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Weinstein v. City of Newark

Decided: March 18, 1968.


Stamler (Joseph.) J.s.c.


Plaintiff who appears pro se and describes himself as "Myron C. Weinstein, Citizen and Resident, State of New Jersey" brings this action against defendants the City of Newark; Dominick Spina, Director of the Police Department; Kenneth Melchior, Commandant of Bureau of Traffic and Signals; and Edward Cyr, Traffic Engineer.

Plaintiff, a resident of the Township of Millburn and a licensed driver in this State, asserts in the first count that the defendants have erected, placed, maintained and enforced regulatory traffic signs throughout the City which do not conform to law. This attack is directed to parking prohibition, exclusion and restriction signs. Plaintiff contends that the signs are illegal because of color, shape, sharp corners and multiple messages per sign. The "sharp corner" argument was abandoned at trial.

On this count plaintiff demands judgment as follows:

(a) a declaration that the traffic signs so described are illegal and of no force or effect;

(b) a declaration that the enforcement of the signs is ultra vires;

(c) a mandatory injunction against the Commandant of the Bureau of Traffic and Signals ordering the removal forthwith of all such signs;

(d) a prohibitory injunction against the Director of the Newark Police Department restraining him and his department from enforcing the signs pending their removal;

(e) a mandatory injunction ordering the Commandant of the Bureau and the Traffic Engineer to install "valid signs in accordance with the directive of local and State law."

The second count is limited to traffic control signals. Each and every traffic light in the City of Newark was erected and is maintained illegally, plaintiff contends. Then charging that "said illegal action has caused and will continue to cause plaintiff irreparable injury in that it represents an unlawful use of the police power by the City of Newark directly and indirectly obstructing plaintiff's common easement of travel and transport", he asks the court to declare each and every traffic control signal in the City of Newark without force and effect. A prohibitory injunction is sought forthwith against the enforcement of any traffic light violation anywhere in the City. At the trial plaintiff asserted and defendants agreed that after the complaint herein had been filed the City continued to install, erect and relocate traffic control signals following precisely the same procedure as it had theretofore.

Defendants assert that the traffic signs and signals were legally erected and enforced. But in bar at the outset defendants contend: plaintiff has no standing to sue; the Attorney General is an indispensable party; the statute of limitations has run. These defenses in bar are first considered for if tenable, it will not be necessary to proceed to the merits.


The Declaratory Judgment Act (N.J.S. 2 A:16-53) provides:

"A person . . . whose rights, status or other legal relations are affected by a statute, municipal ordinance, contract or franchise, may have determined any question of construction or validity arising under the instrument, statute, ordinance, contract or franchise and obtain a declaration of rights, status or other legal relations thereunder."

The Appellate Division said in Rego Industries, Inc. v. American Modern Metals Corp., 91 N.J. Super. 447 (App. Div. 1966):

"The purpose of a declaratory judgment proceeding is to provide a means by which rights, obligations and status may be adjudicated in cases involving a controversy that has not yet reached the stage at which either party may seek a coercive remedy. Such proceeding is intended to serve as an instrument of preventive justice, to relieve litigants of the common law rule that no declaration of right may be judicially adjudged until that right has been violated, and to permit adjudication of rights or status without the necessity of a prior breach." (at p. 452)

In addition to the foregoing statement, R.R. 4:92 A makes it very clear that "the existence of another adequate remedy does not preclude a judgment for declaratory relief in cases where it is appropriate."

Plaintiff is a licensed driver subject to Newark's signs and signals. He contends that the City displays unauthorized signs and signals and that this is an unlawful restriction of his privilege to park and to traverse the streets.

That plaintiff seeks other and further relief beyond the simple declaration (i.e. injunction) does not preclude this court from exercising jurisdiction. N.J.S. 2 A:16-60. Numerous cases in New Jersey direct that a liberal construction and administration be given to the Declaratory Judgment Act. Union County Board of Chosen Freeholders v. Union County Park Commission, 41 N.J. 333 (1964). One of the main purposes of the Declaratory Judgment Act is to definitively establish private rights, duties and obligations and thereby forestall a multiplicity of actions and, in addition thereto, avoid costly and burdensome separate trial proceedings. Hartford Accident and Indemnity Co. v. Selected Risks, Indemnity Co., 65 N.J. Super. 328 (App. Div. 1961). The defendants question whether plaintiff has a right and has standing to bring this action. If we were to refuse to hear this complaint, we would then impose upon the plaintiff the obligation of parking in a prohibited location, remaining too long in a limited parking zone and running a red light in order to test the validity of Newark's traffic control devices. Although it has been held that one may not ward off a criminal prosecution by gambling on the

ultimate outcome of a suit for a declaratory judgment (see Lucky Calendar Co. v. Cohen, 19 N.J. 399 (1955)), a distinction can be drawn between the efforts of the retail merchant who sought to establish in advance that his contest was not a gambling vehicle and the driver on the highways of our State who may be subject to numerous parking fines or a temporary suspension of driving privileges for a moving violation. Under the liberal construction of the Declaratory Judgment Act plaintiff has standing to sue although there is another remedy available. But even if there can be no suit unless there is no other available remedy, the other remedy must be an "adequate remedy", and to require a citizen licensed to drive on the streets of our State to violate the law to test its validity is not an adequate remedy.

Plaintiff is entitled to relief from the uncertainty and insecurity as to the legal limitations and obligations which confront him each day on the streets of the City.


Defendants contend that plaintiff is barred for he did not promptly pursue his rights within 45 days after the passage of the ordinance authorizing the parking signs. Defendants rely on R.R. 4:88-15.

The right to question the activities of Newark in this case has been yet accrued. It will first truly accrue when plaintiff is arrested for running a red light or summoned for illegal parking. Defendants inconsistently contend that plaintiff's present action is premature and out of time. Neither position is tenable.

Defendants add laches, the equitable statute of limitations. They protest that plaintiff did not object to the traffic signs and signals which have been and continue to be erected in the City. Such defense cannot be used to give vitality to an ordinance which never came into legal being or to an act which may require an ordinance for it to be validly performed.

Catalano v. Pemberton Tp. Bd. of Adjustment, 60 N.J. Super. 82, 97 (App. Div. 1960).

Plaintiff as a licensed driver seeks to enforce a right to use and traverse the streets of a municipality without the imposition of allegedly illegal prohibitions or limitations. This is a continuing right and that right is not lost by a failure to seek judicial relief within a specified number of days after the posting of a sign or the erection of a traffic signal. Cf. Yanuzzi v. Mayor and Council of Borough of Spring Lake, 22 N.J. 567, 570 (1956).


The Attorney General had notice of this litigation, asked for time to consider intervention and determined not to do so.

There is no challenge directed here to the constitutionality of the Motor Vehicle and Traffic Regulation Act or to irregular activity by the Director of the Division of Motor Vehicles. If there were, R.R. 4:37-2 would require formal invitation or naming of the Attorney General. What is here in issue is a question of the alleged failure of the defendants to comply with State law.

It is concluded that the Attorney General's presence is not indispensable to a determination of the issues here raised.


The traffic signs questioned in the case sub judice are exclusively "parking" signs. These comprise exclusionary, prohibitive and restrictive type signs. The New Jersey Courts have shown awareness of the serious parking problems confronting urban municipalities. See DeLorenzo v. City of Hackensack, 9 N.J. 379, 384 (1952); Lenzner v. City of Trenton, 22 N.J. Super. 415, 422 (Law Div. 1952), affirmed, 29 N.J. Super. 514 (App. Div. 1954), affirmed 16 N.J. 465 (1954), certiorari denied 348 U.S. 972, 75 S. Ct.

534, 99 L. Ed. 757 (1955). In Board of Commissioners of City of Newark v. The Local Government Board, 133 N.J.L. 513 (Sup. Ct. 1945), the following appears:

"Parking in the public streets in its broader connotation is a privilege in derogation of the common easement of travel and transport, and the uses incident thereto not inconsistent with the correlative rights of other travelers, and the abutting owner's qualified additional right of ingress and egress; and its control is therefore intimately identified with traffic regulation in its larger aspect and thus related to the essential public welfare." (at p. 517)

In Davidson v. Fornicola, 38 N.J. Super. 365, 379 (App. Div. 1955), certification denied 20 N.J. 467 (1956), the court said that in civil actions such objects of common and conventional size, shape and appearance as stop signs, traffic signals and devices, safety isles, and pavement markings as may be placed in or over and on public streets and highways must be presumed to have been lawfully erected, placed and maintained, in the absence of evidence which would render such a presumption unavailable, but that such a presumption is rebuttable. Notwithstanding that in Davidson the court may have applied such a presumption only in a negligence case, plaintiff herein has raised sufficient evidence and argument to require careful scrutiny of whether the erection, placement and maintenance of the signs were and are lawful.

N.J.S.A. 39:4-198 in relevant part reads as follows:

"No ordinance, resolution or regulation enacted, passed, or adopted by local authorities nor any regulation adopted by the State Highway Commissioner under any power given by this chapter or any supplement thereto shall be effective unless due notice thereof is given to the public by placing a sign at the places where the ordinance, resolution or regulation is effective, and by briefing its provisions on signs according to specifications contained in this chapter or any supplement thereto. These signs shall be so placed as to be easily read by pedestrians or operators of vehicles."

N.J.S.A. 39:4-183.2 requires that all traffic signs conform "in all respects" to the provisions of the act.

In appropriate part N.J.S.A. 39:4-183.17 provides:

"The design and location of other regulatory signs shall be as follows:

(a) Shape-Rectangular with longer dimension vertical.

(b) Colors-White background, black letters and border, except on prohibited parking signs which shall have white background, red letters and border, and limited parking signs which shall have white background, green letters and border.

(d) Messages and dimensions-Standard regulatory signs shall have 1 of the messages in the following table, with minimum dimensions to conform to the specifications adopted by the Director of the Division of Motor Vehicles."

N.J.S.A. 39:4-183.7 in relevant part reads as follows:

"All traffic signs shall be of the shape and color indicated in the table below. All corners shall be rounded and all signs shall have a border.


Regulatory Shape Background ...

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