandum, in combination suggest a legislative intent to have the cap statute and retaliatory tax statute function in the manner adopted by the Director. [Id. at 167.]\\nThe tax judge also supported his conclusion by characterizing the plaintiffs' position as contending \\\"that enactment of the retaliatory tax effected an implied partial repeal of N.J.S.A. 54:18A-6 so that its cap provisions would not apply in calculating retaliatory tax,\\\" id. at 167; invoking the rule of statutory construction that implied repealers are not favored, ibid.; and determining that, because the two statutes were not repugnant to each other, an implied repeal of one could not be found, id. at 168. The retaliate- ry tax statute, the court held, could fulfill its function even if the benefits of the cap were recaptured, since by recapturing the cap and expanding the spread between the effective tax rate in New Jersey and the rate of a foreign state, that state might be encouraged to lower its rates, thereby lessening the tax burdens on New Jersey insurers doing business in that state. Id. at 170-71.\\nIn response to the plaintiff insurers' arguments that the Director's interpretation of the two statutes \\\"(i) represents bad policy, (ii) defeats the purpose of the cap statute to induce foreign insurance companies to do increased business in New Jersey, and (iii) does not fulfill the purpose of the retaliatory tax,\\\" the court observed:\\nPlaintiffs' policy arguments and the analyses by their experts are logical, sensible, and appealing. However, my responsibility is not to interpret the cap and retaliatory tax statutes based on my notions of appropriate policy, but to interpret the statutes based on my analysis of legislative intent. \\\"The judiciary has no power to devise tax programs or to qualify the existing legislative mandate with a judge's private view of what is just or sensible.\\\" Village of Ridgefield Park v. Bergen County Bd. of Taxation, 31 N.J. 420, 431, 157 A.2d 829[, 835] (1960). [Id. at 171-72.]\\nAs a final matter, the court found that the statutes as interpreted did not violate the Constitution's Equal Protection Clause by creating a preference for domestic insurers, finding a rational basis to exist for the classifications created by the interplay between the premium tax cap and retaliatory tax statutes as applied, depending on whether the taxpayer was a domestic insurer, in which case the insurer received the full benefit of the cap, or whether it was a foreign insurer subject to New Jersey's retaliatory tax, in which case the insurer received little or no benefit from the cap. \\\"New Jersey's retaliatory tax, when calcu lated by applying the 12.5% cap, can accomplish [the objective of deterring other states from enacting discriminatory or excessive taxes] and, therefore, satisfies both elements of the rational basis test \\u2014 the tax serves a legitimate state purpose (influencing the tax burden imposed by foreign states on New Jersey insurers), and the Legislature reasonably could have believed that the tax, as so calculated, could achieve this purpose.\\\" Id. at 175-76.\\nIII.\\nUnlike the Tax Court judge, we are persuaded by the \\\"logical, sensible, and appealing\\\" policy arguments of plaintiffs' counsel and their experts. The application of rules of statutory construction by the tax judge to glean legislative intent, in our view, achieves a counterintuitive result that fails to recognize that the statutes at issue can be jointly applied so as to give effect to the language and purpose of each, and that nothing in statutory history or elsewhere prevents that reconciliation. See James Const. Co. v. Director, Div. of Taxation, 18 N.J.Tax 224, 232 (1999) (\\\"In the absence of an express repeal, the new provision is presumed to be in accord with the legislative policy embodied in prior statutes. Accordingly, they should be construed together and even if in apparent conflict, construed in harmony if reasonably possible.\\\"). See also Palmer v. Kingsley, 27 N.J. 425, 429, 142 A.2d 833, 835 (1958) (construing statutes in pari materia although enacted at different times and codified in different statutory titles). It is clear from the foregoing portions of this opinion that the retaliatory tax and premium tax cap statutes have wholly different purposes. In his determination to affirm the decision of the Director, the tax judge gave effect to the retaliatory tax provisions, while eviscerating the purpose of the premium tax cap. We find no solid grounds for doing so in the logic of the court's decision, the language of the relevant statutes, or their evident purposes.\\nWe commence by noting that the premium tax cap statute explicitly and unambiguously states that the premiums of a compa ny eligible for the cap that are taxable in New Jersey \\\"shall not exceed twelve and one-half pereentum.\\\" N.J.S.A. 54:18A-6. As our prior example illustrates, the Director effectively taxes a higher percentage of premiums, contrary to this statutory language. That result was affirmed by the tax judge. However, a court \\\"should strive for an interpretation that gives effect to all of the statutory provisions and does not render any language inoperative, superfluous, void, or insignificant.\\\" In re Green Brook Flood Control Project, 370 N.J.Super. 122, 130, 850 A.2d 596, 601 (App.Div.2004) (quoting G.S. v. Dept. of Human Servs., 157 N.J. 161, 172, 723 A.2d 612, 617 (1999)).\\nWe note additionally that the tax cap statute, as enacted in 1945 and as amended in 1985 and 1989, makes specific reference to its applicability to foreign insurers, as does the 1985 legislative history, quoted previously. It is thus contrary to statutory language and the rules of statutory construction that we have set forth to eliminate the benefits of the cap for most if not all foreign insurers. Ibid.\\nThat legislative history further demonstrates a concern that tp.e cap not be formulated in a fashion that would be viewed as discriminating against foreign competition either under the Commerce Clause, in 1945 (see Statement to Assembly No. 190, introduced February 5, 1950, noting that the former retaliatory tax act had been repealed because of Commerce Clause concerns) or after the passage of the McCarran-Ferguson Act, under equal protection analysis. The 1985 Gluck memorandum that we previously cited discusses a suggestion by the Chubb Insurance group for a statutory amendment resulting in disparately favorable treatment to domestic insurers and specifically rejects that suggestion because of the high probability that it could not withstand equal protection challenge. Gluck, supra, at 6. Thus, an imple mentation of the retaliatory tax statute so as to recapture the benefits of the premium tax cap solely from foreign insurers appears contrary to analyses of the law circulated at the time of relevant statutory amendments. We have no evidence that the Legislature sought to ignore constitutional concerns, or that they were ignored by the Governor in signing the legislation into law.\\nFurther, although we can presume that the Legislature was aware of the cap statute when it passed the retaliatory tax law in 1950, Mahwah Tp., supra, 98 N.J. at 279, 486 A.2d at 823-24, we find nothing in the legislative history provided by the parties in these appeals to suggest that the Legislature was apprised of the Director's position as to the manner of interaction of the two statutes, that the effects of that position were known to affected insurers at any time prior to the submission of the present refund requests \\u2014 something that occurred several years after the last amendments to the statutes at issue \\u2014 or that the insurers ever called the anomaly created by the Director's position to the attention of the Legislature. The amounts involved, when viewed individually, were relatively small, and there is no evidence in the record to dispute the fact, asserted by the Ohio Casualty insurers, that because the tax returns were not inspected by them with this problem in mind, its existence was overlooked.\\nEven the 1985 Gluck memo, relied upon by the court in sustaining the position of the Director that his method of computation accorded with legislative intent, American Fire, supra, 21 N.J.Tax at 166-67, does nothing to support that position. As we have stated, at the time of the amendments at issue, attention was focused on the recent creation by foreign insurers of independent New Jersey domiciled affiliates for the purpose of taking advantage of the tax cap, thereby reducing New Jersey tax revenues, and upon means for avoiding this result \\u2014 eventually effectuated by requiring that the worldwide premiums of a foreign insurer and its affiliates be considered jointly for purposes of the application of the cap. The Gluck memorandum summarizes, comments upon and makes recommendations with respect to the suggestions of New Jersey domiciled insurers to close the statutory loophole. Because of their New Jersey domicile, those New Jersey companies had never been subject to New Jersey's retaliatory tax, and thus they had no reason to have knowledge of or challenge the position taken by the Director (assuming it was the same then as now). The New Jersey affiliates that were the focus of the amendment, while not providing comments, had similarly been insulated from the imposition of New Jersey retaliatory taxes. There is nothing in the Gluck memorandum to otherwise suggest that any insurer raised the issue of the interaction between the premium tax cap and the retaliatory tax statutes. Indeed, as the tax judge acknowledged, \\\"[njeither party presented any evidence that the insurance industry actually lobbied the New Jersey Legislature with respect to [this] issue[ ].\\\" American Fire, supra, 21 N.J.Tax at 167.\\nAdditionally, we find no recognized practical justification for a construction of the two statutes that would result in the implementation of the retaliatory tax statute at the expense of the premium tax cap. Indeed, the court's logic in that regard, as the plaintiff insurers point out, appears wholly flawed. See American Fire, supra, 21 N.J.Tax at 170-71. According to the Director, the existence of a premium tax cap reduces the effective rate of taxation in New Jersey, increasing the spread between New Jersey's tax rate and that of any other state, including those states whose tax rate, without consideration of the cap, is equal to or lower than that of New Jersey. The Director seeks to recapture this spread through the imposition of increased retaliatory taxes. The tax judge found \\\"the retaliatory tax as calculated by the Director (with the 12.5% cap included in the calculation) can function to encourage other states to lower their tax burdens on New Jersey insurers doing business in those states.\\\" American Fire, supra, 21 N.J.Tax at 171.\\nHowever, the imposition of these additional taxes on foreign insurers in this circumstance does nothing to effect the stated purpose of the retaliatory tax statute \\u2014 to level the playing field or to reduce the incidence of excessive taxes in foreign states while preserving a reasonable level of taxation \\u2014 since, if the New Jersey retaliatory tax is applied as the Director suggests, it would not serve just to reduce high taxes or equalize them, but rather to precipitate a downward spiral in taxation as each state sought to protect its domestic insurers' interstate operations by lowering the effective rate of taxation. If, for instance, a foreign state adopted a 1.8% premium tax rate, that rate could be undercut by New Jersey's effective tax rate as lowered through taxation of only those premiums subject to the cap, thereby invoking New Jersey's retaliation against insurers domiciled in that foreign state, despite the fact that New Jersey's stated rate was 2.1%. We have illustrated this result previously. For domiciliaries of the foreign state to escape the effects of New Jersey's retaliatory tax, that state would have to reduce its tax rate to one considerably below that of New Jersey. However, if it were to do so, then New Jersey domiciled insurers writing business in the foreign state would be subject to that state's retaliatory tax. A negative impact on New Jersey would thus be created. We find no evidence that any legislature has determined that premium taxes should thereby be reduced to a de minimis level, depriving states of a legitimate source of revenue, or that retaliation of the type that we have illustrated was contemplated when retaliatory taxes were conceived as a means of lessening or equalizing tax burdens nationwide.\\nFurther, we discern no legitimate purpose to be served by utilizing the retaliatory tax to encourage other states to enact a premium tax cap, thereby lowering their effective rate of taxation. At present, we are informed, New Jersey is the only state to have enacted such a cap as a means of attracting insurance business to this state. It certainly cannot seek competition among other states for scarce insurance resources through their adoption of a similar mechanism.\\nMoreover, the result achieved by the Director nullifies the purpose of the premium tax cap, in that it removes any incentive on the part of a foreign insurer to write a substantial amount of its business and otherwise invest in the economy of this State.\\nIn a case such as this in which it is evident that the Legislature did not consider the manner of interaction of elements of a statutory taxation scheme, it is essential that we look to the purposes of the relevant statutes in determining their manner of implementation. Stryker Corp. v. Director, Div. of Taxation, 18 N.J.Tax 270, 279 (1999), aff'd, 19 N.J.Tax 115 (App.Div.2000), aff'd, 168 N.J. 138, 773 A.2d 674 (2001). We are unaware of any rule of statutory construction that requires that the policy goals of one statute be ignored in order to effectuate the purposes of another, if in fact the operation of the two statutes can be reconciled. As the Supreme Court observed in Reuben H. Donnelley Corp. v. Director, Div. of Taxation, 128 N.J. 218, 227, 607 A.2d 1281, 1286 (1992):\\nIn construing a statute the court's primary task is to \\\"effectuate the legislative intent in light of the language used and the objectives sought to be achieved.\\\" Merin v. Maglaki 126 N.J. 430, 435, 599 A.2d 1256[, 1259] (1992) (quoting State v. Maguire, 84 N.J 508, 514, 423 A.2d 294[, 297] (1980)). \\\"[T]he Court fulfills its role by construing a statute in a fashion consistent with the statutory context in which it appears.\\\" Waterfront Comm'n v. Mercedes-Benz, 99 N.J. 402, 414, 493 A.2d 504 (1985). In construing legislation \\\"every effort should be made to harmonize the law relating to the same subject matter.\\\" Superior Air Prods. Co. v. NL Indus., 216 N.J.Super. 46, 63-64, 522 A.2d 1025[, 1035] (App.Div.1987).\\nHere, the Director's interpretation neither fulfills the stated purpose of the retaliatory tax statute, since it subverts its use as a tax equalization mechanism; acts as a potentially unconstitutional revenue producing device, contrary to the representations of the industry at the time such statutes were enacted and considered by the United States Supreme Court; and further acts to \\\"punish\\\" a class of foreign insurers writing significant business in this State in a manner contrary to the purposes of the statute. The interpretation also fails to effectuate the investment and business- attracting purposes of the tax cap statute, and thus is inconsistent both with the Legislature's intent and the entire statutory scheme of taxation of insurance premiums. Ibid.\\nAdoption of the Director's interpretation is not statutorily required; the harmonization that should be our ultimate goal can be achieved. Superior Air Prod. v. NL Indus., 216 N.J.Super. 46, 63-64, 522 A.2d 1025, 1035 (App.Div.1987). The retaliatory tax statutes at issue, N.J.S.A. 17:32-15 (applicable to the Ohio Casualty companies) and 17B:23-5 (applicable to Pruco), permit great leeway in determining how they shall be applied, since they are wholly nonspecific as to the manner in which, in the language of N.J.S.A. 17:32-15, the \\\"premium or income or other taxes, or any fees, fines, penalties, licenses, deposit requirements or other obligations, prohibitions or restrictions\\\" imposed by a foreign state or New Jersey are to be calculated or compared. Thus, the statute can be construed, as the plaintiff insurers argue, so as to compare either the statutory rate of taxes on gross premiums in New Jersey and the foreign domicile in order to determine the amount of the retaliatory tax, before taking the cap into account or the net premiums as taxed in New Jersey and theoretically taxed elsewhere. Indeed, this is essentially what occurs in instances in which foreign insurers are not eligible for the premium tax cap. Thus, both groups of foreign insurers would be treated similarly for purposes of retaliatory taxation. Such an interpretation, unlike that adopted in the Tax Court, would give effect to the purposes of both statutes, while diminishing the effect of neither.\\nAs we have stated, New Jersey is the sole state to have adopted a tax cap as a means of attracting insurance business. However, decisions elsewhere construing retaliatory tax statutes in light of tax credit provisions aimed at attracting foreign insurance business have reached similar results to those espoused by the insurers here. See, e.g., Lee R. Russ, Annot., Construction, Application, and Operation of State \\\"Retaliatory\\\" Statutes Imposing Special Taxes or Fees on Foreign Insurers Doing Business Within the State, 30 A.L.R.4th 873 (1984).\\nIV.\\nThe insurers argue as well that the manner in which the Director has interpreted the retaliatory tax statute, so as to deprive foreign insurers of the benefit of the premium tax cap, unconstitutionally discriminates against foreign insurers in violation of principles of equal protection, thereby creating a constitutional problem that can and should be resolved by adoption of the insurers' proposed application of the retaliatory tax statute. See Garfield Trust Co. v. Director, Div. of Taxation, 102 N.J. 420, 433, 508 A.2d 1104, 1111 (finding that it is the duty of the court to construe a statute in a manner that would render it constitutional, if reasonably susceptible to such interpretation), appeal dismissed, 479 U.S. 925, 107 S.Ct. 390, 93 L.Ed.2d 345 (1986).\\nThe tax judge found that New Jersey's statutory scheme passed constitutional muster since a rational basis for its enactments could be found. On appeal, the Director urges our affirmance of this principle; the insurers claim that the United States Supreme Court has abandoned a strict rational basis analysis in considering challenges of this sort, and that under the more stringent analysis adopted by it, New Jersey's statutes are unconstitutional as applied because they discriminate between foreign and domestic insurers.\\nIt is well recognized that the Commerce Clause is not applicable to the business of insurance as the result of the passage of the McCarran-Ferguson Act, 15 U.S.C.A. \\u00a7 1011 to -15. See State Bd. of Ins. v. Todd Shipyards Corp., 370 U.S. 451, 452, 82 S.Ct. 1380, 1381, 8 L.Ed.2d 620, 622 (1962). Further, the Privileges and Immunities Clause of the Constitution, Art. IV, \\u00a7 2, is inapplicable, because corporations are not held to be \\\"persons\\\" to which that clause applies. See Hemphill v. Orloff, 277 U.S. 537, 548-50, 48 S.Ct. 577, 578, 72 L.Ed. 978, 983-84 (1928). As a consequence, modern insurance cases raising issues such as presented here are decided under equal protection principles.\\nAs we have already noted, in Western and Southern Life Insurance Co., supra, the Supreme Court held on equal protection grounds that California's retaliatory tax provisions did not violate equal protection principles. 451 U.S. at 668-74, 101 S.Ct. at 2083-86, 68 L.Ed.2d at 530-35. That decision, although determined by use of the \\\"rational basis\\\" test traditionally applicable in instances in which no suspect classification is involved, turned in large measure upon the recognition that the insurance industry itself had proposed adoption of retaliatory taxes on a nationwide basis, not as a means of producing significant revenue at the expense of out-of-state insurers, but \\\"as a means to apply pressure on other States to maintain low taxes on California insurers.\\\" Id. 451 U.S. at 669-70, 101 S.Ct. at 2084, 68 L.Ed.2d at 531. On this basis, the Court held that: \\\"There can be no doubt that promotion of domestic industry by deterring barriers to interstate business is a legitimate state purpose\\\" and \\\"[t]he mere fact that California seeks to promote its insurance industry by influencing the policies of other States does not render the purpose illegitimate.\\\" Id. at 671, 101 S.Ct. at 2084, 68 L.Ed.2d at 532. The Court thus found that the purpose of enacting the retaliatory tax \\u2014 \\\"to promote the interstate business of domestic insurers by deterring other States from enacting discriminatory or excessive taxes,\\\" Metropolitan Life Insurance Company v. Ward, 470 U.S. 869, 877, 105 S.Ct. 1676, 1681, 84 L.Ed.2d 751, 759 (1984) \\u2014 was legitimate, and found as well that the California Legislature rationally could have believed that the retaliatory tax would promote its objective. Id. 451 U.S. at 671, 101 S.Ct. at 2085, 68 L.Ed.2d at 533.\\nHowever, it is notable that the Court also observed:\\nWe consider it now established that, whatever the extent of a State's authority to exclude foreign corporations from doing business within its boundaries, that authority does not justify imposition of more onerous taxes or other burdens on foreign corporations than those imposed on domestic corporations, unless the discrimination between foreign and domestic corporations bears a rational relation to a legitimate state purpose.\\n[Id. at 667-68, 101 S.Ct. at 2083, 68 L.Ed.2d at 530.]\\nThe narrow context in which Western and Southern Life Insurance has precedential value is illustrated by the Court's decision three years later in Ward, supra, 470 U.S. 869, 105 S.Ct. 1676, 84 L.Ed.2d 751, a case in which an Alabama gross insurance premium tax scheme that differentially and more severely impacted upon foreign insurers than it did upon domestic insurers was held unconstitutional on equal protection grounds, despite the rational relationship of the tax scheme to the encouragement of domestic insurance business.\\nThe Ward decision has been widely commented upon as the result of its seeming departure from the strict rational basis analysis traditionally employed when non-suspect classifications are challenged. What the Court did in that case has variously been characterized as the adoption in this context of \\\"rational basis with a bite,\\\" (see, e.g., Gayle Lynn Pettinga, Note, Rational Basis with Bite: Intermediate Scrutiny by Any Other Name, 62 Ind. L.J. 779 (1987)), as some level of intermediate scrutiny (see, e.g., Hartwin Bungert, Equal Protection for Foreign and Alien Corporations: Towards Intermediate Scrutiny for a Quasi-suspect Classification, 59 Mo. L. Rev. 569, 611 (1994)), or as \\\"Commerce Clause rhetoric in equal protection clothing.\\\" Ward, supra, 470 U.S. at 880, 105 S.Ct. at 1683, 84 L. Ed.2d at 761 (repeating Alabama's characterization). Whatever the label, it is clear that the Court departed in Ward from a traditional analysis that would, almost inevitably, have validated Alabama's differential tax scheme as rationally related to a legitimate state purpose, finding illegitimate a tax scheme that discriminated against foreign insurers. Ward's analysis has not been repudiated. See, e.g., Fitzgerald v. Racing Assn. of Central Iowa, 539 U.S. 103, 107, 123 S.Ct. 2156, 2159, 156 L.Ed.2d 97, 103 (2003) (distinguishing Ward's equal protection analysis from that applicable to the different context of the case before the court).\\nAs characterized by Justice O'Connor writing in dissent on behalf of herself and Justices Brennan, Marshall and Rehnquist: \\\"This tax seeks to promote both a domestic insurance industry and capital investment in Alabama.\\\" 470 U.S. at 884, 105 S.Ct. at 1684, 84 L.Ed.2d at 763. The Justice continued:\\nOur precedents impose a heavy burden on those who challenge local economic regulation solely on Equal Protection Clause grounds. In this context, our long-established jurisprudence requires us to defer to a legislature's judgment if the classification is rationally related to a legitimate state purpose. Yet the Court evades this careful framework for analysis, melding the proper two-step inquiry regarding the State's purpose and the classification's relationship to that purpose into a single unarticulated judgment. This tactic enables the Court to characterize state goals that have been legitimated by Congress itself as improper solely because it disagrees with the concededly rational means of differential taxation selected by the legislature.. . Most troubling, the Court discovers in the Equal Protection Clause an implied prohibition against classifications whose purpose is to give the \\\"home team\\\" an advantage over interstate competitors even where Congress has authorized such advantages.\\n[Id. at 884-85, 105 S.Ct at 1685, 84 L.Ed.2d at 763.]\\nWe have quoted the dissent in Ward at length to illustrate the divergence of the majority decision from traditional rational basis analysis. The majority found that the parties had waived a hearing to determine whether Alabama's domestic preference tax statute bore a rational relationship to the two purposes identified by the state court: (1) encouragement of the formation of new domestic insurance companies in Alabama; and (2) encouragement of capital investment in the Alabama assets and governmental securities specified in the statute. It therefore focused on whether the stated purposes were legitimate. Id. at 875, 105 S.Ct. at 1680, 84 L.Ed.2d at 757-58. Neither could found to be so, the Court held, because, rather than attempting \\\"to influence the policies of other States in order to enhance its domestic companies' ability to operate interstate . it has erected barriers to foreign companies who wish to do interstate business in order to improve its domestic insurers' ability to compete at home.\\\" Id. 470 U.S. at 877-78, 105 S.Ct. at 1681, 84 L.Ed.2d at 759. The State may not, the Court held, \\\"favor its own residents by taxing foreign corporations at a higher rate solely because of their residence.\\\" Id. at 878, 105 S.Ct. at 1682, 84 L.Ed.2d at 759. The encouragement of investment in Alabama, the Court found, did not constitute a legitimate state purpose \\\"when furthered by discrimination.\\\" Id. at 882, 105 S.Ct. at 1684, 84 L.Ed.2d at 762.\\nWhen we view New Jersey's statutory scheme, as applied by the Director, in light of the precedent established by Western and Southern Life Insurance and Ward, its potential constitutional infirmity becomes evident. First of all, that scheme bears no rational relationship whatsoever to the goals of the premium tax cap statute, since it eliminates the incentive of foreign insurers (a category that the statute by its terms was enacted to benefit, along with domestic insurers) to write business and invest in New Jersey and thus constricts the market for insurance in the State and associated investment by foreign insurers here. Moreover, as the plaintiff insurers argue, it subverts the purposes of the retaliatory tax statute by either (1) transforming the statute into a likely-forbidden revenue producing measure, instead of a tax equalization one or (2) inducing a downward spiral of tax rates, thereby depriving the State of needed revenue and potentially harming domestic New Jersey insurers. As stated by the Supreme Court in Allied Stores of Ohio v. Bowers, 358 U.S. 522, 79 S.Ct. 437, 3 L.Ed.2d 480 (1959):\\n[T]here is a point beyond which the State cannot go without violating the Equal Protection Clause. The State must proceed upon a rational basis and may not resort to a classification that is palpably arbitrary. The rule often has been stated to be that the classification \\\"must rest upon some ground of difference having a fair and substantial relation to the object of the legislation.\\\"\\n[Id. at 527, 79 S.Ct. at 441, 3 L.Ed.2d at 485 (quoting F.S. Royster Guano Co. v. Virginia, 253 U.S. 412, 415, 40 S.Ct. 560, 561, 64 L.Ed 989, 990-91 (1920)).]\\nWe do not find that standard to have been met.\\nWe note as well the emphasis of the Western and Southern Life Ins. Court upon the promotion of interstate business as a justification for an otherwise suspect or forbidden retaliatory tax. Here, that laudatory goal is not met, but is instead eroded by the Director's application of New Jersey's taxing scheme. We note as well the unusual factual circumstances underlying Western and Southern Life Ins., created by a nationally adopted taxation regime enacted to pressure states into achieving parity in taxation, and the Court's reliance on those circumstances in legitimating the taxes at issue. No such scheme inheres to the Director's interpre tation of New Jersey's tax laws, nor does his application of those laws have the effect that was demonstrated in Western and Southern Life Ins.\\nThe tax judge found that New Jersey's retaliatory tax, when calculated by applying the 12.5% cap can accomplish the objective of deterring other states from enacting discriminatory or excessive taxes and that it thus both served a legitimate state purpose (influencing the tax burden imposed by foreign states on New Jersey insurers) and the Legislature reasonably could have believed the tax, as calculated, could achieve that purpose. American Fire, supra, 21 N.J.Tax at 175-76. We reject this rationale, finding for reasons previously stated that the tax as applied cannot reasonably be expected to produce these results, nor could the Legislature (if it had known of the Director's interpretation, which it apparently did not) reasonably have believed it could.\\nIn Ward's terms, we find no legitimate purpose in the Director's approach to the two statutes, since that approach, by creating an unjustifiable domestic preference, is purely and completely discriminatory in its application. It is this type of discrimination that the Ward Court found to violate the Equal Protection Clause. 470 U.S. at 878, 105 S.Ct. at 1681-82, 84 L.Ed.2d at 759. As a consequence we reverse the determination upholding the Director's interpretation of the retaliatory tax statute so as to recoup part or all of the benefits of New Jersey's premium cap.\\nReversed with the direction that the Director, Division of Taxation recalculate refunds due to plaintiffs in accordance with the principles set forth in this opinion.\\nThis methodology is \\\"not embodied in regulations or a written statement of internal policies.\\\" American Fire, supra, 21 N.J.Tax at 162. In light of our resolution of the issues raised in these appeals, we do not find it necessary to address the challenge by appellant Pruco Life Insurance Company to the Director's actions as violative of the Administrative Procedures Act. N.J.S.A. 52:14B-1 to-15.\\nThe statute actually refers to taxes and fees of various sorts, which are aggregated for purposes of determining retaliatory taxes. We refer to this aggregate as \\\"premium taxes\\\" for ease of reference.\\nThe Director supplied forms for use by the insurers. The manner in which the forms were organized inevitably led to the challenged result.\\nThe relevant monetary figures are set forth in the Tax Court's opinion. American Fire, supra, 21 N.J.Tax at 160-61.\\nThe following Ohio Casualty group appeals were determined by the Tax Court: American Fire and Casualty Co. v. Director, Division of Taxation, Docket Nos. 2366-01, 4714-01 and 4721-01; West American Insurance Co. v. Director, Division of Taxation, Docket No. 2365-01 and 4715-01; Ohio Casualty of New Jersey, Inc. v. Director, Division of Taxation, Docket Nos. 2934-01, 4711-01, 4713-01, and 4464-02; and The Ohio Casualty Insurance Company v. Director, Division of Taxation, Docket Nos. 2357-01, 4712-01 and 4716-01.\\nN.J.S.A. 17B:23-5 compares \\\"any taxes, licenses and other fees, in the aggregate, and any fines, penalties, deposit requirements or other obligations, prohibitions or restrictions\\\" in New Jersey and any other state or Canada, whereas N.J.S.A. 17:32-15 compares \\\"any premium or income or other taxes, or any fees, fines, penalties, licenses, deposit requirements or other obligations, prohibitions or restrictions\\\" in New Jersey and any other state or foreign country.\\nThe cap statute was enacted in 1945 (L. 1945, c. 132 \\u00a7 6); the retaliatory tax statute in 1950 (L. 1950, c. 231, \\u00a7 1). Amendments to the cap statute occurred in 1985 (L. 1985, c. 294, \\u00a7 1) and 1989 (L. 1989, c. 315, \\u00a7 1) to preclude use of the cap by New Jersey domiciled affiliates of foreign insurers and to exempt a number of existing companies, including Pruco, from the effects of the closure of this statutory loophole. The retaliatory tax statute was amended in 1985 (L. 1985, c. 88, \\u00a7 1).\\nThe court noted that \\\"the actual effective rate will vary inversely with the amount by which an insurer's premium revenue in New Jersey exceeds 12.5% of its total premium revenue.\\\" Id. at 173 n. 3. Thus, if an insurer derived 25% of its premium revenue from New Jersey, the effective premium tax rate would be 1.05%; if it derived 37.5% of its total premium revenue from New Jersey, the effective premium tax rate would be 0.7%.\\nSee Metropolitan Life Ins. Co. v. Ward, 470 U.S. 869, 105 S.Ct. 1676, 84 L.Ed.2d 751 (1985) (striking down a domestic tax preference as violating the Equal Protection Clause by discriminating against foreign insurers).\\nTo the extent that the retaliatory tax statute is ambiguous, it should be construed in favor of the taxpayer. Fedders Fin. Corp. v. Director, Div. of Taxation, 96 N.J. 376, 385, 476 A.2d 741, 745 (1984); Liberty Mut. Ins. Co. v. State, Dept. of Treasury, Div. of Taxation, 17 N.J.Tax 457, 481-82 (1998).\\nThe plaintiff insurers thus do not obtain an exemption from retaliatory taxation, nor do they seek a determination that there has been an implied partial repeal of the retaliatory tax statute. They advocate a harmonization of the application of the statutes, by which they their acknowledged retaliatory tax obligation is not adversely affected by the operation of the premium tax cap so as to eliminate the cap's benefits. The retaliatory tax statute is not thereby impliedly repealed, as the court held. American Fire, supra, 21 N.J.Tax at 167-70.\\nIf Pruco's net tax approach is adopted, the notion of an implied repeal has no foundation whatsoever.\\nThe tax statute imposed a higher rate of taxation on gross premiums generated in Alabama by foreign insurers, which could be lessened by investment \\u00f3f stated percentages of the insurer's worldwide assets in designated Alabama assets and securities. However, a tax differential remained even if such investments were made.\\nThe Ward Court found this characterization to be inapt, stating:\\nUnder Commerce Clause analysis, the State's interest, if legitimate, is weighed against the burden the state law would impose on interstate commerce. In the equal protection context, however, if the State's purpose is found to be legitimate, the state law stands as long as the burden it imposes is found to be legitimate, the state law stands as long as the burden it imposes is found to be rationally related to that purpose, a relationship that is not difficult to establish.\\nThe two constitutional provisions perform different functions in the analysis of the permissible scope of a State's power-one protects interstate commerce, and the other protects persons from unconstitutional discrimination by the States.\\n[470 U.S. at 881, 105 S.Ct. at 1683, 84 L.Ed.2d at 761 (footnote omitted).]\\nJustice O'Connor appears to refer in this regard to the McCanran-Ferguson Act, relegating the regulation of the business of insurance to the states.\\nThe Court in Western and Southern Life Ins., supra, laid the groundwork for this conclusion when it observed:\\nThe retaliatory tax is not imposed on foreign corporations qua foreign corporations, as would be expected were the purpose of the tax to raise revenue from noncitizens; rather, it is imposed only on corporations whose home States impose more onerous burdens on California insurers than California otherwise would impose on those corporations.\\n[Id 451 U.S. at 670 n. 23, 101 S.Ct. at 2084 n. 23, 68 L.Ed.2d at 532 n. 23.]\"}"

nj/138681.json

@@ -0,0 +1 @@
+"{\"id\": \"138681\", \"name\": \"The Rector, Wardens and Vestrymen of St. James Church v. Edmund Wilson, attorney-general, et al.\", \"name_abbreviation\": \"Rector, Wardens & Vestrymen of St. James Church v. Wilson\", \"decision_date\": \"1913-05-13\", \"docket_number\": \"\", \"first_page\": \"546\", \"last_page\": \"549\", \"citations\": \"82 N.J. Eq. 546\", \"volume\": \"82\", \"reporter\": \"New Jersey Equity Reports\", \"court\": \"New Jersey Court of Chancery\", \"jurisdiction\": \"New Jersey\", \"last_updated\": \"2021-08-10T23:43:12.243264+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"The Rector, Wardens and Vestrymen of St. James Church v. Edmund Wilson, attorney-general, et al.\", \"head_matter\": \"The Rector, Wardens and Vestrymen of St. James Church v. Edmund Wilson, attorney-general, et al.\\n[Decided May 13th, 1913.]\\nTestator bequeathed $14,000, after the death of certain life-tenants, to complainants, the rector, wardens and vestrymen of a certain Episcopal church, in trust, to erect a church on a tract conveyed by testator to complainants during his lifetime. When testator died, the neighborhood was a flourishing one by -reason of a racetrack there, but, this having been terminated, the village stagnated, and there was no prospect of any reasonable growth of such population or that a new Episcopal church could be maintained there if erected.\\u2014Held, that such fact did not cause a failure of the charity, but that the fund would be paid over to complainants, to be used for the benefit of the Episcopal church in the neighborhood in a manner to be determined by the court.\\nOn pleadings and proof.\\nMr. Gilbert Gollins and Mr. Thomas V. Arrowsmith, for tlie complainant.\\nMr. Edmund Wilson, attoi'nejr-general, defendant pro se.\\nMr. William J. Leonard, for the other answering defendants.\", \"word_count\": \"1305\", \"char_count\": \"7466\", \"text\": \"Lewis, Y. C.\\nThe bill is filed to obtain direction and a construction of the will of Edmund West, who died May 8th, 1885, leaving a last will and testament duly executed and admitted to probate in the office of the surrogate of the county of Monmouth, whereby he gave the sum of fourteen thousand dollars ($14,000) to his executors therein named to pajr the income thereof to one Rufus T. West, and to one Emma D. West, during their joint lives, and upon the death of the survivor, without either of them leaving issue, then to pay the said sum of fourteen thousand dollars ($14,000) to the complainants, the rector, wardens and vestrymen of St. James Church, in trust, for the purpose of building and erecting a church to be named \\\"St. Mary's Episcopal Church,\\\" on a certain tract of land conveyed by the testator to the complainants during his lifetime, which tract of land is situated near Wolf Hill, in the township of Eatontown, in the county of Monmouth and State of New Jersey; the said church to be built within the space of three years after the happening of the contingency upon which, the said gift was to take effect. Emma D. West died on the 31st day of December, in the year 1896; Rufus T. West died on the 8th day of February, in the year 1908, neither of them leaving any issue, and upon the death of the said Rufus T. West, the said sum of fourteen thousand dollars ($14,000) came into the hands of the complainants. At the time of the death of the said testator, the neighborhood of Wolf Hill was a growing and flourishing one by reason of the Monmouth Park Association, which were used during many months of the 3rear for the racing of horses, furnishing emplo3rment to large numbers of persons in the vicinity and attracting large numbers of transient visitors, and of persons who resided there during the whole of the summer months in the vicinity. After the year 1892 the Monmouth Park Association ceased to hold race meetings upon its grounds and the buildings thereon were dismantled and torn down and the railroad tracks running thereto were taken up and carried away, and the lands of said association were sold and conveyed to other persons. The proofs show that the discontinuance of the said race meetings has resulted in the complete stagnation of the village of Oceanport, which had grown up in the vicinity of Wolf Hill by reason of the large business and trade which had arisen by reason of the numbers of persons attracted to the vicinity by the said race meetings, that the population of the said village had stagnated, if not declined. There is no prospect of any reasonable growth of such population, and as a result, an Episcopal church erected on the said lot at Wolf Hill could not reasonably be expected to be supported, either financially or by the attendance of a com gregation, because of the veri' few members of the Protestant Episcopal Church in or near the locality of Wolf Hill. The proofs also show that such members as do reside in the vicinity are affiliated with other congregations of the Protestant Episcopal Church now in existence. No new parish can be created at such place under the canons and laws of the Protestant Episcopal Church in the United States of America for lack of assurance that sufficient money could be raised to pay the annual salary of a priest to conduct the services in such church, and for lack of a sufficient number of male communicants of the Protestant Episcopal Church to comprise a lawful vestry of governing body thereof under the laws of the State of New Jersey.\\nIn view of these facts it seems to me highly undesirable and contrary to public policy to carry out the particular intent of the testator to complete a church building to be named \\\"St. Mary's Episcopal Church\\\" on the tract of land in question.\\nThe learned and exhaustive opinion of Judge Green, in the ease of MacKenzie v. Trustees of Presbytery of Jersey City, 67 N. J. Eq. (1 Robb.) 652, clearly establishes the doctrine of cy pres in the jurisprudence of this state. In this case the New Jersey decisions on the subject are considered with the greatest of care and are examined in detail. The rule to be gathered from such consideration seems to be that the general charitable intent of a testator may be carried out in case it should be undesirable, impraoticable or against public policy, although not impossible under altered circumstances to carry out the special intent. The subject has been dealt with in several decisions of the court of chancery since the MacKenzie Case, and while in the case of Brown v. Condict, 70 N. J. Eq. (4 Robb.) 440, the court refuses to make cy pres application on the ground that it was impossible at the time of the death of the testator to carry out his actual charitable intention, yet it avows that cy pres application can be had even in this event, if the general intent of the testator can be accomplished.\\nThe suggestion of the solicitor of the residuary legatees, that the trust is void for impossibility, does not appear by the facts in this case. The charitable legatee here not only exists but is able to carry out the trust, and applies to this court for an application of cy pres, so that the terms of the trust should be modified so as to meet conditions which have changed since the making of the will.\\nIt appears from the last will and testament of the testator that his general charitable intent in making the gift was to benefit the Protestant Episcopal Church in the neighborhood of Wolf Hill, and I am satisfied that it was his will that such general charitable intent be carried out in the event that it should prove undesirable, impracticable or contrary to public policy to carry out the particular intent.\\nMy conclusion is that the defendants, the next of kin of the testator, are not entitled to any of the fund, and that the said fourteen thousand dollars ($14,000), with its accumulations, must be disposed of by the complainants for the benefit of the Protestant Episcopal Church in the United States of America in the neighborhood of Wolf Hill, in such a manner as will most nearly effect the general charitable intention of said testator, Edmund West, and the complainants must propose a scheme in this court for the disposition of the said fund in accordance with the findings of the court.\\nThe cross-bill of the defendants will be dismissed.\"}"

nj/140797.json

@@ -0,0 +1 @@
+"{\"id\": \"140797\", \"name\": \"Edward V. Goerz, appellant, v. Mathilda Goerz, respondent\", \"name_abbreviation\": \"Goerz v. Goerz\", \"decision_date\": \"1914-05-04\", \"docket_number\": \"\", \"first_page\": \"342\", \"last_page\": \"342\", \"citations\": \"83 N.J. Eq. 342\", \"volume\": \"83\", \"reporter\": \"New Jersey Equity Reports\", \"court\": \"New Jersey Court of Errors and Appeals\", \"jurisdiction\": \"New Jersey\", \"last_updated\": \"2021-08-10T18:37:25.074689+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Edward V. Goerz, appellant, v. Mathilda Goerz, respondent.\", \"head_matter\": \"Edward V. Goerz, appellant, v. Mathilda Goerz, respondent.\\n[Submitted March 23d, 1914.\\nDecided May 4th, 1914.]\\nOn appeal from a decree of the court of chancerjr advised by Advisory Master Hartshorne.\\nMessrs. McDermott & Enright, for the appellant.\\nMessrs. Weller & Lichtenstein, for the respondent.\", \"word_count\": \"87\", \"char_count\": \"608\", \"text\": \"Per Curiam.\\nThe decree appealed from will be affirmed, for the reasons stated in the opinion filed in the court below by Advisory Master Hartshorne.\\nFor affirmance \\u2014 The Chief-Justice, Garrison, Swayze, Trenohard, Bergen, Minturn, Kalis oh, Bogert, Yredenburgh, White, Hepp\\u00e9nheimer \\u2014 11.\\nFor reversal \\u2014 None.\"}"

nj/140847.json

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+"{\"id\": \"140847\", \"name\": \"The Mayor and Council of the Town of Boonton v. United Water Supply Company\", \"name_abbreviation\": \"Mayor of Boonton v. United Water Supply Co.\", \"decision_date\": \"1914-07-25\", \"docket_number\": \"\", \"first_page\": \"536\", \"last_page\": \"538\", \"citations\": \"83 N.J. Eq. 536\", \"volume\": \"83\", \"reporter\": \"New Jersey Equity Reports\", \"court\": \"New Jersey Court of Chancery\", \"jurisdiction\": \"New Jersey\", \"last_updated\": \"2021-08-10T18:37:25.074689+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"The Mayor and Council of the Town of Boonton v. United Water Supply Company.\", \"head_matter\": \"The Mayor and Council of the Town of Boonton v. United Water Supply Company.\\n[Decided July 25th, 1914.]\\n1. Where a contract by a water company to supply water to the inhabitants of a town provided that the town might purchase the works and \\u201cat any and all times\\u201d might inspect the books and vouchers of the company, the town was entitled to exercise such right of inspection, though it did not exercise its option to purchase; nor was it a valid objection that the inspection privilege was not mutual.\\n2. Where a water company\\u2019s contract with a town provided that the town at any and all times should have the right to inspect the water company\\u2019s books and papers, the town was not limited to mandamus to enforce such right, but properly sought such relief by suit in equity.\\nMr. Frank II. Pierce, Mr. Charles E. Scribner and Mr. Robert II. McCarter, for the complainant.\\nMr. Elmer King, for the defendant.\", \"word_count\": \"786\", \"char_count\": \"4439\", \"text\": \"Lewis, Y. C.\\nThis is an application by the town of Boonton for an inspection of the books and vouchers of the United Water Supply Company. This right is claimed under the terms of a contract made between complainant and Lewis Yan Duyne and the Boon-ton Water Company. The defendant succeeded to the Boonton Water Company by purchasing all its property, including the contract with the town, at a sale in foreclosure proceedings.\\nErom my examination of the case I have reached the conclusion that the relief prayed for by the complainant should be granted. There is no doubt in my mind that read in connection with the other provisions of the contract the words \\\"at any and all times,\\\" which appear in paragraph 11, mean that the water company bound itself to give the inspection, even if The town did not exercise its option to purchase. The privilege, it appears, was incorporated in the contract to give Boonton a chance to know the true conditions before it should agree to exercise its option. This is frequently done where the public is concerned and is to be the purchaser. And it is no doubt true, that without such right it would be difficult to get the people at large to sanction the making of a contract such as the one under consideration. There is, of course, consideration for the agreement to give this inspection as the town has been using the water supplied by the water company and paying for the same under the agreement ever since-it was executed.\\nThe suggestion made by counsel for the defendant, that the relief should not be granted because there is a want of mutuality if this is done before the town exercises its option, cannot prevail in view of our decisions, and further, this contract by its terms' gives this right of inspection to the town authorities \\u2014 a right not given to the company.. In other words, one party to this contract has a right which the other has not. The principle of mutuality cannot apply under these circumstances. The opinion of Chief-Justice Gummere in Marvel v. Jonah, which Mr. McCarter called to the court's attention upon argument and which ivas filed on July 17th last, deals with this sub ject with great clarity and is very much in point. See, also, Page v. Martin (Court of Errors and Appeals), 46 N. J. Eq. 585; Madison, &c., Association v. Brittin, 60 N. J. Eq. 160; Philadelphia Ball Club v. Lajoie, 51 Atl. Rep. 973.\\nI have given consideration also to the argument made by counsel for defendant, that mandamus was the proper procedure for complainant in this issue, but I think that the action has been properly taken in the court of chancery, and that the remedy for the town is not as urged by counsel for the defendant. In the case of State v. Elizabethtown Water Co., ante p. 216, which was cited, it was the statute that gave the state water commission the right to inspect the books of the water, company. Proceedings to enforce the said right in a court of competent jurisdiction were provided for by the statute. The right in the case now before us arises out of the contract between the parties; in the Elizabethtown Case the right to examine arose purely out of a legal statutory duty enforceable only in the supreme court by mandamus.\\nFo hardship is suffered by the water company by an order for inspection, as such order can be so framed as to prevent the inquisitive but disinterested person or any competitor, if there be one, from coming to knowledge of the company's affairs.\\nIn accordance with these views an order for inspection may be entered.\"}"

nj/140923.json

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+"{\"id\": \"140923\", \"name\": \"Virginia Lee Welch, petitioner-respondent, v. Henry Bainbridge Baker, defendant-appellant\", \"name_abbreviation\": \"Welch v. Baker\", \"decision_date\": \"1914-06-15\", \"docket_number\": \"\", \"first_page\": \"330\", \"last_page\": \"333\", \"citations\": \"83 N.J. Eq. 330\", \"volume\": \"83\", \"reporter\": \"New Jersey Equity Reports\", \"court\": \"New Jersey Court of Errors and Appeals\", \"jurisdiction\": \"New Jersey\", \"last_updated\": \"2021-08-10T18:37:25.074689+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Virginia Lee Welch, petitioner-respondent, v. Henry Bainbridge Baker, defendant-appellant.\", \"head_matter\": \"Virginia Lee Welch, petitioner-respondent, v. Henry Bainbridge Baker, defendant-appellant.\\n[Argued March 24th, 1914.\\nDecided June 15th, 1914.]\\nAn order made in the court of chancery in divorce proceedings respecting the temporary custody of the petitioner\\u2019s child (its welfare being regarded as of prime consideration with the court) was held to have been a proper exercise of the discretion committed by the law to the chancellor.\\nOn appeal from an order of the court of chancery advised by Vice-Chancellor Howell.\\nOn petition of Virginia Lee \\\"Welch against Henry Bainbridgv Baker. The order appealed from directed that respondent during the year 1915, and succeeding summers, have custody of her child for one-half of the summer vacation during which the regular sessions of the school are closed, the first half being-that division to which the petitioner is entitled, and the second half that to which the defendant shall be entitled.\\nMessrs. Edward A. & William T. Day, for the appellant.\\nMessrs. Lum, Tamblyn & Colyer, for the respondent.\", \"word_count\": \"1012\", \"char_count\": \"5891\", \"text\": \"The opinion of the court was- delivered by\\nVredenburgh, J.\\nThis appeal brings up a very narrow subject for determination. It is from an order of the court of chancery made December 16th, 1913, directing that the respondent during the approaching year of 1915, and the succeeding summers, should be entitled to have her child, Henry Martyn Baker (a boy at school, between thirteen and fourteen years of age), given into her custody for one-half of the summer vacation, with a prohibition that she should not take him outside of the Hnited States.\\nEmbraced within the grounds of appeal is an objection that the decree is erroneous in that it compelled the appellant to pay the costs of the proceedings, and a counsel fee of $500.\\nThe parties to this controversy were duly married on November 19th, 1898, and from that date for several years lived and cohabited together resulting in the birth of their said child on July 11th, 1900. Afterwards they became estranged, and during portions of the years of 1905, 1906, 1907,-1908 and 1910, the mother visited Europe, leaving the father and boy living at home in this country.\\nIn March, 1910, the mother brought suit for divorce against the husband in the court of chancery on the ground of his desertion of her for a period of two years or more, and obtained in that suit on October 27th, 1911, a final decree of divorce from the bond of matrimony. On October 31st, 1911, she married Thomas Carey Welch, her present husband, and is living with him in his home at Manilla, in the Philippine Islands.\\nA decree nisi in the divorce .suit had been obtained by her on April 17th, 1911. On September 20th, 1911, she filed a petition reciting that by the decree nisi it was ordered that further order as to the custody of said child be reserved, and concluded with a prayer that, as regards the custody of the child, provision be made in the decree in accordance with a written agreement between herself and the defendant set forth in her petition. That agreement was signed by both parties, was dated June 1st, 1910, under seal, and provides, as follows:\\n\\\"It is hereby agreed that Henry B. Baker shall have the custody of his child, Henry Martyn Baker, and that, at the earliest opportunity, an order of the court shall be made to that effect, either in the pending divorce suit or otherwise as counsel for the parties may agree. This agreement is made because Virginia Bee Baker, the mother of the child, has no criticism to make of the way the father has acted toward the child and believes that it is better for his financial welfare to be in the custody of his father, who has no intention of casting any reflection upon the mother.\\\"\\nIt will be observed that this paper was made a part of the record of the divorce suit, and was a solemn admission by the parties that even so late as June, 1910, the conduct of each toward the child had been beyond criticism by the other, or in other words, that neither party had cause of complaint against the other respecting the treatment of the child.\\nNo useful purpose can be served by specific references to the proofs before the learned vice-chancellor which led him to make the order in question. The propriety of such orders for the custody of infant children of divorced and separated parents is necessarily committed very largely to the discretion of the court of chancery.\\nAfter examination of the- case and the evidence, we think the vice-chancellor was entirely justified in making the order awarding the little boy to the keeping and care of the mother during the short period mentioned in it. Her residence in her far dis- taut home will require her, in order to reach the child, to devote many weeks of travel over sea and land, attended with personal risk and large expense, and in view of these circumstances the time given for her visit to the child does not seem to us to be excessive.\\nThere is nothing in the case which stamps the mother as immoral, or unfit to have the custody, temporarily, of her son.\\nThe vice-chancellor was evidently convinced by the mother's testimony, taken in his presence, and by her bearing, and by the other circumstances in evidence before him, that her anxiety to see her boy was genuine; that the confidence of the court in her would not be violated, and that she was worthy oh the trust reposed in her by the terms of the order. A mother's love for her child comes from a higher than human source, and cannot be measured nor weighed by precise judicial calculations. We coincide with the result the vice-chancellor has reached.\\nThe costs and counsel fee allowed below we do not deem excessive, nor unreasonable, under the circumstances, and the order should be affirmed.\\nFor affirmance \\u2014 The Ci-iiee-Justice, Trenci-iard, Bergen, Minturn, Kalisctt, Bogert, Vredenburgh, White, Heppenheimer \\u2014 9.\\nFor reversal \\u2014 None.\"}"

nj/143754.json

@@ -0,0 +1 @@
+"{\"id\": \"143754\", \"name\": \"Jennie R. Adrain et al., appellants-respondents, v. Jean Livingston Koch et al., appellants-respondents\", \"name_abbreviation\": \"Adrain v. Koch\", \"decision_date\": \"1915-03-01\", \"docket_number\": \"\", \"first_page\": \"195\", \"last_page\": \"195\", \"citations\": \"84 N.J. Eq. 195\", \"volume\": \"84\", \"reporter\": \"New Jersey Equity Reports\", \"court\": \"New Jersey Court of Errors and Appeals\", \"jurisdiction\": \"New Jersey\", \"last_updated\": \"2021-08-10T20:23:46.367887+00:00\", \"provenance\": \"CAP\", \"judges\": \"For affirmance \\u2014 The Chief-Justice, Garrison, Swayze, Trenchard, Parker, Bergen, Minturn, Kalisch, Black, Bogert, Vredenburgh, White, Terhune, Heppenheimer, Williams \\u2014 15.\", \"parties\": \"Jennie R. Adrain et al., appellants-respondents, v. Jean Livingston Koch et al., appellants-respondents.\", \"head_matter\": \"Jennie R. Adrain et al., appellants-respondents, v. Jean Livingston Koch et al., appellants-respondents.\\n[Argued December 2d, 1914.\\nDecided March 1st, 1915.]\\nOn appeal .from a decree of the court of chancery advised by Vice-Chancellor Howell, whose opinion is reported in 83 N. J. Eq. 484.\\nMessrs. Pitney, Hardin & Skinner and Messrs. Linddbury, Depue & Faulks, for the complainants.\\nMr. Edward M. Colie, for the defendants.\", \"word_count\": \"112\", \"char_count\": \"772\", \"text\": \"Pee Curiam.\\nThe decree order appealed from will be affirmed, for the reasons stated in the opinion filed in the court below by Vice-Chan5 \\u2022cellor Howell.\\nFor affirmance \\u2014 The Chief-Justice, Garrison, Swayze, Trenchard, Parker, Bergen, Minturn, Kalisch, Black, Bogert, Vredenburgh, White, Terhune, Heppenheimer, Williams \\u2014 15.\\nFor reversal \\u2014 None.\"}"

nj/144651.json

@@ -0,0 +1 @@
+"{\"id\": \"144651\", \"name\": \"JAMES GOODMAN ET AL., APPELLANTS, v. FRANK H. EGGERS, JUDGE, ETC., RESPONDENT\", \"name_abbreviation\": \"Goodman v. Eggers\", \"decision_date\": \"1934-05-04\", \"docket_number\": \"\", \"first_page\": \"33\", \"last_page\": \"33\", \"citations\": \"113 N.J.L. 33\", \"volume\": \"113\", \"reporter\": \"New Jersey Law Reports\", \"court\": \"New Jersey Supreme Court\", \"jurisdiction\": \"New Jersey\", \"last_updated\": \"2021-08-10T21:41:06.561643+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"JAMES GOODMAN ET AL., APPELLANTS, v. FRANK H. EGGERS, JUDGE, ETC., RESPONDENT.\", \"head_matter\": \"JAMES GOODMAN ET AL., APPELLANTS, v. FRANK H. EGGERS, JUDGE, ETC., RESPONDENT.\\nSubmitted February 16, 1934\\n\\u2014 Decided May 4, 1934.\\nFor the appellants, Raslcin & Hornstein.\\nFor the respondent, James A. Hamill.\", \"word_count\": \"77\", \"char_count\": \"513\", \"text\": \"Pee Curiam.\\nThe judgment under review herein should be affirmed, for the reasons expressed in the opinion delivered in the Supreme Court.\\nFor affirmance \\u2014 The Chancellor, Chief Justice, Trenchard, Hehee, Yan Buskirk, Heteield, Dear, Dill, JJ. 8.\\nFor reversal \\u2014 Parker, Lloyd, Perskie, Kays, Wells, JJ. 5.\"}"

nj/146764.json

@@ -0,0 +1 @@
+"{\"id\": \"146764\", \"name\": \"Lilla M. Flournoy, appellant, v. William H. Tichenor, respondent\", \"name_abbreviation\": \"Flournoy v. Tichenor\", \"decision_date\": \"1915-11-15\", \"docket_number\": \"\", \"first_page\": \"214\", \"last_page\": \"214\", \"citations\": \"85 N.J. Eq. 214\", \"volume\": \"85\", \"reporter\": \"New Jersey Equity Reports\", \"court\": \"New Jersey Court of Errors and Appeals\", \"jurisdiction\": \"New Jersey\", \"last_updated\": \"2021-08-11T00:19:38.271063+00:00\", \"provenance\": \"CAP\", \"judges\": \"For affirmance\\u2014Ti-ie Chief-Justice, Garrison, Swayze, Trenchard, Parker, Bergen, Minturn, Kalisoh, Black, Vredenburgi-i, Heprenheimer, Williams, Taylor\\u201413.\", \"parties\": \"Lilla M. Flournoy, appellant, v. William H. Tichenor, respondent.\", \"head_matter\": \"Lilla M. Flournoy, appellant, v. William H. Tichenor, respondent.\\n[Submitted July 6th, 1915.\\nDecided November 15th, 1915.]\\nOn appeal from a decree of the court of chancery advised by Vice-Chancellor Stevens.\\nMessrs. Coult & Smithy for the appellant.\\nMr. Walter H. Tiehenor and Messrs. Lehlbach & J ohnson, for the respondent.\", \"word_count\": \"93\", \"char_count\": \"647\", \"text\": \"Per Curiam.\\nThe decree appealed from will be affirmed, for the reasons stated in the opinion filed in the court below by Vice-Chancellor Stevens.\\nFor affirmance\\u2014Ti-ie Chief-Justice, Garrison, Swayze, Trenchard, Parker, Bergen, Minturn, Kalisoh, Black, Vredenburgi-i, Heprenheimer, Williams, Taylor\\u201413.\\nFor reversal\\u2014None.\"}"

nj/1480374.json

@@ -0,0 +1 @@
+"{\"id\": \"1480374\", \"name\": \"IN THE MATTER OF BARRY J. BERAN, AN ATTORNEY AT LAW (ATTORNEY NO. 019301980)\", \"name_abbreviation\": \"In re Beran\", \"decision_date\": \"2004-10-20\", \"docket_number\": \"\", \"first_page\": \"535\", \"last_page\": \"535\", \"citations\": \"181 N.J. 535\", \"volume\": \"181\", \"reporter\": \"New Jersey Reports\", \"court\": \"Supreme Court of New Jersey\", \"jurisdiction\": \"New Jersey\", \"last_updated\": \"2021-08-10T22:56:31.024237+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"IN THE MATTER OF BARRY J. BERAN, AN ATTORNEY AT LAW (ATTORNEY NO. 019301980).\", \"head_matter\": \"859 A.2d 449\\nIN THE MATTER OF BARRY J. BERAN, AN ATTORNEY AT LAW (ATTORNEY NO. 019301980).\\nOctober 20, 2004.\", \"word_count\": \"150\", \"char_count\": \"920\", \"text\": \"ORDER\\nThe Disciplinary Review Board having filed with the Court its decision in DRB 04-167, concluding that BARRY J. BERAN of CHERRY HILL, who was admitted to the bar of this State in 1981, should be reprimanded for violating RPC 1.8(e) (improperly advancing funds to clients), RPC 1.15(d) (negligent misappropriation of client trust funds), and Rule 1:21-6 (failure to comply with recordkeeping requirements), and good cause appearing;\\nIt is ORDERED that BARRY J. BERAN is hereby reprimanded; and it is further\\nORDERED that respondent reimburse the Disciplinary Oversight Committee for appropriate administrative costs incurred in the prosecution of this matter; and it is further\\nORDERED that the entire record of this matter be made a permanent part of respondent's file as an attorney at law of this State.\"}"

nj/159142.json

@@ -0,0 +1 @@
+"{\"id\": \"159142\", \"name\": \"LEONARD INVESTMENT COMPANY, PROSECUTOR, v. THE BOARD OF ADJUSTMENT OF THE CITY OF TRENTON ET AL., DEFENDANTS\", \"name_abbreviation\": \"Leonard Investment Co. v. Board of Adjustment\", \"decision_date\": \"1939-03-15\", \"docket_number\": \"\", \"first_page\": \"308\", \"last_page\": \"313\", \"citations\": \"122 N.J.L. 308\", \"volume\": \"122\", \"reporter\": \"New Jersey Law Reports\", \"court\": \"New Jersey Supreme Court\", \"jurisdiction\": \"New Jersey\", \"last_updated\": \"2021-08-10T18:24:02.493602+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"LEONARD INVESTMENT COMPANY, PROSECUTOR, v. THE BOARD OF ADJUSTMENT OF THE CITY OF TRENTON ET AL., DEFENDANTS.\", \"head_matter\": \"LEONARD INVESTMENT COMPANY, PROSECUTOR, v. THE BOARD OF ADJUSTMENT OF THE CITY OF TRENTON ET AL., DEFENDANTS.\\nSubmitted October 4, 1938\\nDecided March 15, 1939.\\nBefore Brogan, Chief Justice, and Justices Bodine and Heher.\\nFor the prosecutor, Walscheid & Rosenkranz (J. Emil Walscheid, of counsel).\\nFor the defendants, Sidney Goldmann.\", \"word_count\": \"1616\", \"char_count\": \"9989\", \"text\": \"The opinion of the court was delivered by\\nHeher, J.\\nThis certiorari brings up for review the action of the Board of Adjustment of the city of Trenton in revoking a permit, issued by the municipal building inspector on March 15th, 1938, for the erection of a one-story brick building, to be used for store purposes, on lands of prosecutor\\u2014 one hundred and seventy-five feet by one hundred feet \\u2014 situate on the easterly side of Chambers Street, between Tioga Street and Euclid Avenue, in the City of Trenton.\\nThe local zoning ordinance then in force, adopted on July 8th, 1927, placed the lands on either side of Chambers street, at the point in question, to a depth of one hundred feet, in a \\\"No. 1 Business Zone,\\\" as defined therein. The surrounding territory is largely residential. Immediately upon learning, after the grant of the permit, that the design of prosecutor was to devote the proposed building to the conduct of a self-service food market, employing approximately fifty people, neighboring property owners appealed the action thus taken by the building inspector to the board of adjustment. And that body, after hearing, ruled that the zoning ordinance established \\\"minimum requirements for the promotion of the public health, safety', comfort, convenience and general welfare;\\\" that a duty rested upon it, in a case such as this, to \\\"interpret and apply the provisions of the ordinance so that its general purposes and intent may be realized and substantial justice done;\\\" that the specification of prohibited uses in business zones, contained in section III of the ordinance, \\\"must be read in the light of the general purposes and intent of the ordinance, that is to lessen congestion in the streets, to promote health, morals and the general welfare, to secure safety from fire and other dangers;\\\" that, while \\\"not specifically prohibited as a use under section 3 of the ordinance, the food market\\\" to be erected \\\"comes within ihat class of trades and uses which section 3 excludes from business zones,\\\" notably \\\"certain businesses employing more than four (4) persons , garages for more than five (5) motor vehicles and motor vehicle service stations \\u2014 both being trades inimical to the public health, safety and welfare,\\\" and \\\"certain amusement businesses which invariably attract crowds;\\\" that the proposed market \\\"is intended to attract a large clientele,\\\" and \\\"is to be erected in a neighborhood devoted to residences of the better type,\\\" at a distance of approximately two hundred and fifty feet from the Central High School, \\\"where over three thousand children attend classes daily,\\\" and \\\"a short block away\\\" from \\\"the fifth most dangerous corner, in point of view of accidents, in the city;\\\" that nine hundred and seventy-five cars pass that intersection per hour, four hundred and fifty-five of which pass the site of the food market, and that the devotion of the property to such use will substantially increase traffic hazards, and also \\\"unfavorably affect the entire neighborhood and those who dwell in it,\\\" and decrease the \\\"valuation\\\" of neighborhood properties; and that the proposed use \\\"will not promote the public health, safety, comfort, convenience and general welfare, but will definitely impair them,\\\" and therefore the building inspector \\\"erred in issuing the permit in question.\\\"\\nThe primary question therefore is whether the Board of Adjustment was invested with the authority thus exercised. Prosecutor maintains the negative of this proposition, while defendants insist that it is derived from section IX of the ordinance, conferring upon the board power, \\\"in a specific case, after public notice and hearing, and subject to appropriate conditions and safeguards,\\\" to \\\"determine and vary the application of the regulations\\\" therein \\\"established in harmony with their general purpose and intent, without changing the boundaries of the respective zones, as follows: 6. Vary any requirement\\\" of the ordinance \\\"in harmony with its general purposes and intent, so that substantial justice may be done;\\\" and also from section XIY of the ordinance, providing that \\\"in their interpretation and application the provisions\\\" of the ordinance \\\"shall be held to be the minimum requirements adopted for the promotion of the public health, safety, comfort, convenience and general welfare.\\\" The latter provision in particular was invoked by the board as conferring the power exercised.\\nWe are of the view that the action thus taken by the board was coram non judice.\\nThe ordinance established the zones; and it is provided by section I that \\\"No building or premises shall be erected, altered or used for any other than a purpose permitted in the. zone in which such building shall bo erected except in conformity with the regulations herein prescribed for the zone in which such building is located.\\\" Section II enumerates the buildings and uses permissible in residence zones. Section III specifies the uses prohibited in business zones. Viewing subdivision 19 thereof in relation to the whole, it plainly evinces an intention to permit the use of premises in such zones for retail store purposes. The character of the detailed prohibitions is clearly indicative of this design. A retail food market, such as that proposed in the instant case, falls into this category. There is revealed no purpose to make such use of premises in a business zone dependent upon either the size of the establishment, the volume of business, or the number of employes. The residential character of the surrounding territory is beside the point. After all, the lands are in an area zoned for business, with certain definite exceptions not embracive of the use under consideration; and there must be uniformity of application. Arbitrary distinctions are inadmissible.\\nSection IX (a-6), supra, does not confer the claimed authority. It merely vests in the board power to \\\"vary any requirement\\\" of the ordinance \\\"in harmony with its general purposes and intent, so that substantial justice may be done.\\\" This does not embrace the broadening of the restrictions laid down in the ordinance. It is expressly provided that \\\"this authority shall be exercised solely in instances where there are practical difficulties or unnecessary hardships in the way of carrying out the strict letter\\\" of the ordinance, and \\\"in a manner to secure the public health, safety and general welfare.\\\" And the associated specifications of power in this section reveal a design to authorize a variance from the requirements of the ordinance in certain cases, not to vest in the board power to enlarge its inhibitions. Lutz v. Kaltenbach, 102 N. J. L. 718; Losick v. Binda, 102 Id. 157.\\nNor is the authority exercised comprehended by section XIV of the ordinance. It simply provides that, in the inter pretation and application of the regulations therein prescribed, they \\\"shall be held to be the minimum requirements adopted for the promotion of the public health, safety, comfort, convenience and general welfare.\\\" Viewed in the light of the explanatory statement of intention embodied in that section, the manifest design was to make clear that, in the interpretation of the ordinance, such regulations were to be regarded as minimum requirements only, and not as an impairment of the greater requirements imposed by \\\"existing provisions of the law or ordinance,\\\" or \\\"rules, regulations or permits previously adopted or issued, or which shall be adopted or issued pursuant to law, relating to the use of buildings or premises,\\\" or \\\"any easements, covenants or other agreements between parties.\\\"\\nChapter 274 of the laws of 1928 (incorporated in the Revised Statutes of 1937 as sections 40:55-30, et seq.), adopted pursuant to the zoning amendment of the State Constitution ratified on October 18th, 1927, delimited the essential powers of the local Board of Adjustment in language substantially like that contained in the zoning statute of 1924 (Pamph. L., p. 324), and provided that all existing zoning ordinances should \\\"remain in full force and effect, except in so far as they were inconsistent with the provisions\\\" of the act, \\\"until they shall have been amended, or repealed by the governing body or board of public works.\\\" And this is what our court of last resort has said respecting the scope of these provisions: \\\"This court, in H. Krumgold & Sons v. Jersey City, ante, p. 170, held: \\\"Where a zoning ordinance is ineffective to deprive an owner of property of his right to use the same for store purposes, no appeal to a board of appeals constituted under said ordinance is necessary as a prerequisite for an application for a writ of mandamus ' And in Losick v. Binda, ante, p. 157, we further held that boards, such as boards of adjustment, are created for, and have jurisdiction, only for the purpose of dealing with properties peculiarly situated with reference to zoning requirements and to provide for equitable modifications where it is apparent unnecessary hardship would result to the owner if the provisions of the ordinance were literally enforced, as in Allen v. Paterson, 98 N. J. L. 661; affirmed, 99 Id. 532, and have no authority or jurisdiction to act as an appellate body for the purpose of reviewing the legal or equitable character of the building inspector's act in allowing or rejecting an application for a building permit, nor to pass upon the question as to whether the provisions of the zoning ordinance are in furtherance of the proper exercise of the police power of the municipality.\\\" Lutz v. Kaltenbach, supra.\\nThe resolution of revocation adopted by the Board of Adjustment is therefore vacated, but without costs.\"}"

nj/161472.json

@@ -0,0 +1 @@
+"{\"id\": \"161472\", \"name\": \"Thomas J. Clement, appellant, v. Young Amusement Company and Theodore J. Lapres, respondents\", \"name_abbreviation\": \"Clement v. Young Amusement Co.\", \"decision_date\": \"1906-11-19\", \"docket_number\": \"\", \"first_page\": \"258\", \"last_page\": \"260\", \"citations\": \"71 N.J. Eq. 258\", \"volume\": \"71\", \"reporter\": \"New Jersey Equity Reports\", \"court\": \"New Jersey Court of Errors and Appeals\", \"jurisdiction\": \"New Jersey\", \"last_updated\": \"2021-08-10T19:35:23.983965+00:00\", \"provenance\": \"CAP\", \"judges\": \"For affirmance-\\u2014The Chief-Jus tice, Garrison, Fort, Garretson, Hendrickson, Pitney, Swayze, Eeed, Bogert, Vredenburgh, Vroom, Green, Gray, Dili\\u201414.\", \"parties\": \"Thomas J. Clement, appellant, v. Young Amusement Company and Theodore J. Lapres, respondents.\", \"head_matter\": \"Thomas J. Clement, appellant, v. Young Amusement Company and Theodore J. Lapres, respondents.\\n[Submitted March 27th, 1906.\\nDecided November 19th, 1906.]\\nAn unsigned draft of lease of property for a term of six years does not satisfy the statute of frauds so as to authorize the court of chancery to decree its execution and performance.\\nOn appeal from a final decree advised by Vice-Chancellor Grey.\\nMr. Howard (\\u00a1arrow and Mr. Joseph B. Wilson (of the Philadelphia bar), for the appellant.\\nMessrs. Thompson & Cole, for the respondents.\", \"word_count\": \"977\", \"char_count\": \"5510\", \"text\": \"The opinion of the court was delivered by\\nGarretson, J'.\\nThis case involves the application of the statute of frauds.\\nThe appellant alleges that he entered into an agreement with the defendant for a lease of certain premises, for a term of six years, at an annual rental of $3,000, and that a lease in writing was prepared containing the terms of the letting, which was assented to both by the appellant and the defendant, the amusement company, and although the same was never signed by either of the parties to the lease it, in connection with the circumstances in the case, sufficiently satisfied the statute of frauds. The appellant by the bill in this case seeks to enforce this lease.\\nThe amusement company admits negotiations with the appellant for a lease, but denies that any agreement was ever reached by the parties.\\nIt denies thg.t William E. Shackelford, its manager, was authorized by the compa^ to make an agreement for this lease, and it nowhere appears that John L. Young, its treasurer, was so authorized.\\nThe appellant testified that on the 29th of June, 1903, he negotiated with Shackelford for a lease upon the terms above stated, paid $50 on account of the rent and took from Shackelford the following receipt;\\n\\\"June 29th, 1903.\\n\\\"Received of M. J. Clement fifty dollars on account of candy stand now being occupied by T. Lapres for the year nineteen hundred and four.\\n\\\"Youngs Amusement Co.,\\n\\\"$50. W. E. Shackeleobd, Mgr.\\\"\\nThe appellant further testifies that he caused a draft ,of a lease to be prepared by his counsel, which embodied the agreement he had made with' the defendant's manager; that he took it to Young, its treasurer, and left it with him, and he made some alterations in it, and that appellant and Young went over it together and some other alterations were made; Young expressed his satisfaction with it and appellant was also satisfied with it and said he would sign it; that he would go and fix it up and would meet Young at the office of the company's counsel to sign that lease, saying there was no use changing'it, having agreed upon it- It does not appear whether the appellant procured a new. copy of the lease which had been altered or took that same copy with him, or in fact had any copy of the lease with him, but he testifies as follows:\\n\\\"I went to Thompson & Cole's office, and; there sat the three [assuming he means the counsel, Shackelford and Young] in there; Shackelford jumped up with another lease; shoved that in my face, and said, 'You sign this lease or nothing; you shan't change a letter or word in it;' I said, T came to sign the lease me and the captain had agreed upon,' and he said, 'You sign that or nothing;' I said, T don't know whether the captain will let me sign, that\\u2014will you, Captain?' he said, 'Oh, yes, I will let you sign it;' I said, 'Let me take this up to my lawyers; I want to get a little advice on it. Will you let me take it out?' Shackelford said, 'I don't know whether the captain will let you take it out\\u2014will you, Captain?' 'Yes, I will let you take it.' I said, 'You know I want to get a little legal advice in these things.' \\\"\\nHe says lie carried it up to Carson & Godfrey, bis attorneys; tliey looked over the lease, and in pursuance of what they did he did not sign it.\\n'It seems, from this testimony, that the appellant and the company never reached any agreement as to the terms of the lease.\\nBut, assuming- that the draft of the lease which the appellant says was altered and-agreed to by Young, and which he is now-seeking to enforce, set forth the terms of the agreement between the parties, and that Shackelford was authorized to make the agreement and Young was authorized to make alterations in it, it was never signed by either of the parties to it, and so did not satisfy the requirements of the statute of frauds.\\nThe receipt above mentioned is some evidence of negotiations between the parties and'an agreement as to something, but it contains none of the terms of the lease which the appellant claims was agreed upon.\\nThere was never any delivery of possession of the premises in question to the defendant, nor any evidence to show any expenditure of money under the contract or in part performance of the contract. There is some testimony as to the purchase of two movable machines to be used in connection with the business proposed by the appellant to be carried on in the premises, and also some expenditure in connection with the removal of some glass doors or screens from another place of the appellant to be used in the premises in question, but these were no more-expenditures in the carrying out the contract than would be the cost of a stock of goods to be placed in a store agreed to be leased or of the furniture intended to be used therein.\\nThe decree dismissing the bill is affirmed.\\nFor affirmance-\\u2014The Chief-Jus tice, Garrison, Fort, Garretson, Hendrickson, Pitney, Swayze, Eeed, Bogert, Vredenburgh, Vroom, Green, Gray, Dili\\u201414.\\nFor reversal\\u2014None.\"}"

nj/166577.json

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+"{\"id\": \"166577\", \"name\": \"C. WILLIAM CARUSO, PROSECUTOR, v. NEWTON H. PORTER ET AL., RESPONDENTS\", \"name_abbreviation\": \"Caruso v. Porter\", \"decision_date\": \"1925-10-26\", \"docket_number\": \"\", \"first_page\": \"71\", \"last_page\": \"73\", \"citations\": \"102 N.J.L. 71\", \"volume\": \"102\", \"reporter\": \"New Jersey Law Reports\", \"court\": \"New Jersey Supreme Court\", \"jurisdiction\": \"New Jersey\", \"last_updated\": \"2021-08-10T20:08:42.424004+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"C. WILLIAM CARUSO, PROSECUTOR, v. NEWTON H. PORTER ET AL., RESPONDENTS.\", \"head_matter\": \"C. WILLIAM CARUSO, PROSECUTOR, v. NEWTON H. PORTER ET AL., RESPONDENTS.\\nSubmitted May 29, 1925\\nDecided October 26, 1925.\\nBefore Justices Trenchard, Katzenbach and Lloyd.\\nFor the prosecutor, John A. Bernhard.\\nFor the respondent, Edward L. Katzenbach.\", \"word_count\": \"872\", \"char_count\": \"5055\", \"text\": \"The opinion of the court was delivered by\\nLloyd, J.\\nThe prosecutor in this writ was convicted in the recorder's court of Bloomfield of operating a motor vehicle while under the influence of intoxicating liquor, and sentenced to serve thirty days in the common jail or workhouse. On appeal to the Essex Common Pleas and a retrial in accordance with the provisions of the Motor Vehicle act of 1921 and the amendment of 1924, the prosecutor was again convicted and sentenced to imprisonment for a term of thirty days in the common jail.\\nThe conviction and sentence are sought to be set aside for various reasons, which will be taken up in their order.\\nIt is contended in the prosecutor's brief that the Court of Common Pleas was without legal jurisdiction to try the case, because (1) the statute violates the provisions of the constitution requiring every law to embrace but one object, which shall be expressed in its title; (2) because the Court of Common Pleas has no constitutional or legislative power to try criminal cases; (3) because the right of trial by jury is invaded by the act, and it was further claimed that the right of trial by jury was infringed by providing in the act for compulsory imprisonment in the workhouse.\\nNone of these contentions appear to us to be well founded. The title of the act of 1921 contains, as part of its title, this language: \\\"Prescribing and regulating process and the service thereof and proceedings for the violation of the provisions of the act and penalties for said violations.\\\" It is quite apparent that the body of the act is well within the title when it prescribes the process to apprehend, the tribunal to hear the case and the punishment to be imposed upon offenders. These are clearly expressed in the words quoted. Nor .do the act or its title embrace more than one object. The whole scheme of the legislation is to provide for the safe use of an instrument of transportation which, without regulation, would become a dangerous menace to persons and property. All of the provisions of the act are directed to the attainment of the one object, and all are properly incident and appropriate thereto. Paragraph 4 of article 4, section 7 of the constitution, clearly indicate the scope of the prohibited legislation, when it declares its purpose to be to \\\"avoid improper influences which may result from intermingling in one and the same act such things as have no proper relation to each other.\\\" It certainty cannot be said that any part of the act is extraneous or foreign to its general object.\\nThe objection that the Court of Common Pleas has no power to hear the' case, because it is a court for the trial of civil issues only, is equalty without substance. Under the statute invoked it sits as a statutory tribunal, and it was competent for the legislature to select as it chose the forum in which to vest the jurisdiction.\\nThe claim that a constitutional right of trial by jury is invaded is disposed of by reference to the decision of the Court of Errors and Appeals in State v. Rodgers, 91 N. J. L. 212. The defendant in that case, as here, was convicted of driving an automobile while intoxicated. The trial and conviction were before the recorder of Paterson without a jury, and that the validity of the conviction without the intervention of a jury was in the mind of the court is apparent from this language of Mr. Justice Trenchard: \\\"No doubt the legislature wished to provide for punishment for those who drove motor vehicles upon the public streets while under the influence of intoxicating liquors without the delay necessarily incident to indictment and trial by jury.\\\" The right of trial by jury is not universal. In the early case of State v. Anderson, 40 N. J. L. 224, Chief Justice Beasley, speaking for the Supreme Court, said of a sale of intoxicating liquors contrary to law, that \\\"independently of a prohibition by the legislature such a sale is neither immoral nor illegal, and the lawmaker can therefore put it under such control as may be thought best. Not being in its nature an indictable offense, it can be punished by a penalty without indictment.\\\" Upon a like distinction pointed out in State v. Rodgers, supra, the driving of an automobile while intoxicated could be properly subjected to trial and punishment in a summary proceeding.\\nAs to the final contention that the provision of the statute under which the prosecutor was convicted authorizes the sentence to be served in the county jail or workhouse, and thereby provides a punishment applicable only to persons convicted of crime, it is sufficient to say that the prosecutor was not sentenced to the workhouse but to the jail. The broader provision of this phase of the act is, consequently, not involved in the case.\\nThe judgment will be affirmed, with costs.\"}"

nj/179199.json

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+"{\"id\": \"179199\", \"name\": \"THE STATE OF NEW JERSEY, DEFENDANT IN ERROR, v. GEORGE SGRO, PLAINTIFF IN ERROR\", \"name_abbreviation\": \"State v. Sgro\", \"decision_date\": \"1932-02-01\", \"docket_number\": \"\", \"first_page\": \"528\", \"last_page\": \"534\", \"citations\": \"108 N.J.L. 528\", \"volume\": \"108\", \"reporter\": \"New Jersey Law Reports\", \"court\": \"New Jersey Supreme Court\", \"jurisdiction\": \"New Jersey\", \"last_updated\": \"2021-08-10T21:38:17.520816+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"THE STATE OF NEW JERSEY, DEFENDANT IN ERROR, v. GEORGE SGRO, PLAINTIFF IN ERROR.\", \"head_matter\": \"THE STATE OF NEW JERSEY, DEFENDANT IN ERROR, v. GEORGE SGRO, PLAINTIFF IN ERROR.\\nSubmitted October 30, 1931\\nDecided February 1, 1932.\\nFor the plaintiff in error, J. Victor D\\u2019Aloia.\\nFor the defendant in error, Joseph L. Smith, prosecutor of the pleas, and Joseph E. Conlon, assistant prosecutor of the pleas.\", \"word_count\": \"1794\", \"char_count\": \"10226\", \"text\": \"The opinion of the court was delivered by\\nKays, J.\\nThe plaintiff in error was tried before the Essex County Court of Oyer and Terminer upon an indictment charging him with murder. The trial was heard before Daniel J. Brennan, judge of the Court of Common Pleas. The j'ury rendered a verdict of guilty of murder in the second degree with the recommendation of mercy. The court sentenced the defendant to fifteen years imprisonment at hard labor in the New Jersey state prison. A writ of error was taken under the one hundred and thirty-fifth and one hundred and thirty-sixth sections of the Criminal Procedure act.\\nThe defendant was charged with killing one Louis Balducci who apparently was a bootlegger. The shooting took place on September 12th, 1930, at about ten-thirty in the morning on Seventh avenue, in the city of Newark, about opposite the' store of one Harry Mayer. Deceased was removed, to a city hospital and about four and a half months later died. The direct cause of his death, according to the testimony of Dr. Martland, was a bullet wound received at the aforesaid time.\\nThe evidence shows that the defendant and the decedent had been acquaintances for several years; that the deceased owed the defendant about $200 which the defendant had attempted to collect on several occasions without success. The proofs also showed that at the time of the shooting the defendant, while driving his Nash sedan along Seventh avenue, Newark, saw the deceased in Mayer's store and called him out after stopping his own car on the opposite side of the street. The evidence further shows that the deceased walked across the street to the side of defendant's car and stood at the left side of the car conversing in loud tones with the defendant, and that after such conversation, or argument, the deceased turned and walked back toward the store and was shot down just as he reached the sidewalk. There was no direct evidence by any witness as to the proof who fired the shots. There was, however, circumstantial evidence that the shooting came from the defendant who was in the automobile and that such shooting caused the death of the decedent.\\nThe first ground of reversal is that, \\\"the trial court erroneously permitted the prosecutor to make a statement, in his opening to the jury, which was prejudicial to the defend^ant.\\\" The statement was as follows: \\\" at the end of the case I am going to ask you to bring in a verdict for the extreme penalty, not only as a punishment to him, but as an example to others.\\\" It is contended that the last few words, \\\"as an example to others,\\\" were improper and without justification and were injurious to such an extent to the defendant as to justify the court in reversing the conviction. It appears from the record of the case that counsel for the defendant asked for an exception to the statement. He did not request the court to direct a mistrial or to instruct the jury to disregard the statement. The statement by the prosecutor was justified for the reason that the punishment of a criminal is not only intended as a punishment to such criminal but also as a warning to others for the benefit of society. However, even though it was improper, the mere taking of an exception to a statement by the prosecutor affords no ground for reversal.\\nThe next point raised is that, \\\"the court erroneously permitted the prosecutor of the pleas to plead surprise thereby allowing the state to use an alleged prior self-contradictory statement of a state's witness, Gabriel Contaldi, as evidence against the defendant.\\\" This witness, Contaldi, gave testimony on behalf of the state while on the witness stand which was contradictory to an earlier statement made to the officers of the state prior to the trial. The earlier contradictory statement was offered for the purpose of neutralizing the testimony given by the witness while being examined by the prosecutor. This prior statement was admissible for such purpose. In the case of State v. D'Adame, 84 N. J. L. 386, it was held, that where a party is \\\"surprised\\\" by adverse testimony of a witness called by him, the trial court may in the exercise of its sound discretion permit such party to offer proof of self-contradictory statements previously made for the purpose of neutralizing the effect of such adverse testimony. The admission of the prior statement made by the witness, Contaldi, was within the discretion of the court to admit it in evidence for the purpose of neutralizing the testimony of that witness. The point raised by the plaintiff in error is without merit.\\nThe next point raised by the plaintiff in error is that the trial court should have directed a verdict of acquittal. It is contended that there was nothing in the statement made by the prosecutor in his opening of the case which tended to show the truth of the charge laid against the defendant in the indictment. We find no merit in this contention. The ease of the state was given to the jury in the opening and if proved would have justified the jury in convicting the defendant. A similar motion was made at the close of the case. This motion was also refused by the court. We think that the refusal was justifiable, as there was abundant testimony, if true, which indicated that the defendant was guilty. Whether the testimony was true and whether the defendant was guilty according to the testimony produced were matters to be determined by the jury and not by the court.\\nThe next point raised by the plaintiff in error is that the trial court refused to charge the following request submitted by counsel for the defendant, \\\"it is the law in this state that the failure of the defendant to take the stand does not of' itself give rise to any presumption of guilt.\\\" The court charged the jury on this point as follows: \\\"In this case there is no direct evidence connecting the defendant with this crime, and under the law of this state his failure to take the stand creates no presumption of guilt, providing that, if facts are testified to which concern the acts of the. defendant which he could by his oath deny, his failure to testify in his own behalf raises a strong presumption that he cannot truthfully deny them.\\\" This was an accurate statement of the law upon the point involved and covered the request made. We are, therefore, of the opinion that there was no merit in this contention.\\nThe next point raised by the plaintiff in error is that the trial court permitted the jury to have read to it the testimony of the witness, Russo, sometime after the jury had retired to deliberate upon their verdict. The jury requested the court to have the testimony of this witness read to them and the court granted the request. We are of the opinion that this judicial action was proper and is justified under the decisions of this state. The jury, however, after the reading of Russo's testimony discovered that such testimony was not what they wanted, one of the jurors asked to have the testimony of some other witnesses read relating to the number of cars on Seventh avenue after the shooting. The juror, however, did not indicate whose testimony it was that he or the other members of the jury desired to have read. Such a request' placed upon the court, if it had been granted, the examination of the testimony of all the witnesses in the case for the purpose of dis covering which witness or witnesses had given testimony on this subject, and then, after making such discovery, to have the testimony read to the jury. We are of the opinion that it is not the duty of the court and that there is no legal obligation resting upon the court to compel the court to undertake such a burden. It might entail the consumption of hours or even days for a court to examine all the testimony offered in a ease bearing on some particular point or points and then have such testimony sorted out and read to the jury. We are, therefore, of the opinion that there is no merit in this contention.\\nThe next and last point argued is that the verdict is contrary to the weight of the evidence. The proofs in this case were circumstantial. There was proof that the defendant's car was parked within a few feet of the scene of the shooting; that the deceased and the defendant were talking together in loud tones; that the deceased left the defendant's car and walked away from it toward the opposite side of the street; that two or three shots were fired from the car whereupon the deceased fell to the road or sidewalk on his face, and that the car then was immediately driven away down Seventh avenue; that the ear was a dark sedan bearing a license number H4017 according to one witness, and according to the confession of the defendant H410T7; that the deceased owed the defendant about $200; that the deceased and defendant had known each other for several years; that the defendant left the place in which he was living immediately after the shooting and did not return until sometime the latter part of October. There was a statement made by Balducci a short time before his death to the effect that the defendant was his friend and did not shoot him. During all the period which the deceased spent in the hospital ho had been visited by the wife of the defendant once or twice weekly. It is not for this court to determine, in order to support the verdict in this case, that the testimony shows the guilt of the defendant beyond a reasonable doubt. The function of this court on review is merely to determine whether the verdict is against the weight of the evidence and we are of the opinion that such verdict was not against the weight of the evidence as produced in this case.\\nThere being no prejudicial error the judgment of the court below is affirmed.\\nFor affirmance \\u2014 The Chief Justice, Trenchard, Parker, Campbell, Lloyd, Case, Bodine, Daly, Donges, Van Buskirk, Kays, Hetfield, Dear, Wells, Kerney, JJ. 15.\\nFor reversal \\u2014 None.\"}"

nj/179235.json

@@ -0,0 +1 @@
+"{\"id\": \"179235\", \"name\": \"STATE OF NEW JERSEY, DEFENDANT IN ERROR, v. THOMAS FLEMMING, PLAINTIFF IN ERROR\", \"name_abbreviation\": \"State v. Flemming\", \"decision_date\": \"1931-05-07\", \"docket_number\": \"\", \"first_page\": \"16\", \"last_page\": \"19\", \"citations\": \"108 N.J.L. 16\", \"volume\": \"108\", \"reporter\": \"New Jersey Law Reports\", \"court\": \"New Jersey Supreme Court\", \"jurisdiction\": \"New Jersey\", \"last_updated\": \"2021-08-10T21:38:17.520816+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"STATE OF NEW JERSEY, DEFENDANT IN ERROR, v. THOMAS FLEMMING, PLAINTIFF IN ERROR.\", \"head_matter\": \"STATE OF NEW JERSEY, DEFENDANT IN ERROR, v. THOMAS FLEMMING, PLAINTIFF IN ERROR.\\nSubmitted October 17, 1930\\nDecided May 7, 1931.\\nBefore Gummere, Chief Justice, and Justices Trenchard and Lloyd.\\nFor the plaintiff in error, Michael Breitkopf and Joseph Kraemer.\\nFor the state, Joseph L. Smith, prosecutor of the pleas, and Felix Forlenza, assistant prosecutor.\", \"word_count\": \"902\", \"char_count\": \"5217\", \"text\": \"The opinion of the court was delivered by\\nGummere, Chief Justice.\\nThomas Flemming, the plaintiff in error, and one Charles'Connor were convicted upon an indictment charging them with the commission of an assault and battery upon one Harry Peck. Flemming alone has sued out the present writ'of error.\\nThe defendants and Peck, upon whom the assault was committed, were each of them members of a labor union, of which Flemming was the business'agent. Peck and Connor had been employed at the Fairfield Airport, in Caldwell, working on different shifts. The managers of the airport, concluding that only one man was'needed for this work, discharged Connor and retained Peck. Subsequently the union held a meeting, apparently for the purpose of determining whether Peck should not be required 'to abandon the work also. He was notified of this meeting and attended it. According to the proofs submitted on the part of the state,'when the meeting ended and he was leaving, he was assaulted by Flemming, Connor and several others, and 'was severely beaten. Flemming's defense was that he was not present at the time of the assault.\\nThe first ground upon which we are asked to reverse the conviction against Flemming is that 'the court improperly permitted testimony to be given relating to conversations between various members of the union and Peck, at which Flemming was not present. Assuming that 'the conversations testified to were not had in the presence of the plaintiff in error, and, therefore, were improperly admitted, we are satisfied from a reading thereof that the admission of these conversations did not work manifest wrong and injury to the plaintiff in error, and that, consequently, as the case comes before us under the one hundred and thirty-sixth section of the Criminal Procedure act, their admission does not justify a reversal. State v. Matarazza, 93 N. J. L. 47; S. C. on error, 94 Id. 263.\\nThe next contention is that the court in its charge to the jury erroneously instructed them as follows: \\\"The state contends that this assault grew out of a difficulty in connection with the employment of Peck and Connor on a job in Caldwell. The state produced evidence to the effect that there was a controversy with regard to these men working. The state further contends that there was a motive on the part of this union to beat up this complainant, and that no other motive is indicated in the case.\\\" This instruction lays down no legal principle, but is merely a statement of the contention on the part of the state, and is an accurate statement of that contention. There was no error of law, therefore, in this portion of the charge.\\nIt is next argued that the court erred in refusing to charge the following request: \\\"To prove motive, it is not sufficient for the state to show that these defendants were members of the union, but they must go further, and prove there was such a relationship between the union and these defendants that they became the agents of the union, and if the state is unable to prove this, then the proof of motive fails.\\\" This request is apparently based upon the claim of the state recited in that portion of the charge just quoted; namely, that the defendants were acting as the agents of the union in committing an assault upon Peck, the theory of the request being that, unless this was shown to be the fact, the state had failed to prove the existence of any motive which induced the defendants to commit the assault. Whether the theory of the state was sound or not is, in our opinion, quite immaterial, and for this reason: No obligation rested upon the state to prove the existence of the particular motive (if any existed) which led to the commission of the crime charged in the indictment. As is declared by the Court of Errors and Appeals in the case of State v. Ehlers, 98 N. J. L. 236, 240, proof of motive is not an essential element in determining whether or not a defendant is guilty of a crime such as that now under consideration. If the proved facts establish beyond a reasonable doubt that the crime was committed by him, the defendant is guilty, no matter what his motive may have been. This being so, we conclude that the refusal to charge the request submitted was not harmful error.\\nThe only other contention on the part of the plaintiff in error is that the finding of the jury that the plaintiff in error had failed to sustain by a preponderance of proof his defense of an alibi was in disregard of the testimony in the case, and that, for this reason, the conviction under review should be reversed. Our examination of all the testimony bearing upon this point satisfies us that the finding of the jury upon the question of the defendant's alibi is not against the weight of the evidence.\\nEor the reasons indicated, we conclude that the conviction under review should be affirmed.\"}"

nj/181713.json

@@ -0,0 +1 @@
+"{\"id\": \"181713\", \"name\": \"EMMA WHITE, PLAINTIFF-APPELLANT, v. PUBLIC SERVICE CO-ORDINATED TRANSPORT, DEFENDANT-RESPONDENT\", \"name_abbreviation\": \"White v. Public Service Co-ordinated Transport\", \"decision_date\": \"1932-10-17\", \"docket_number\": \"\", \"first_page\": \"325\", \"last_page\": \"327\", \"citations\": \"109 N.J.L. 325\", \"volume\": \"109\", \"reporter\": \"New Jersey Law Reports\", \"court\": \"New Jersey Supreme Court\", \"jurisdiction\": \"New Jersey\", \"last_updated\": \"2021-08-10T18:18:08.595116+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"EMMA WHITE, PLAINTIFF-APPELLANT, v. PUBLIC SERVICE CO-ORDINATED TRANSPORT, DEFENDANT-RESPONDENT.\", \"head_matter\": \"EMMA WHITE, PLAINTIFF-APPELLANT, v. PUBLIC SERVICE CO-ORDINATED TRANSPORT, DEFENDANT-RESPONDENT.\\nSubmitted May 27, 1932 \\u2014\\nDecided October 17, 1932.\\nFor the plaintiff-appellant, Alexander Simpson.\\nFor the defendant-respondent, Henry H. Fryling (James O. Boyd, of counsel).\", \"word_count\": \"475\", \"char_count\": \"2839\", \"text\": \"The opinion of the court was delivered by\\nCase, J.\\nThe case comes to us on the plaintiff's appeal from a judgment for the defendant rendered at the Essex Circuit on a jury verdict before Judge Mountain. The action was for the recovery of damages for personal injuries and incidental losses alleged to have been caused by the negligent operation of one of defendant's buses in the city of Newark.\\nThere are eight grounds of appeal, the first three of which relate to rulings on evidence and the last five to refusals of the court to charge on plaintiff's requests. All three of the evidence rulings were in the allowing of questions, asked on cross-examination, to stand. The questions embraced within the first and third of these rulings were not answered. Consequently, no harm was done. The question covered by the second ruling was as follows: \\\"Q. And when you were on the witness-stand you didn't say anything at all about the injuries which you had sustained two weeks before the time you were on the stand?\\\" That question was not answered. Another question was framed, to which no objection was made, and the new question and the answer thereto were: \\\"Q. You didn't say anything on the stand at that time about having met with an accident two weeks before? A. I was not asked about my accident, my second accident.\\\" Obviously no harm followed upon the admission of this testimony.\\nThe last five grounds of appeal are not properly before us for the reason that no exceptions were taken at the trial. Eight requests to charge were made by the plaintiff, some of which the court charged, others of which the court considered were comprehended within directions already given the jury, and others of which were denied. Clearly it was the duty of the plaintiff, if she desired to maintain her right to a review, on appeal, of the court's disposition of these requests, forth with to take exception or otherwise properly note her objection so that the court might be apprised of her purpose and be governed accordingly. Kargman v. Carlo, 85 N. J. L. 632. Moreover, we consider that all of the requests were properly refused. The grounds of appeal are on the refusals of the third to the seventh requests, inclusive. The third, fifth and seventh requests were substantially charged by the court, as were also the fourth and sixth to the extent that they were sound in law.\\nThe judgment below will he affirmed.\\nFor affirmance \\u2014 The Chancellor, Trenchard, Parker, Lloyd, Case, Bodine, Donges, Brogan, Van Buskirk, Kays, Dear, Wells, Kerney, JJ. 13.\\nFor reversal \\u2014 None.\"}"

nj/183892.json

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+"{\"id\": \"183892\", \"name\": \"Harry Minck et al., trustees, &c., v. Mary Jane Walker et al.\", \"name_abbreviation\": \"Minck v. Walker\", \"decision_date\": \"1912-10-23\", \"docket_number\": \"\", \"first_page\": \"112\", \"last_page\": \"114\", \"citations\": \"81 N.J. Eq. 112\", \"volume\": \"81\", \"reporter\": \"New Jersey Equity Reports\", \"court\": \"New Jersey Court of Chancery\", \"jurisdiction\": \"New Jersey\", \"last_updated\": \"2021-08-10T22:40:44.522932+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Harry Minck et al., trustees, &c., v. Mary Jane Walker et al.\", \"head_matter\": \"Harry Minck et al., trustees, &c., v. Mary Jane Walker et al.\\n[Submitted September 16th, 1912.\\nDetermined October 23d, 1912.]\\nA bill by complainants as trustees under a void trust contained in a will, which bill sets forth the provisions of such trust, the acts done by the complainants, in the performance thereof, whereby they realized certain moneys, and which bill seeks a settlement in this court of such a nature that proper allowances may be made to the complainants for their services and expenditures, and asks that the funds then remaining in their hands may be distributed by decree of this court amongst the. persons entitled thereto, and that an injunction be issued restraining the testator\\u2019s heirs-at-law from disturbing the grantees of the complainants by actions of ejectment or otherwise, exhibits no ground of equitable jurisdiction, and will be dismissed for want of equity, upon motion.\\nThe bill discloses that Joshua W. Bishop, deceased, devised and bequeathed certain real and personal \\u00e9state to complainants in trust, and that complainants, in the performance of the trust duties imposed by the will, in good faith sold and conveyed cer tain real estate so devised and in like manner conveyed certain other real estate in fulfillment of contracts made by testator in his lifetime, and also collected rents of other real estate covered by the trust provisions of the will. The provisions of the will which so devised and bequeathed the property to complainants in trust have since been by the supreme court of this state declared void because violative of the law against the creation of perpetuities. The moneys received by complainants as rents and proceeds of sale of real estate are still in complainants\\u2019 hands, and complainants now by their bill seek a settlement in this court of such a nature that proper allowances may be made to them for their services and expenditures, and that the funds then remaining in their hands be distributed by decree of this court to the persons who are entitled to the same; an injunction is also sought to restrain the heirs-at-law from disturbing the grantees of complainants by actions of ejectment against them or otherwise. The heirs-at-law and administrator cum testamento annexo of testator and also the several grantees of. complainants are made defendants. Motions are now made by the administrator cum testamento annexo of testator and by his heirs-at-law to dismiss the bill for want of equity and for other reasons specified in the motions.\\nMr. Charles I.. Wooster, for the complainants.\\nMr. Adam B. Sloan, opposed.\", \"word_count\": \"921\", \"char_count\": \"5580\", \"text\": \"Leamjstg, V. C.\\nI am unable to discern any theory upon which the bill can be maintained. The conveyances made by complainants cannot vest a title'in their grantees; as against the heirs-at-law these conveyances are clearly void. The heir or heirs-at-law to whom the real estate descended, as land of which testator died intestate^ cannot be brought into this court to litigate their claim of title or possession of the land conveyed by complainants or their claims to the rents collected by complainants, nor can the grantees of complainants be brought into this court to here assert their claim against complainants for a return of the purchase moiiey by them paid to complainants, unless some branch of equitable jurisdiction can be found to enable complainants to compel these defendants to submit to the adjudication of these purely legal rights in this court. The bill calls complainants de facto trustees and claims equitable jurisdiction by reason of the analogy of a trusteeship; the motion to dismiss the bill calls complainants executors de son tort, and claims that as such they are entitled to no equitable relief. Complainants are neither de facto trustees nor executors de son tort. There was no trusteeship, and there can be no de facto officer without a de jure office. So far as the bill discloses, the only assets which complainants have received were either real estate or its revenues; such assets go to heirs; a person becomes an executor de son tort only when intermeddling with assets which affect the administration. The right of the grantees of complainant to come into a court of equity in an effort to impress a trust upon the purchase-money paid by them, if such right can be said to exist, affords no support to the present bill. Nor is the bill in form or substance a bill of interpleader. Nor can the jurisdiction of this court over the settlement of estates of deceased persons be here invoked; such settlements belong primarily to another court, and the bill does not seek such a settlement. It might serve convenience if the heirs-at-law, administrator cum testamento annexo and the grantees of complainant could be brought in and compelled to submit to a decree directing the complainants to restore to the several purchasers their purchase-money and to the heirs the rents collected and to the administrator any personal assets which conrplainants maj' have received, and directing the purchasers to restore to the heirs the possession of the real estate by them purchased and adjudicating and apportioning equitable allowances for services performed and expenditures made by complainants ; but I find no warrant for the assumption of such ]jower or authority by this court, and no precedent has been cited to sustain such a jurisdiction. The rights of the respective parties are such that the remedies afforded by the law courts must be deemed adequate, even though they may not be found entirely convenient.\\nI will advise an order dismissing the bill.\"}"

nj/1902949.json

@@ -0,0 +1 @@
+"{\"id\": \"1902949\", \"name\": \"IN THE MATTER OF EUGENE F. HAYDEN, AN ATTORNEY AT LAW AND FORMER MAGISTRATE OF THE MUNICIPAL COURT OF THE BOROUGH OF SAYREVILLE, RESPONDENT\", \"name_abbreviation\": \"In re Hayden\", \"decision_date\": \"1964-02-03\", \"docket_number\": \"\", \"first_page\": \"443\", \"last_page\": \"445\", \"citations\": \"41 N.J. 443\", \"volume\": \"41\", \"reporter\": \"New Jersey Reports\", \"court\": \"Supreme Court of New Jersey\", \"jurisdiction\": \"New Jersey\", \"last_updated\": \"2021-08-10T22:36:58.046443+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"IN THE MATTER OF EUGENE F. HAYDEN, AN ATTORNEY AT LAW AND FORMER MAGISTRATE OF THE MUNICIPAL COURT OF THE BOROUGH OF SAYREVILLE, RESPONDENT.\", \"head_matter\": \"IN THE MATTER OF EUGENE F. HAYDEN, AN ATTORNEY AT LAW AND FORMER MAGISTRATE OF THE MUNICIPAL COURT OF THE BOROUGH OF SAYREVILLE, RESPONDENT.\\nArgued January 7, 1964\\nDecided February 3, 1964.\\nEor the order: Mr. Edward J. Dolan.\\nEor the respondent: Mr. Warren W. Wilentz.\", \"word_count\": \"668\", \"char_count\": \"4130\", \"text\": \"The opinion of the court was delivered\\nPee Cubiam.\\nRespondent is a member of the bar and a former magistrate for the Borough of Sayreville. On December 4, 1963 we issued an order to show cause why respondent should not be disbarred or otherwise disciplined for engaging in partisan political activity while serving as a magistrate in violation of Canon 28 of the Canons of Judicial Ethics and the policies established by this Court which preclude judges from engaging in partisan political activity. See R. R. 8:13-7.\\nCanon 28 provides:\\n\\\"While entitled to entertain his personal views of political questions, and while not required to surrender his rights or opinions as a citizen, it is inevitable that suspicion of being warped by political bias will attach to a judge who becomes the active promoter of the interests of one political party as against another. He should avoid making political speeches, making or soliciting payment of assessments or contributions to party funds, the public endorsement of candidates for political office and participation in party conventions.\\nHe should neither accept nor retain a place on any party committee nor act as party leader, nor engage generally in partisan activities.\\\"\\nThe admitted facts are as follows. While the respondent was serving as magistrate for the Borough of Sayreville, his first cousin, John Kierst, Councilman Joseph Ziemba and others were enbroiled in a bitter primary fight against the incumbent Mayor Harold Boehm and his followers for the nomination of borough councilmen. Respondent favored his cousin's faction. The rival group had made verbal charges that one Frank Caprio, respondent's former client, had paid money to Ziemba to let him remove sand from borough property\\u2014 implying extortion by Ziemba. On April 14, 1962, three days before the primary election, Kierst and Ziemba, who were being hurt politically by the charges, asked the respondent for his help. At their request, respondent immediately contacted Caprio for the purpose of getting a statement from him denying that he had told the Mayor that he had paid Ziemba for letting him take the sand. Respondent prepared and typed the following statement which Caprio signed:\\n\\\"To whom it may concern, I deny that I ever told Harold Boehm that I ever paid Joseph Ziemba for permission to take sand from the Borough of Sayreville property.\\\"\\nThis statement was circulated in the community and broadcast over the local radio station as a paid political announcement.\\nThe respondent readily admits violating the canon. He says that he made a gross mistake in judgment which was motivated by his affection for his cousin and his interest as a private citizen in the election of men he considered superior to the opposition.\\nThe personal interests of a magistrate cannot excuse a violation of the canon. Under no circumstances should a judge engage in partisan political activity. The reason for the canon as expressed therein is the necessity for a judge at all times so to conduct himself as to avoid any suspicion that his judicial activities may be influenced by his political preferences. Such a suspicion is the inevitable consequence when a judge becomes the active promoter of those seeking public office.\\nWe are seriously concerned with any infraction of the letter and spirit of Canon 28 and generally we would severely discipline an offender. However, in determining the quantum of discipline in the present matter, we note that the charge against the respondent involves a single indiscretion and not a continued course of partisan political activity. Cf. In re Pagliughi, 39 N. J. 517 (1963). Under the circumstances we have decided that respondent should be sharply reprimanded for his conduct.\\nFor reprimand\\u2014Chief Justice Weinteaub, and Justices Jacobs, Ebancis, Peoctoe,, Hall, Schettikto and Habte-MA3ST-7.\\nOpposed\\u2014None.\"}"

nj/1925623.json

@@ -0,0 +1 @@
+"{\"id\": \"1925623\", \"name\": \"CONRAD J. RINGLIEB, HELEN ELAINE RINGLIEB AND FRIEDA RINGLIEB, PLAINTIFFS-RESPONDENTS, v. THE TOWNSHIP OF PARSIPPANY-TROY HILLS, DEFENDANT-APPELLANT, GEORGE F. KUGLER, JR., ATTORNEY GENERAL OF THE STATE OF NEW JERSEY, DEPARTMENT OF ENVIRONMENTAL PROTECTION AND THE BOARD OF PUBLIC UTILITY COMMISSIONERS, DEFENDANTS\", \"name_abbreviation\": \"Ringlieb v. Township of Parsippany-Troy Hills\", \"decision_date\": \"1971-10-26\", \"docket_number\": \"\", \"first_page\": \"348\", \"last_page\": \"354\", \"citations\": \"59 N.J. 348\", \"volume\": \"59\", \"reporter\": \"New Jersey Reports\", \"court\": \"Supreme Court of New Jersey\", \"jurisdiction\": \"New Jersey\", \"last_updated\": \"2021-08-10T21:09:12.710241+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"CONRAD J. RINGLIEB, HELEN ELAINE RINGLIEB AND FRIEDA RINGLIEB, PLAINTIFFS-RESPONDENTS, v. THE TOWNSHIP OF PARSIPPANY-TROY HILLS, DEFENDANT-APPELLANT, GEORGE F. KUGLER, JR., ATTORNEY GENERAL OF THE STATE OF NEW JERSEY, DEPARTMENT OF ENVIRONMENTAL PROTECTION AND THE BOARD OF PUBLIC UTILITY COMMISSIONERS, DEFENDANTS.\", \"head_matter\": \"CONRAD J. RINGLIEB, HELEN ELAINE RINGLIEB AND FRIEDA RINGLIEB, PLAINTIFFS-RESPONDENTS, v. THE TOWNSHIP OF PARSIPPANY-TROY HILLS, DEFENDANT-APPELLANT, GEORGE F. KUGLER, JR., ATTORNEY GENERAL OF THE STATE OF NEW JERSEY, DEPARTMENT OF ENVIRONMENTAL PROTECTION AND THE BOARD OF PUBLIC UTILITY COMMISSIONERS, DEFENDANTS.\\nArgued October 12, 1971\\nDecided October 26, 1971.\\nMr. Robert G. Garofalo argued the cause for appellant (Messrs. Ryan, Foster & Garofalo, attorneys).\\nMr. Harold A. Price and Mr. Garret A. Hobart, IV, argued the cause for respondents, Ringlieb (Messrs. Schenclc, Price, Smith & King, attorneys).\\nMr. Richard M. Pisacane, Deputy Attorney General, argued the cause for respondents, George E. Kugler, Jr., et al (Mr. George F. Kugler, Jr., Attorney General, attorney).\", \"word_count\": \"2812\", \"char_count\": \"17394\", \"text\": \"Pee Ctjeiam.\\nThe judgment is affirmed for the reasons expressed by Judge Joseph H. Stamler in his oral opinion which reads as follows:\\nThis matter is before the Court on cross motions for summary judgment. On May 6, 1970 the Legislature approved two pieces of legislation concerning solid waste. Chapter 39 of the Laws of 1970 concerned itself with solid waste management and the title of that statute read that it was \\\"An Act Concerning Solid Waste Management creating an Advisory Council on Solid Waste Management in the State Department of Environmental Protection and Relating to the Department's Functions, Powers and Duties\\\".\\nThis statute, Chapter 39, was incorporated into our laws as N. J. 8. 13:1E-1 et seq. and in Section 2 the Legislature expressed its concern when it made the following findings and declarations: \\\"The collection, disposal and utilization of solid waste is a matter of grave concern to all citizens and is an activity thoroughly affected with the public interest; that the health, safety and welfare of the people of this State require efficient and reasonable solid waste collection and disposal service or efficient utilization of such waste, and that the current solid waste crisis should be resolved not only by the enforcement of more stringent and realistic regulations upon the solid waste industry but also through the development and formulation of statewide, regional, county and intercounty plans for solid waste management and guidelines to implement the plans.\\\"\\nThroughout that statute there is no mention of the concern of the Legislature below the inter-county level but by that statute, 13 :lE-9, the Legislature provided that the codes, rules and regulations shall be observed throughout the State and shall be enforced by the Department and every local Board of Health. Thereafter the procedure for penalty provisions is set forth in actions commenced by the Commissioner of Environmental Control or by a local Board of Plealth. The rules and regulations have already been promulgated and adopted and these appear as Chapter 8, \\\"Refuse Disposal.\\\"\\nThese were the rules and regulations adopted by the Department and/or Commissioner of Plealth and although it had been adopted on a day prior to the passage of the legislation here in question by the department of Health of the State of New Jersey, its functions were transferred and the Environmental Protection Department accepted these in accordance with the authority set forth in the statute here in question and R. J. 8. A. 26 :lA-7.\\nOn the same day the Legislature passed the Solid Waste Utility Control Act of 1970, and there are legislative findings made there in R. J. S. 48:13A-2 which restate the grave concern of all citizens and of the Legislature in the industry affected and makes a public utility out of those people who are engaged in solid waste collection and disposal and it gives to the Public Utility Commission the duty of establishing and enforcing standards and rates for the regulating of the economic aspects of the solid waste collection, disposal and utilization service. Under the two statutes anyone seeking to engage in this operation would be required to comply with stringent requirements and would first, before qualified as a public utility, be required to bo found by the Board of Public Utilities Commissioners as qualified by experience, training or education to engage in the business, to furnish proof of financial responsibility and, most importantly, hold a certificate of public convenience and necessity issued by the Board of Public Utility Commissioners.\\nThis is found in R. J. 8. 48:13A-6, which concludes with the following sentence: \\\"No certificate shall be issued for solid waste collection or solid waste disposal until the proposed collection or disposal system has been registered with and approved by the State Department of Environmental Protection as provided by law.\\\"\\nIn Section 8 of the same statute the Public Utility Commission (the Board) can order any person in this State engaged in the solid waste collection business or the solid waste disposal business to extend his collection or disposal service into any area of the State where service has been discontinued in accordance with sections of the Public Utility Act heretofore enacted, R. 8. 48:2-27.\\nA reading of both acts together with the regulation adopted seems to be a comprehensive plan on the part of the State to control all facets of this industry.\\nAll counsel have acknowledged on this motion that the need was great for the State to step in and do something, that the concern was partially economic and rising costs, but there was also concern in the Department of Environmental Protection about where our land was going when it would be overwhelmed with sewage and disposal problems.\\nSo that this act was in existence when on October 13th, 1970 Parsippany-Troy Plills passed an ordinance. The ordinance was entitled \\\"An Ordinance Providing for Establishing, Licensing, Operating, Regulating, Maintaining, and Controlling Sanitary Landfills in the Township of Parsippany-Troy Hills.\\\" There is no question but that the industry there sought to be regulated, the type of industry, was well within the limitations and requirements as imposed by Chapter 39 and Chapter 40.\\nAfter the passage of the ordinance heretofore referred to plaintiffs, Conrad J. Ringlieb, Helen Elaine Ringlieb and Frieda Ringlieb \\u2014and as the complaint was amended by order of this Court, Sharkey Farms, Inc.\\u2014brought an action against the Township of ParsippanyTroy Hills, George F. Kugler, Jr., Attorney General of the State of New Jersey, the Department of Environmental Protection and the Board of Public Utility Commissioners.\\nIn relevant part, so far as this motion is concerned, plaintiffs, who were owners and operators of the sanitary land site in Parsippany-Troy Hills, asked this Court to determine that the Legislature by Chapter 39 and Chapter 40 preempted the entire industry and the regulation of that industry of sanitary landfills by the enactment of the two statutes heretofore referred to. The Attorney General, the Board of Public Utility Commissioners, and the Department of Environmental Control, notwithstanding that they were named defendants \\u2014 and it was necessary that they be so named because a state statute was asked to be construed by this Court in accordance with the declaratory judgment act, were necessary parties to the suit; at least the Attorney General was \\u2014\\u2022 these three defendants join in plaintiffs' motion and support in all respects and adopt the position that there has been a preemption by the State to the exclusion of the municipality.\\nThe defendant municipality cross moves for summary judgment and takes the position that the statutes do not preclude the municipality from passing an ordinance regulating the same industry.\\nThe Court has examined the ordinance and feels that absent state statutes such ordinance would serve a very useful purpose in protecting the health of individuals in the municipality hut the state statute, admittedly by defendant, in one or another respect, conflicts with or duplicates that which is required by the ordinance.\\nI have compared the ordinance with the statutes in question and with the regulations under the statute in question, Chapter 8, \\\"Refuse Disposal\\\" and there is much duplication and overlapping, requiring double effort and serving no useful purpose.\\nIt is well-established that municipalities in our State have no power other than those delegated to them by the Legislature and by our State Constitution. The State may withhold from or grant a given power to a municipality. The question of preemption must be determined absent an express exclusion from the field by the State by tlie Courts ascertaining the legislative intent.\\nIn our Constitution, Article 4, Section 7, Paragraph 11, our Courts are enjoined by this constitutional provision, to liberally construe all laws in favor of municipal corporations. Local government should be given every advantage to manage and operate its affairs but the Constitution expressly states that the municipalities have not only the powers granted in express terms but also those of necessary or fair implication or incident to powers expressly conferred or essential thereto, but it concludes with the following limitation: that none of these powers, whether they are express or by implication inconsistent with or prohibited by the Constitution or state statute, shall be inferred as going from the State. Attached to every ordinance there is an implied condition that it must yield to the predominant power of the State.\\nThe Supreme Court in Wagner v. [Mayor and Municipal Council of City of] Newark, 24 N. J. 467, Chief Justice Vanderbilt speaking for the Court, stated the principle that I have just set forth in language a little different from that which I have stated but the effect is the same, and then said, \\\"To hold otherwise would lead to confusion and absurd results.\\\"\\nThere they were dealing with the control of rents by a municipality and the Court went on to say, \\\"And so it is that if the control of rents by a municipality independent of a state enactment covering the same subject is incompatible with the public policy of the State or with the intent and purpose of the Legislature manifested by its enactment, the attempt at control on a local level is void.\\\"\\nHere the fair reading of Chapter 39 and of Chapter 40, and especially with a view of close scrutiny on the legislative findings, there is an -intention disclosed certainly by the Legislature to make uniform this industry throughout the State.\\nIn the Weehawhen case [Board of Health of Tp. of Weehawken in Hudson County v. New York Cent. R. Co.], which I don't have here before me now, 4 N. J. [293], at 298, the Supreme Court said, \\\"There cannot be in the nature of things a delegation of regulative power which in its varying local applications would render function under the State's charter impracticable.\\\"\\nThis then would be the situation here if each municipality in the state could place and restrict in a manner similar to that which is restricted by the ordinance passed by the Parsippany-Troy Hills, and the conflicting ordinances and requirements of the separate municipalities would bring to a complete halt the sanitary landfill operations in this state, the refuse disposal business, all to the detriment of the general health of the general public.\\nI have searched to find whether or not there is some statute which specifically regulated or delegated the power to a municipality to regulate sanitary landfills. I could find none. The statutes to which the defendant municipality has referred me in its brief deals with the municipality's right to engage in the collection and disposal of gaz'bage, the establishment of authorities to operate incinerators and solid waste management authorities.\\nThere is no statutory power granted to a municipality directly which permits it to control the solid waste as the State seeks to control it here. There is no question, it is acknowledged on the part of counsel, that the industry here involved with these two statutes is cloaked with a public interest.\\nIn In Re Public Service Electric & Gas Co. the Supreme Court at page 371 of 35 N. J. [358] said that an ordinance which conflicted, though it was passed under the zoning power and the general police power granted to a municipality, with the operations of the public utility there involved, the Public Service Electric & Gas Co., and the municipality requirement that it bury all new power lines underground, the Court held that the State through the Legislature \\\"has delegated in most sweeping terms 'general supervision and regulation of and jurisdiction and control over all public utilities' and 'their property, property rights, equipment, facilities and franchises' to the Board.\\\"\\nIn the same ease, a little later on in the opinion, the Court held that the Public Utilities Law was a recognition by the Legislature that public interest and proper regulation of public utilities transcends municipal or county lines and that a centralized control must be entrusted to an agency whose continually developing expertise will assure uniformly safe, proper and adequate service by utilities throughout' the state.\\nThe Court went on to say at page 372, \\\"Where the state has thus established an agency of its own with plenary power to regulate utilities, it is universally recognized that municipalities cannot properly interpose their local restrictions unless and only to the extent any power to do so is expressly reserved to them by statute.\\\"\\nIn the recent case of Summer [Summer] v. Teaneck Chief Justice Weintraub said \\u2014 and this is at 53 N. J. 548, at page 554: \\\"A municipality may not contradict a policy the Legislature establishes. Hence, an ordinance will fall if it permits what a statute expressly forbids or forbids what a statute expressly authorizes. Even absent such evident conflict, a municipality may be unable to exercise a power it would otherwise have if the Legislature has preempted the field.\\\"\\nIn Woodside Homes, Inc. v. Town of Morristown, 26 S. J. 529, a decision of our Supreme Court in 1958, there was the Town of Morris-town who was a defendant in an action and the Court there held that this municipality of the Town of Morristown, operating a water company which it originally acquired from a private source that was under an exclusive franchise service area outside the limits of the Town of Morristown, was subject to the jurisdiction of the Board of Public Utility Commissioners in respect to the extension of water mains, and I noted before that the new statute grants to the Board of Public Utility Commissioners in respect to the extension of water mains, and I noted before that the new statute grants' to the Board of Public Utility Commissioners the right to demand of any franchised public utility the right to extend its services in refuse disposal where it deems it necessary.\\nI find here that the plaintiff, when approved and certificated by the board under the two statutes, operates under the regulations. I find him to be a public utility according to constitutional state legislation, serving a function which is plainly essential to public health. For this the certificate of necessity so provides and requires; and that he is an instrumentality, the plaintiff is an instrumentality, who operates not only with the express approval but under a charged duty with stringent penalties under the eye of the Department of Environmental Protection and the Public Utilities Board.\\nThis is not to say that the municipality has no right. An examination of the Public Utility Act preserves to the municipality a right to intervene in any action taken by the Public Utility Commission.\\nIt. 8. 48:2-32.2 reads: \\\"Every municipality may intervene in any hearing or investigation held by the board which involves public utility rates, fares or charges, service or facilities, affecting the municipality or the public within the municipality.\\\"\\nI road this to mean, although I found no cases so interpreting it, that it is not limited to the economic aspects. I think that when the words \\\"service or facilities\\\" are used they are talking about the public convenience and necessity. This Court concludes that the Legislature by Chapter 39 of the Laws of 1970 and Chapter 40 of the Laws of 1970 has preempted the field of solid waste collection and disposal and management under both statutes and that municipalities who are protected in part under the statute generally for every operation requires a certification that it does not violate the land use provisions of the municipality before approval. It is protected to that extent and can take such steps as it deems necessary when the occasion arises to impose upon the Department of Environmental Control or the Public Utilities Commission the additional protection that it feels it needs but it cannot do so by an ordinance which involves penalties or requires a person to go through the same procedures, the same requirements, almost word for word the same, as is required by the State.\\nAn order for summary judgment in favor of plaintiffs and the defendants, Attorney General, Public Utilities Commission, Department of Environmental Protection and Control, will be entered. The motion of defendant Parsippany-Troy Hills for summary judgment in its favor is denied.\\nFor affirmance\\u2014Chief Justice Weintraub and Justices Jacobs, Francis, Proctor, Hall, Schettino and Mountain\\u20147.\\nFor reversal\\u2014Hone.\"}"

nj/1925747.json

@@ -0,0 +1 @@
+"{\"id\": \"1925747\", \"name\": \"THOMAS W. KELLY, AS EXECUTOR OF THE ESTATE OF THORNTON C. LAND, PLAINTIFF-APPELLANT, v. SIDNEY GLASER, ACTING DIRECTOR, DIVISION OF TAXATION, DEPARTMENT OF THE TREASURY, DEFENDANT-RESPONDENT\", \"name_abbreviation\": \"Kelly v. Glaser\", \"decision_date\": \"1971-11-08\", \"docket_number\": \"\", \"first_page\": \"355\", \"last_page\": \"355\", \"citations\": \"59 N.J. 355\", \"volume\": \"59\", \"reporter\": \"New Jersey Reports\", \"court\": \"Supreme Court of New Jersey\", \"jurisdiction\": \"New Jersey\", \"last_updated\": \"2021-08-10T21:09:12.710241+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"THOMAS W. KELLY, AS EXECUTOR OF THE ESTATE OF THORNTON C. LAND, PLAINTIFF-APPELLANT, v. SIDNEY GLASER, ACTING DIRECTOR, DIVISION OF TAXATION, DEPARTMENT OF THE TREASURY, DEFENDANT-RESPONDENT.\", \"head_matter\": \"THOMAS W. KELLY, AS EXECUTOR OF THE ESTATE OF THORNTON C. LAND, PLAINTIFF-APPELLANT, v. SIDNEY GLASER, ACTING DIRECTOR, DIVISION OF TAXATION, DEPARTMENT OF THE TREASURY, DEFENDANT-RESPONDENT.\\nArgued October 13, 1971\\nDecided November 8, 1971.\\nMr. Thomas W. Kelly, a member of the New York bar, argued pro se (Messrs. Milton, Keane & DeBona, attorneys).\\nMr. Herbert K. Gliclcman, Deputy Attorney General, argued the cause for respondent (Mr. George F. Kugler, Jr., Attorney General of New Jersey, attorney).\", \"word_count\": \"162\", \"char_count\": \"1005\", \"text\": \"Per Curiam.\\nThe judgment is affirmed substantially for the reasons expressed by the Appellate Division. Kelly v. Glaser, 112 N. J. Super. 419 (App. Div. 1970), certif. granted 57 N. J. 597 (1971). We do not pass upon the implications of the earlier cases of Bente v. Bugbee, 103 N. J. L. 608 (E. & A. 1927) or Sullivan v. Margetts, 9 N. J. Super. 189 (App. Div. 1950).\\nFor affirmance\\u2014-Chief Justice Weinteaub and Justices Jacobs, Francis, Peoctoe, Hall, Schettino and Mountain\\u20147.\\nFor reversal\\u2014None.\"}"

nj/1926930.json

@@ -0,0 +1 @@
+"{\"id\": \"1926930\", \"name\": \"LONGPORT ASSOCIATES v. LEON LEOPARDI\", \"name_abbreviation\": \"Longport Associates v. Leopardi\", \"decision_date\": \"1976-06-04\", \"docket_number\": \"\", \"first_page\": \"348\", \"last_page\": \"348\", \"citations\": \"71 N.J. 348\", \"volume\": \"71\", \"reporter\": \"New Jersey Reports\", \"court\": \"Supreme Court of New Jersey\", \"jurisdiction\": \"New Jersey\", \"last_updated\": \"2021-08-10T19:12:49.944822+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"LONGPORT ASSOCIATES v. LEON LEOPARDI.\", \"head_matter\": \"LONGPORT ASSOCIATES v. LEON LEOPARDI.\\nJune 4, 1976.\", \"word_count\": \"18\", \"char_count\": \"130\", \"text\": \"Petition for certification is dismissed as having been improvidently granted.\"}"

nj/1944328.json

@@ -0,0 +1 @@
+"{\"id\": \"1944328\", \"name\": \"WILLIAM E. KENNY v. BRENDAN T. BYRNE, GOVERNOR OF NEW JERSEY\", \"name_abbreviation\": \"Kenny v. Byrne\", \"decision_date\": \"1977-01-18\", \"docket_number\": \"\", \"first_page\": \"56\", \"last_page\": \"56\", \"citations\": \"73 N.J. 56\", \"volume\": \"73\", \"reporter\": \"New Jersey Reports\", \"court\": \"Supreme Court of New Jersey\", \"jurisdiction\": \"New Jersey\", \"last_updated\": \"2021-08-10T22:53:38.832223+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"WILLIAM E. KENNY v. BRENDAN T. BYRNE, GOVERNOR OF NEW JERSEY.\", \"head_matter\": \"WILLIAM E. KENNY v. BRENDAN T. BYRNE, GOVERNOR OF NEW JERSEY.\\nJanuary 18, 1977.\", \"word_count\": \"24\", \"char_count\": \"143\", \"text\": \"Petition for certification granted. (See 144 N. J. Super. 243)\"}"

nj/19447.json

@@ -0,0 +1 @@
+"{\"id\": \"19447\", \"name\": \"Catharine M. Hands, complainant, v. Helen R. Russell et al., defendants\", \"name_abbreviation\": \"Hands v. Russell\", \"decision_date\": \"1933-12-20\", \"docket_number\": \"\", \"first_page\": \"55\", \"last_page\": \"58\", \"citations\": \"115 N.J. Eq. 55\", \"volume\": \"115\", \"reporter\": \"New Jersey Equity Reports\", \"court\": \"New Jersey Court of Chancery\", \"jurisdiction\": \"New Jersey\", \"last_updated\": \"2021-08-10T19:43:19.899892+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Catharine M. Hands, complainant, v. Helen R. Russell et al., defendants.\", \"head_matter\": \"Catharine M. Hands, complainant, v. Helen R. Russell et al., defendants.\\n[Decided December 20th, 1933.]\\nMessrs. Luce, Kipp \\u25a0& Ashen, for the petitioner.\\nMessrs. Qonkling, Smith ,& Towe, for the respondents.\", \"word_count\": \"1091\", \"char_count\": \"6267\", \"text\": \"Eieldek, Y. C.\\nThe complainant filed her bill April 8th, 1933, to foreclose a real estate mortgage. The suit was uncontested, a final decree was entered for over $10,000 and the property was sold October 18th, 1933, to complainant for $100. Thereafter she filed a petition in this cause, alleging that the mortgaged premises were, prior to filing her bill of complaint, occupied by a tenant of the mortgagor at a monthly rent of $65; that on March 30th, 1933, she served the tenant with a written notice that she demanded possession of the mortgaged premises and payment of the rent then due and thereafter to fall due; that the first rent falling due after service of said notice was for May, 1933, and that the tenant has not recognized petitioner's demand. The petition prays that this court order the tenant to pay petitioner the rent for the months of May to October both inclusive, presumably because he occupied the premises for said months, although the petition does not so allege. Upon filing the petition an order was entered directing the tenant and mortgagor to show cause why the prayer should not be granted, service of which order and of a copy of the petition was made on the tenant personally, and upon the mortgagor by mailing the same to her postoffice address in Indiana. Upon the return of the order, appearance was made by counsel for both tenant and mortgagor in opposition to the petition.\\nThe complainant's petition should be dismissed for any one of the following reasons:\\n1. The bill of complaint contains no allegation that a tenant is in possession of the mortgaged premises and the tenant was not a party to the suit. I know of no practice which permits a complainant, by order to show cause, to bring in a stranger to the suit and require that person to litigate a question which is foreign to the cause of action set out in the bill.\\n2. If the demand served on the tenant was sufficient to put the mortgagee in possession, the mortgagee's right to receive rent from the tenant could have been enforced by distress on the tenant's goods and chattels, or by a suit at law. If the petitioner here is entitled to the rent she now seeks, she has an adequate remedy at law.\\n3. After default by a mortgagor in payment of the mortgage debt, the mortgagee has the right to enter on the mortgaged premises, or bring ejectment proceedings. If he enters and takes possession, he is entitled to the profits, but until he has taken possession the mortgagor is entitled to the rents. Cohn v. Plass, 85 N. J. Eq. 153; Stewart v. Fairchild-Baldwin Co., 91 N. J. Eq. 86. Possession may be taken by the mortgagee either personally, or by a receiver appointed to collect rents in a suit brought by the mortgagee to foreclose. Stanton v. Metropolitan Lumber Co., 107 N. J. Eq. 345; Bermes v. Kelley, 108 N. J. Eq. 289; Del-New Co. v. James, 111 N. J. Law 157.\\nIn the instant case it does not appear that the mortgage in question contained an assignment of rents after default, or a consent that the mortgagee might forthwith enter and take possession, so that the mortgagee's claim to possession during the time she was foreclosing her mortgage, is solely by virtue of her written demand for possession, served (so far as the record shows) on the tenant only. But even had demand been, made on the mortgagor also, I cannot regard a mere demand as an entry and taking possession. \\u2022 To obtain the possession to which a mortgagee is entitled by reason of the mortgagor's default, a mortgagee must do more than declare his claim to possession, no matter how publicly he may make his declaration. His claim to possession- must be followed by something which amounts to an ouster of, or surrender of possession by the mortgagor. The mortgagee must actually enter and he has the right to do so by any means which does not constitute a breach of the peac\\u00e9 and once in possession he may hold as against every one, including the mortgagor, until the latter redeems by paying the mortgage debt. If the mortgagee cannot obtain peaceable possession, he is left to his remedy of ejectment or a foreclosure suit to cut off the mortgagor's equity of redemption by sale.\\nIn the instant case the mortgagor was in possession through her tenant when the mortgagee demanded that the tenant recognize the mortgagee's claim to enter by paying rent to her. The tenant refused and continued to hold possession under the mortgagor's title and therefore the mortgagee never had even constructive possession. Indeed, the bill of com.plaint, filed eight days after the mortgagee's demand, states that the mortgagor and her husband have always been in possession of the mortgaged premises. Since the mortgagee never had possession she cannot enforce rent from the tenant on a claim which must be based on possession.\\nAfter default under a mortgage and the mortgagee's right to possession has accrued, a tenant may if he chooses, recognize the mortgagee's right to possession and may with safety, attorn to the mortgagee for the rent thereafter falling due, and it would seem that such attornment would amount to an eviction of the mortgagor by a paramount title and would put the mortgagee in constructive possession. Shields v. Lozear, 34 N. J. Law 496; Hinck v. Cohn, 86 N. J. Law 615; Del-New Co. v. James, supra. But it is my opinion that when demand is made on the tenant by one who asserts that he is a mortgagee and that his mortgage is in default and claims the rent thereafter due, the tenant should not be compelled to determine the sufficiency of the demand or whether the claim is well founded and that he should be fully protected in refusal to recognize the demand, until the mortgagee has secured the appointment of a receiver in proceedings to foreclose his mortgage. In the instant case the mortgagee could have applied for such receiver but did not and the notice served on the tenant did not state that the mortgagor was in default; it merely stated that the mortgagee's demand for possession was based on the mortgagor's failure to make an interest payment.\"}"

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+"{\"id\": \"1945172\", \"name\": \"IN THE MATTER OF JOHN W. YENGO, JUDGE OF THE MUNICIPAL COURT OF THE CITY OF JERSEY CITY, COUNTY OF HUDSON\", \"name_abbreviation\": \"In re Yengo\", \"decision_date\": \"1977-03-04\", \"docket_number\": \"\", \"first_page\": \"425\", \"last_page\": \"452\", \"citations\": \"72 N.J. 425\", \"volume\": \"72\", \"reporter\": \"New Jersey Reports\", \"court\": \"Supreme Court of New Jersey\", \"jurisdiction\": \"New Jersey\", \"last_updated\": \"2021-08-11T00:00:41.720330+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"IN THE MATTER OF JOHN W. YENGO, JUDGE OF THE MUNICIPAL COURT OF THE CITY OF JERSEY CITY, COUNTY OF HUDSON.\", \"head_matter\": \"IN THE MATTER OF JOHN W. YENGO, JUDGE OF THE MUNICIPAL COURT OF THE CITY OF JERSEY CITY, COUNTY OF HUDSON.\\nArgued January 11, 1977\\nDecided March 4, 1977.\\nMr. John DeCicco, Deputy Attorney General, argued the cause for designated counsel (Mr. William, F. Hyland, Attorney General of New Jersey, designated counsel; Mr. De-Cicco, Mr. Anthony J. Parrillo and Ms. Sally Fields, Deputy Attorneys General, on the brief).\\nMessrs. Bernard S. Glide and Louis Saunders argued the cause for respondent.\", \"word_count\": \"8936\", \"char_count\": \"53593\", \"text\": \"The opinion of the court was delivered by\\nHughes, C. J.\\nThe Court considers in this ease the matter of removal of a Judge of the Municipal Court of Jersey City, John W. Yengo, for cause involving his judicial conduct. Our jurisdictional role in examining that question rests upon a foundation of constitutional and statutory responsibility. N. J. Const. (1947), Art. VI, \\u00a7 II, par. 3; N. J. S. A. 2A :1B-1 et seq.\\nIn fairness to respondent, we note at the outset that no suggestion is made of judicial corruption, personal dishonesty or conflict, or irregularities such as the \\\"fixing\\\" of traffic tickets, tampering with court records or misconduct of that sort. As will be seen, the gravamen of the charge has to do with persistent misbehavior in his judicial performance so bizarre as to amount to \\\"misconduct in office, willful neglect of duty, or other conduct evidencing unfitness for judicial office, or incompetence,\\\" designated by N. J. S. A. 2A:1B-2, as statutory causes for removal.\\nPBOCFBDINGS AND JURISDICTION\\nThe 1947 Constitution vested the judicial power of the State in a Supreme Court, a Superior Court, County Courts and \\\"inferior courts of limited jurisdiction,\\\" and provided that \\\"[t]he inferior courts and their jurisdiction may from time to time be established, altered or abolished by law.\\\" Art. VI, \\u00a7 I, par. 1. The Legislature thereupon authorized the establishment of the Municipal Court, N. J. S. A. 2A :8-1 et seq., first designating its presiding officer as \\\"municipal magistrate,\\\" 2A:8-5, and later as \\\"judge of the municipal court.\\\" 2A:8-5.1. That is the office occupied by respondent, from which he has been temporarily suspended.\\nThe statute which provides for the removal of such a judge, for one or more of the causes mentioned, outlines further procedures as follows:\\n2A:lB-3. Institution of removal proceedings\\nA proceeding for removal may be instituted by either house of the Legislature acting by a majority of all its members, or the Governor, by the filing of a complaint with the clerk of the supreme court, or such proceeding may be instituted by the Supreme Court on its own motion.\\n2A :lB-4. Prosecution of removal proceedings\\nThe Attorney General or his representative shall prosecute the proceedings unless the Supreme Court shall specially designate an attorney for that purpose.\\n2A:lB-5. Suspension pending determination\\nThe Supreme Court may suspend a judge from office, with or without pay, pending the determination of the proceeding; provided, however, that a judge shall receive pay for the period of suspension exceeding 90 days.\\n2A :lB-6. Preparation of defense; counsel; production of witnesses and evidence\\nThe judge shall be given a reasonable time to prepare his defense and shall be entitled to be represented by counsel. The prosecuting attorney and the judge shall have the right of compulsory process to compel the attendance of witnesses and the production of evidence at the hearing.\\n2A:lB-7. Taking of evidence\\nEvidence may be taken either before the Supreme Court sitting en banc, or before three justices or judges, or a combination thereof, specially designated therefor by the Chief Justice.\\n2A :lB-8. Rules governing\\nExcept as otherwise provided in this act, proceedings shall be governed by rules of the Supreme Court.\\n2A :lB-9. Removal\\nIf the Supreme Court finds beyond a reasonable doubt that there is cause for removal, it shall remove the judge from office. A judge so removed shall not thereafter hold judicial office.\\nThe proceedings are further governed, as provided in N. J. S. A. 2A:1B-8, by Rules of Court, B. 2:14-1 et seq., as amplified and largely superseded by R. 2:15 et seq., adopted in July 1974, describing detailed mechanisms for judicial removal, as well as alternatives, and preliminary proceedings with respect thereto. See Pressler, Current New Jersey Court Rules, Comment R. 2:14.\\nR. 2:15-1 et seq. created the Supreme Court's Advisory Committee on Judicial Conduct. That Committee received and processed complaints against respondent. Its Presentment and Recommendation for Institution of Formal Removal Proceedings, read in part as follows:\\nThis matter was brought to the attention of the Advisory Committee on Judicial Conduct when several transcripts of trials before the respondent John W. Yengo who was appointed Judge of the Municipal Court of Jersey City on July 11, 1974, were referred to the Committee. After a preliminary investigation was conducted, a verified seventeen count complaint and supplemental complaint were filed with the Committee and served on the respondent. Following the receipt of respondent's answer to the complaint, the matter was set down for hearing before the Committee on June 23, July 8, and September 12, 1975 and at the hearings numerous witnesses testified, transcripts of testimony of the cases being studied, and other pertinent documents were marked in evidence. Respondent cross-examined the witnesses, produced witnesses in his defense, and testified extensively in his own behalf. At the conclusion of the hearings, the Committee reserved decision, and after a full study of the matter, concluded that the evidence showed beyond a reasonable doubt that (a) Judge Yengo is by temperament unsuited for judicial office, (b) he is unable to perform the duties of his office impartially, dispassionately and with the dignity required of a judge of a municipal court, (c) he is unable to understand or unwilling to accept and apply the basic doctrine in criminal and quasi-criminal eases that the State has the burden of proving the charge against the defendant beyond a reasonable doubt, and that the accused on being charged does not have an initial function of establishing his innocence. For these reasons, the Committee feels strongly that the public interest in the administration of justice can be served only by the removal of Judge Yengo from the Municipal Court of Jersey City.\\nThis Court issued an order to show cause which led to the voluntary suspension of respondent from his judicial office pending the outcome of the proceedings. Following a hearing, respondent's motion to dismiss was denied. On the basis of the Presentment of the Committee the Court ordered the issuance of a complaint instituting formal removal proceedings. Three judges of the Superior Court were appointed to take evidence, in accordance with N. J. S. A. 2A:1B-7.\\nThereafter that \\\"statutory court\\\" conducted hearings encompassing many days, fully participated in by respondent and counsel representing him. Testimony was taken of witnesses including respondent and those called by him. Court records and transcripts of cases heard before respondent were admitted and scrutinized, and the statutory court listened to many tapes of actual proceedings in his courtroom. It determined and reported facts and conclusions related to his fitness to continue in judicial office, and filed with this Court transcripts of the voluminous testimony, and exhibits admitted before it.\\nThis Court thereupon reached independent conclusions of its own on the evidence so taken, as will be mentioned hereafter, on the focal question assigned to it by statute: \\\"If the Supreme Court finds beyond a reasonable doubt that there is cause for removal, it shall remove the judge from office.\\\" N. J. S. A. 2A:1B-9. We observe that throughout all these extensive hearings and proceedings, including respondent's appearances with counsel in answer to several show cause orders and the Court's consideration and denial of several motions, careful attention has been paid, as should be, to the full due process rights of respondent.\\nTHE NEW JERSEY MUNICIPAL COURT SYSTEM\\nA look at the history of the local administration of justice before and after the 1947 Constitution is important in order to assess respondent's judicial performance in the context of constitutional, legislative and public expectations of the judicial conduct required of the present-day municipal judge.\\nThe earlier period of the administration of criminal justice at the local level was described by then Chief Justice Vanderbilt at an Annual Conference of Municipal Magistrates and Attorneys, reprinted at 10 Rutqers L. Rev. 647-48 (1956):\\nUnder our revolutionary Constitution of 1776 the justices of the peace, along with the judges of the other courts, were elected by the Legislature for a term of years. Their position in the community was roughly comparable to that of the English justices of the peace of the same period who [were] generally the leading citizens of the county with a tradition of public service. One of the ways in which our second Constitution, that of 1844, reflected the democratic revolt of the Jacksonian era was in providing for the popular election of justices of the peace by townships and in the cities by wards. Such elections, here and elsewhere throughout the country generally, reflected the popular demand of the period for the direct election of judges who would be \\\"close to the people,\\\" and no thought was given to imposing any standards or qualifications for the office. Thus the New Jersey Constitution of 1844 put the justice of the peace in local politics with the undesirable results that inevitably flow from mixing judicial work and politics. The election of a justice of the peace as a prank of his neighbors was not unknown, and the of Bce shrank in dignity and usefulness. [ ]\\nHe recalled that in the cities the police judges had taken over the bulk of the criminal jurisdiction of the justices of the peace under a mass of statutes varying in application from municipality to municipality. Thus there was created a jurisdictional chaos. The low estate of the police courts, the \\\"justly maligned\\\" justices of the peace, as well as the confusing, inefficient and frequently condemned system by which the compensation of those judges depended in part on the penalties they assessed against defendants they found guilty of some offense (a practice that had been responsible for bringing many a local court into disrepute), were conditions noted with disapproval by Chief Justice Vanderbilt as well as the public at large.\\nHe then contrasted developments after the new Constitution was adopted:\\nEl] t was no wonder that there was no storm of protest over the exclusion of the justice of the peace from the 1947 Constitution, but instead general acquiescence in the resolution of the delegates to the Constitutional Convention memorializing the Legislature\\nto take such action as may be deemed necessary to establish a modern and efficient inferior court system to be presided over by qualified persons and to provide that all judges of the inferior courts receive reasonable fixed compensation which shall have no relation to fees received.\\nThe Legislature acted promptly in response to this mandate by enacting [a law] which abolished not only the justices of the peace, but also \\\"the existing police, magistrate, or recorder's courts, by whatever name called\\\" and provided for the establishment of our present system of municipal courts. [10 Rutgers L. Rev. at 648-49].\\nIn light of this reform in the municipal court system, Chief Justice Vanderbilt stressed the importance of these courts, expressing a caveat to the constitutional characterization of them as \\\"inferior\\\" courts (actually a term of art, not implying any disrespect). He believed that the local courts of first instance are the very foundation of the enforcement of the criminal law; that upon them rests primary responsibility for the maintenance of peace in the various communities of the State, for safety on our streets and highways, and most important of all, for the development of respect for law on the part of our citizenry, upon which in the last analysis all of our democratic institutions depend. He said \\\"[t]his is the underlying reason why I have repeatedly called the municipal courts the most important in our state.\\\" Id. at 650. He rejoiced at their post-Constitution accomplishments which had brought about legislative enlargement of their jurisdictional power, and he said \\\"[t]he manner in which the municipal courts over a period of seven years have exercised their growing powers makes a proud record.\\\" Id. at 6'53. He emphasized outward symbolism as a spur to judicial probity and impartiality and consequent public confidence in the courts:\\nThe wearing of a judicial robe by a judge is important in part because it reminds all concerned of the fact that the judge represents the law on which liberty depends, but \\u2014 and this is even more important \\u2014 the robe is even more significant as a constant reminder to the judge that he does not have the freedom of the ordinary individual but is himself bound to submerge his personal feelings in the impartial administration of the law. The judicial robe is a constant reminder to the magistrates that they, like all other judges, are subject to the Canons of Judicial Ethics as rules of court. It is not enough that a judge be honest and impartial; it is essential that he have the reputation in his community for being a man of absolute integrity, whose judgment is not and cannot be influenced by other than the proofs introduced before him in court. [Id. at 653],\\nLater, Chief Justice Weintraub expressed a similar view as to the importance of the local courts:\\n[I]n terms of human experiences our magistrates preside in the most important courts in the state. To appreciate that this is so, we need but look at the nature and number of the matters they handle.\\n3 [A] very substantial percentage of our citizens are directly involved with our municipal courts, to say nothing of the thousands who appear as witnesses or spectators. For most of them, it is their only contact with the judicial process. The impressions they receive serve to shape their opinion of the judicial system, our laws and law enforcement. We cannot permit that opinion to be anything but one of confidence and respect. [81 N. J. L. J. 597 (1958)].\\nChief Justice Weintraub would often repeat this theme. In greeting Municipal Judges at the Eleventh Annual Conference of Magistrates in 1959, he reminded them that they \\\"represent [ed] by far the most productive, the most active part of the judicial system, and in terms of citizen exposure, the most important one\\\"; that \\\"all of us\\\" must have \\\"active concern\\\" with the standing and reputation of the municipal court; that \\\"anything that happens in just a few of the courtrooms casts a shadow upon all of us.\\\"\\nIn In re Mattera, 34 N. J. 259, 275 (1961), he stressed:\\nIn many respects the municipal court is the most important in our judicial'system. No other court can match its volume of causes. Our municipal courts dispose annually of approximately one and one-half million matters, a number which dwarfs the total proceedings in all other courts of the State. For all practical purposes, the judgments of the municipal court are final. It is there that most citizens have their sole exposure to the judicial process. The respect they have for the judiciary hinges upon that experience. Thus the magistrate has a unique responsibility for the popular image of the entire system.\\nIn another context, but equally relevant, this Court noted in In re Spitalnick, 63 N. J. 429, 431-32 (1973), that:\\nThis Court cannot allow the integrity of the judicial process to be compromised in any way . A community without certainty in the true administration of justice is a community without justice.\\nNowhere can the community be more sensitive to the regularities \\u2014 and irregularities \\u2014 of judicial administration than at the local level.\\nThe same view was expressed during the unfortunately brief tenure of the late Chief Justice G-arven. During his last illness his speech to the Judicial Conference of Municipal Court Judges was read for him by Justice Mark Sullivan, and he reminded those judges that:\\nYou, judges of tlie municipal courts of this State, represent the first bastion of our judicial system. Thousands of our citizens are exposed to justice in New Jersey through the municipal courts. They are unaware of the activities of any other court. To these people, you are the judicial system. This alone places a heavy burden upon you. [96 N. J. L. J. 1237 (1973) (emphasis added)].\\nThe members of the present Court are equally convinced that the municipal courts, from the standpoint of contact, observation and acceptance by the public, are in a preeminent position for the sustaining of universal respect for the administration of justice. That is why we have persisted, through the Administrative Office of the Courts, in training and orientation, not only of judges but other municipal court personnel. Our rules deal extensively with municipal court practice. R. 7:1 et seq. Seminars are conducted at frequent intervals. A municipal court bulletin issues monthly, discussing recent decisions and procedural reforms. Regular audits of municipal court accounts are filed with and examined by the Administrative Office of the Courts, which office maintains a special municipal court section. Local trial court administrators conduct periodic visitations of municipal courts at the direction of the respective Assignment Judges, who are responsible administratively for the proper functioning of the municipal courts.\\nEor the proper administration of justice and public confidence therein, this Court created the Advisory Committee on Judicial Conduct, pointing out our adoption of the Code of Judicial Conduct (Appendix to Part 1, Rules Governing the Courts of the State of New Jersey). We expressed the view that:\\nWhile many fundamental guides to the conduct of judges are included, the observance of two provisions would enhance mightily, [we] think, public trust and confidence in our system:\\nCanon 3(A)(3) provides:\\n\\\"A judge should be patient, dignified, and courteous to litigants, jurors, witnesses, lawyers and others with whom he deals in his official capacity, and should require similar conduct of lawyers and of his staff, court officials and others subject to his direction and control.\\\"\\nCanon 3(A)(4) provides:\\n\\\"A judge should accord to every person who is legally interested in a proceeding, or his lawyer, full right to be heard according to law \\\"\\nIn a free society, the court's influence, acceptance and power alike rest, not only on Constitution and statutory law but upon public confidence in its probity, objectivity and freedom from outside pressure of whatever kind. This applies to all courts, including the hundreds of Municipal Judges who, as Chief Justice Vanderbilt used to say, were those nearest to the people.\\nIt is to guai'd this reputation and to strengthen this public confidence, not only in the courts but in our profession in general, that the Supreme Court is establishing its Advisory Committee on Judicial Conduct. This Committee will investigate and consider complaints as to judicial misconduct of whatever kind and report its findings to the Supreme Court for appropriate remedial action. [97 N. J. L. J. 278 (1974)].\\nIt is therefore apparent, despite the many societal changes which have occurred in recent years, that the policy of the Supreme Court continues unaltered in its insistence that all courts within its constitutional and administrative direction shall so comport themselves as to dignify the administration of justice and deserve the confidence and respect of the public.\\nSuch is the purpose of the rule of court (R. 1:18, originally B. 8:13-5 (a) (1948)), which subjects all judges, including municipal court judges, to the strictures of the Code of Judicial Conduct: \\\"It shall be the duty of every judge to abide by and to enforce the provisions of the Canons of Judicial Ethics,\\\" (now known as the Code of Judicial Conduct). See Pressler, Current New Jersey Court Rules, Comment R. 1:18.\\nWe therefore pass to a brief review of that Code of Judicial Conduct against which to measure respondent's behavior in office.\\nTEE CODE OF JUDICIAL CONDUCT\\nThe Code contains the following significant provisions:\\n(1) An independent and honorable judiciary is indispensable to justice in our society. A judge should observe high standards of conduct so that the integrity and independents of the judiciary may be. preserved.\\n(2) A. A judge should respect and comply with the law and should conduct himself at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary.\\nCommentary\\nPublic confidence in the judiciary is eroded by irresponsible or improper conduct by judges. A judge must avoid all impropriety and appearance of impropriety. He must expect to be the subject of constant public scrutiny. He must therefore accept restrictions on his conduct that might be viewed as burdensome by the ordinary citizen and should do so freely and willingly.\\n(3) A. (3) A judge should be patient, dignified, and courteous to litigants, jurors, witnesses, lawyers and others with whom he deals in his official capacity\\nCommentary\\nThe duty to hear all proceedings fairly and with patience is not inconsistent with the duty to dispose promptly of the business of the court. Courts can be efficient and business-like while being patient and deliberate.\\n(3) A. (4) A judge should accord to every person who is legally interested in a proceeding, or his lawyer, full right to be heard according to law, and, except as authorized by law, neither initiate nor consider ex parte or other communications concerning a pending or impending proceeding.\\n(3) B. (1) A judge should maintain professional competence in judicial administration .\\n(3) C. (1) A judge should disqualify himself in a proceeding in which his impartiality might reasonably be questioned, including but not limited to instances where:\\n(a) he has a personal bias or prejudice concerning a party, or personal knowledge of disputed evidentiary facts concerning the proceedings.\\nThe Code of Judicial Conduct would effectuate the aphorism of Sir Eraucis Bacon \\u2014 \\\"The place of justice is an hallowed place.\\\" We turn to the examination of events in respondent's courtroom in the context of that ideal.\\nTHE FACTUAL BASIS FOR REMOVAL\\nWhile it would be uuduly cumbersome in this opinion to examine all of the proceedings described in the evidence taken by the statutory court, it is useful to mention a few which we have determined represent a pattern of respondent's conduct as a judge.\\nOne of the counts involved a disorderly persons complaint against a Mary Ann Cronin, unrepresented by counsel and, as appears by the record, an inebriate, probably sick, disrespectful in her attitude, but standing defenseless before the court. There were also other unanswered \\\"disorderly persons\\\" complaints, on which another judge had issued warrants for failure to appear, Judge Yengo considering such failures as \\\"contempts.\\\" The court greeted the defendant with a preconception:\\nThe Court: This looks like one of those habitu\\u00e1is.\\n\\nYou ought to be ashamed of yourself.\\nMrs. Cronin: Well it's my family's fault too.\\nThe Court: Yes, your family's fault.\\nMrs. Cronin: Yes, and my husband.\\nThe Court: Your mother was in bed when the child was conceived. Huh?\\nMrs. Cronin: How come my husband gets away with it?\\nThe Court: Shut up.\\nThis coarse exchange was followed by threats by the court, concerning the \\\"contempt\\\" charges:\\nThe Court: You don't [need] a lawyer and you don't get any adjournments. I'm going to do something about you today and you're not going to be so smart.\\n\\nOkay. On the contempt citations, there are three against you. You failed to appear in the Municipal Court on hearings.\\nMrs. Cronin: I was sick.\\nThe Court: S' \\u2022 * Do you have anything to say for yourself?\\nMrs. Cronin: Yes, your Honor.\\nThe Court: Say it. All of a sudden it's not so funny. Is it? Well I'm listening. Tell me some good things about yourself.\\nMrs. Cronin: Well you know how it goes.\\nThe Court: No, I don't. I'm going to tell you how you're going to go. You're going to the Hudson County Penitentiary or wherever they place people like you for a period of 90 days.\\nAfter Mrs. Cronin made an impertinent remark to her mother (the complaining witness), the court reacted:\\nThe Court: I'm going to reconsider the sentence. I'm adding 30 more days. That is 120 days. All right? She is not to be released under any circumstances unless I am apprised of any possible request.\\nMrs. Cronin: I want to go to a mental hospital. I want to go to a mental hospital.\\nThe Court: Get her out of here .\\nWe have not attempted to repeat the whole interchange in this \\\"hearing,\\\" but our scrutiny fully supports the statutory court finding that:\\nAt no time was defendant advised that she had a right to an attorney nor was she advised she might be sentenced to six months in jail on each of the [contempt] complaints. No witnesses were sworn; no testimony was taken. The proceedings were highly irregular.\\nThe statutory court saw some mitigation in the court's possible concern with a dependent child of defendant, her impertinent and defiant attitude and the crowded calendar of the courtroom. We see no such mitigation, as though the antagonists in this disgraceful colloquy were equal. She was disadvantaged and defenseless as she stood in an American courtroom; whereas he was a judge and his conduct must be evaluated as such.\\nIn this count respondent was charged with the following: (1) failing to advise the defendant of her constitutional rights; (2) failing to advise Mrs. Cronin of her right to an attorney; (3) failing to swear witnesses or take testimony, and summarily sentencing Mrs. Cronin to 120 days in the Hudson County Penitentiary; (4) comments and conduct that \\\"were harsh, arbitrary and contrary to law\\\"; and (5) an attitude that was \\\"undignified, discourteous and partial to the interests of the State.\\\"\\nWe find that -these charges have been proven beyond a reasonable doubt.\\nIn another case, one Timmons was charged by his mother with annoying and harassing her. The court attendant called him before the bar but he did not answer, although he appeared soon thereafter and entered a plea of \\\"not- guilty.\\\" In his absence the judge had said \\\"he probably took it on the lam\\\" and proceeded to interrogate the defendant's mother about defendant's conduct:\\nSponging and freeloading on his mother. He gives you a lot of trouble too, I'll bet. Huh?\\n\\nYou need that like \\u2014 if I can get my hands on him we'll see if he's guilty or innocent.\\nThe factual basis for the complaint by defendant's mother consisted of hearsay, - \\u2014 \\u2022 what another child had told her about defendant's visit to her home. Aside from her testimony to that effect and the explanation of defendant, the \\\"trial\\\" consisted of this:\\nThe Court: Well all right. Is that all you have to say?\\nMr. Timmons: Yes.\\nThe Court: Were you told to stay away from there when you appeared in Court the last time?\\nI find you guilty. Now we have to decide what we're going to do with you.\\nYou know, I've listened to a lot of malarkey in my day. I've been around a long time. I've listened to a lot of bull sessions, I've listened to a lot of fellows that think they can con a fellow. You can't con a man like me because I started right from the bottom, right from the bottom. You know, in my day we used to go to the dumps to scheme to make a nickel or a dime. I did all that so you're not conning me. You have a decent mother but she has a rotten\\nson. You will stay away from your mother. She doesn't want you there.\\nNow you didn't listen the last time. This time I'm going to give you something to go by and you are going to listen. I sentence you to 15 days in the Hudson County Pen. That's it. The next time if your mother files a complaint and you come back here will be a lot longer. I was going to make it 30 and suspend but I'm going to be straight with you. 15 days.\\nMr. Timmons: May I say something now that you've already sentenced me?\\nThe Court: You can say all you want while I'm writing but don't insult me because I'm telling you now \\u2014\\nMr. Timmons: Well in the first place well like you stand here telling me that I'm trying to eon you. I don't understand how you feel that I'm trying to con you \\u2014\\nThe Court: I don't believe that bull about you and your brother looking for somebody \\u2014 stay away from your mother's home. That's how you're conning me. You were told before.\\nMr. Timmons: Had I knew that I needed witnesses to prove this I would have had them here in Court this morning. I can verify what I was saying.\\nThe Court: 15 days in the Hudson County Pen. I believe your mother.\\nThe statutory court made the following findings: (1) the respondent improperly discussed the case with the complainant while the defendant was not present and developed a bias against the defendant contrary to law; (2) hearsay evidence was improperly allowed; (3) respondent's remarks \\\"were made in a loud, angry voice\\\"; (4) respondent's remarks were \\\"imprudent, injudicious and not in keeping with the desired conduct of a judge\\\"; (5) respondent failed to advise the defendant of his right to counsel and his right not to testify; (6) respondent engaged in the improper practice of making general announcements of the right to counsel and the right not to testify at the opening of court; and (7) respondent's \\\"actions were improper, contrary to law and not befitting a judge.\\\" We agree.\\nAnother matter involved a defendant named Lott, who had been released on his own recognizance by another mu nieipal judge and who duly appeared before Judge Yengo to answer the charge. The State requested a postponement because of the non-appearance of the complaining witness. Respondent seized the opportunity to revoke the existing order and hold defendant in bail. The public defender pointed out:\\nA fellow Municipal Court Judge set the bail in reference to Mr. Lott. Tour Honor, he comes to Court. He's appeared. He's never failed to appear, and the complainant doesn't appear and now when [defendant] appears his bail is being upped. It doesn't strike me as justice in this particular ease.\\nThe Court subsequently stated:\\nI'm running this Court, not the public defender. Remove this man. Incarcerate him until he posts the bail.\\nThe statutory court found from the evidence before it, inter alia, \\\"that respondent's actions in setting bail under the circumstances before him were arbitrary, an abuse of discretion and not supported by a credible factual basis. His conduct in this respect was injudicious.\\\"\\nWe agree, but are not surprised because the record shows that respondent considered bail as an arbitrary weapon for harassment of defendants. For instance, a case involving an Alice Martin arose from a drunken and disorderly street fracas with one Henderson, quelled by arresting policemen. She stood before the court charged with simple assault and battery. She was hurriedly persuaded to a trial without an attorney, although respondent took care to have the record denote a waiver. She admitted she was fighting and apologized to the Court. The Judge stated:\\nAlice Martin, I have no sympathy for you whatsoever. Tou disgust me, and the decent living people of Jersey City, and we are not going to tolerate your nonsense any longer. If I'm around to see to it. Tou are hereby sentenced to the Hudson County Penitentiary for a period of SO days on this complaint.\\nAfter sentencing, Mrs. Martin's brother-in-law sought leniency for her, because he was financially unable to care for her small children. Respondent was adamant. A public defender, Mr. Gold, appeared then and indicated to the 'Court:\\nShe has no prior criminal record. She is the mother of two children, ages 6 and 8. She lives in Jersey City and has done so for the last 17 years. She has two part time jobs by which she supports herself and her family. She works for the Merit Wholesale Shirt Company and she works in a bar part time. She had meager earnings of $75 or $80 a week and your Honor has sentenced her to a 30 day custodial sentence. I would ask for reconsider, reconsideration of sentence. I'm asking this in her behalf and I would ask for a noncustodial sentence in light of the facts I have just presented to the Court.\\nRespondent's rejoinder discloses the motivation for his peculiar judicial philosophy, \\u2022 \\u2014 \\u2022 the seeking of public approbation. He exhibited his prejudice by addressing the public defender as follows:\\nThe facts presented to the Court don't impress the Court. I feel that this woman is a menace to society. I feel she's a disgrace. I feel she has harmed not only the police, the public at large and yours truly. I have no compassion for people who start trouble. She's separated from her husband. She knows Henderson is married and she engaged in folly, and you can include a lot of other stuff with folly. He was up at her apartment a short while before. It .seemed like it was a pleasant relationship until something went wrong. I am not impressed with this type of person. I'm sorry. The sooner the Court \\u2014 the press has taken pot shots at the Court. The press never said: This does not apply to John W. Tengo, it only applies to this Judge and that Judge. But when the person reads it they say: \\\"Oh, Tengo's a Judge in that Court. He's one of the culprits who won't bear down on the defendants.\\\" Somehow or other the people are getting the message and know that Tengo is not taking it sitting back. And I'm going to continue, continue until the defendants know it, until these guilty people know it, until the poor victim is protected.\\nBut the public defender, the knight in shining armor comes here and he says: Please, be lenient. To that I say no. She'll serve 30 days in the Hudson County Jail. If you want to appeal, go up there. If they have no room for her there, as far as I'm concerned they can pitch tents.\\nThe proceedings continued:\\nMr. Gold: Now that I'm going to appeal this matter I would like to ask \\u2014\\nThe Court: You still don't impress me.\\nMr. Gold: I'd like' to ask the Court for bail pending appeal. Or bail after conviction and pending appeal . And I would ask the Court for a reasonable bail, so an appeal can be presented.\\nThe Court: I will not stay the sentence pending appeal.\\nMr. Gold: I'm not asking for a stay of the sentence. I'm asking for bail pending appeal.\\nMr. Fox: [The municipal prosecutor] Your Honor, the State has no objections to bail being set in this matter.\\nThe Court: I will set bail. Bail in this case will be $3,000.\\nMr. Gold: Your Honor, this is a disorderly persons offense at this point.\\nMr. Fox: Your Honor, may the State be heard with counsel?\\n' * Your Honor, I believe a more reasonable bail should be set in view of the attendant circumstances. The State would recommend a $100 cash bail.\\nThe Court: No good. Absolutely not. I'll reduce the bail to $2,500. Keep pounding the hammer. Maybe I'll come down to $2,000. Do you want to try again?\\nMr. Fox: Your Honor.\\nThe Court: $2,000 and that's it. The auction is over. I don't want to hear anything else.\\nThe statutory court reports that \\\"[i]t should also be kept in mind that the Prosecutor joined in Mr. Gold's request for 'more reasonable bail' but that respondent in refusing such request conducted a mock auction accompanied by the banging of a gavel in the style of an auctioneer.\\\" It is not surprising that the panel found, as do we, that the remarks and conduct of respondent were harsh and arbitrary and that his attitude was undignified and discourteous to counsel.\\nRespondent seemed to relish his judicial power to imprison others than defendants on occasion. In State v. Perry, he refused to permit a complaining witness to explain confusion about tbe date o\\u00ed an incident involved in a complaint filed by Mm.\\nThe Court: Come back here. I'm holding you in contempt for perjury. What have you got to say? Tou committed it in the presence of this Court.\\nMr. Grant: As far as I know it happened on May 24th.\\n\\nThe Court: Tou gave them the 10th of July, '74 in court. Tou signed an affidavit that it happened on July 10, 1974. I hereby find you guilty and sentence you to 10 days in the Hudson County Penitentiary. Bailiff \\u2014 Hudson County Penitentiary.\\nThe statutory court concluded, and we agree, that:\\nIt is clear that the witness was held in contempt because respondent was of the opinion that he made inconsistent statements under oath.\\nIf there was deliberate false swearing or perjury, respondent should have referred the matter to the Prosecutor rather than hold the witness in contempt. Furthermore, there is strong indication that if there were inconsistent statements, they stemmed from confusion rather than a deliberate attempt to falsify. Finally, there is also strong indication that there may very well have been separate incidents and that Mr. Grant did not in fact make any inconsistent allegations. The tape which the panel heard in open court reveals that Mr. Grant was completely respectful and was merely trying to clear up the confusion as to dates. He should not have been held in contempt of Court.\\nThe conduct of respondent in this matter was intemperate, harsh, arbitrary and contrary to fundamental law.\\nRespondent considered Mmself part of the prosecution structure rather than an impartial judge. On a complaint in State v. Whitehead, this exchange occurred:\\nProsecutor: The state wishes to move contemplating dismissal. I know the court is familiar with the ease.\\nThe Court: Well we can make it stick if the police officer wants to go ahead, but all right you make a motion to dismiss.\\nA 21 year old named Shinholster was accused of an offense involving no violence, which charge had been down graded to a disorderly persons accusation. Having no previous criminal record, he had been free on $500 bail. A quick conviction before respondent resulted in a 90 days sentence to the Hudson County Penitentiary. The public defender addressed the Court:\\nMr. Gold: Judge, I'm going to file an appeal in this ease.\\nThe Court: I won't stay the sentence. Let him smell the jail. It might help him.\\nMr. Gold: I would just like to ask the Court if it's seen the directive admitting a defendant to bail at the same bail that was given to him prior to the trial and \\u2014\\nThe Court: I saw the directive. I'm sending him- to jail. Tou can make your appeal \\u2014\\nMr. Gold: The Court will not honor that?\\nThe Court: Nope. I will not.\\nThe directive referred to is embodied in N. J. S. A. 2A:162 \\u2014 11, which provides:\\nIn every case where a person has been convicted in a municipal court of a disorderly persons violation, and he has not violated or forfeited his bail such bail shall continue in the same terms and effect pending appeal to a County Court in lieu of posting a new bond in connection with the appeal .\\nThe respondent's disrespect for law extended to the Constitution and cases decided under it by the United States Supreme Court, representing the supreme law of the land. The following colloquy took place in State v. Jiminez, a trial on charges downgraded to disorderly conduct. A question had been asked by counsel as to whether an arresting police officer had informed the defendant of his rights under Miranda v. Arizona, 384 U. S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966). This ensued:\\nThe Court:. Was he given his rights?\\nMr. Campbell: Tes, your Honor.\\nThe Court: Well when do you give the rights? When are you supposed to are these alleged \\u2014 are we talking about the last Bights or \\u2014\\nMr. Campbell: No, I was saying \\u2014\\nThe Court: The Miranda bit and all that? Is that what you're saying?\\n\\nNow when they arrest they give them, their rights. Isn't that right? If they want rights, that's when they get the last rights.\\nThis heavy-handed humor with respect to the last rites, a religious ceremony associated with the onset of death, was inexcusable. And sneering at and deriding the supreme law of the land will not be tolerated in a New Jersey courtroom.\\nThe statutory court determined that respondent improperly found the defendant guilty of an indictable offense which Avas not before him and over which he had no jurisdiction. It attributed this error to confusion, but it is clear that his actions in this regard demonstrate an inability to follow established law. We have determined upon our view of the evidence that aside from the other misconduct in this case, the respondent abused his discretion in his refusal to stay sentence pending appeal. His conduct in whole demonstrated judicial incompetence.\\nIn State v. Albigese, the actions of respondent were particularly discordant with the judicial process. A defendant, charged with violations of the Municipal Housing Code for some electrical deficiencies, received notice on July 31, 1974, that his case would be heard on August 2, 1974. On August 1 his attorney, then out of the state, telephoned respondent seeking postponement, which was refused. On the hearing date defendant appeared and asked postponement because of the unavailability of his counsel. Respondent refused, telling defendant to have a lawyer in the courtroom to defend him within 20 to 30 minutes. At that hearing, respondent found defendant guilty and fined him $400. At a second hearing on August 9, 1974, after holding defendant's counsel in contempt of court, the Judge found defendant guilty of 136 violations and fined him $100 per violation or $13,600. During the first hearing the Judge exhibited gross disrespect for counsel, who pleaded he had not been able to prepare in the 20 to 30 minutes allotted as above:\\nCounselor, you know I'm getting a little tired of you. I let you sit down because you told me you were tired, perhaps a little ill. You're trying to make a mockery of this court. You're not going to do it. I made myself clear, and no one in this town has a louder voice than John W. Yengo. I don't even need this microphone.\\nAs the court began to announce its decision, the attorney, Mr. Silverstein, rose to his feet:\\nThe Court: Do you want to go to the mens room?\\nMr. Silverstein: I want to sum up, Your Honor is making a decision before hearing us.\\nWhen Mr. Silverstein had appeared after the abrupt \\\"20 to 30 minute\\\" demand, he had apparently told the court that his client had advised him that he believed the Judge would jail him unless he could defend with counsel after 20 to 30 minutes. The Judge held Albigese in contempt for this out-of-court statement.\\nIn the interval between the two hearings, the Judge took the trouble to inspect the involved premises personally, later refusing to disqualify himself, a questionable practice at least without consent of parties and counsel. Cf. James v. State, 56 N. J. Super. 213 (App. Div. 1959); State v. Muraski, 6 N. J. Super. 36 (App. Div. 1949); Code of Judicial Conduct, Canon 3C(1) (a) (\\\"A judge should disqualify himself in a proceeding in which his impartiality might reasonably be questioned, including instances where: (a) he has a personal bias or prejudice concerning a party, or personal knowledge of disputed evidentiary facts concerning the proceeding\\\").\\nWhen substituted counsel suggested such disqualification and made other observations, the court held him in contempt and bullied him into a forced apology, to avoid punishment by the court. A sample:\\nMr. Mullica: I have the duty \\u2014 I have a duty as an attorney representing a client and \\u2014\\nThe Court: All right, Mr. Mullica. Tou are an attorney? Then listen to me now. Shut up.\\n\\nMr. Mullica: But I have further reasons for objections.\\nThe Court: You are held in contempt. For disrupting this Court you are held in contempt.\\nThe statutory court concluded, and we agree:\\nIn none of the holdings of contempt of court or threats of such holdings in this matter was the action or conduct of respondent justified. Defendant did not do or say anything contemptuous. However, even if he did, it is clear that such contempt would in no way constitute a contempt in the presence of the Court such as to justify the way the respondent summarily dealt with the matter. The conduct of the respondent was arbitrary and contrary to established law and procedure.\\nIn view of the lack of adequate notice to defendant respondent's insistence of going forward with the hearing on August 2 was inexcusable. The conduct of the two hearings evidenced a bias against defendant apparently acquired by respondent's personal examination of the area. The conduct at the hearings evidenced unfitness for judicial office.\\nWe note a final aberration. Fot only was respondent contemptuous of Constitution and law, but markedly disrespectful of higher judicial authority.\\nOn March 31, 1975, Richard Griffin and Clarence Hart were arrested, charged with possession of small quantities of marijuana or derivative. Respondent fixed bail in each case at $5,000 to be supplied by a surety bond. In accordance with usual practice, an attorney for defendants, after inquiring from the Police Department as to the nature of the charges, called the Hudson County Bail Unit to request a reduction of bail. He related to the person in charge that Griffin was 37 years old, married with four children, the owner of property in Jersey City, employed by the Post Office and had no previous criminal record; and that Hart had once been arrested as a juvenile but had no adult record. This information and the reduction request were telephoned at 10 p.m. to Hudson County Judge Richard E. Connors, who was working at his home preparing a charge to a jury. Judge Connors ordered reduction of the bail to $2,500 or ten percent ($250) cash bail. Respondent refused to accept this decision, stormed to the Central Booking Unit, refused to speak to Judge Connors on the telephone and blocked the posting of the reduced bail long enough for defendants to be detained in jail overnight. Described as distraught and screaming, he told Sergeant Bennett (in charge of the Central Booking Unit) to \\\"tell the son-of-a-b\\\" (Judge Connors) to come to Central Booking and \\\"do things proper.\\\" Respondent asserted that accused would get out on bail \\\"over his dead body\\\" and that he did not give \\\"a good goddamn about Larner\\\" (Hudson County Assignment Judge Samuel A. Larner, having a supervisory administrative authority over the municipal courts).\\nThe statutory panel concluded, and we agree, that:\\nThe statements made by respondent concerning Judge Larner and Judge Connors were unreasonable. His actions and conduct in the face of a bail reduction ordered by higher authority and known by him to have been so ordered were unworthy of one who holds judicial office. He was unable to accept the decision of higher authority in the judicial system and engaged in an unseemly dispute over the order made by such higher authority.\\nThis dreary recitation need not be continued. The Attorney General's brief identifies manifold abuses of the judicial process by respondent (irregularity in proceedings; deprivation of defendants' constitutional rights; discourtesy to counsel; disparagement of defendants; abuse of contempt power; arbitrary bail; insubordination; injudicious attitudes) and the evidence contained in the record amply portrays the shambles into whi\\u00e9h justice was thus reduced in this respondent's courtroom. So it was that a parade of alleged miscreants, some poor, some undefended, some sick, some unstable and bewildered (and some, no doubt guilty), passed through an American courtroom with but scant atten tion being paid to rights possessed by them under Constitution and the common law.\\nAs mentioned by Chief Justice Weintraub in In re Mattera, supra, 34 N. J. at 274: \\\"Justice is the right of all men and the private property of none. The judge holds this common right in trust, to administer it with an even hand in accordance with law.\\\"\\nRespondent seems unable to understand the relationship between justice and the defendant. The poorest, weakest, most hapless or illiterate defendant, standing before an American court, is entitled to exactly the same respect, rights and hearing as would be the Chief Justice of the United States standing before the court and similarly accused. This is part of what our Constitution means by \\\"equal protection of the laws.\\\"\\nAn intoxication with judicial power which would ignore basic constitutional precepts is a wholly unacceptable syndrome that cannot be tolerated in New Jersey courts. To brook it in a single courtroom would not only degrade the courts in general, but would affront the vast majority of municipal judges who perceive their courtrooms as \\\"place [s] of justice,\\\" rather than arenas for exhibitionism by display, before an intimidated audience, of naked and illegal judicial power.\\nThis is not to say that judicial response to crime, and particularly violent crime, should be excessively lenient. Our Court has urged administratively just the opposite for protection of the community, which is wholly consistent with observance of Constitution and law.\\nNor should a judge ever forfeit control of his courtroom. But he should maintain it as a judge and not by unseemly, unjudicial and illegal suppression of individual rights. This despite the convenient weapons of bailiff, \\\"contempt,\\\" penitentiary or jail, or bail abuse, as well as the lure of supposed public applause in which as we have seen the respondent seems to be interested.\\nIt has been argued for respondent that the number of eases in which his conduct has been found wanting is but a minute percentage of the thousands of cases he has handled without complaint from anyone and that he is entitled to be judged on the totality of his conduct, not the selected instances presented by the Advisory Committee alone. Assuming the dubious proposition that respondent's conduct has been free from fault in all the cases not explored by the record before us, the instances of misconduct and incompetence found in the record before us are amply sufficient, in themselves, to justify the adjudication here made.\\nUpon all of the evidence presented we find respondent totally unsuited, by temper and temperament, for judicial office. We find by his continuous abuse of the judicial process that he is guilty of misconduct in office, of conduct evidencing unfitness for judicial office, and that he is incompetent to be a judge. For such causes, the existence of which we find on the evidence beyond a reasonable doubt, he is hereby removed from office.\\nSo ordered.\\nFor removal from office \\u2014 Chief Justice Hughes, Justices Mountain, Sullivan, Pashman and Clieeokd and Judge CONFOKD \\u2014 6.\\nOpposed \\u2014 None.\\nORDER\\nA complaint and order to show cause why JUDGE JOHN W. YENGO should not be removed from judicial office having been issued pursuant to R. 2:14 and N. J. S. A. 2A-1B, et seq., and this Court having determined that cause for removal exists beyond a reasonable doubt;\\nIt is hereby ORDERED that, pursuant to N. J. S. A. 2A :lB-9, said JUDGE JOHN W. YENGO be removed from the office of judge of the municipal court of the City of Jersey City, effective immediately.\\nN. J. S. A. 2A :8-1 provides for the establishment of single muieipal courts by ordinance. The judge of a municipal court of a single municipality is appointed by the local governing body pursuant to N. J. S. A. 2A :8-5. Various urban communities, including Jersey City, have more than one municipal court judge, likewise appointed locally. The statute (N. J. S. A. 2A:8-1 and -3) also provides for the establishment of inter-municipal courts by two or more municipalities by appropriate ordinances. This step is gen erally decided upon in smaller or rural communities. The judge of such a joint municipal court is appointed by the Governor with the advice and consent of the Senate. N. J. S. A. 2A:8-5.\\nAs of the most recent court year statistics, there were functioning 382 municipal court judges in the 567 municipalities of New Jersey. Many judges are appointed to preside in more than one municipal court, particularly in smaller communities. In the court year ending August 31, 1976, the municipal courts in New Jersey processed 3,826,998 complaints.\\nThe justice of the peace was sometimes mentioned in humorous verse:\\nI'm important in the County\\nI'm a Justice of the Peace,\\nAnd I disbelieve Defendants\\nWhen they contradict the P'lice.\\n[Nordberg, Farewell to Illinois J. P.'s,\\nChicago Bar Record, Volume XLIV (No. 10),\\nSeptember 1963, p. 469],\\n\\\"The municipal court as an institution has made remarkable strides in the last seven years in earning the respect of the people in this State and as a result it has been entrusted with greatly enlarged jurisdiction In re Klaisz, 19 N. J. 145, 148 (1955) (Vanderbilt, C. J.).\\n\\\"[N]o threats, nothing that has happened, nothing that can happen, will weigh a feather against allowing the defendant, upon this and every other question *\\\" the whole advantage he is entitled to from substantial law and justice Lord Chief Justice Mansfield in Rex v. Wilkes, 98 Eng. Rep. 327, 347 (K. B. 1770).\"}"

nj/199154.json

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+"{\"id\": \"199154\", \"name\": \"FRIEDA H. ARNING, PLAINTIFF, v. GEORGE DRUDING, DEFENDANT\", \"name_abbreviation\": \"Arning v. Druding\", \"decision_date\": \"1921-06-10\", \"docket_number\": \"\", \"first_page\": \"47\", \"last_page\": \"48\", \"citations\": \"96 N.J.L. 47\", \"volume\": \"96\", \"reporter\": \"New Jersey Law Reports\", \"court\": \"New Jersey Supreme Court\", \"jurisdiction\": \"New Jersey\", \"last_updated\": \"2021-08-10T20:06:47.714037+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"FRIEDA H. ARNING, PLAINTIFF, v. GEORGE DRUDING, DEFENDANT.\", \"head_matter\": \"FRIEDA H. ARNING, PLAINTIFF, v. GEORGE DRUDING, DEFENDANT.\\nSubmitted March 17, 1921\\nDecided June 10, 1921.\\nThe sidewalk in front of defendant\\u2019s property was partly covered with a paved walk, there being a curb along the outer side of the sidewalk and a hedge along the other side; the defendant, after a snowstorm, removed the snow from the stone paving and placed it partly along the curb and partly along the hedge side of the stone walk. During the day the snow melted and the water ran over the stone paving which froze during the night. The plaint- . iff in passing over this walk was thrown by the ice thus formed and was injured.' Held, that the act of the defendant was not such an artificial accumulation of snow as to make the defendant liable. Aull v. Lee, 84 N. J. L. 155, distinguished.\\nOn rule to show cause.\\nBefore Gummbre, Chief Justice, and Justices Bergen and Katzenbaoh.\\nFor the plaintiff, Harry H. Weinberger.\\nFor the respondent, Stanton T. Lawrence.\", \"word_count\": \"476\", \"char_count\": \"2613\", \"text\": \"The opinion of the court was delivered by\\nBergen, J.\\nDefendant was the owner of a property in Rutherford, in front 'of which there was a sidewalk. Along one side of the sidewalk was a curb and along the other a hedge and in the centre was a stone pavement. The proofs show that the defendant had caused snow, which had fallen in a storm, to be taken from the stone flagging and piled partly on one side next to the curb and partly on the other side next to the hedge; that this snow melted in the middle of the day and froze at night and that in the morning between half-past eight and nine o'clock the plaintiff, in undertaking to walk along this sidewalk, to her place of business, fell and was seriously injured. The trial court nonsuited the plaintiff, who was allowed a rule to show cause, which she now moves be made absolute.\\nThe single question is whether the removal of the snow from the flagging and placing it on each side was such an artificial'accumulation and storage of snow in such a position and under such circumstances as would from natural causes render the adjoining sidewalk dangerous. We do not think so. The situation would be very much like Aull v. Lee, 84 N. J. L. 155, if the snow had been removed from1 the sidewalk and placed on the lawn for the convenience of the defen da.nt, but that is not the present posture of affairs. The acts of the defendant did not cause any more snow to be accumulated on the sidewalk than had fallen thereon from natural sources, and the Aull ease does not apply.\\nWe think the nonsuit was right and that the rule to show cause should be discharged, with costs, and it is so ordered.\"}"

nj/207270.json

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+"{\"id\": \"207270\", \"name\": \"LOUIS N. MACKEY, PROSECUTOR, v. THE MAYOR AND COMMON COUNCIL OF THE TOWN OF BELVIDERE, IN THE COUNTY OF WARREN, RESPONDENT\", \"name_abbreviation\": \"Mackey v. Mayor of Belvidere\", \"decision_date\": \"1925-04-29\", \"docket_number\": \"\", \"first_page\": \"250\", \"last_page\": \"253\", \"citations\": \"101 N.J.L. 250\", \"volume\": \"101\", \"reporter\": \"New Jersey Law Reports\", \"court\": \"New Jersey Supreme Court\", \"jurisdiction\": \"New Jersey\", \"last_updated\": \"2021-08-11T00:51:46.120278+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"LOUIS N. MACKEY, PROSECUTOR, v. THE MAYOR AND COMMON COUNCIL OF THE TOWN OF BELVIDERE, IN THE COUNTY OF WARREN, RESPONDENT.\", \"head_matter\": \"LOUIS N. MACKEY, PROSECUTOR, v. THE MAYOR AND COMMON COUNCIL OF THE TOWN OF BELVIDERE, IN THE COUNTY OF WARREN, RESPONDENT.\\nArgued April 16, 1925\\nDecided April 29, 1925.\\nBefore Justice Trenchakd, sitting alone, by consent.\\nFor the prosecutor, William- H. Morrow.\\nFor the respondent, John H. DaTilhe.\", \"word_count\": \"859\", \"char_count\": \"5143\", \"text\": \"The opinion of the court was delivered by\\nTrenchard, J.\\nThe prosecutor of this writ desired to challenge one item only of the appropriations in the budget of the town of Belvidere for the fiscal year 1925, and, accordingly, the writ was allowed, as expressly provided in the allocatur, \\\"to be effective only as to second item of appropriations, to wit, 'preservation of life and property, $12,150.' \\\"\\nThat item is now challenged for the reason (among others) that it fails to meet the requirements of the law that the amount to be appropriated for each purpose shall be stated, the appropriations itemized, and the several items set forth accurately, according to the respective and particular objects, departments or subdepartments for which the respective amounts are to be expended.\\nI am constrained to think that the prosecutor's position is well taken.\\nThe Budget act of 1917 (Pamph. L., p. 548), as amended in 1918 (Pamph. L., p. 912) and 1919 (Pamph. L., p 371), in its first section declares that \\\"hereafter annually\\\" there \\\"shall be adopted\\\" by the governing body of each municipality a \\\"budget,\\\" as described in section 6 of the act.\\nSection 6, paragraph (b) under the head of \\\"appropriations,\\\" requires that \\\"the several purposes and the amount to be appropriated for each purpose for which the anticipated revenues are to be expended for local purposes\\\" shall be stated in the budget.\\nPrior sections provide a method of ascertaining, approximately, the total revenues, and among such revenues is the amount to be raised by taxes. Every taxpayer in the municipality is therefore interested in the matter of the budget. He contributes a part of the money raised by the taxes, and, generally speaking, he has a right to know for what purposes the taxes paid are to be devoted.\\nThe subsequent sections, to and including number 10, are devoted to the method of ascertaining the total revenues of the municipality for the year. Section 11 declares that \\\"under the heading of 'appropriations* in the budget, as provided in section 6 of this act, there shall be set forth the appropriations, itemized according to the respective objects, departments or subdepartments for which they are to be expended, with the amount to be devoted to said object, department or subdepartment. The several items of appropriations shall be set forth accurately according to the particular object, department or subdepartment for which the respective amounts are to be expended.** (There is an exception as to \\\"contingent expenses*' with which we are not now concerned.)\\nBy section 12, paragraph (a), it is declared that \\\"the purpose of the budget as set forth in this act is to control all expenditures for the year under budget appropriations\\\" (excepting certain special or emergency matters with which we are not now concerned).\\nThe act requires much publicity to be given of the items in the budget, and provides for a hearing and final action upon the budget. Indeed, the purpose of the Budget act was, not only to secure greater uniformity in municipal financing, but to give the members of the public a better understanding of the financial condition and affairs of municipalities in which they are interested, and to place at the disposal of the governing bodies the data necessary for intelligent action on financial matters, and thereby safeguard the public interests. Chamber of Commerce v. Essex County, 96 N. J. L. 238.\\nI turn now to a consideration of the appropriation item in question, namely, \\\"preservation of life and property, $12,-150.\\\" Several questions naturally arise: How much of this money is to be expended for the preservation of life? How much of it is to be expended for the preservation of property? What are the methods for the preservation of either life or property to be made use of in disbursing this money ? Is life to be preserved through the instrumentality of the police department, or in some other way? Is property to be preserved through the instrumentality of the fire department or by some other means ?\\nNo light, not even the slightest, is thrown upon any one of these questions by the language of the item in question, nor by any other language of the budget, nor by anything in the proceedings returned with the writ. And I, therefore, think there was no compliance with the requirements of the law that the amount to be appropriated for each purpose for which the anticipated revenues are to be expended for local purposes shall be stated, the appropriations itemized, and the several items set forth accurately, according to the respective and particular objects, departments or subdepartments for which the respective amounts are to be expended. There being no compliance with these requirements of the law, the item in question will be set aside. Royal Holding Co. v. City of Beverly, 1 N. J. Mis. R. 453.\"}"

nj/207314.json

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+"{\"id\": \"207314\", \"name\": \"TOWNSHIP OF NORTH BERGEN, IN THE COUNTY OF HUDSON, APPELLANT, v. STATE BOARD OF TAXES AND ASSESSMENT ET AL.. RESPONDENTS\", \"name_abbreviation\": \"Township of North Bergen v. State Board of Taxes & Assessment\", \"decision_date\": \"1925-01-19\", \"docket_number\": \"\", \"first_page\": \"235\", \"last_page\": \"235\", \"citations\": \"101 N.J.L. 235\", \"volume\": \"101\", \"reporter\": \"New Jersey Law Reports\", \"court\": \"New Jersey Court of Errors and Appeals\", \"jurisdiction\": \"New Jersey\", \"last_updated\": \"2021-08-11T00:51:46.120278+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"TOWNSHIP OF NORTH BERGEN, IN THE COUNTY OF HUDSON, APPELLANT, v. STATE BOARD OF TAXES AND ASSESSMENT ET AL.. RESPONDENTS.\", \"head_matter\": \"TOWNSHIP OF NORTH BERGEN, IN THE COUNTY OF HUDSON, APPELLANT, v. STATE BOARD OF TAXES AND ASSESSMENT ET AL.. RESPONDENTS.\\nSubmitted November 7, 1924\\nDecided January 19, 1925.\\nEor the appellant, J. Emil Walscheid.\\nEor the respondents, Gaede & Gaede.\", \"word_count\": \"83\", \"char_count\": \"556\", \"text\": \"Per Curiam.\\nThe judgment under review herein should be affirmed, for the reasons expressed in the opinion delivered bjr the Supreme Court.\\nFor affirmance \\u2014 The Chancellor, Chief Justice, Mimturn, Black, Katzenbach, Lloyd, White, Gardner, Yan Buskirk, Clx\\u00ed.rk, McGlennon, Kays, JJ. 12.\\nFor reversal \\u2014 -None.\"}"

nj/219768.json

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+"{\"id\": \"219768\", \"name\": \"EDWARD C. SCHNITZER v. WESTERN UNION TELEGRAPH COMPANY\", \"name_abbreviation\": \"Schnitzer v. Western Union Telegraph Co.\", \"decision_date\": \"1913-03-01\", \"docket_number\": \"\", \"first_page\": \"63\", \"last_page\": \"65\", \"citations\": \"84 N.J.L. 63\", \"volume\": \"84\", \"reporter\": \"New Jersey Law Reports\", \"court\": \"New Jersey Supreme Court\", \"jurisdiction\": \"New Jersey\", \"last_updated\": \"2021-08-10T21:40:01.241384+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"EDWARD C. SCHNITZER v. WESTERN UNION TELEGRAPH COMPANY.\", \"head_matter\": \"EDWARD C. SCHNITZER v. WESTERN UNION TELEGRAPH COMPANY.\\nSubmitted December 6, 1912\\nDecided March 1, 1913.\\nLosses incurred in speculative dealing in \\u201cdifferences\\u201d cannot legally be made the measure of damages in an action against a telegraph company for delay in delivery of a telegram from plaintiff\\u2019s brokers.\\nOn appeal from the East Orange. District Court.\\nBefore Justices Swayze, Voorhees and Kalisch.\\nFor the plaintiff-appellant, William A. Lord.\\nFor the defendant-respondent, Kinsley Twining and William K. Flanagan.\", \"word_count\": \"463\", \"char_count\": \"2649\", \"text\": \"The opinion of the court was delivered by\\nSwayze, J.\\nThis is an action for damages for delay in the transmission of a telegram. The plaintiff was speculating in cotton-seed oil. The telegram was from his brokers with reference to the condition of the market. The plaintiff's claim is that by reason of the delay in the delivery he did not buy until the next day when the price had gone up. He testified that he had been trading on a margin of $2,600; that the purchase in question amounted to $27,352; that he would buy and sell and when he made it was credited and when he lost he put up more margin. He also testified distinctly that he was dealing in differences. The trial judge found that he was dealing in differences and that any loss in such dealings could not legally be made the measure of damages in this action. We think that the trial judge was right and are unable to make the distinction which the plaintiff asks us to make between the enforcement of a contract as in Flagg v. Baldwin, 11 Stew. Eq. 219, and the allowance of damages for the breach of a contract as in the present case. The ground upon which Elagg v. Baldwin was decided, was that the enforcement of a contract of this character would violate the plain public policy of this state. That policy is violated quite as much when damages are allowed to be recovered as when the contract or securities given in connection therewith are enforced. Ordinarily the only wa3r in which contracts are enforced in a court of law is by an award of damages for their breach.. In justification of our result we need cite no other authority than those cited by the respondent in his brief. Cothran v. Western Union Telegraph Co., 83 Ga. 25; Kiley v. Western Union Telegraph Co., 39 Hun (N. Y.) 158; Gist v. Western Union Telegraph Co., 45 So. Car. 344; Morris v. Western Union Telegraph Co., 94 Me. 423; Weld v. Postal Telegraph Cable Co., 199 N. Y. 88. The last case is particularly important because it establishes that under the law of Yew York such contracts are illegal, even when the transactions are in another state.\\nThe judgment is affirmed, witli costs.\"}"

nj/2205321.json

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+"{\"id\": \"2205321\", \"name\": \"STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT, v. M.J.K., DEFENDANT-APPELLANT\", \"name_abbreviation\": \"State v. M.J.K.\", \"decision_date\": \"2004-06-09\", \"docket_number\": \"\", \"first_page\": \"532\", \"last_page\": \"552\", \"citations\": \"369 N.J. Super. 532\", \"volume\": \"369\", \"reporter\": \"New Jersey Superior Court Reports\", \"court\": \"New Jersey Superior Court, Appellate Division\", \"jurisdiction\": \"New Jersey\", \"last_updated\": \"2021-08-10T17:52:04.547304+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT, v. M.J.K., DEFENDANT-APPELLANT.\", \"head_matter\": \"849 A.2d 1105\\nSTATE OF NEW JERSEY, PLAINTIFF-RESPONDENT, v. M.J.K., DEFENDANT-APPELLANT.\\nSuperior Court of New Jersey-Appellate Division\\nArgued December 15, 2003\\nDecided June 9, 2004.\\nBefore Judges HAVEY, NEWMAN and HOENS.\\nJohn R. Klotz argued the cause for appellant.\\nSteven E. Braun, Chief Assistant Prosecutor, argued the cause for respondent (James F. Avigliano, Passaic County Prosecutor, attorney; Mr. Braun, of counsel and on the brief).\", \"word_count\": \"6282\", \"char_count\": \"39294\", \"text\": \"The opinion of the court was delivered by\\nHOENS, JAD.\\nDefendant M.J.K. was charged in Passaic County Indictment No. 98-03-0329-1 with second-degree attempted aggravated sexual assault, N.J.S.A. 2C:5-1 and N.J.S.A. 2C:14-2a(4); third-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4d; third-degree aggravated assault, N.J.S.A. 2C:12-lb(2); and third-degree criminal restraint, N.J.S.A. 2C:13-2a. A superceding indictment, No. 98-11-1031-1, added a charge of first-degree kidnapping, N.J.S.A 2C:13-lb(l) and N.J.S.A. 2C:13-lb(2).\\nIn pre-trial proceedings, certain statements defendant made to police investigators were suppressed. The judge determined, following a hearing, that because of defendant's neurological impairment and significant deficiencies in ability to understand verbal and written material, the State had not met its burden of demonstrating that he had the cognitive ability to knowingly and intelligently waive his Miranda rights. At the same time, other statements defendant made and evidence found in a vehicle searched based on defendant's consent were deemed admissible because the judge determined that the statements were made voluntarily and that the discovery of the evidence would have been inevitable.\\nAfter extensive pre-trial hearings, the judge issued a written opinion finding defendant competent to stand trial. Following a jury trial thereafter, defendant was found guilty of third-degree criminal restraint, N.J.S.A 2C:13-2a, and third-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4d. He was acquitted by the jury of all of the other charges. His post-trial motion for acquittal on the weapon possession charge was denied.\\nThereafter, defendant was sentenced on the third-degree possession of a weapon for an unlawful purpose charge to a term of five years probation with 364 days to be served in the county jail, conditioned upon no contact with the victim or her family. In addition, defendant was ordered to undergo psychological or psychiatric counseling, to participate in vocational training and to reside with his father pending further order of the court upon his release from jail. He was also sentenced to the same term and the same conditions on the third-degree criminal restraint charge, to be served concurrently. The sentence was thereafter stayed pending disposition of this appeal.\\nOn appeal, defendant raises the following points.\\nPOINT I\\nTHE TRIAL COURT ERRED IN RULING THAT THE DEFENDANT WAS COMPETENT TO STAND TRIAL.\\nPOINT II\\nTHE TRIAL COURT ERRED IN RULING THAT THE ITEMS SEIZED FROM DEFENDANT'S VEHICLE WERE ADMISSIBLE UNDER THE INEVITABLE DISCOVERY RULE.\\nPOINT III\\nTHE TRIAL COURT ERRED IN THE APPLICATION OF AGGRAVATING AND MITIGATING FACTORS AT SENTENCING.\\nPOINT IV\\nTHE TRIAL COURT ERRED IN RULING THAT THE STATE COULD CROSS-EXAMINE THE DEFENDANT'S EXPERT PSYCHOLOGIST, IF CALLED AS A WITNESS, REGARDING AFFIRMATIVE DEFENSES NOT INTRODUCED BY THE DEFENDANT.\\nPOINT V\\n[THE TRIAL COURT] ERRED IN DENYING DEFENDANT'S MOTION FOR A JUDGMENT OF ACQUITTAL FOR POSSESSION OF A WEAPON FOR AN UNLAWFUL PURPOSE INASMUCH AS DEFENDANT WAS FOUND NOT GUILTY OF THE CRIMES CHARGED AS THE UNLAWFUL PURPOSE.\\nBecause we find merit in defendant's arguments concerning the judge's finding that he was competent to stand trial and because we reverse based on our analysis of that argument, we need not address the other arguments included in defendant's appeal. We turn then to our consideration of the issues relating to defendant's competence.\\nThe facts that gave rise to defendant's arrest and indictment, as presented by the State, may be summarized as follows. On January 6, 1998, S.R., who was a student at Lakeland Regional High School, was leaving school after participating in a fencing meet. At some time between 6:15 p.m. and 6:30 p.m., S.R. was outside of the school, standing between the so-called new and old school buddings. She was waiting for her father to arrive, having telephoned him for a ride home. She saw defendant, a former student, who was also outside of the school, and who was pacing back and forth. At the time, she knew who defendant was although she did not personally know him. As she was standing facing the street, he approached her from behind, put one hand on her mouth and held a knife to her throat.\\nS.R. asked defendant what he wanted, to which he responded \\\"Just start walking, you'll know soon enough.\\\" He then pushed her toward a dark alcove, a distance later measured to be approximately three hundred and seventy-four feet. S.R. believed that if she crouched down she might be able to get away from him, so she intentionally fell to the ground, with the result that defendant tripped and fell on top of her. The two struggled on the ground, as S.R. called for help and began to kick defendant in the groin. During the struggle, she noticed that defendant was wearing thick glasses which she grabbed off of his face, prompting him to tell her not to hurt his glasses. As the struggle continued, S.R. saw her father's car and called to him for help, which startled defen dant who then released her, at which point she kicked him in the face and ran away.\\nS.R. then told her father that defendant had tried to rape her and she used her father's cell phone to call the police. Her father, B.R., saw defendant, who was still near the alcove and who was holding a knife with a red handle. B.R. and another adult who had arrived then began to chase defendant. A short time later, aided by one of the teachers who was at the school for a basketball game, they found defendant in the parking lot. The teacher recognized defendant as a former student. When the teacher asked him why he had dirt and leaves on his clothes, defendant said that he had been wrestling with a girl. The teacher, noticing that defendant had an object in his hand, asked him what it was and asked defendant to give it to him. Defendant complied and gave the teacher a Swiss Army knife.\\nThe question of defendant's competence to stand trial was extensively studied, with four different experts offering opinions on the subject. For purposes of this opinion, we first note that much of the factual background concerning defendant and relevant to his competence was revealed in his school records and is undisputed. We therefore summarize that background evidence as follows. Defendant was first referred for an evaluation in 1983 when he entered kindergarten. That evaluation revealed that defendant suffered from a significant delay in acquisition of language skills, perseverative behaviors and difficulty in gross and fine motor skills. As a result, he was classified for educational purposes as neurologically impaired, a classification later changed to perceptually impaired. At about the same time, he was diagnosed as suffering from minimal brain dysfunction. Defendant was placed in special education classes and continued to be so classified throughout his years in school.\\nOver the years, his school records indicate that he was found to have difficulty processing information. At age twelve, he was tested and found to have an IQ in the Borderline range. At age fifteen, as a part of a re-evaluation in connection with his edu cational placement, he was found to \\\"be at a severe disadvantage when he attempts to master any higher level academic task . the implication of these data is that [M.J.K.] will likely have difficulties relating to same-age peers because his understanding of the complexities of their social interactions will be deficient.\\\" Another report issued in connection with that re-evaluation described his \\\"considerable deficits in receptive and expressive language functioning\\\" and noted that his \\\"awareness and understanding of figurative language is virtually non-existent and exacerbates his pragmatic difficulties.\\\"\\nM.J.K. remained in special education classes through high school and completed the requirements for graduation from high school that were included in his Individualized Educational Plan (IEP). He was awarded a high school diploma which the judge aptly described in his written opinion respecting defendant's inability to knowingly and voluntarily waive his Miranda rights as \\\"geared to his specific ability and not that of any State standard.\\\" M.J.K. then attempted to continue his education through a county community college. He failed, however, to perform with sufficient proficiency on the placement examination to be admitted even to remedial college-level courses in English. He only achieved a minimal score for admission into remedial classes in math.\\nOther information relating to defendant and his general level of functioning had been disclosed in pretrial proceedings. For example, one of the conditions of defendant's release on bail was a requirement that he be supervised at all times by one of a list of approved supervisors, who were required to ensure that he report in person and by telephone for bail supervision. As a practical matter, the obligation to supervise or accompany M.J.K. at all times fell upon his father, who ensured that M.J.K. was present at all court proceedings and who accompanied him to the appointments with the forensic examiners. In addition, although he was prohibited from reporting to his job as a further condition of his bail, the record reflects that M.J.K. had been employed following his graduation from high school at a variety of menial jobs. His last employment prior to the events in issue was as a cart boy or bagger at a grocery store where he had worked a few hours each week.\\nPrior to trial, the judge conducted a hearing to determine defendant's competence, during which four experts offered their opinions. The first witness was Christine Joseph, Ph.D., a clinical psychologist who testified on behalf of the State. First licensed as a psychologist in 1993, she has been employed at the Anne Klein Forensic Center since 1999. She received her training concerning competency determinations from a licensed psychologist at the Anne Klein Center.\\nJoseph met with defendant to assess his competence in January 2001. She was surprised, based on the background material she had read about him, that her interview with him took only one- and-a-half hours. After reading that material, she had expected defendant to have difficulty answering questions, but found that he did not. In the interview, defendant reported information which was consistent with the background material. He understood the purpose of their meeting, and was oriented to time, place, and person.\\nJoseph learned that defendant had been in special education classes in school and that he had been classified as perceptually impaired. He told her that in high school, he had been the manager of the basketball, volleyball and softball teams. He also told her that he worked three to five hours each day at a supermarket, although she did not ask about his specific job assignment. Joseph was impressed with defendant's language skills.\\nJoseph testified that she was not convinced that defendant met the criteria for mental retardation, as there was no evidence that he had been classified as mentally retarded. Instead, she diagnosed him with borderline intellectual functioning related to his learning disability, which she testified is not the same as mild mental retardation.\\nNevertheless, she administered the Competence Assessment for Standing Trial for Defendants with Mental Retardation (CAST-MR), which is a test designed to aid in determining whether a mentally retarded person is competent to stand trial. She did so because the records she reviewed included information that defendant's IQ was 73, which made it appropriate to administer the CAST-MR.\\nDuring the hearing, Joseph explained the CAST-MR test. The first part is a multiple choice test for familiarity with basic legal terminology. When Joseph administered the test, defendant scored 100% on that section. In the second part of the test, the subject is asked questions requiring that he make reasonable choices in order to determine whether the person has the skills needed to assist in his own defense. When Joseph administered the test, defendant scored 80% on that section. In the third part of the test, the subject is asked about the specific charges against him. Joseph testified that defendant's answers indicated that he understood the charges against him and she awarded him a score of 95% on that part of the test. Defendant's overall score was 93%, the highest score Joseph had ever had any subject achieve on the test. Joseph opined that there was \\\"very little doubt in my mind that he is competent to stand trial.\\\" She further noted that if she had had any doubts about defendant's competence, she had the authority to hospitalize him for thirty days in order to make an accurate assessment, a step she considered to be unnecessary in defendant's case.\\nOn cross-examination, Joseph was challenged about her familiarity with the CAST-MR test, the adequacy of her training to administer it, the level of her experience with the use of the test for mentally retarded individuals and the manner in which she administered the test to defendant. She contended that she was qualified to administer the CAST-MR test according to its accompanying manual. She acknowledged that when she first started administering the CAST-MR, she had no specialized training in or experience with mental retardation and that she had received all of her training in the use of that test from others on the staff at the Anne Klein Center. She testified that she had administered the test for competence more than 200 times, including between ten and twelve times specifically involving mentally retarded individuals. She denied using inappropriate methods, she specifically denied using leading questions and she defended the way in which she had scored defendant's performance on the test.\\nThree other experts were called to testify, all on behalf of defendant. The first, Dr. Paul Dasher, a licensed psychologist since 1990, had initially evaluated defendant at the request of the court. Dasher testified that based on defendant's relatively sophisticated vocabulary, he thought at first that defendant was competent. Eventually, however, he concluded that defendant was not. Dasher interviewed defendant twice and administered the WAIS-R, which is more commonly known as the IQ test. Dasher found that defendant's full-scale IQ was 73, an indication of mild mental retardation. Dasher also administered the Projective Drawings test, which showed that defendant had \\\"underlying neurological impairment in conjunction with major indicators of impulsivity.\\\" Dasher did not administer the CAST-MR because he was not familiar with it.\\nDasher testified that because defendant has a good memory, he gives the impression that his cognitive functions are higher than they actually are. He also found that defendant's ability \\\"to abstract\\\" was poor. Based on his interviews, testing and evaluation, Dasher opined that defendant did not have the capacity to relate to defense counsel sufficiently to assist in his own defense or to help plan legal strategy. As examples, Dasher noted that defendant could not understand a plea agreement, had no ability to weigh and consider various rights including his right not to testify, and that he did not understand the concept of a defense. Based upon the results of his testing and based upon the interviews he conducted, Dasher determined that defendant was not competent to stand trial and that he would never achieve a level of intellectual functioning that would allow him to adequately assist in his own defense.\\nDr. Mark Siegert, who has held a doctorate in clinical psychology since 1984, testified thereafter. His background included five years as a clinical instructor in psychology and psychological testing and assessment at Harvard Medical School, service as the Supervisor of Psychological Testing and Psychotherapy at Columbia University, where he taught graduate students, and experience as the Chief of the Division of Psychology for St. Barnabas Hospital in Livingston, during which time he also served on the staff at Mountainside Hospital. In addition, he spent a year working at a rehabilitation center for multiply-handicapped children, who suffered from mental retardation along with one or more other handicaps.\\nSiegert interviewed both defendant and his father. He found that on the surface, the depth of defendant's disability was not apparent. Siegert opined that while defendant was oriented to time, place and things and thus met the criteria for proceeding to trial under the first prong of the competency statute, he did not meet the criteria established in the second part of the statute for a finding of competence. According to Siegert, defendant did not have the ability to understand and weigh the decision about whether or not to testify, did not understand the consequences of his answers and had no capacity to understand plea negotiations. Defendant therefore did not have the ability to participate in an adequate presentation of a defense and lacked the ability to understand specific defenses. Although defendant could sometimes identify witnesses who were favorable or unfavorable to him, he could not do so consistently. Moreover, defendant lacked the ability to abstract and generalize. Siegert also found that defendant had a full-scale IQ of 73, a score that indicates that defendant has mild mental retardation in accordance with the DSM-IV, the diagnostic manual used by mental health professionals.\\nSiegert also offered opinions about Dr. Joseph, the State's expert. He opined that Joseph was not qualified to administer the CAST-MR because the test protocol requires that it be given by those who have specific experience working with people with mental retardation, a qualification Joseph lacked. Moreover, Siegert opined that this shortcoming on Joseph's part had the capacity to affect the administration of the test and thus the validity of the results. As an example, Siegert noted that, based upon the raw data that Joseph supplied, she had used a leading question and guided defendant to an answer, but had then scored the answer as if defendant had spontaneously given it correctly. In addition, he found that Joseph improperly gave defendant more information to help him answer questions, but then gave him full credit as if he had answered correctly without assistance. Further, he found that Joseph also gave defendant full credit for incomplete answers rather than scoring those responses as partially correct answers.\\nSiegert also testified that after he read Joseph's report and reviewed the test methodology that led to her conclusion that defendant was competent, he contacted Dr. Caroline Everington, one of the originators of the CAST-MR. He asked Everington to evaluate defendant, because he was concerned that Joseph had not done so properly. According to Siegert, Everington is not only the \\\"foremost authority of competency and mental retardation,\\\" but a \\\"very brilliant forensic psychologist and quite a scholar,\\\" who had \\\"impeccable credentials\\\" as well. Siegert did not administer the CAST-MR to defendant himself because he had never given it.\\nDr. Caroline Everington did thereafter evaluate defendant and she also testified on his behalf. She earned her Ph.D. in special education and worked with mentally retarded people for twenty-five years. At the time of trial, she was a professor and Associate Dean at Richard Riley College of Education, Winthrop University, South Carolina. She authored over twenty articles on mental retardation and its relationship to one's competence to stand trial which had been published in professional psychological journals. She received numerous grants and fellowships to pursue research in the subject and has made numerous presentations on the topic over the years. Everington also wrote a Guide for Psychologists, which is used by psychologists in assessing mental retardation.\\nEverington was the co-originator of the CAST-MR test. Prior to developing the CAST-MR, Everington had developed five versions of an educational assessment test for mentally retarded persons used in New Mexico. In addition, even before developing the CAST-MR, Everington had an extensive background in testing, including validation and construction methodologies.\\nEverington testified that the co-author of CAST-MR was Ruth Luckasson, a professor of special education and an attorney. Everington considered her co-author to be a \\\"leader\\\" in the field of mental retardation, who served on the President's Committee for Mental Retardation and who was the lead author of the definition for mental retardation adopted by the American Association for the Mentally Retarded (AAMR) which has come to be called the \\\"Luckasson Definition\\\" and which is also used in the DSM and by the World Health Organization.\\nEverington explained that the CAST-MR is a test used to assist an evaluator in determining whether a defendant with mental retardation is competent to stand trial. It indicates what a defendant knows relative to the standard for competence to stand trial. The test manual sets forth the qualifications of those eligible to give the test. One of the criteria required for the individual administering the test is previous experience or training in the area of mental retardation. , Everington testified that this qualification is important because persons with mental retardation frequently master testing ability so it may be difficult to detect a disability unless one is an experienced examiner. The kind of questioning used by an examiner is also important because mentally retarded people display acquiescence and a very strong desire to please. They are likely to answer \\\"yes\\\" and are easily led because they do not want to admit to the examiner that they do not understand. According to Everington, if a person without experience in dealing with this population allows suggestibility into the testing process, \\\"you may not get an accurate assessment of the person's understanding.\\\"\\nEverington determined that it was appropriate to give the CAST-MR test to defendant because he met the definition for mental retardation under both the AAMR and the DSM-IV standards. Specifically, defendant has substantial limitations in his present functioning as evidenced by his IQ of 73, his cognitive deficiencies and his language problems. Furthermore, while a diagnosis of mental retardation requires demonstration of deficits in two out of a possible ten adaptive skills areas, defendant showed deficits in seven of those areas, including home living, community use, self care, work skills, self direction, social skills and communication.\\nTo make the adaptive skills determination, Everington administered several tests, including the TOAL-3 (Test of Adolescent and Adult Language). Defendant scored below the first percentile in all areas except one, which was listening, in which he scored in the third percentile. His overall score was also below the first percentile when compared with others of his age. The TOAL-3 test therefore showed that defendant had significant problems in processing what was said to him as well as in expressing what he knew.\\nAfter determining that defendant was mentally retarded and therefore deciding that it was appropriate to do so, Everington administered the CAST-MR test to defendant. On the first part of the CAST-MR test, defendant scored 92%, which showed that he had a good understanding of the terminology required to participate in a legal proceeding. On the second section, which tests skills needed to assist in a defense, however, he scored only 53%. On the third section, which tests the individual's understanding of case events, defendant scored only 60%. Based on Everington's testing, therefore, defendant scored below the established cut-off level for competence in both the second and third sections of the CAST-MR test.\\nIn addition to her testing of defendant, Everington interviewed defendant for six-and-one-half hours. She also interviewed defendant's father for two hours and defendant's special education teacher for one hour. Everington also reviewed documents relevant to defendant and to the case. After considering all of this evidence, Everington determined that defendant was not competent to stand trial. In her opinion, defendant did not have adequate comprehension, and thus did not satisfy three of the statutory criteria for competence. She concluded that he was unable to assist in his own defense because he could not communicate important information or relate events to his attorney, could not understand abstract information, and could not make decisions. She further concluded that he did not have an adequate understanding of entering a guilty plea and thus could not engage in meaningful plea negotiations. Everington opined that defendant appeared to be higher-functioning than he is because he has some good vocabulary skills, but that he often only \\\"parrots\\\" what he hears around him.\\nIn addition, Everington reviewed the CAST-MR test that had been administered by Joseph, and opined that it was likely that Joseph had used a leading question with defendant. She also evaluated Joseph's scoring of the test and found it to be inaccurate, resulting in a higher score than should have been awarded. Specifically, she noted that Joseph gave one point credit for answers where only one-half point should have been given. Everington found that in no instance did Joseph score an answer lower than it should have been.\\nFollowing the hearing, the trial judge issued his written opinion in which he concluded that defendant was competent to stand trial. In part, he relied on facts in the record including defendant's graduation from high school, ability to read and write, success in receiving a driver's license, part-time employment and attendance at all court proceedings. Respecting the experts who had testified, the judge wrote:\\nI also place great weight on Dr. Joseph's evaluation because of her experience in dealing with competency evaluations for the Slate of New Jersey... All except Dr. Everington agree that [defendant] will be expected to tell to the best of his ability the facts surrounding him at the time and place where the alleged violation was committed. I disagree with Dr. Everington's findings. Defendant gave the police a factually explicit description of the incident.\\nI am satisfied that defendant understands his right not to testify, he could participate in plea negotiations and has the ability to participate in an adequate presentation of his defense. I am also satisfied that he can communicate with his attorney and has the ability to comprehend his advice. After evaluating defendant's capabilities and his attorney's role in assisting, I have no doubt that the State has established by a preponderance of the evidence that defendant is competent to stand trial.\\nThe test for competence to stand trial arises from our basic concepts of due process. As the United States Supreme Court has held, a defendant tried or convicted while incompetent to stand trial has been deprived of his due process right to a fair trial. See Pate v. Robinson, 383 U.S. 375, 378, 86 S.Ct. 836, 838, 15 L.Ed.2d 815, 818 (1966); State v. Cecil, 260 N.J.Super. 475, 480, 616 A.2d 1336 (App.Div.1992), certif. denied, 133 N.J. 431, 627 A.2d 1138 (1993). Consequently, a court must hold a competency hearing where the evidence raises a bona fide doubt as to a defendant's competence. See Pate v. Robinson, supra, 383 U.S. at 385, 86 S.Ct. at 842, 15 L.Ed.2d at 822; State v. Cecil, supra, 260 N.J.Super. at 480, 616 A.2d 1336. We have previously held that the State bears the burden of establishing competence by a preponderance of the evidence. State v. Lambert, 275 N.J.Super. 125, 129, 645 A.2d 1189 (App.Div.1994).\\nThe minimum requirements for determining whether a defendant is competent to stand trial were first established by the United States Supreme Court in Dusky v. United States, 362 U.S. 402, 402, 80 S.Ct. 788, 789, 4 L.Ed.2d 824, 825 (1960). There, the Court defined the test as follows: \\\"whether [defendant] had sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding \\u2014 and whether he has a rational as well as factual understanding of the proceedings against him.\\\" Ibid. In New Jersey, the test for competence to stand trial on criminal charges has been codified in N.J.S.A. 2C:4\\u2014 4, which provides:\\na. No person who lacks capacity to understand the proceedings against him or to assist in his own defense shall be tried, convicted or sentenced for the commission of an offense so long as such incapacity endures.\\nb. A person shall be considered mentally competent to stand trial on criminal charges if the proofs shall establish:\\n(1) That the defendant has the mental capacity to appreciate his presence in relation to time, place and things; and\\n(2) That his elementary mental processes are such that he comprehends:\\n(a) That he is in a court of justice charged with a criminal offense;\\n(b) That there is a judge on the bench;\\n(c) That there is a prosecutor present who will try to convict him of a criminal charge;\\n(d) That he has a lawyer who will undertake to defend him against that charge;\\n(e) That he will be expected to tell to the best of his mental ability the facts surrounding him at the time and place where the alleged violation was committed if he chooses to testify and understands the right not to testify;\\n(f) That there is or may be a jury present to pass upon evidence adduced as to guilt or innocence of such charge or, that if he should choose to enter into plea negotiations or to plead guilty, that he comprehend the consequences of a guilty plea and that he be able to knowingly, intelligently, and voluntarily waive those rights which are waived upon such entry of a guilty plea; and\\n(g) That he has the ability to participate in an adequate presentation of his defense.\\n[NJ.S.A 20:4-4.]\\nAs we have recently noted, this statute, effective in 1979, replaced the \\\"generalizations of prior case law with more precise and detailed standards for determining a defendant's competency____\\\" State v. Moya, 329 N.J.Super. 499, 506, 748 A.2d 604 (App.Div.), certif. denied, 165 N.J. 529, 760 A.2d 783 (2000); see State v. Khan, 175 N.J.Super. 72, 82-83, 417 A.2d 585 (App.Div.1980).\\nWe have previously described our role in reviewing the decisions of a trial judge respecting competence as \\\"typically, and properly, highly deferential.\\\" State v. Moya, supra, 329 N.J.Super. at 506, 748 A.2d 604. Moreover, we have recognized that the decision regarding competence is for the judge and not for the experts to make. Ibid. Bearing that general guidance in mind, however, our review of this record compels us to conclude that the judge's evaluation of the evidence and the testimony of the experts was fundamentally flawed and that his conclusion that this defendant was competent to stand trial cannot be sustained.\\nWe note first the role we ascribe to experts and to their opinions. \\\"Expert testimony is needed where the factfinder would not be expected to have sufficient knowledge or experience and would have to speculate without the aid of expert testimony.\\\" Torres v. Schripps, Inc., 342 N.J.Super. 419, 430, 776 A.2d 915 (App.Div.2001). Expert testimony, however, \\\"need not be given greater weight than other evidence nor more weight than it would otherwise deserve in light of common sense and experience.\\\" Ibid, (citing In re Yaccarino, 117 N.J. 175, 196, 564 A.2d 1184 (1989)). Indeed, a judge is not obligated to accept an expert's opinion, even if the expert was \\\"impressive.\\\" State v. Carpenter, 268 N.J.Super. 378, 383, 633 A.2d 1005 (App.Div.1993), certif. denied, 135 N.J. 467, 640 A.2d 848 (1994). The factfinder may therefore accept some of the expert's testimony and reject the rest, Todd v. Sheridan, 268 N.J.Super. 387, 401, 633 A.2d 1009 (App.Div.1993), and may do so even if that testimony is unrebutted by any other evidence. Johnson v. American Homestead Mortgage Corp., 306 N.J.Super. 429, 438, 703 A.2d 984 (App.Div.1997). Respecting expert opinions of psychiatrists or psychologists, the court, sitting as a factfinder, must use its \\\"common sense and ordinary experience.\\\" In re Yaccarino, supra, 117 N.J. at 196, 564 A.2d 1184. This is particularly true when, as here, the factfinder is confronted with directly divergent opinions expressed by the experts.\\nWhile the judge, therefore, was empowered to accept or reject from among the various opinions and was permitted to evaluate those opinions in light of all of the evidence in the record, the grounds he articulated for his choice here demonstrate an obviously mistaken exercise of discretion. We reach this conclusion for several reasons.\\nFirst, while placing \\\"great weight\\\" on Joseph's opinion because of \\\"her experience in dealing with competency evaluations for the State,\\\" the judge overlooked the fact that her experience in evaluating mentally retarded individuals like defendant was minimal. He evidenced, as well, no awareness of the fact that her familiarity with the diagnostic criteria for mental retardation was also limited. He overlooked the fact that she lacked the credentials which would have made her qualified to administer the CAST-MR test. Most telling, we think, is the fact that Joseph's very lack of experience with this population led her to make precisely the error that the test's originator warned of, namely, perceiving relatively strong language skills, coupled with a good memory and an eagerness to please, to be evidence of far greater mental capacity than defendant actually has.\\nBeyond that, the judge overlooked Joseph's improper administration of the CAST-MR test evidenced by her use of at least one leading question, her assistance to defendant to increase his score and her inappropriate scoring, all of which made her opinion suspect. In addition, Joseph's abbreviated personal interview, her failure to inquire about the nature of defendant's employment and her apparent lack of familiarity with the high school graduation criteria utilized for students in special education programs plainly caused her to overstate the few achievements defendant had managed to make in the real world. It is axiomatic that an expert's opinion is only as strong as the facts on which it rests. See Higgins v. Owens-Coming Fiberglas Corp., 282 N.J.Super. 600, 614, 660 A.2d 1252 (App.Div.1995); State v. Freeman, 223 N.J.Super. 92, 115-16, 538 A.2d 371 (App.Div.1988), certif. denied, 114 N.J. 525, 555 A.2d 637 (1989); Polyard v. Terry, 160 N.J.Super. 497, 511, 390 A.2d 653 (App.Div.1978), aff'd, 79 N.J. 547, 401 A.2d 532 (1979). Judged against this standard, Joseph's opinion was built on an inadequate factual foundation.\\nSecond, while the judge was free to reject the opinions of the other three experts, he gave no reason for doing so except for his observation that he disagreed with Dr. Everington's findings. Objectively analyzed, the dispute among the experts focused not on defendant's ability to accurately relate facts, but upon his ability to understand and participate in his own defense. It was in these aspects of the experts' analyses that the divergence of opinions most clearly exposed the flaws in Joseph's methodology. Properly tested, defendant fell below the established cut-off of the CAST-MR test for competence both in terms of skills needed to assist in his defense and in his understanding of the events of his case. The opinion of the originator of that test both as to defendant's competence and as to the flaws in Joseph's methodology and opinion should not have been so lightly rejected.\\nThird, while the judge was entitled to rely on one opinion out of the four, his failure to give any reasons for rejecting the opinions of Dr. Siegert and Dr. Dasher was inappropriate. Each of them conducted a careful and thoughtful analysis of defendant's abilities to understand and participate in his defense. Each of them, when compared with Dr. Joseph, was eminently better qualified to evaluate a mentally retarded individual like defendant. Their contrary opinions, if they were to be rejected, were entitled to the judge's careful analysis and consideration and were deserving of an explanation of the judge's reasons for his apparent disagreement with their conclusions.\\nWe do not intend to imply that the judge should have simply counted the experts on each side of the issue in some sort of a \\\"majority rules\\\" analysis. Nor do we intend to imply that Dr. Joseph is not, in general, qualified to determine competence to stand trial. We do conclude, however, that given the particular deficits of this defendant, her ability to accurately evaluate his competence, when compared with the experience and credentials of the other three experts, was lacking.\\nFourth, even the real world evidence in the record which the judge mentioned in order to bolster his conclusion on defendant's competence was vastly overstated. In truth, defendant can read at about a fourth or fifth grade level. His high school diploma, awarded based on his IEP criteria, does not in any sense equate with a normal high school education. The proof of that, of course, is the fact that when he tried to continue his education, he did not even qualify for non-credit remedial classes at the community college. His IQ tests reveal that he is mentally retarded. His only employment has been at menial part-time jobs, most recently as a cart boy or bagger at the grocery store. His ability to attend court and to arrive on time is merely a testament to his father's supervision of him.\\nNone of these facts bespeak sufficient competence to appreciate the significance of or to exercise the right to testify or remain silent. N.J.S.A 2C:4~4b(2)(e). None of them demonstrates a comprehension of the consequences of a guilty plea, of the wisdom of entering into negotiations for a plea or of the advisability of accepting a plea offer. N.J.S.A 2C:4-4b(2)(f). None of them suggests even a minimal ability to participate in \\\"an adequate presentation of his defense.\\\" N.J.SA 2C:4-4b(2)(g).\\nThe record is abundantly clear that defendant M.J.K. was not competent to stand trial. We therefore reverse the order of April 8, 2002, finding defendant competent, and we vacate the judgment of conviction and sentence dated February 6,2003.\\nReversed.\\nMiranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).\\nAs Everington explained, part two of the test consists of fifteen questions, for which a raw score of ten is required, and part three of the test consists of ten questions, for which a raw score of seven is needed.\"}"

nj/221258.json

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+"{\"id\": \"221258\", \"name\": \"HUDSON MILLING COMPANY, RESPONDENT, v. WILLIAM P. HIGGINS, APPELLANT\", \"name_abbreviation\": \"Hudson Milling Co. v. Higgins\", \"decision_date\": \"1913-11-17\", \"docket_number\": \"\", \"first_page\": \"268\", \"last_page\": \"272\", \"citations\": \"85 N.J.L. 268\", \"volume\": \"85\", \"reporter\": \"New Jersey Law Reports\", \"court\": \"New Jersey Court of Errors and Appeals\", \"jurisdiction\": \"New Jersey\", \"last_updated\": \"2021-08-10T18:39:32.798793+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"HUDSON MILLING COMPANY, RESPONDENT, v. WILLIAM P. HIGGINS, APPELLANT.\", \"head_matter\": \"HUDSON MILLING COMPANY, RESPONDENT, v. WILLIAM P. HIGGINS, APPELLANT.\\nSubmitted July 7, 1913\\nDecided November 17, 1913.\\nThe organization of a new corporation being contemplated to take over the property and business of an insolvent corporation, one B, the capitalist furnishing the funds, agreed in writing with D, the president, and his wife, principal stockholders of the old company, that debits found on its books against D should be canceled and discharged by, the new company so far as said company should be enabled to cancel and discharge the same. Subsequently the assets of the old company were transferred to the new company in hulk and without reservation of the D account. Hold, that as the new company presumably paid full value for such assets, and received no benefit of the agreement between B and D, it was in no way bound by such agreement.\\nOn appeal from Hudson County Circuit Court.\\nFor the appellant, Roberson & Dema/resi.\\nFor the respondent, Robert 8. Hudspeth.\", \"word_count\": \"1387\", \"char_count\": \"8115\", \"text\": \"The opinion of the court was delivered by\\nParker, J.\\nThe suit is by the assignee of a book account for lumber and mill work sold and delivered by plaintiff's assignor, a corporation called the Boyne Lumber and Milling Company. The plaintiff had verdict and judgment for the amount claimed, less a credit thereon of $52.\\nThe defence was rested on the claim that the account was incurred at the instance of William Boyne, president and active manager of the Boyne Lumber and Milling Company, and that he had induced defendant to undertake the erection of some houses and to purchase of the company the mill work therefor, under an agreement that defendant, who was a plumber, should do plumbing work for the company and also for Boyne's wife on houses belonging to her, and that his account, both for the company's work and for Mrs. Boyne's, should be credited to him on the books of the milling company, and the amount applicable to Mrs. Boyne's work then recharged by the company on its books to Boyne, the company thus paying Mrs. Boyne's plumbing bill by goods sold and expecting to get its money back through settlement of Boyne's account with it. If this defence existed in fact, and was valid, it was of course maintainable as against the subsequent assignee of the account. Practice act of 1903, Pamph. L., p. 540, \\u00a7 19. The trial court left to the jury the question whether the agreement between Boyne and defendant had actually been made, and charged in effect that if made it would be binding on the Boyne company (and of course on its assignee) if Doyne had the authority in his capacity of president to extend credit on behalf of the company, because he could then extend that credit to himself; and that such authority could be inferred from a course of practice, or the acquiescence of the directors, without formal corporate action. The verdict necessarily implied either that Doyne did not possess such authority, or that he had not made the agreement claimed, or both.\\nThe first two grounds of appeal relate to the rejection by the court of evidence relating to the contents of an agreement between William Doyne and his wife, and one Julius Berghoff, in March, 1910. It appeared that the Doyne company had become insolvent and a receiver had been appointed; that Doyne was trying to continue the business, and that the scheme was to have Berghoff buy its property and assets from the receiver and transfer them to a new corporation to be formed. This was in fact done In April, by an assignment and bill of sale from the receiver to BerghofPs agent, named Weller, of all the property and assets including accounts receivable, and another bill of sale from Weller to the plaintiff, Hudson Milling Company, covering the same subject-matter. The rejected agreement provided for this course of action, and defendant relied on a clause in it providing that \\\"all claims and demands found on the books of the Doyne Lumber and Milling Company against said William Do3me shall as soon as the new corporation secures control of the new company (sic), be canceled and .discharged so far as the new company may be enabled to cancel and discharge the sdme.\\\" The argument was and is that this was evidential to show that Berghoff, and through him the new company, had agreed to wipe out Doyne's debit account, and that if as claimed, that account showed a debit corresponding to defendant's plumbing bill for work done on Mrs. Doyne's property, the new corporation was bound by the agreement and could not recover for the goods sold to the defendant up to that amount. We fail to see any force whatever in this proposition. Assuming that an agreement by the Doyne company to pay Mrs. Doyne's debt or that of her husband to defendant by turning over goods to that amount and charging them to Doyne was not ultra vires (which is at least questionable), and that if ultra vires the transaction, is within the rule laid down in Camden and Atlantic Railroad Co. v. May's Landing Railroad Co., 19 Vroom 530, 559, still the agreement related solely to Doyne's account and in nc way to that of defendant. Moreover, it is plain that Berghoif in agreeing for an unformed corporation was acting substantially in the capacity of a promoter, and that unless and until his action was adopted by the new company when formed or was connected with some special benefit to it, such company was in no way hound thereby. Thomp. Corp. Off. (2d ed.), \\u00a7 91 et seq.; Cook Corp. (7th ed.), \\u00a7 707; 10 Cyc. 262; Braddock v. Philadelphia, &c., Railroad Co., 16 Vroom 363; Joslin v. Stokes, 11 Stew. Eq. 31.\\nNo such adoption or benefit appears. The accounts of the Doyne company were, as stated, afterwards assigned without reservation to BerghofPs agent, and reassigned by him to the plaintiff. Presumably full value was paid. It would have been a simple matter to except the Doyne debit (if one existed) from the property transferred to. the new company; hut this was not done. As the trial judge remarked, if defendant has any remedy on this agreement it is by aeiion against Berglioff. Still again, the clause quoted speaks of claims and demands found on the hooks against William Doyne. The evidence seems to show without contradiction that the debit to Doyne of $708.91 in June, 1910, was placed there some two or three months after the agreement, and two months after the formation of the plaintiff corporation and the assignment from Weller; and plainly the clause should not; he held to cover any debits that did not exist on the books at the time the agreement was made. For all these reasons the agreement, was irrelevant and inoperative as to defendant, and was properly excluded.\\nThe .other grounds of appeal may be dismissed in a, few words. The other rulings on admission of evidence were correct, or If there was error it was harmless. Exception is taken to some rather forcible remarks by the court, prompted by what the judge evidently considered an improper char acterization by counsel of the general conduct of the trial. If the language used by the judge was stronger than necessary, it was at least provoked by counsel, and the disagreement was adjusted by an explanation or apology by counsel and its acceptance by the court before the case went to the j\\u2122-y-\\nThe nonsuit was properly denied. It is argued that the plaintiff's books of account were discredited by mutilation; but this goes to their credibility rather than their competency.\\nDeclarations by William Doime after the insolvency of his company were properly excluded. His official powers were terminated or suspended, and his admissions therefore could not bind the new company.\\nThe last point made is that the verdict is contrary to the undisputed evidence. But there was no motion to direct a verdict and no exception or objection to the charge, which left the case to the jury. The point is therefore without support in tire record..\\nThe judgment will be affirmed.\\nFor affirmance \\u2014 The Chief Justice, Garrison, Swayze, Trenchabd, Parker, Bergen, Voorhees, , Minturn, Kalisch, Vredenburgi-i, Congdon, White, Teri-iune, HepPENHEIMER, JJ. 14.\\nFor reversal \\u2014 None.\"}"

nj/227063.json

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+"{\"id\": \"227063\", \"name\": \"JOHN FERRIS v. JEROME O'KEEFE\", \"name_abbreviation\": \"Ferris v. O'Keefe\", \"decision_date\": \"1915-06-17\", \"docket_number\": \"\", \"first_page\": \"341\", \"last_page\": \"344\", \"citations\": \"87 N.J.L. 341\", \"volume\": \"87\", \"reporter\": \"New Jersey Law Reports\", \"court\": \"New Jersey Supreme Court\", \"jurisdiction\": \"New Jersey\", \"last_updated\": \"2021-08-10T19:56:57.427640+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"JOHN FERRIS v. JEROME O\\u2019KEEFE.\", \"head_matter\": \"JOHN FERRIS v. JEROME O\\u2019KEEFE.\\nSubmitted December 3, 1914\\u2014\\nDecided June 17, 1915.\\nIn each of the cities governed by a board of commissioners under the Walsh act, that member of the board who is clxosen to preside at all meetings thereof and is designated \\u201cmayor\\u201d by the statute, luis the jxower to appoint the members of the board of education of sxiclx city under section 38 of the State School law of 1903. Pamph. L. 1904, p. 1.\\nOn quo warranto. Tenmrror to information.\\nBefore Guam ere, Chief Justice, and Justices Garrison and Minturn.\\nFor the relator, John Bentley and John Milton.\\nFor the defendant, J. Fisher Anderson.\", \"word_count\": \"1029\", \"char_count\": \"5944\", \"text\": \"The opinion of the court was delivered by\\nGummere, Chief Justice.\\nThe question presented by the record in this case is whether the relator, or the defendant, is entitled to membership in the board of education of Jersey City.\\nThe material facts are as follows: In April, 1913, the electors of Jersey City adopted the act entitled \\\"An act relating to, regulating and providing for the government of cities, towns, boroughs and other municipalities within this state,\\\" approved April 25th, 1911, providing for the commission form of government in -municipalities adopting the statute, and generally known as the Walsh act. Pursuant to the provisions of the:statute referred to an election was held in Jersey City on June 10th, 1913, and five commissioners were elected as the governing body of that municipality. At the first meeting held after their election, these commissioners chose one of their number, namely, Mark M. Eagan, to preside at all meetings of the commission. By the provisions of \\\" the third section of the act the commissioner so chosen is designated \\\"mayor.\\\" At the end of January, 1914, a vacancy having occurred in the membership of the board of education of Jersey City, Mr. Eagan appointed O'Keefe, the defendant, to fill that vacancy. The board of commissioners, claiming that the power to fill such vacancy resided in the whole body of commissioners, and not in Mr. Eagan, held a meeting-on the 29th of January, and, by a majority vote, appointed the relator to the vacant position.\\nErom a recital of the above facts it is apparent that the right of the relator, or of the defendant, to membership in the board of education depends upon whether the power of appointment rests in Mr. Eagan as mayor, or in the board of commissioners as a body.\\nSection 38 of the State School law of 1903 (Pamph. L. 1904, p. 1) provides that \\\"in each city the mayor or other chief executive officer of such city\\\" shall appoint the members of the board of education of such city school district; and the seventy-third section of that act provides that \\\"in every city school district the board of education shall appoint two of its members, and the common council, board of finance or other body in such city having the power to make appropriations of money raised by taxes in said city, shall appoint two of its members, and the four persons so appointed, together with the mayor or other chief executive officer of the city, shall constitute a board to be known as the 'Board of School Estimate' of said school district.\\\"\\nThe contention on behalf of the relator is that, because the Walsh act provides that the board of commissioners created 1 hereby shall \\\"have and possess all administrative, judicial and legislative powers and duties\\\" theretofore had, possessed and exercised by the /mayor and city council and all oilier executive or legislative bodies in said city, and shall \\\"have complete control over the affairs of the city,\\\" tlie power of appointment conferred upon the mayors of cities constituting school districts by the thirty-eighth section of the School law is vested in the whole board. We cannot concur in this view, for to do so would, we think, attribute to the legislature the intention of destroying by the Walsh act the harmonious scheme which it created for the establishment and maintenance of an efficient system1 of public schools in the cities of the state. A fundamental part of that scheme, as appears from an examination of sections 38 and 73, was that the board of school estimate should be composed of five members, two of whom should be members of the board of education, and a third of whom should bo the executive officer who appointed (he members of that board, and who is designated in both of these sections as the \\\"mayor or other chief executive officer of the city.\\\" To yield to the contention made by the relator would be, in effect, to bold that tlie school districts in cities adopting the scheme of government provided by the Walsh act should have boards of school estimate consisting, not of five, but of nine members, two to be members of the board of education, two to be selected by the board of commissioners, and five to be the members of that board. We think no such legislative intent can be discerned from the Walsh act. On tlie contrary, we think that this act itself makes the member of the board of commissioners who shall be chosen to preside at all meetings thereof the chief executive officer of the cityr; the third section declares that he shall be designated \\\"mayor;\\\" the fifth section provides that \\\"the mayor shall be president of the board, and shall preside at all its meetings, And supervise dll departments!' Each member of the board is an executive officer, but that member who is designated the mayor is the chief executive officer, and is the person who, under section 38 of the School law, is to appoint members of the board of education, and who, under section 73 of that law, is to be a member of the board of school estimate.\\nWe conclude, therefore, that Mr. O'Keefe, the appointee of Mayor Eagan, by virtue of his appointment, is entitled to membership in the board of education, and that the act of the board of commissioners in appointing Mr. Eerris was without warrant of law.\\nThe defendant is entitled to judgment on the demurrer.\"}"

nj/23042.json

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+"{\"id\": \"23042\", \"name\": \"In the matter of Elihu H. Cooley et al., charged with contempt\", \"name_abbreviation\": \"In re Cooley\", \"decision_date\": \"1924-01-29\", \"docket_number\": \"\", \"first_page\": \"485\", \"last_page\": \"491\", \"citations\": \"95 N.J. Eq. 485\", \"volume\": \"95\", \"reporter\": \"New Jersey Equity Reports\", \"court\": \"New Jersey Court of Chancery\", \"jurisdiction\": \"New Jersey\", \"last_updated\": \"2021-08-10T18:49:18.207244+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"In the matter of Elihu H. Cooley et al., charged with contempt.\", \"head_matter\": \"In the matter of Elihu H. Cooley et al., charged with contempt.\\n[Decided January 29th, 1924.]\\n1. Where a defendant who has been directed to convey lands to complainant, conveys instead to a stranger, such disobedience to the decree constitutes both a civil and a criminal contempt.\\n2. Neither the belief that complainant\\u2019s conduct had been such as legally to result in an abandonment or loss of complainant\\u2019s rights under the decree, nor the advice of counsel, constitutes excuse for the contempt; although both factors are to be considered in determining the degree of the offense.\\n8. An attorney is privileged to state to his client his opinion that a certain course of conduct will be proper and not in violation of a decree; but if the attorney goes beyond this and participates in the client\\u2019s conduct, or even advises the client to do the act in question, he does so at his peril, and if the client be guilty of \\u2022 contempt the attorney is likewise guilty.\\n4. Whether acquiescence or consent by bomplainant to the disobedience of the decree may constitute complete excuse in proceedings for criminal contempt\\u2014Qucere?\\n5. If complainant-vendee, after decree for specific performance, refuses to perform on his part, defendant-vendor (if not desirous of enforcing the decree) may apply, in the cause, for relief from the decree and permanent stay of proceedings.\\nOn prosecution for alleged contempt.\\nMr. Augustus 0. Nash, for the prosecution.\\nMr. Gonover English and Messrs. Smith & Slingerland, for the respondents.\", \"word_count\": \"2245\", \"char_count\": \"12765\", \"text\": \"Buchanan, V. C.\\nBy the final decree of this court, entered February 24th, 192.2, the respondent Elihu H. Cooley was directed to make conveyance of certain lands and premises to Mary E. McVoy, by good and sufficient deed of conveyance. From this decree Cooley appealed, but unsuccessfully, and decree of affirmance was entered in the court of errors and appeals on June 19th, 1922, and remiiiiiur was filed in this court on July 24th, 1922.\\nShortly thereafter Cooley executed and tendered to Mrs. McVoy a deed which purported to convey the premises subject to an inchoate right of dower of Bertha Baumann. The decree was by way of specific enforcement of a contract of sale made by Karl Baumann alone\\u2014his wife, Bertha, not having joined therein\\u2014and the premises having thereafter been conveyed by Baumann to his wife and by her to Cooley, with -no reservation of any inchoate right of dower. See McVoy v. Baumann, 98 N. J. Eq. 360; Ibid. 638. This deed Mrs. McVoy refused to acc.ept.\\nOn August 29th, 1922, Cooley executed and acknowledged a deed for the premises in question to Ruth Naugle (another of the present respondents), notwithstanding the decree aforesaid. Mrs. Naugle, notwithstanding she knew of the decree . (having been informed thereof by her counsel, M\\u2014), accepted the deed and thereafter asserted ownership thereunder and resisted the efforts of Mrs. McVoy to obtain possession.\\nNaugle's counsel, M\\u2014, was the same individual who had been solicitor and counsel for Cooley in the specific performance suit. He advised and participated in the drafting, execution and delivery of the deed of August 29th, 1922, by Cooley' and the acceptance thereof by Mrs. Naugle. This course of action, it will be observed, was more than a nonperformance of the command of the decree\\u2014more than a negative disobedience\\u2014it was a positive disobedience, and by it Cooley put it out of his power to comply with the decree.\\nThat this conduct in fact constituted a contempt is, it seems to me, so clear as practically to admit of no argument. The contention which was put forward on the hearing was that by reason of certain facts (hereinafter mentioned) there had been an abandonment by Mrs. McYoy of her rights under the decree, and that hence disobedience to, and active disregard and violation of, the directions of that decree would not constitute contempt.\\nAssuming\\u2014but by no means deciding\\u2014that acquiescence or consent by Mr. McYoy to the doing of the. acts in question would constitute a valid excuse and! defence in a punitive proceeding for contempt (as the present proceeding is), the evidence utterly fails to show any such consent or acquiescence. There had in fact been no, abandonment by Mrs. McYoy of her rights under the decree. It has heretofore been adjudicated upon substantially the same evidence that there had been no such abandonment even as long thereafter as September, 1923. See McVoy v. Baumann, 1 N. J. Adv. R. 1529 (the opinion in this court has not yet been reported). The most that can be said is that M\\u2014 and his clients believed that there had been an abandonment, and, even so, it must be observed that they arrived at such belief upon very scanty grounds\\u2014apparently the wish was father to the thought. It is pointed out in Kempson v. Kempson, 61 N. J. Eq. 303 (at p. 326), that, assuming that acquiescence or consent by complainant may excuse disobedience of a decree, it is at least requisite that such acquiescence or consent be very clearly and positively proven. M\\u2014 assumes responsibility in the matter. He says, as do the Naugles, that they acted on his advice and had no thought that their conduct was a contempt. (Cooley has at all times been a non-resident and did not appear.) That respondents acted on the advice of counsel is no defence to contempt proceedings (West Jersey Traction Co. v. Camden, 58 N. J. Law 536); neither is the fact that they had no disrespectful intent necessarily a defence; although both of these factors may well be considered in extenuation and mitigation of punishment. That the act done was a violation of the court's decree and that respondents intended to do that act, are facts sufficient to establish a contempt; the other factors may influence the determination -of the degree or character of the contempt.\\nThe evidence shows that Mr. and Mrs. Naugle were acting together in the matter; that they intended to and did accept the deed in question and refuse delivery of the premises to Mrs. McYoy; that they knew of the decree, and hence, that they knew that they were participating in an act which was an active violation of the decree and a contempt, even though they did not realize or comprehend the legal significance of their conduct in that behalf. I am satisfied that they had no such realization or comprehension; that they were guilty of no intentional disrespect to the court; that they acted on .the advice of their counsel and believed that Mrs. McYoy had abandoned her rights under the decree. I find them guilty of contempt, but entitled to lenience in the matter of punishment.\\nAs to the respondent Cooley, jurisdiction not having been acquired over his person in this proceeding, no adjudication of contempt can now be made as to him.\\nWith regard to the respondent M\\u2014, it is evident from what has been said that he was the prime mover in this violation of the decree, both as to the making of the deed by Cooley and the acceptance by the Naugles. His explanation of his conduct is most singular. He says that he thought there had been an abandonment by Mrs. McYoy of her rights under the decree and that therefore the decree was at an end. He knew, of course, that there had been no express or explicit abandonment by Mrs. McYoy; he knew that at most his idea that there had been such abandonment by her was a judgment or conclusion of his own as to the result or effect of the intermediate circumstances. Those circumstances, as he explained them, were that Mrs. McYoy's solici tor liad refused to accept the deed tendered by him on June 23d, 1922; that lie thereafter notified her solicitor that the tender of that deed would be kept open until some time in \\u2022July, but no longer; that the deed was not accepted within this time, nor was there any payment into court by Mrs. McYoy of the balance of the purchase price as required by the decree; that inasmuch as the decree directed performance by both parties within ten days from its date he felt justified in deciding and declaring that Mrs. McYoy had no further rights, and in acting upon that assumption, as he thereafter did in the matter of conveying to the Naugles; he disavows any intentional disrespect toward the court and earnestly contends that there was no violation of the decree, and hence no contempt.\\nHe offered in evidence the correspondence between himself and Mrs. McYoy's solicitor, covering a period from June 24th, 1922, to September 15th, 1922. By these letters it appears as explicitly as can possibly be imagined that M\\u2014 was insisting that Mrs. McYoy should accept the deed, subject to the dower encumbrance, and do so promptly, otherwise Cooley would consider her rights as ended and that on the other hand Mrs. McYoy's solicitor was rejecting that deed as improper and demanding a deed in accordance with the decree. He knew therefore that there was no intentional abandonment by Mrs. McVoy, and no matter how strong was his own belief that she had lost her rights, he knew she did not believe she had lost them; he knew that he was assuming to act, not on a thing he knew as a fact, but on his opinion-es to a matter of law. Indeed, in his last letter (September 15th, 1922) he says, after speaking of the tender of the deed and its refusal: \\\"This, in my opinion, constitutes & rejection of the terms of the decree by complainant, and leaves the title to, and ownership of, the lands in Cooley.\\\" (The italics are mine.)\\nNow, in the face of the facts as he knew them, and of the judicial opinions in the case, and the terms of the decree, how could any competent solicitor arrive at the opinion that a deed subject to a dower right in Mrs. Baumann was a deed in compliance with the decree? She and her husband had both conveyed to Cooley, without reserving any such dower right. Her equitable right, if any she had, to a portion of the purchase price had been provided for, by her own request and consent, under the clause of the decree that the purchase-money be paid into court so that she might have opportunity to prove how much, if any, of it should be paid to her as compensation for her dower right. However, I cannot doubt but that M\\u2014, in fact, had this opinion, and that he also had the opinion that Mrs. McVoy, by refusing this deed, had lost her rights.\\nBut even so, he knew, as I have said, that these were only his opinions, and that he was matching his opinion against that of Mrs. McVoy's solicitor. It had just been demonstrated to him in the result of the suit, that in that instance the latter's opinion as to matters of law had been better than his own. Iiow could he dare to advise and instruct his clients to act in disobedience to a decree upon the strength of what he knew was only his own opinion. He knew, or as a lawyer ought to have known\\u2014especially since he was assuming to give his clients legal advice upon this -point\\u2014that in so doing they would act at their peril, and that he in advising them so to do was acting likewise at his own peril. An attorney may advise his client that in his opinion an order is invalid, or has become ineffective, or that rights under it have been lost, or that a certain act will not be a disobedience or a contempt. This is both his privilege and his duty as a lawyer to his client. But when he goes further and advises the client to do the act he goes beyond his privilege, and if the. act is a disobedience and contempt he is equally guilty with his client. Cf. In re Noyes, 121 Fed. Rep. 209; Anderson v. Comptois, 109 Fed. Rep. 971.\\nA decree for specific performance is, of course, operative and binding upon both parties; the decree is that complainant perform as well as defendant. Where either party desires to avoid the effect of the decree because of matters arising subsequent to the decree (such asu settlement between the parties, refusal or neglect of the other party to perform, or inequitable conduct of the other party), the proper course is to apply in the cause for a permanent stay of all proceedings. Rosenstein v. Burr, 83 N. J. Eq. 491. Cf., also, Hudson Trust Co. v. Boyd, 80 N. J. Eq. 267; Smith v. Smith, 84 N. J. Eq. 13; Barnett Foundry Co. v. Iron Works Co., 85 N. J. Eq. 359. That is the course which M\\u2014 should have advised his clients to pursue in the present instance, instead of assuming himself the right to determine the legal result of the conduct of the parties subsequent to the decree.\\nM\\u2014's explanation therefore is not a valid excuse for his conduct. I believe, however, his explanation in fact is true, and I acquit him of intentional disrespect or flagrant contempt. He is nevertheless guilty of an actual contempt.\\nThis disposes of the findings as against all the respondents. The determination of the punishment which should be imposed may await somewhat further consideration.\"}"

nj/238721.json

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+"{\"id\": \"238721\", \"name\": \"LONG DOCK COMPANY, APPELLANT, v. STATE BOARD OF TAXES AND ASSESSMENT, ETC., RESPONDENT\", \"name_abbreviation\": \"Long Dock Co. v. State Board of Taxes & Assessment\", \"decision_date\": \"1917-05-24\", \"docket_number\": \"\", \"first_page\": \"701\", \"last_page\": \"701\", \"citations\": \"90 N.J.L. 701\", \"volume\": \"90\", \"reporter\": \"New Jersey Law Reports\", \"court\": \"New Jersey Court of Errors and Appeals\", \"jurisdiction\": \"New Jersey\", \"last_updated\": \"2021-08-10T20:01:02.474624+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"LONG DOCK COMPANY, APPELLANT, v. STATE BOARD OF TAXES AND ASSESSMENT, ETC., RESPONDENT.\", \"head_matter\": \"LONG DOCK COMPANY, APPELLANT, v. STATE BOARD OF TAXES AND ASSESSMENT, ETC., RESPONDENT.\\nArgued March 13, 1917\\nDecided May 24, 1917.\\nOn appeal from the Supreme Court, whose opinion is reported in 89 N. J. L. 1.08.\\n(In re reassessments on second-class property for 1911.)\\nFor the appellant, Collins & Corbin.\\nFor the respondent, John W. Wescott, attorney-general, John Bentley and John B. Hardin.\", \"word_count\": \"151\", \"char_count\": \"945\", \"text\": \"Per Curiam.\\nLegal questions were first dealt with in the opinion of Mr. Justice Parker in the court below, so as to lay a foundation for the consideration of the facts, and those questions were, in our opinion, rightly decided. As there was evidence to support the finding of facts made by the Supreme Court, that finding is not reviewahle-in this court.\\nThe judgment under review will be affirmed.\\nFor affirmance\\u2014The Chancellor, Garrison, Swayze, Trenchard, Bergen, Black, White, Heppbniteimer, Williams, Taylor, Gardner, JJ. 11.\\nFor reversal\\u2014Hone.\"}"

nj/246568.json

@@ -0,0 +1 @@
+"{\"id\": \"246568\", \"name\": \"IN THE MATTER OF AUGUSTINE U. UZODIKE, AN ATTORNEY AT LAW\", \"name_abbreviation\": \"In re Uzodike\", \"decision_date\": \"2002-01-30\", \"docket_number\": \"\", \"first_page\": \"395\", \"last_page\": \"396\", \"citations\": \"170 N.J. 395\", \"volume\": \"170\", \"reporter\": \"New Jersey Reports\", \"court\": \"Supreme Court of New Jersey\", \"jurisdiction\": \"New Jersey\", \"last_updated\": \"2021-08-10T20:38:46.206051+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"IN THE MATTER OF AUGUSTINE U. UZODIKE, AN ATTORNEY AT LAW.\", \"head_matter\": \"789 A.2d 643\\nIN THE MATTER OF AUGUSTINE U. UZODIKE, AN ATTORNEY AT LAW.\\nJanuary 30, 2002.\", \"word_count\": \"320\", \"char_count\": \"1935\", \"text\": \"ORDER\\nThe Disciplinary Review Board having filed a report with the Court in DRB 01-223, recommending that AUGUSTINE U. UZO-DIKE formerly of EAST ORANGE, who was admitted to the bar of this State in 1990, and who thereafter was suspended from the practice of law effective August 11, 1999, by Order of the Court filed July 16, 1999, and who remains suspended to this date, be disbarred for violating RPC 1.15(a) and RPC 8.4(c) (knowing misappropriation of trust funds), RPC 1.15(d) (failure to comply with the recordkeeping requirements of Rule 1:21-6, and RPC 8.1(b)) (failure to cooperate with disciplinary authorities), and said AUGUSTINE U. UZODIKE having failed to appear on the return date of the Order to show cause issued in this matter, why he should not be disbarred or otherwise disciplined, and good cause appearing;\\nIt is ORDERED that AUGUSTINE U. UZODIKE be disbarred, effective immediately, and that his name be stricken from the roll of attorneys;\\nORDERED that the entire record of this matter be made a permanent part of respondent's file as an attorney at law of this State; and it is further\\nORDERED that any funds currently existing in any New Jersey financial institution maintained by AUGUSTINE U. UZO-DIKE, pursuant to Rule 1:21-6, shall be restrained from disbursement except upon application to this Court, for good cause shown, and shall be transferred by the financial institution to the Clerk of the Superior Court who is directed to deposit the funds in the Superior Court Trust Fund, pending further Order of the Court; and it is further\\nORDERED that AUGUSTINE U. UZODIKE be and hereby is permanently restrained and enjoined from practicing law; and it is further\\nORDERED that respondent reimburse the Disciplinary Oversight Committee for appropriate administrative costs incurred in the prosecution of this matter.\"}"

nj/287990.json

@@ -0,0 +1 @@
+"{\"id\": \"287990\", \"name\": \"STATE OF NEW JERSEY, PLAINTIFF, v. RUGGERIO BOIARDO, ANDREW N. GERARDO, ANTHONY DEVINGO, JAMES VITO MONTEMARANO, LOUIS FERRARI, ANGELO CARMEN SICA, THOMAS DEPHILLIPS, AND ANTHONY LARDIERE, JR., DEFENDANTS\", \"name_abbreviation\": \"State v. Boiardo\", \"decision_date\": \"1980-01-21\", \"docket_number\": \"\", \"first_page\": \"528\", \"last_page\": \"533\", \"citations\": \"172 N.J. Super. 528\", \"volume\": \"172\", \"reporter\": \"New Jersey Superior Court Reports\", \"court\": \"New Jersey Superior Court, Law Division\", \"jurisdiction\": \"New Jersey\", \"last_updated\": \"2021-08-10T19:55:10.821805+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"STATE OF NEW JERSEY, PLAINTIFF, v. RUGGERIO BOIARDO, ANDREW N. GERARDO, ANTHONY DEVINGO, JAMES VITO MONTEMARANO, LOUIS FERRARI, ANGELO CARMEN SICA, THOMAS DEPHILLIPS, AND ANTHONY LARDIERE, JR., DEFENDANTS.\", \"head_matter\": \"STATE OF NEW JERSEY, PLAINTIFF, v. RUGGERIO BOIARDO, ANDREW N. GERARDO, ANTHONY DEVINGO, JAMES VITO MONTEMARANO, LOUIS FERRARI, ANGELO CARMEN SICA, THOMAS DEPHILLIPS, AND ANTHONY LARDIERE, JR., DEFENDANTS.\\nSuperior Court of New Jersey Law Division\\u2014Somerset County\\nDecided January 21, 1980.\\nG. Michael Brown, Assistant Attorney General, for the State (John J. Degnan, Attorney General).\\nMichael A. Querques for defendant Ruggerio Boiardo.\\nJohn Vantuno for defendant Andrew N. Gerardo.\\nMiles R. Fienstein for defendant Anthony DeVingo.\\nJohn P. Doran for defendant James Vito Montemarano. Peter B. Shaw for defendant Louis Ferrari (Smith & Shaw, attorneys).\\nMr. Joseph A. Ferrante for defendant Angelo Carmen Sica.\\nLouis C. Esposito for defendant Thomas DePhillips.\\nAnthony T. Colasanti for defendant Anthony. Lardiere, Jr.\", \"word_count\": \"1119\", \"char_count\": \"6819\", \"text\": \"IMBRIANI, J. S. C.\\nDefendants seek to personally interview a critical and important witness whose whereabouts is unknown because he is in federal protective custody and hidden under a Witness Relocation Program. The State says the witness does not want to be interviewed by defendants and should be allowed to say so without a personal interview but simply by affidavit or a telephone . conversation. Defendants, who are charged with several criminal offenses, including murder, have requested and been denied the right to personally interview the witness, one Patrick Pizuto.\\nBoth sides have an equal right to interview witnesses since they are not parties, are not partisan and do not belong to either side. See State v. Roszkowski, 129 N.J.Super. 315 (App. Div.1974); United States v. Opager, 589 F.2d 799 (5 Cir. 1979); Wilson v. State, 93 Ga.App. 229, 91 S.E.2d 201 (Ct.App.1956); Commonwealth v. Balliro, 349 Mass. 505, 209 N.E.2d 308 (Sup.Jud.Ct.1965). But this right is subject to the acquiescence of the witness, Lewis v. Ct. of Common Pleas of Lebanon Cty., 436 Pa. 296, 260 A.2d 184, 189 (Sup.Ct.1969), who has the right to refuse an interview, United States v. Rice, 550 F.2d 1364 (5 Cir. 1977). And the State may inform a witness of his right to decide for himself whether or not to grant an interview. Coppolino v. Helpern, 266 F.Supp. 930, 935 (S.D.N.Y.1964).\\nDefendants say' that an affidavit or telephone conversation is not sufficient and it constitutes reversible error to deny them personal access to a material witness. Wilson r. State, supra; Commonwealth v. Balliro, supra; Byrnes v. United States, 327 F.2d 825 (9 Cir. 1964).\\nWe are not confronted with a claim by the State that it has the right to deny any access by defendants to the witness. The State merely seeks to limit the nature of the interview where, as here, it is alleged the witness does not want to be interviewed by defendants and, moreover, the witness fears defendants. Such fear is obviously shared by others, as evidenced by his being placed in a federal Witness Relocation Program, whereby the witness and his family are given new names and relocated at an unknown location (generally out-of-state) to protect them from reprisals.\\nObviously, a personal interview should be denied if it creates a danger to the safety and well-being of the witness. But is that the case here? Or can conditions be imposed to assure his safety? Where special circumstances exist it is \\\"appropriate for the court to impose reasonable conditions and restrictions on the interviews.\\\" Commonwealth v. Balliro, supra at 316. This court cannot perceive how the safety and well-being of the witness would be endangered if we adopted a simple procedure. It can be arranged for the interview to be conducted at a place and time selected by the State, which need not disclose in advance the place of the interview. Counsel for defendants can be notified 24 hours in advance to be at a predetermined place from which they can be taken to an undisclosed location where the personal interview can be conducted.\\nCounsel for defendants are entitled to interview a material witness in a fashion which they deem sufficient to enable them to properly defend their client. This court cannot say that an interview by way of affidavit or a telephone conversation is sufficient. The State says that Pizuto will refuse to speak then. \\\"If that be so, and the court has no reason to doubt it, [Pizuto] should be permitted to speak for [himself].\\\" People v. Paskowitz, 151 Misc. 171, 270 N.Y.S. 799, (Cty.Ct.1984). It is entirely possible that, if given the opportunity for a personal interview, one or more of counsel for defendants may develop a rapport with the witness and acquire facts and information which the witness might otherwise hesitate or refuse to divulge in an affidavit or telephone call. There is too much at stake to assume that a personal interview will be fruitless. And since a personal interview would present neither prejudice to the State, nor harm to the witness, fairness and justice dictate that the witness be personally interviewed.\\nThe court is influenced by the fact that eventually Pizuto will have to surface and appear as a witness in the trial. It will undoubtedly take s\\u00e9veral days to complete his testimony, and during that time the State will have to provide for his protection and well-being. There is no reason why the State cannot also secure his safety and well-being when the personal interview is conducted.\\nThe witness shall be personally interviewed outside the presence of any representative of the State of New Jersey or any other persons. As said in Gregory v. United States, 369 F.2d 185 (D.C.Cir.1966):\\nWe know of nothing in the law which gives the prosecutor the right to interfere with the preparation of the defense by effectively denying defense counsel access to the witnesses except in his presence. Presumably the prosecutor, in interviewing the witnesses, was unencumbered by the presence of defense counsel, and there seems to be no reason why defense counsel should not have an equal opportunity to determine, through interviews with the witnesses, what they know about the case and what they will testify to. [at 188]\\nCf. United States v. Dryden, 423 F.2d 1175 (5 Cir. 1970).\\nPizuto shall be informed that he has an absolute and personal right to either grant or deny the interview. He shall also be informed that whenever he wishes to terminate the interview all he need do is leave the interview room and return to the presence of law enforcement agents, who can be positioned by the door outside the room.\\nIt is important that this interview be conducted sufficiently in advance of the trial, now scheduled for March 3, 1980, so that defendants shall have ample opportunity to complete any fur ther investigation or research necessitated by the information received in the interview. Accordingly, the interview of Pizuto shall be completed not later than Friday, February 22, 1980.\"}"