Fagliarone v. North Bergen Tp.

• Decision Date: 01 February 1963
• Docket Number: No. A--954,A--954
• Citation: 188 A.2d 43,78 N.J.Super. 154
• Parties: John FAGLIARONE, Philip Scozzafava, Samuel Cafasso, and John Mertens, Plaintiffs-Respondents, v. TOWNSHIP OF NORTH BERGEN in the County of Hudson, a Municipal corporation of New Jersey, Defendant-Appellant.
• Court: New Jersey Superior Court — Appellate Division

Page 154

78 N.J.Super. 154

188 A.2d 43

John FAGLIARONE, Philip Scozzafava, Samuel Cafasso, and John Mertens, Plaintiffs-Respondents, v. TOWNSHIP OF NORTH BERGEN in the County of Hudson, a Municipal corporation of New Jersey, Defendant-Appellant.

No. A--954.

Superior Court of New Jersey Appellate Division.

Argued Jan. 28, 1963.

Decided Feb. 1, 1963.

Nicholas S. Schloeder, Union City, for appellant.

Leon S. Wolk, Cliffside Park, for respondents.

Before Judges GOLDMANN, FREUND and FOLEY.

PER CURIAM.

Defendant township appeals from a Chancery Division 'Order for Judgment' rendered after a non-jury trial on the issue of liability only. The trial judge determined that there was no just reason for delay in the entry of final judgment on that issue in favor of plaintiffs. See R.R. 4:55--2.

Plaintiffs are residents and property owners on the west side of Durham Avenue in North Bergen Township. They sought injunctive relief and money damages by reason of defendant's alleged negligence in the planning, construction and maintenance of a sewer line, resulting in their lands' being periodically flooded by storm waters and backed-up sewage.

Each of the briefs attempts an extensive review of the facts exposed in the course of the trial. It is well established that under R.R. 1:5--4(b), on a review of any civil action involving issues of fact not determined by the verdict of a jury, we may make new or amended findings of fact, first giving due regard to the trial court's opportunity to judge of the credibility of the witnesses. However, our appellate function is a limited one: we do not disturb the factual findings and legal conclusions of the trial judge unless we are convinced that they are so manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend to interests of justice. Weiss v. I. Zapinsky, Inc., 65 N.J.Super. 351, 357, 167 A.2d 802 (App.Div.1961).

We have carefully reviewed the proofs and find more than substantial evidence in support of Judge Pashman's findings and conclusions, and therefore affirm the order for judgment essentially for the reasons stated in his written opinion.

We conclude, as did Judge Pashman, that there was ample proof of active wrongdoing by the township in planning, constructing and maintaining the sewer line in question. There was more here than a negligent failure to act; what the township did constitutes a negligent act of commission. Hayden v. Curley, 34 N.J. 420, 424, 169 A.2d 809, et seq. (1961); Milstrey v. Hackensack, 6 N.J. 400, 408--409, 79 A.2d 37 (1951); and see McAndrew v. Mularchuk, 33 N.J. 172, 181, 162 A.2d 820 (1960). The proofs clearly establish that defendant planned only for sewage disposal from the Durham-Smith area. Its engineers admitted they made no field investigations or dye-flow tests to ascertain whether the existing situation was in accordance with the records on file in the township engineering office. In short, the engineers failed to consider and provide for total drainage, including storm water, which investigation would have shown passed into the connecting system. It did not use the engineering standards of care testified to by plaintiffs' expert.

Defendant argues that, assuming that the weight of engineering testimony concerning the adequacy of the system it installed preponderated in plaintiffs' favor, this at best would represent a mere error...