Conford, Collester and Labrecque. The opinion of the court was delivered by Conford, S.j.a.d.
Defendants appeal from the findings, determination and order of the Director, Division on Civil Rights, adjudicating their guilt of discrimination in respect of the rental of an apartment, as against the complainant, Robinson, a Negro, in violation of the Law against Discrimination, particularly N.J.S.A. 18:25-12(g)(1).
The appeal proceeds on two broad grounds: (1) the factfinding of discrimination against Robinson by defendants was unjustified; (2) the terms of the remedial administrative order were unduly broad and vulnerably vague.
We have carefully canvassed the entire record and find defendants' objections, legal and factual, to the determination of discrimination, to be without merit. The proofs adduced, if free from attack on admissibility grounds, reasonably sufficed to establish that the defendant landlord, acting
through its agent Walton, and the other individual defendants associated with the corporate defendant, hindered, discouraged and refused the rental of an apartment to Robinson while almost simultaneously indicating the availability of the same apartment to a white applicant, Barbara Spooner. Both Mrs. Spooner (pretending to be Miss Spooner) and Robinson informed Walton they were 20 years of age and earning $106 per week. They applied for the apartment the same afternoon, Robinson first. The hearing examiner and the Director could properly find from the entirety of the proofs that the landlord's purported reasons for the refusal of Robinson -- his minority and low earnings -- were not the real reasons and that in actuality Robinson was denied acceptance because of his race.
The crux of the fact case centered upon the alleged telephone calls from Walton to Mrs. Frank on May 1, 1967, from Mrs. Frank to Mrs. Spooner the same evening, and from Mrs. Spooner to Walton on May 2, 1967. If believed, the contents of these communications tended to establish the unqualified acceptance of Mrs. Spooner as a suitable tenant by defendants. In contrast therewith, the concomitant evasion, putting off and ultimate rejection of Robinson made out a prima facie case of illegal discrimination, which was not satisfactorily rebutted.
Defendants objected at the hearing to the evidence of the Walton-Frank telephone call on grounds of absence of authentication of Walton as the caller, as Mrs. Frank had not known Walton previously. However, in State v. Bassano, 67 N.J. Super. 526, 530-34 (App. Div. 1961), we held that although traditionally authentication of a telephone conversation required the caller's identification of himself as X and the witness's affirmation that he was able to recognize the voice as that of X, the preferred rule now is that reliable circumstantial evidence of the identity of the caller as X will suffice. See McCormick, Evidence (1954), § 193, pp. 405-406. Here Mrs. Spooner had given Walton the Frank address as her own. Although she had also given him a
fictitious telephone number for that address, there was extrinsic evidence justifying an inference that someone in the defendant organization had ascertained the correct number. The alleged purport of the Walton call was that Mrs. Spooner could have the apartment. There was supporting evidence that Walton had in fact made the call to the Frank home in that in his conversation with Mrs. Spooner the next day, the admissibility of which was not attacked by defendants, he confirmed the fact he had tried to reach Mrs. Spooner at the Frank apartment the previous day. Circumstances either preceding or following the disputed telephone conversation may serve to establish the identity of the party. See 29 Am. Jur. 2 d, Evidence, § 383, p. 435; Annotation, 105 A.L.R. 326, 335 (1936).
While defendants' brief describes the Frank testimony as hearsay, it offers no supporting argument. The testimony was not hearsay, as it was not offered to show the truth of any assertion of fact by Walton, but rather as verbal conduct constituting a part of the alleged discriminatory activity of the defendants. McCormick, op. cit., § 228, pp. 463-64.
Settled principles of judicial review of quasi -judicial determinations of administrative agencies require affirmance of the fact-findings here. The conclusion of discrimination was supported by competent, substantial evidence on the ...