On certified appeal from the Chancery Division to the Appellate Division of the Superior Court.
For modification -- Chief Justice Vanderbilt, and Justices Heher, Oliphant, Wachenfeld, Jacobs and Brennan. Opposed -- None. The opinion of the court was delivered by Heher, J.
On July 24, 1954 the plaintiff Martell was arrested under a warrant issued out of the local tribunal of Point Pleasant Beach, Ocean County, New Jersey, on a complaint under N.J.S. 2 A:85-14 charging that he aided and abetted another's violation of N.J.S. 2 A:112-1, in playing for money or other valuable thing by means of a "device having one or more figures or numbers thereon." The action followed representations made to him by the mayor that the operation transgressed a municipal ordinance prohibiting the use of machines in the nature of gambling devices.
Thereupon, plaintiff invoked the jurisdiction of the Chancery Division of the Superior Court by a verified complaint directed to the chief of police and other officers of the municipality, alleging that he was the owner and operator upon premises in Point Pleasant Beach of "various games and businesses," and had installed and managed there a "Stop and Go Game," found to be a "legal" device by the judgment of the Chancery Division of the Superior Court rendered February 6, 1953 in the unreported case of Harris v. Hock; that the "operation of the 'Stop and Go' machine by the plaintiff is an important item of the business conducted" by him, and the game is one of "skill and not of chance and is not a violation of N.J.S. 2 A:112-1"; that the "business season for the operation of plaintiff's property at Point Pleasant Beach is short-lived," and he "will sustain and suffer irreparable damage in the loss of the business during the balance of the season"; and praying for judgment declaring that the "Stop and Go Game" is "one of skill and not of chance" and is not within the purview of the ordinance, and restraining interference with its use in the prosecution of plaintiff's business.
There was a temporary restraint to that end; and thereupon, by leave of court, the State intervened as a party defendant and answered challenging plaintiff's allegation that the particular game was one of skill and so not violative of N.J.S. 2 A:112-1. The State's interest is grounded in
the general use of such devices throughout the State and the "doubt and concern as to their legality among prosecutors, other law enforcement officers, and the Legalized Games of Chance Control Commission."
The original defendants did not enter an appearance in the action; and there was judgment by default as to them. After testimony taken at a hearing on the merits, there was a final judgment "in favor of the State and against plaintiff," including the annulment of the temporary restraint. The judgment recites a finding that the "game of 'Stop and Go' as conducted by the plaintiff herein is not a game in which skill, as distinguished from chance, determines the result," but the "basic game of 'Stop and Go,' as was at issue in the case of Harris v. Hock," cited supra, "is a game in which skill predominates over chance and is distinguished from the facts in the present case in determining the result," and so the judgment also provided, and to this extent it is in favor of plaintiff, that "(4) The basic game of 'Stop and Go' at issue herein, as described in the complaint, and determined in the case of Harris v. Hock * * * is one in which skill and not chance predominates in determining the result of the game."
The State appealed to the Appellate Division of the Superior Court from section (4) of the judgment, as a party aggrieved by the declaration that "'Stop and Go' was legal if played in a manner similar to the 'Stop and Go' operation at issue in Harris v. Hock," as a game of skill rather than chance.
The appeal is here by certification on our own motion.
Mr. Walter D. Van Riper, by leave of this court, presented a brief as amicus curiae, acting for "approximately 40 concessionaires engaged in operating amusements with basic, but not operational similarity, in five New Jersey seashore municipalities."
Insisting that the issues litigated below were "whether the game is (1) in violation of the borough ordinance, or (2) in violation of N.J.S. ...