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State v. Arbus

Decided: February 2, 1959.

THE STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
STANLEY ARBUS, DEFENDANT-APPELLANT



Schettino, Hall and Gaulkin. The opinion of the court was delivered by Gaulkin, J.A.D.

Gaulkin

[54 NJSuper Page 78] Dawn Honeychurch made a complaint in the Municipal Court of Paterson, under N.J.S.A. 9:16-3, that defendant was the father of her child, born

November 19, 1957. Defendant was tried by the magistrate without a jury, and acquitted. Miss Honeychurch then appealed to the Passaic County Court, where the case was tried de novo with a jury under the authority of Leonard v. Werger , 21 N.J. 539 (1956). The jury returned a verdict that defendant was the father. From the resulting judgment of filiation, defendant appeals. He alleges numerous errors but, since the judgment must be reversed and a new trial ordered because of prejudicially improper cross-examination, only those grounds of appeal will be discussed which present problems which may reappear in the new trial.

Appellant argues, on the authority of Tuohy v. Boynton , 5 N.J. Super. 265 (App. Div. 1949), that the proceedings in the County Court were void because the notice of appeal from the municipal court to the Passaic County Court was not signed by Miss Honeychurch or her personal counsel, but by the Paterson City Prosecutor. In the County Court Miss Honeychurch was represented by her personal counsel and by the Paterson City Prosecutor. The record does not show whether she was represented by both before the magistrate. It does seem to us that the notice of appeal should have been signed by Miss Honeychurch, or by her counsel if she had one then, and not by the city prosecutor who, presumably, represented the City of Paterson. But that is a mere irregularity. The appeal was taken for Miss Honeychurch, the real party in interest. Cf. Tuohy v. Boynton, supra.

Appellant correctly points out that the State of New Jersey has, improperly, been named as the plaintiff. The State is not a party to these proceedings. Kopak v. Polzer , 4 N.J. 327 (1950); Tuohy v. Boynton, supra. This happened because, to frame the complaint, it was attempted to alter a form which had been printed for use in bastardy proceedings initiated by the State Board of Child Welfare or the municipal director of welfare under N.J.S.A. 9:17-2. Miss Honeychurch must be substituted as party plaintiff.

Not only did the complaint retain the printed "State of New Jersey" as plaintiff, but that minor mistake led to others much more serious. For example, the County Court judge charged the jury that "The burden is upon the State to establish their case * * * if the evidence in your mind is of equal weight, you must find against the State. If the evidence is in favor of the State, then you must find for the State." This misapprehension of who was plaintiff naturally led to the entry of a judgment of filiation in the form used when the proceedings are instituted by the State Board of Child Welfare or a municipal director of welfare under N.J.S.A. 9:17-2.

The judgment of filiation provided (emphasis ours):

"It is ORDERED and ADJUDGED on this 16th day of April, 1958, that Dawn Honeychurch, a single woman, of the City of Paterson, County of Passaic and State of New Jersey, has been delivered of a child born out of wedlock which is likely to become chargeable to the City of Paterson and that Stanley Arbus is the father of said child.

It is further ORDERED that the said Stanley Arbus pay, or cause to be paid, to James V. Alois, Director of Welfare of the City of Paterson , County of Passaic and State of New Jersey, and his successors in office , the sum of $7.50 weekly for and towards the maintenance of said illegitimate child until the further order of this Court.

It appearing that said mother is in indigent circumstances , it is further ORDERED that the said Stanley Arbus pay or cause to be paid to the Department of Welfare of the City of Paterson the sum of $75.00 for the Paterson General Hospital of Paterson, New Jersey, and $40.00 for Dr. Ciro S. Tarta for the expenses incurred by the said mother during her confinement.

It is further ORDERED that Stanley Arbus, the father of the said child, shall forthwith enter into a bond in the sum of $1,000.00 to the Director of Welfare of the City of Paterson , County of Passaic and State of New Jersey, or his successors in office, that he will obey the Order of Filiation according to the Statute in such cases provided for."

The finding that the child "is or is likely to become a public charge" is required by N.J.S.A. 9:17-2, but has no place in a judgment under N.J.S.A. 9:16-3 when the mother is the plaintiff. In addition there is nothing in ...


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