On certified appeal from the Law Division of the Superior Court.
For affirmance -- Chief Justice Vanderbilt, and Justices Heher, Wachenfeld, Jacobs and Brennan. For reversal -- Justices Oliphant and Burling. The opinion of the court was delivered by Vanderbilt, C.J. Burling, J. (dissenting). Mr. Justice Oliphant authorizes me to state that he concurs in the views expressed herein.
The Monmouth County Grand Jury returned an indictment against the three defendants in 16 counts, two of which were dismissed by the trial court and are not involved here. Of the remaining 14 counts seven involved the defendant Benjamin Fary, each charging that on a different occasion he obtained a check for the payment of money from the Township of Ocean by falsely representing that he had delivered various quantities of road gravel, when in fact no gravel had been delivered, all in violation of N.J.S. 2 A:119-3. The remaining seven counts charged the defendants Harry Fary and Bruce Vogel with aiding and abetting Benjamin Fary on each of these seven occasions, in violation of N.J.S. 2 A:119-3 and N.J.S. 2 A:85-14, but since these defendants admit that the merits of their motion to dismiss must rest upon the alleged invalidity of the seven counts against Benjamin Fary we shall necessarily limit our discussion to the seven counts of the indictment against him alone. The motion to dismiss these counts was denied by the trial court, and since the order was not a final judgment the defendants applied to the Appellate Division of the Superior Court for leave to appeal pursuant to R.R. 3:5-5(b)(6). In view of the public importance of the questions presented the State did not oppose the application, which was granted by the Appellate Division. We certified the appeal on our own motion while it was pending in that court.
The defendants argue that the offense set forth in the indictment does not constitute a crime under the provisions of N.J.S. 2 A:119-3 as charged:
"Any person who steals or takes by robbery or obtains possession of by false statements, representations or promises, any negotiable or non-negotiable instrument for the payment of money, or any certificate
or other public security of the United States or of this state or of any other state of the United States, for the payment of money, or acknowledging the receipt of money or goods, being the property of any other person, notwithstanding said particulars, or any of them, are or may be termed in law choses in action, is guilty of a high misdemeanor."
but rather falls within the language of N.J.S. 2 A:170-43, a section of the Disorderly Persons Law:
"Any person who, by means of any false statement made orally or in writing, obtains from the state of New Jersey or any county or municipality or from any officer, committee, commission or body thereof, or from any private or charitable organization or association of any kind, any money, personal property or other valuable thing, if the value or price thereof is less than $200, is a disorderly person."
The necessary elements of the crime set forth in N.J.S. 2 A:119-3 are the obtaining through false statements or representations of a negotiable or non-negotiable instrument belonging to another. The seven counts of the indictment against Benjamin Fary all charge that the defendant "did falsely state and represent" that he had delivered a specified quantity of gravel, and as a result of such false statements and representations he "did obtain * * * a check and warrant for the payment of money, termed in law a chose in action * * * contrary to the provisions of N.J.S. 2 A:119-3." It seems obvious that the crime charged clearly falls within the terms of this statute insofar as it relates to obtaining a negotiable instrument through false statements and representations.
But the defendants contend that the checks of the municipality were not "the property of any other person" and the defendant Benjamin Fary does not come within the terms of N.J.S. 2 A:119-3. Their contention is that the checks upon delivery to Benjamin Fary became his property notwithstanding his fraud in procuring them without having delivered the road gravel to the municipality. This view ignores the hornbook law that the fraud of the vendee in acquiring title will vitiate his title. This rule applies equally to a check or other negotiable instrument as a chattel
where only the immediate parties to the instrument are concerned and the problem of a bona fide purchaser for value does not intervene. Thus Dean Ames in dealing with the question of title ...