On appeal from Superior Court, Law Division, Monmouth County.
Conford, Labrecque and Halpern. The opinion of the court was delivered by Conford, S.j.a.d.
This is an action in lieu of prerogative writs by four citizens of Marlboro to compel the township clerk to call for a recall election in respect of the two defendant-councilmen, pursuant to N.J.S.A. 40:69 A -169 et seq. Defendants resisted the complaint in the Law Division on grounds of fraud in the preparation, and insufficiency of the recall petitions in various respects. Certain constitutional objections to the statute were also raised in the answers filed by defendants, but were not advanced at the hearings in the Law Division. These and some added constitutional points are nevertheless argued on the appeal.
The trial court after a hearing ruled against defendants on all points raised before it. We remanded for the taking of additional proofs and the making of further findings as to the genuineness of signatures on the two recall petitions. This has been done, and the final judgment entered in the first instance in favor of plaintiffs and against defendants on cross-motions for summary judgment and the first hearing of factual issues has been reaffirmed.
After the original hearing, the trial court found no evidence of fraud in the circulation and signing of the recall petitions, and we concur.
At the original hearing, a handwriting expert testified on behalf of defendants that in a considerable number of
groupings of signatures on both petitions a single person had signed all names in each of the particular groupings. As to most of these groupings of names plaintiffs offered the opposing testimony of individual purported signatories that all of the signatures in the particular grouping impugned were genuine. As to substantially all other groupings, the parties stipulated that persons were present in court, either signers or petition carriers, who would testify to the same effect. Since both sides agreed at the oral argument that the trial judge did not examine the signatures on the original petitions in appraising credibility, and because we did not deem such a stipulation a satisfactory method of weighing comparative weight and credibility, we remanded with directions that the "stipulated" witnesses appear and testify at a new hearing and that the judge examine the questioned signatures on the original petitions.
As noted above, these directions have been complied with (except as to 3 or 4 signatures where the witnesses could not be produced at the remand hearing), and the trial judge has made individual findings of genuineness of all questioned signatures. In each instance the judge indicated the specific factual basis for his findings, and we are satisfied that there is no ground for appellate interference with any of the determinations of fact thus made.
The supplemental brief of defendants makes only two points concerning the remand hearing. First, it is pointed out that one witness-signatory was concededly mistaken as to the identity of the petition carrier who obtained her signature, and that she was recalled to the stand to correct her testimony. This, however, was merely a circumstance going to credibility, and the judge was entitled to find that the witness was nevertheless truthful concerning the genuineness of the signatures of herself and her husband. Second, a point of comparable import is made with respect to the statutory affidavit of one of the petition carriers. The affidavit was to the effect that all signatures on the petition he carried were genuine whereas he admitted in his testimony that one signature
was produced out of his sight when a signing husband took the petition to a bedroom for his wife to sign also. Defendants ask that on the basis of the foregoing we invalidate all the signatures on the petition circulated by this particular carrier. The request is frivolous. The technical untruthfulness of the affidavit in the respect noted does not necessarily condemn the carrier's testimony as to the genuineness of all other signatures on his petition. The matter was one for disposition within the fact-finding function of the judge. As for the signatures of the husband and wife in this instance, the judge decided, on an inspection of the signatures on the ...