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Wigler v. City of Newark

Decided: October 9, 1973.

ALBERT I. WIGLER, PLAINTIFF-RESPONDENT,
v.
CITY OF NEWARK, DEFENDANT-APPELLANT



Halpern, Matthews and Bischoff.

Per Curiam

Defendant appeals from a judgment entered on a jury verdict in favor of plaintiff in the amount of $54,300.

Plaintiff owns certain buildings and personal properties located on Springfield Avenue and Sayers Street in Newark, which he contends were damaged and vandalized by riots during the nights of July 12 through 19, 1967. He filed a complaint seeking damages from defendant city, based upon N.J.S.A. 2A:48-1 which authorizes recovery against municipalities for damages caused by riots if certain conditions are met.

Defendant first argues that plaintiff failed to present sufficient evidence to prove that the loss sustained was the result of riot rather than a criminal event committed for personal gain. In support of this contention defendant relies upon the case of A & B Auto Stores of Jones Street v. Newark, 59 N.J. 5, 17 (1971), wherein the court observed that N.J.S.A. 2A:48-1 is not applicable to damages resulting from a common criminal event committed for the private gain or gratification of the offenders merely because they number three or more.

The city, in effect, asserts that since plaintiff did not produce any witnesses to the actual entry and destruction of his premises, he cannot prevail in this suit against the city.

The damaged properties were located in the eye of the storm. Plaintiff was prevented from approaching them for several days by police, who had sealed off that particular area. There is sufficient credible evidence in the record from which the jury could properly conclude that plaintiff's losses were the result of a riot.

It is next argued that it was error for the court to exclude from evidence plaintiff's sworn petitions for tax appeal purposes previously filed with the city, as admissions against interest under Evidence Rule 63(7). The trial judge permitted extensive cross-examination based upon the petitions. He excluded them from evidence, exercising the discretion

vested in him by Evidence Rule 4, on the ground they contained irrelevant material. Defendant was not prejudiced, and we hold there was no abuse of discretion.

The further contention that it was error to exclude the complaint from evidence is specious for the record does not disclose any offer of the complaint into evidence by defendant.

Defendant also alleges reversible error in the conduct of the trial, resulting from note-taking by a single juror, under the following circumstances. During the course of deliberations, the jury requested supplemental instructions on two matters, namely, the fact-finding procedure outlined by the court in its charge and the inventory list. The court reinstructed the jury on the first and then read to the jury the inventory list, which consisted of over 20 items with dollar amounts ascribed to each. After the requested instructions were given and the jury retired to continue with their deliberations, defense counsel came to the court and indicated he was informed that a juror was making a list of the items as the court read them. It appears the list was made on an envelope. Neither counsel observed the procedure, and it was brought to the attention of defense counsel by someone else in the court room. It is contended this constitutes reversible error.

The practice of note-taking by jurors is not prohibited by any New Jersey statute, rule of court or decision. The matter becomes one of first impression.

The reasons advanced against this practice include the contention that the taking of notes by a juror may tend to distract his mind from the evidence which is being presented while he is taking notes; may distract the attention of other jurors from consideration of the evidence being presented; may tend to overemphasize either to himself or to other jurors the evidence on which he is taking notes; further, that ...


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