text:
    New Jersey Department of Labor, Workmen’s Compensation Bureau.
    GEORGE MYRON, PETITIONER, v. ORANGE DAIRY CO., RESPONDENT.
    Decided June 3, 1940.
    For the petitioner, Joseph L. Magrino (John J. Francis, of counsel).
    For the respondent, Arthur Mead.

   Subsequently, and on February 11th, 1940, an amended petition for compensation was filed which changed the nature of the claim for compensation from one for further compensation because of increased disability to an original petition for compensation. In this amended petition, petitioner alleged that he had been paid temporary disability for sixty-two and six-sevenths weeks at $20 weekly and twenty per cent, total permanent disability, and he alleged that this percentage did not represent the proper and true disability which he had suffered as the result of the accident referred to therein. Answering the amended petition, respondent asserted that by paying the twenty per cent, of total permanent disability, it had fairly and adequately compensated petitioner for all of the disability which resulted from the accident. * # *

At the outset of the trial, it was stipulated that petitioner was regularly in the employ of the respondent and that at about eleven a. m. on December 28th, 1935, he suffered an accident which arose out of and in the course of his employment. Thereafter, he was paid temporary compensation for sixty-two and six-sevenths weeks at his compensation rate of $20 weekly, amounting to $1,257.15. He was also paid twenty per cent, of total permanent disability, or 100 weeks at $20 weekly, amounting to $2,000.

The petitioner, George Myron, on being called to the witness stand, testified that on the morning of the day above referred to, while engaged in the course of his regular work for respondent, he injured the lower part of his back while pushing a conveyor which was loaded with cans or crates of milk. He advised the president of his employer of the accident and continued to work. Thereafter, and despite severe pain in his lower back, which he called to the attention of his employer on several occasions, he continued to work without medical attention. On May 14th, 1936, he fainted while at work and was then sent by his employer to Dr. O. Horton Tillotson of East Orange. After a few treatments by Dr. Tillotson, Myron was instructed by his employer’s insurance carrier to report to Dr. W. C. Calvert of Orange for treatment. He did so and after examination was advised by Dr. Calvert that he had a strain of the muscles of his back which would probably clear up with the exercise that went along with his work. Myron returned to work and because of pain in his back .while doing so, he again visited Dr. Tillotson, who recommended that he be X-rayed. On June 22d, 1936, X-rays were taken by Dr. Ernest May of East Orange. On June 24th, he received a call from Dr. Tillotson advising him that Dr. May’s X-ray report had been received. Myron went to Dr. Tillotson’s office, obtained the X-ray report, and took it to Dr. Calvert. A few days later, he was advised by respondent’s carrier to report to Dr. Smith of the Orthopedic Hospital in Orange, Hew Jersey. He went there on June 29th, and after clinical and X-ray examination by Dr. Smith, was put on a spine bed in the hospital. He remained at the hospital until July 20, on which day he was released after having been fitted with a back belt. Every second day thereafter until August 16th, he received treatment from Dr. Smith and on that day was discharged with instructions to wear the belt steadily.

On or about July 20th, 1937, respondent’s president came to Myron’s home and offered to give him work. At this time, he was still sleeping on a spine bed at home and wearing the belt and he asserted that although he felt unable to work, he had to do so because of his pressing need for money. On October 14th, 1937, he was forced to cease even the light work that he had been doing because of his back condition. During the last week of October, he was sent by respondent’s carrier to Dr. Henry H. Ritter of New York for examination. Following this examination, he was admitted to the Post-Graduate Hospital in New York on November 2d and on November 11th, a fusion operation was performed on his lower back. Thereafter, and until December 17th, 1937, he remained in the hospital. On that day he was permitted to go home, still wearing a body cast. On January 19th, 1938, he was re-admitted to the hospital and following the removal of the east and the taking of X-rays, he was discharged January 21st, 1938. On February 18th, 1938, he returned to Dr. Ritter’s office in New York for examination and at that time was measured for a Taylor brace, which was supplied to him a short time thereafter. Dr. Ritter treated him eighteen times thereafter, the last treatment being on October 4th, 1938. Since that time, he has worn the brace off and on, and on some occasions it seems to help him. Petitioner further asserted that his condition has not improved since the operation. He has had and still has down to the present time, almost constant and severe pain in his lower back. He is unable to stand on his feet for any length of time without becoming exhausted. He cannot do any lifting whatever. He has severe headaches, is extremely nervous, and when subjected to any excitement or emotional strain, goes completely to pieces, and as he puts it, “just shakes all over.”

Petitioner called Dr. Leo Szerlip, an orthopedic specialist, who testified that he examined Myron on February oth, 1940. Examination disclosed that Myron walked with a somewhat protected gait. His lumbar muscles were spastic on both sides. The lumbar curve is obliterated to a considerable degree. There is a long curved scar from about the twelfth dorsal vertebra to the lower end of the sacrum. Spinal motions are considerably restricted in forward flexion, and lateral bending. Hyperextension is possible only through a very few degrees. All motions of the spine are accompanied by complaint in the lumbo-sacral area. There is present a one-half inch atrophy in the left calf and a long scar in the anterior aspect of this leg. The straight leg bending test is positive and causes pain in the lumbo-sacral area. Dr. Szerlip also examined X-ray plates which were taken of petitioner by Dr. Anthony DePalma on September 15th, 1939. These X-rays show the lumbar spine and pelvis in the anteroposterior and lateral views. They show a considerable amount of an opaque material in the spinal canal and in the soft tissue of the back and buttocks. This opaque material is lipiodol which was injected in the spinal canal for diagnostic purposes in connection with the fusion operation. The X-rays also showed an exostosis at the superior and anterior margin of the third lumbar vertebra, but the body of the vertebra does not appear to have been narrowed. Thejf also showed evidence of a small bone graft from the first to the third lumbar vertebra. The doctor advanced the opinion that this lipiodol is an irritating substance and that the irritation may increase as time goes on. He advanced the opinion that Myron is suffering from a disability of fifty per cent, to sixty per cent, of total.

Petitioner also called Dr. Anthony DePalma and Dr. M. DePronzo, whose findings were much the same as those of Dr. Szerlip, and who also advanced the opinion that petitioner was suffering from fifty per cent, to sixty per cent, of total permanent disability.

Dr. Samuel Hirschberg, a neurologist, also examined petitioner on February 17th, 1940, and he testified that petitioner is suffering from ten per cent, of total permanent disability from a neurological standpoint alone.

In defense, respondent called Dr. Charles Baker, an X-ray specialist, who X-rayed petitioner on January 29th, 1937, which was before the operation referred to, and on October 6th, 1938, after the operation. The first X-ray in the doe-tor’s opinion showed no fractured vertebra, but they did show some exostosis of the upper margin of the third lumbar vertebra and some of the bottom thereof and some of the second lumbar vertebra. The space was normal between the vertebra and there was no injury to or herniation of the nucleus pulposis. The doctor also testified that so far as the X-rays showed, he could see no reason for a fusion operation. The X-rays taken after the operation show the same conditions except where the evidence of the fusion operation appears. Upon request, the doctor examined the X-rays which had been taken by Dr. DePalma and which were marked P-1 and P-2, and expressed the view that part of the bone which was used for the fusion of the lumbar vertebra had become absorbed. He conceded that both his own plates and those of Dr. DePalma showed the presence of lipiodol in the spinal canal and in the muscles and soft tissue of the lower back.

Dr. Henry H. Eitter testified in behalf of the respondent and said that he saw the petitioner for the first time on October 19th, 1937, and that at that time, Myron was suffering from a very painful back. All of the motions of the back were restricted and there was marked spasm of the spine muscles. He suggested that Myron enter the New York Post Graduate Hospital for further study and diagnosis. Myron did so and following the taking of X-rays the fusion operation was performed. In this fusion a piece of bone was removed from the left leg and attached to the spine from the first lumbar vertebra down to the sacrum. The doctor said that the operation was performed to relieve the petitioner’s painful back and that there was no fracture of any of the lumbar vertebra and no injury to any intervertebral disc. After the operation he continued to take care of Myron and finally discharged him on October 4th, 1938. On the date of his last examination he felt that there had been a very great improvement in petitioner’s condition as a result of the operation, and he fixed the permanent disability at from ten per cent, to twenty per cent, of total. This, he said, was an “arbitrary” figure.

On being questioned as to the presence of lipiodol in the spinal canal and in the soft tissue and muscles of the back, he conceded that it was there and said that some persons are allergic to it. In such persons, lipiodol acts as a general irritant. When it acts as an irritant, a maximum point of irritation is reached which becomes fixed and permanent.

Dr. J. Irving Fort also appeared for the respondent. He examined the petitioner on three occasions, the first being September 11th, 1936. At that time petitioner had a very painful back and the motion thereof was limited to the extent of eighty per cent. At this time the doctor felt that Myron’s disability was total. On the second occasion, January 19th, 1937, the objective findings were the same and total disability still existed. The last examination was made on November 6th, 1939, which was after the fusion operation. At that time, according to the doctor, petitioner’s condition had improved considerably. There were points of tenderness along the fourth and fifth vertebra, forward motion was limited thirty to thirty-five degrees and rotation limited to ten degrees. He examined the X-rays of Dr. Baker and confirmed the diagnosis of the presence of lipiodol and said that the bone graft extended from the first to the third lumbar and that the bone graft from the third to the fifth lumbar vertebra had been absorbed. In the doctor’s opinion, there was no evidence of a fracture of any of the lumbar vertebra nor of injury to the nucleus pulposis. In the doctor’s opinion, on the date of his last examination, petitioner was suffering from fifteen per cent, to twenty per cent, of total permanent disability.

It appeared that petitioner had been examined on behalf of respondent by a neurologist, Dr. Ambrose Dowd. Dr. Dowd was not produced at the trial and on a demand by petitioner’s counsel for the production of the doctor’s report, it was produced upon the agreement that it would go into evidence. Counsel consented and the report was marked. Examination of it disclosed that Dr. Dowd fixed petitioner’s permanent disability at thirty to thirty-five per cent, of total, which he said resulted from the back condition and a psychoneurosis. After considering carefully all of the testimony adduced by both petitioner and respondent, I have come to the conclusion that petitioner sustained no fracture of any of the lumbar Vertebra, nor any injury to any of the intervertebral discs of the lumbar vertebra in the accident which brought about this claim for compensation. I do find, however, that respondent’s payment to petitioner on the basis of twenty per cent, of total permanent disability did not and does not adequately compensate him for the disability resulting from the accident. It is my conclusion that petitioner is suffering from a permanent disability of fifty per cent, of total disability which has resulted from the fusion operation that was performed on his back and also from the irritating effect of the lipiodol which was injected in his spinal canal. Under the circumstances, it is on this 3d day of June, 1940, ordered that compensation be awarded to petitioner as follows:

An additional thirty per cent, of total permanent disability, or 150 weeks’ compensation at $20 weekly, amounting to $3,000. Since respondent paid compensation to September 24th, 1939, under its voluntary award of twenty per cent, of total permanent disability, payment of compensation under this award is to begin as of that date. *******

John C. Wegner,

Deputy Commissioner,


source: Caselaw Access Project

author: Quinn, Presideut.

license: Public Domain

text:
    State Board of Tax Appeals.
    CITY OF NEW BRUNSWICK, PETITIONER, v. COLUMBIAN BUILDING CORPORATION, RESPONDENT. COLUMBIAN BUILDING CORPORATION, PETITIONER, v. CITY OF NEW BRUNSWICK, RESPONDENT.
    Decided June 7, 1940.
    Por Columbiau Buildiug Corporatiou, William F. McOloshey aud Douglas M. Hides.

    Por the city of New Bruuswick, Paul W. Ewing (by William D. Danberry).

   Quinn, Presideut.

The taxpayer iu these cases is a holdiug compauy for the New Bruuswick Couucil of the uatioual fraternal organization, Knights of Columbus, holding legal title to real estate owned by the council, consisting of premises at 74 Carroll Place, .Nbw Brunswick. The land is improved by a building consisting of two sections, one part being a frame structure, and the other a brick addition constructed in the rear of the frame building and connected with it by common passageways in the basement and first story, so as to render the entirety a functional unit.

The property was assessed by the taxing district for each of the years 1937 and 1938 in the sum of $22,900, being land, $3,900; improvements, $18,000, and personal property, $1,000. Appeals to the Middlesex County Board of Taxation resulted in a cancellation of the 1937 assessment, but in an affirmance of that for 1938. The appeals to this Board raise the question as to whether the property in question, or any part of it, was entitled to exemption from taxation for either or both of the years mentioned, under Pamph. L. 1936, ch. 46 (R. S. 54:4-3.26; N. J. S. A. 54:4-3.26) providing as follows:

“All real and personal property used in the work and for the purposes of one or more fraternal organizations or lodges, or any association or society organized on the lodge plan, or affiliated associations, whether incorporated or unincorporated, shall be exempt from taxation under this chapter, if the legal or beneficial ownership of such property is in one or more of said organizations, lodges, associations or societies, and no part of such property is used for pecuniary profit.”

A number of questions were raised at the hearing in derogation of the claimed right of exemption: in reference to the operation of a bar in the premises, as constituting a use for profit; concerning the existence of a default in the mortgage on the premises, as affecting the beneficial ownership of the property by the council; and as to the regular use of the premises by the Catholic Daughters of America. These objections are not urged by the taxing district in its brief, and are, moreover, without substance. As of the assessing dates, October 1st, 1936, and October 1st, 1937, the bar was operated under a club liquor license issued to the council’s nominee, Recovery Club, a non-pecuniary incorporated social organization, whose membership was automatically identical with that of the council. The use of the bar was restricted to the members and their guests, and in such circumstances, there is no loss of the right of exemption. Hoboken Lodge No. 74, B. P. O. E. v. City of Hoboken (State Board), filed February 21st, 1939, affirmed, Hoboken v. Hoboken Lodge No. 74, B. P. O. E. (Supreme Court, 1939), 123 N. J. L. 506; 9 Atl. Rep. (2d) 783.

The Catholic Daughters of America is affiliated with the Knights of Columbus, and therefore its use of the building does not bar the right of exemption, under the express provisions of the statute.

S6 far as the beneficial ownership of the property in the New Brunswick Council is concerned, legal title to the premises on both of the respective assessing days was in its holding company. We have heretofore held that in such a situation the dominant fraternal organization is the beneficial owner of the property. Fifty-Six Seminary Avenue Corp. v. City of Rahway (State Board), filed April 4th, 1939. Nor is it material that a mortgage encumbering the property was in default during the tax years in question, and that the taxpayer eventually, but subsequent to the assessing dates, conveyed the property to the mortgagee in satisfaction of its obligation. Beneficial ownership of the property, within the intent of section 54:4-3.26, remained in the New Brunswick Council so long as its holding company held the legal title.

A substantial question as to operation for pecuniary profit is raised, however, by the proof adduced at the hearing to the effect that the council conducted a series of weekly public bingo games from January 30th, 1937, until May 1st, 1937, and another from September 25th, 1937, until May of 1938. This showing is indicative, not of occasional or incidental games for fraternal purposes, but of a continuous, studied practice, which must be considered to constitute a use of the property for pecuniary profit, as of the tax year 1938. Plain-field Lodge No. 885, Benevolent and Protective Order of Elks v. City of Plainfield (State Board), filed February 21st, 1939. The games having begun well after the assessing date for the year 1937, i. e., October 1st, 1936; they will not affect the taxpayer’s right to exemption for that year. Hoboken Lodge No. 74, B. P. O. E. v. City of Hoboken (State Board), filed February 21st, 1939.

The taxing district contends that the taxpayer’s disqualification for exemption, arising from its operation of the bingo games, must be held to extend to the entire building, and not merely to the rear section thereof, where the games were actually held. We are in accord. The structure was, as indicated above, an entirety, and under the statute exemption is grounded upon the condition that “no part” of the property be used for pecuniary profit.

Prom the foregoing discussion it will appear that the property in question was not affected by any use for profit on the assessing date for the year 1937, and that the assessment was properly canceled for said year. It likewise appears that because of the situation respecting bingo games, the assessment was properly sustained for the year 1938. The judgments of the Middlesex County Board of Taxation are therefore affirmed for both of the years in question.


author: Quinn, President.

text:
    State Board of Tax Appeals.
    CITY OF NEWARK, PETITIONER, v. GENERAL MOTORS SALES CORPORATION, PRIGIDAIRE DIVISION, RESPONDENT.
    Decided June 18, 1940.
    For the petitioner, James F. X. O’Brien (by Vincent J. Casale).

    For the respondent, Robert M. Otarle.

   Quinn, President.

The assessing authorities of the petitioner taxing district levied a personal property assessment against respondent, for the year 1938, in the sum of $80,000. The Essex County Board of Taxation reduced this valuation to the sum of $5,000, and the city appeals to restore the original assessment.

At the hearing respondent’s comptroller identified certain reports alleged to have been filed by respondent with the assessors of the city, purporting to set forth the company’s taxable property in the city, and its claim for exemptions, as follows:

At No. 554 Broad Street

Ca$h $6~.OO

Furniture and equipment .. 2,568.93

Parts 263.00

$2,896.93

Exempt Pro per~y

At No. 110 Edison Place

F'rigidaire parts and units $5,620.00

The existence, contents, and filing of these reports or claims were not adequately proved at the hearing, nor were they put in evidence. But for purposes of this opinion we take them as represented by counsel.

Said comptroller farther testified, however, that on the assessing date the company was in possession of $80,000 worth of frigidaires at 110 EdIson Place. This indicates that respondent was in possession of property located within the taxing district, to the total value of $82,896.93.

Itespondent contends that its property at 110 Edison Place was exempt from taxation, as stored in a warehouse for hire, under R. S. 54:4-3.20. But the right to exemption is dependent upon compliance on the part of the taxpayer with R. S. 54:4-15, to the effect that:

"No allowance or dcd action shall be made for personal property or securities claimed to be exempt from taxation, unless a sworn claim therefor shall be made, setting forth a detailed list of the securities and personal property claimed to be exempt, the dates when they were purchased, and that they were not purchased with intent to escape taxation."

The testimony at the hearing as to the contents of the statutory claim for exemption indicates that it took this form, in part:

"No. 19 on said Report (Return) at $5,620. The Personal Property which this item in Return is intended to cover consists of the following, viz.: `Frigidaire Parts, $5,140, Sealed-in-Units $461, Installation Material $19.' Total $5,620. The valuations of this property as immediately here-i~mbefore stated are the full and fair value of the property, ‘as of October 1st, 1937/ as determined by an evaluation of the same.”

This can be considered a detailed list of the property claimed to be exempt, only in the sense of a claim for $5,620 worth of refrigerator parts, units, and materials. There is no explanation, either in the testimony or in the argument of counsel, for the discrepancy between the figure of $5,620, claimed in the filed report, as the value of exempt property in storage, and the $80,000 valuation given by respondent’s officer at the hearing as the value of its property in storage on the assessing date. Statutes setting out conditions for exemption from taxation are to be strictly construed and complied with. State, Union Paper Co. v. Assessors )(Supreme Court, 1906), 73 N. J. L. 374; 63 Atl. Rep. 1006. Under these circumstances we can allow a deduction from respondent’s total of taxable personalty, as hereinabove computed, only to the extent of the property in storage claimed in the filed report, or $5,620.

The judgment of the Essex County Board is accordingly modified, so as to fix the assessment at the remaining taxable balance of $77,266.93.

. Judgment accordingly.


text:
    New Jersey Department of Labor, Workmen’s Compensation Bureau.
    HAROLD EDWIN COOMBS, PETITIONER, v. NASH REFRIGERATION CO., RESPONDENT.
    Decided June 14, 1940.
    For the petitioner, Samuel L. Rothbard (by Henry Harris).

    For the respondent, Francis X. Kenneally.

   A compensation petition was filed by the petitioner in the above entitled matter on September 35th, 1939, seeking reimbursement for medical expenses incurred by him in 1939, for the enucleation of the left eye required by reason of an accident that arose out of and in the course of his employment by the respondent on August 4th, 1934. The respondent denies liability on the ground that the petition was filed more than two years since the date of the last payment of compensation to the petitioner.

It appears from the pleadings and stipulation of counsel that the petitioner suffered a compensable accident on August 4th, 1934, for which he received one and two-sevenths weeks temporary compensation and 100 per cent, permanent disability of the left eye or an additional 100 weeks compensation, the last compensation payment being made in 1936. In 1939 the injured eye became infected so as to require removal and the substitution of an artificial eye.

The Workmen’s Compensation act (R. S. 34:15-15; N. J. S. A. 34:15-15) imposes upon the respondent the duty of furnishing to the petitioner proper medical and surgical attention including the furnishing of an artificial eye to the petitioner. However, the Compensation act further provides (R. S. 34:15-51; N. J. S. A. 34:15-51) “that every claimant for compensation shall file a petition within two years after the date on which the accident occurred; or in case an agreement for compensation has been made by the employer and the claimant, then within two years after the failure of the employer to make payments pursuant to the terms of such agreement; or in case a part of the compensation has been paid by the employer, then within two years after the last payment of compensation.” This section was construed to be one of jurisdiction rather than a statute of limitation. Miller v. Beller Electric Co., 100 N. J. Eq. 444; 136 Atl. Rep. 342.

The petitioner contends that the two-year limitation applies only to petitions for compensation rather than for reimbursement of medical expenses. In the case of Mellor v. Nicholson File Co., 7 N. J. Mis. R. 714, this bureau held that a claim for medical services must be filed within the period prescribed for the filing of petitions for compensation. While there is no apparent limitation prescribed for medical treatment under section 34:15-15 of the Workmen’s Compensation act, still the subject-matter is so closely integrated with the remainder of the Workmen’s Compensation act and its provisions are so complementary and so dependent thereon for proper disposition that it seems rational that the two-year limitation period should apply to medical treatment as well as to petitions for compensation.

It is interesting to note that the statute establishing the so-called “one per cent, fund” as originally enacted, contained no words of expressed limitation as to the time for application for benefits, nevertheless in the case of Ruffin v. Albright, 121 N. J. L. 424; 3 Atl. Rep. (2d) 135, the Supreme Court held “there is in the statute no words of express limitation as to the time for application for benefits. We think, however, it must be at the time application could be made for compensation for the last accident sustained, or for increased disability therefrom.” The same reasoning can be applied to the case sub judice.

It is clear and undisputed that the said petition has been filed two years after the date of the accident; that this is not a case where an agreement for compensation has been made between the employer and the claimant, and that the employer has failed within two years to make payment pursuant to the terms of such agreement; that the last payment of compensation has been paid more than two years prior to the filing of the petition in this cause.

I therefore determine that this bureau is without jurisdiction to entertain a petition for medical costs beyond the two-year limitation period and I therefore order that the petition be dismissed.

Haeey S. Medinets,

Deputy Commissioner.


text:
    New Jersey Department of Labor, Workmen’s Compensation Bureau.
    ELEANOR S. GELTMAN, PETITIONER, v. RELIABLE LINEN SUPPLY CO., RESPONDENT.
    Decided May 7, 1940.

      Por the petitioner, David Roshein.

    Por the respondent, Clarence B. Tippett.

   A petition to recover compensation for the death of one Isidore E. Geltman, by accident arising ont of and in the course of his employment with the Reliable Linen Supply Co., was filed by Eleanor S. Geltman, his widow and dependent, * * *.

The primary question for determination is whether the deceased met with an accident arising out of and in the course of his employment, as contemplated by the provisions of the Workmen’s Compensation act and the adjudications thereunder. Of the latter, one of the foremost is Bryant v. Fissell, 84 N. J. L. 72; 86 Atl. Rep. 458, wherein the statute is interpreted as follows:

“It remains to be considered whether the accident arose both ‘out of and in the course of his employment.’ Eor an accident to arise out of and in the course of employment it must result from a risk reasonably incidental to the employment * * *. A risk may be incidental to the employment when it’s either an ordinary risk directly connected with the employment or an extraordinary risk which is only indirectly connected with the employment owing to the special nature of the employment.”

Tested by the rule above enunciated, there is presented in this case, ample testimony to warrant the conclusion that the accident which caused the death of the employe was the result of a risk reasonably incidental to his employment. The decedent had been employed as a salesman and it is evident that his use of a car was essential for the performance of his specific duties which, among other things, required his visiting various customers of the respondent and soliciting orders from them, in Essex and Passaic counties, and was contemplated by the parties. The contract of hiring provided for the use of a car by the decedent and the employer in fact acknowledged this need by contributing $6.50 per week to defray the cost of maintenance and operation of same since it was used by the salesman for the employer’s benefit. The testimony is clear and uncontroverted that the decedent, at the time he met his unfortunate death, was driving the car in the performance of his duties as salesman for the respondent. He was on his way from the plant of his employer to visit customers in Passaic county. Had a collision occurred during the operation of this automobile on the public highway, and the employe killed as a result thereof, there would be no question that the death resulted from an accident arising out of and in the course of his employment. Barkman v. Meyer, 12 N. J. Mis. R. 287; 171 Atl. Rep. 536; Berry v. Silent Automatic Sales Co., 11 N. J. L. 322; 168 Atl. Rep. 292; Orange Screen Co. v. Drake, 8 N. J. Mis. R. 742; 151 Atl. Rep. 486. Such a collision is clearly a risk associated with or incident to the operation of the car and the employment which requires it.

The probability of a collision while operating a car in his master’s business is not the only risk incident to the use of the public highways by an employe. It is not only conceivable but probable, in the light of existing traffic conditions, confusion and congestion, that the failure of drivers of vehicles to observe the accepted standards of courtesy in the use of the public highways, in all likelihood would lead to arguments, recriminations and even altercations between the parties involved. Such encounters usually result in the exchange of vociferous and uncomplimentary language between the drivers and are attendant with excitement and agitation. Prom the testimony adduced it appears that it was such an incident in the case at bar that set in motion a series of events which finally culminated in the high state of emotional excitement on the part of the deceased employe which, according to the undisputed medical testimony, was the precipitating cause of his death.

It is not essential that there be a physical injury. The Workmen’s Compensation act imposes no such requirement. The clearly expressed legislative intent is to provide compensation when disability results from "personal injuries” suffered by accident arising out of and in the course of the-services required by the contract of employment. A mental, emotional or nervous shock has been held to be a direct injury for -which compensation was properly awarded. Sail v. Doremus, 12 N. J. Mis. R. 319; affirmed, 114 N. J. L. 47. So here, the extreme emotional excitement ensuing from the traffic incident which precipitated an acute anoxemia and resulted in the instantaneous death of the employe, is a '"personal, injury” by accident, as contemplated by the statute.

From the testimony of the various witnesses to the traffic incident which occurred about nine-forty-five A. M. on January 14th, 1938, it appears that the deceased employe was driving his Chevrolet coupe in connection with the business of his employer, in a northerly direction on Clinton avenue, at or near the intersection of High street, Newark, New Jersey. The deceased attempted to make a left turn to proceed west into High street and in so doing almost came in contact with a car driven by one Frank Eokasny, in which there was also seated a passenger.- Apparently, as a result of Geltman’s failure to signal or indicate his intention to make such a turn, Eokasny was evidently angered and he swung his ear in such a manner within the intersection so as to prevent Geltman’s car from proceeding further and thereupon, both Eokasny and his passenger left their car, proceeded over to the decedent’s automobile and began to berate and argue with him. In the overheated colloquy which ensued, angry and abusive language between the three was used. Apparently, by reason of the insistent horns of other vehicles which were prevented from passing because of the obstruction caused by the two automobiles involved, Geltman’s car then proceeded out of the intersection and west on High street apparently on his way. The Eokasny car gave chase and forced the deceased to the easterly curb of High street where its driver and passenger again proceeded to Geltman’s vehicle and the acrimonious and abusive argument continued in a heated manner while Geltman continued to sit behind the wheel of his car. The language used was indecent and loud and it appeared that the passenger even offered to enter into a fist fight with Geltman. This passenger was seen to open the door of the decedent’s car and continue his abuse, while at the same time the driver, Eokasny, was standing at the left window of the same car and both appeared to be abusing or otherwise arguing with Geltman. Shortly thereafter Kokasny was seen to reach into the interior of Geltman’s car in what appeared to be an attempt to strike the occupant. Whether or not he did strike the deceased is uncertain nor is it essential to this determination. Almost simultaneously Geltman’s head was seen to fall back, his hat fell off his head and he slumped in his seat with the muscles of his face contracting as if gasping for breath, and as shown by the .autopsy findings, died instantly.

While the testimony adduced by the respondent from Robasny and his passenger differs in some aspects from the testimony adduced by the petitioner’s witnesses, including among whom was Prank P. Zimmer, a counsellor-at-law of this state, I have no hesitancy in accepting the version of the entire accident, as related by the petitioner’s witnesses, as being more truthful and accurate. I have reached this conclusion after not only hearing but also having an opportunity to observe the demeanor of the various witnesses both on the stand and in the court room.

Dr. Berardinelli of the Essex county medical examiner’s office and Dr. Asher Yaguda, both recognized pathologists of this state, appeared and testified in respect to the autopsy findings and the cause of the decedent’s death. The autopsy findings disclosed a condition of arteriosclerosis and coronary atheroma both of which were degenerative conditions of long duration and pre-existed the date of the traffic incident. It was their opinion that the attendant emotional agitation, excitement and strain that was generated by the traffic incident described, produced a demand for increased coronary blood supply; and further, that the inability of this increased coronary blood supply to get past the narrowed and encroached orifices of the heart due to the underlying pre-existing arteriosclerotic condition of the petitioner’s coronary vessels, resulted in an acule anoxemia causing the death of the decedent.

The proofs in this case clearly indicate, and I so find, that but for the state of emotional strain, agitation and excitement, and the increased demand for coronary blood attendant therewith, the employe’s death would not have taken place at the time, manner and place that it did occur. The uncontroverted medical testimony adduced by the petitioner adequately supports this conclusion. I find that the incident was the precipitating cause of the decedent’s death and produced the acute anoxemia causing a change in the anatomical structure of the decedent’s heart and extinguishing his life.

The ultimate disability flowing from a compensable accident superimposed on an already weakened heart has, under our cases, been held to be the measure of the employer’s liability. Bernstein Furniture Co. v. Kelly, 115 N. J. L. 500; Hentz v. Jenssen Dairy Co., 122 Id. 494. The controlling rule as laid down in Bollinger v. Wagaraw Building Supply Co., 122 Id. 512, that death from disease alone during the employment will not suffice, but personal injury or death which, on proofs, are sufficient and persuasive, would not have occurred but for the services rendered in the employment amount to an injury by accident, is applicable to the case at bar.

I find that the petitioner herein has met and sustained the burden of proof that the decedent met with an accident arising out of and in the course of his employment, resulting in his death. The petitioner was the wife of the deceased and was living with him at the time of his death and for a number of years prior thereto. The testimony further shows that they had kept a common household and that she was being supported by him. She is a total dependent. The two children of the marriage, Donald and Arlene Geltman, were sixteen and ten years of age respectively. Arlene, who was born on November 25th, 1927, is a total dependent within the meaning of the Workmen’s Compensation act. I therefore find and determine that the petitioner Eleanor S. Geltman and Arlene Geltman, her daughter, were and are total dependents and are accordingly entitled to benefits thereunder as such.

Harry S. Medinets,

Deputy Commissioner.


author: Baeboub, S. C. C.

text:
    HELEN RYAN AND EDWARD F. RYAN, HER HUSBAND; EDWARD RYAN, BY HIS NEXT FRIEND EDWARD F. RYAN, AND EDWARD F. RYAN, INDIVIDUALLY, PLAINTIFFS, v. PUBLIC SERVICE CO-ORDINATED TRANSPORT, MARTIN J. O’BRIEN, ELSO EMBROIDERY MANUFACTURING CO., A CORPORATION OF THE STATE OF NEW JERSEY, AND HARRY ELKIN, DEFENDANTS.
    Decided July 1, 1940.
    For the plaintiffs, Joseph H. Caudielle (James A. Major, of counsel).
    For the defendants Elso Embroidery Manufacturing Co. and Harry Elkin, McDermott, Enright & Carpenter.

   Baeboub, S. C. C.

This matter comes before the court on motion made by defendants Elso Embroidery Manufacturing Co. and Harry Elkin to strike the fifth and sixth counts of the complaint filed in the above entitled cause on the ground that each of said counts does not set forth a legal cause of action.

In the fifth count of the complaint Edward Eyan, an infant, by his next friend Edward F. Eyan, alleges a cause of action for personal injuries sustained by him while en ventre sa mere, and in the sixth count his father, Edward F. Ryan, seeks to recover for consequential damages.

The question is: Can an infant, in the absence of statute, maintain an action for personal injuries sustained while en ventre sa mere ?

There is no statute or judicial authority in the State of New Jersey granting or denying to an infant the right to maintain an action for personal injuries sustained while en ventre set mere, and while there have been strong dissenting opinions in other states the courts of review of other states have consistently held that such an action could not be maintained.

Defendants state, “At the time of the accident the infant was part of the mother, and any injuries received by that part of the mother were injuries to the mother and not injuries to the child in the mother’s womb since the latter had no existence separate and apart from its mother.”

The Supreme Judicial Court of Massachusetts in Dietrich v. Northampton (1884), 138 Mass. 14, held: “that as an unborn child was a part of the mother at the time of the injury, any damage to it which was not too remote to be recovered for at all was recoverable by her * *

In Allaire v. St. Luke’s Hospital et al. (1900), 56 N. E. 638, the Supreme Court of Illinois said:

“The action is not given by any statute, and, if maintainable, it must be so by the common law, and therefore the question is whether, at common law, the action can be maintained,” and held that such action could not be maintained.

Mr. Justice Boggs in his dissenting opinion in that case gave the clearest argument in favor of the maintenance of such an action, saying:

“It may be conceded no case adjudicated at the common law can be found wherein a plaintiff was awarded damages fox injuries inflicted upon his person while in the womb of his mother. But an adjudicated case is not indispensable to establish a right to recover under the rules of the common law. Lord Mansfield declared: ‘The law of England would be an absurd science were it founded upon precedents only. Precedents,’ he observed, ‘were to illustrate principles, and to give them a fixed certainty.’ 1 Kent Comm. 477.”

He further said:

“The argument is that at the common law an unborn child was but a part of the mother, and had no existence or being which could be the subject-matter of injury distinct from the mother, and that an injury to it was hut an injury to the mother; that in such case there was hut one person— one life—that of the mother. A foetus in the womb of the mother may well be regarded as but a part of the bowels of the mother during a portion of the period of gestation; but if, while in the womb, it reaches that prenatal age of viability when the destruction of the life of the mother does not necessarily end its existence also, and when, if separated prematurely, and by artificial means from the mother, it would he so far a matured human being as that it would live and grow, mentally and physically, as other children generally, it is but to deny a palpable fact to argue there is but one life, and that the life of the mother. Medical science and skill and experience have demonstrated that at a period of gestation in advance of the period of parturition the foetus is capable of independent and separate life, and that, though within the body of the mother, it is not merely a part of her body, for her body may die in all of its parts and the child remain alive, and capable of maintaining life, when separated from the dead body of the mother. If at that period a child so advanced is injured in its limbs or members, and is born into the living world suffering from the effects of the injury, is it not sacrificing truth to a mere theoretical abstraction to say the injury was not to the child, but wholly to the mother ?

“A child in venire sa mere was regarded at the common law as in esse from the time of conception for the purpose of faking anjr estate, whether by descent or devise, or under the statute of distribution, if the infant was horn alive after such a period of foetal existence that its continuance in life was or might he reasonably expected. 10 Am. & Eng. Encycl. L. 624; Co. Litt. 36. Blackstone, after declaring the right of personal security to be an absolute right, says: ‘The right of personal security consists in a person’s legal and uninterrupted enjoyment of his life, his limbs, his body, his health, and his reputation. Life is the immediate gift of God—a right inherent by nature in every individual: and it begins, in contemplation of law, as soon as an infant is able to stir in the mother’s womb. Por, if a woman is quick with child, and by a potion or otherwise killeth it in her womb, or if any one beat her, whereby the child dieth in her body, and she is delivered of a dead child, this, though not murder, was, by the ancient law, homicide or manslaughter.’ Though it was the rule of the common law if one should unlawfully beat a woman pregnant with child, and thereby cause the child to die in the body of the mother, the crime was not deemed to be murder, but the ancient crime of homicide or manslaughter, still the doctrine of the common law was, if the child should not die in the womb of the mother, but should be born alive, and should afterwards die in consequence of the assault while in the womb of the mother, the offense was deemed to be murder. 3 Co. Inst. 50; 1 P. Wms. 345. If, in the contemplation of the common law, life begins as soon as the infant is able to stir in the mother’s womb, and that an injury inflicted upon an infant while in the womb of the mother shall be deemed murder if the infant survive the wound during prenatal life, but succumbs to it, and dies from it after being born, and if every legitimate infant in ventre sa mere is to be deemed as born for all purposes beneficial to the child, why should it be supposed the common law would have denied to an infant born alive the right to recover damages for the injury inflicted upon it while in the womb of the mother? Had such injury, though inflicted on the child while in the mother’s womb, been sufficient to cause the death of the infant after it had been born alive, the common law would have regarded the injury as having been inflicted upon a human being, and punished the perpetrator accordingly; and, that being true, why should the infant which survives be denied the right to recover damages occasioned by the same injury ? In the case at bar the infant, when the injury was inflicted, had, as the declaration alleged, reached that advanced stage of foetal life which would have, according to the experience of mankind, and according to the medical learning of the age, endowed it with such vitality and vigor, and with members and faculties so far complete and mature, that it could have maintained independent life, and the death of the mother would not have deprived it of life. It is but natural justice that such an infant, if born alive, should be allowed to maintain an action in the courts for injuries so wrongly committed upon its person while so in the womb of the mother.”

In Drobner v. Peters, 186 N. Y. S. 278, the Appellate Division of the New York Supreme Court in 1921, by a vote of three to two, upheld the right to maintain such a cause of action, and in its decision collected and discussed many authorities. However, the Court of Appeals, 232 N. Y. 220; 133 N. E. Rep. 567, reversed the Appellate Division, Mr. Justice Cardozo dissenting but without opinion. Mr. Justice Pound, speaking for the Court of Appeals, said:

“Mr. Justice Holmes said in 1884, in Dietrich v. Northampton, 138 Mass. 14; 52 Am. Rep. 242, that no case, so far as he knew, had ever decided that an infant could maintain an action for injuries received in the mother’s womb. The great weight of authority is still against the plaintiff’s contention that the unborn child has a right of immunity from personal harm (Allaire v. 8t. Luke’s Hospital, 184 Ill. 359; 56 N. E. Rep. 638; 48 L. R. A. 225; 75 Am. St. Rep. 176; Walker v. Great Northern Railway Co., 28 L. R. A. 69; Gorman v. Budlong, 23 R. I. 169; 49 Atl. Rep. 704; 55 L. R. A. 118; 91 Am. St. Rep. 629; Buel v. United Railways Co., 248 Mo. 126; 154 S. W. Rep. 71; 45 L. R. A. (N. S.) 625; Ann. Cas. 1914C, 613; Lipps v. Milwaukee, &c., Co., 364 Wis. 272; 159 N. W. Rep. 916; L. R. A. 1917B, 334), although much judicial argument has been advanced to support a contrary ruling (Nugent v. Brooklyn Heights Railroad Co., 154 App. Div. 667; 139 N. 7. Supp. 367; dissenting opinion, Boggs, J., Allaire v. St. Luke’s Hospital, supra; Beven on Negligence (3d ed.) 73, 76) * * *.

“By a legal fiction or indulgence, a legal personality is imputed to an unborn child as a rule of property for all purposes beneficial to the infant after his birth (The George & Richard, L. R. 3 Ad. & Ecc. 466), but not for purposes working to his detriment (Villar v. Gilbey (1907), A. C. 139, 145), * * *.

“Eights of ownership of property do not connote a duty of personal care to the inchoate owner, nor does the crime of causing the death of an unborn child connote liability to the child for personal injuries. When justice or convenience requires, the child in the womb is dealt with as a human being, although physiologically it is a part of the mother, but the law has been fairly well settled during its centuries of growth against the beneficence of an artificial rule of liability for personal injuries sustained by it.

“Does the present case permit the establishment by judicial decision of the rule that the innocent infant need not bear unrequited the consequences of another’s fault? In the mother’s womb he had no separate existence of his own, When born he became a person. He carried the injuries out into the world with him. His full rights as a human being sprang into existence with his birth. No longer may it be urged that the mother alone is injured. The presence of the injured child refutes that theory. Did he succeed to his mother’s rights?

“The modern tendency of decided cases is to ignore fictions and deal with things as they are. At common law a cause of action for personal-injuries did not survive if death resulted from another’s negligence or wrongful act. Lord Campbell’s act, passed in England in 1846, and followed generally in this state (Code Civ. Proc., § 1905), was necessary to correct this omission. May this court attach an unnatural meaning to simple words and hold independently of statute that a cause of action for prenatal injuries is reserved to- the child until the moment of its birth and then accrues? The formulation of such a principle of legal liability against precedent and practice may be a tempting task, to which sympathy and natural justice point the way; but I cannot bring myself to the conclusion that plaintiff has a cause of action at common law. The injuries were, when inflicted, injuries to the mother. No liability can arise therefrom except out of a duty disregarded, and defendant owed no duty of care to the unborn child in the present case apart from the duty to avoid injuring the mother.

“Strong reasons of public policy may be urged both •’or and against allowing the new right of action. The conditions of negligence law at the present time do not suggest that the reasons in favor of recovery so far outweigh those which may be advanced against it as to call for judicial legislation on the question.”

This seems to answer all of the arguments so ably presented by Mr. Justice Boggs in the Allaire case, supra.

In the absence of statute or precedents in this state, the decisions of the appellate courts of such great states as New York, Massachusetts and Illinois are entitled to great consideration. It is to be noted that the decisions are based upon the absence of statute and generally reeogn ize that “sympathy and natural justice” may favor the maintenance of such an action.

At common law an action could be maintained only for injuries sustained after being born alive and such cause of action did not survive the death of the injured. To provide for the survival of such cause of action after death Lord Campbell’s act was enacted in England, and in this state the Heath act, R. S. 2:47-1 (N. J. S. A. 2:47-1), was enacted. To provide for a new cause of action to bo maintained by an infant after being born alive for injuries sustained while en venire sa mere, an act of the legislature is necessary. J udicial legislation in these circumstances is improper, much as one may be tempted because of “sympathy and natural justice.”

The motion to strike the fifth and sixth counts of the complaint will be granted.

An order may be presented accordingly.


author: Rosecrans, J.

text:
    Warren County Orphans Court.
    IN THE MATTER OF THE ESTATE OF ANNA H. WHEARY, DECEASED.
    Decided June 26, 1940.
    For the appellants, Mackerley & Friedman.

    For the respondent, Claude E. Cook.

   Rosecrans, J.

(Orally.) This is an appeal from probate. ' The will was prepared by a lay scrivener and the testatrix signed by mark, the lay scrivener appending in his handwriting the name of the testatrix. The statute provides that before the signing by the witnesses the signature of the testatrix must have been made or acknowledged by her and a publication or declaration of the instrument made by her as her will, both of these things being required to be done in the presence of two witnesses. Re Amsden's Will, 121 N. J. Eq. 571; 191 Atl. Rep. 801. The scrivener testified substantially as to the presence of the two witnesses and the signing by the testatrix but there was no proof whatever of publication. The only words uttered by the testatrix were, “Pm glad it’s all over.” The testimony of the other subscribing witness did not even go that far. She testified that she was summoned by the residuary legatee. She apparently knew that the call had something to do with the execution of a will but in answer to a direct question by counsel of the proponent, “Did you know what you were signing?” she testified, “I couldn’t say,” and in a previous part of the examination she said, “1 don’t remember,” when her attention was directed to the making of the mark by the testatrix. It is settled that all the requirements must be strictly followed in the making of a will. The law is clear that there must be, at the time of execution, some word or unmistakable act by the testatrix, or by someone in her presence to which she gives a sign of her assent, manifesting to the subscribing witnesses that the testatrix knew and wished them to know that she was executing her will. Re Messach’s Estate, 16 N. J. Mis. R. 407; 1 Atl. Rep. (2d) 339. This case is in some respects similar to the one considered by Vice-Ordinary Buchanan in Cook v. Taylor, 113 N. J. Eq. 225; 166 Atl. Rep. 32, and his words are particularly applicable here: “There can be no doubt whatever, in the mind of anyone reading the testimony, but that the testatrix intended this instrument as her last will and testament and that she and the witnesses intended and endeavored to have it duly executed as such. Nevertheless, if any one of those things which the statirte says must be done, in order to execute a valid will, was not done, or has not been proved to be done, the court cannot admit it to probate. This case is only another illustration of the risk that is run by one who attempts the making of a will without legal advice * * (Italics supplied.)

There is at least one of the statutory requisites entirely absent and that is publication. There was no declaration by the testatrix and no manifestation by word or sign indicating, after she had affixed her mark, that this was her will and she intended it as her last will and testament. Probate must be denied. The order of the surrogate is reversed and the letters testamentary revoked. Counsel may submit a decree in accordance herewith.


text:
    New Jersey Department of Labor, Workmen's Compensation Bureau.
    LEONARD COLLAZO, PETITIONER, v. SETON LEATHER CO., RESPONDENT.
    Decided July 3, 1940.
    For the petitioner, Samuel Lewin.

    For the respondent, John W. Taylor.

   ^ jjs & jfc % #

The petitioner testified in his own behalf that he was employed by the respondent company in 1931 and worked for the respondent up to and including February 12th, 1939, as a fireman. He stated that his duties as a fireman were performed in a boiler room which was disconnected from the main building of the plant and that his duties consisted of firing two boilers contained therein and in addition to these duties he, from time to time, had to enter the main plant building and check the temperature in the various rooms of the plant. The temperature in these rooms greatly varied. According to the petitioner, whenever it rained, considerable rain water would enter the boiler room, because of the slope of the ground surrounding the boiler room, and that on each of these occasions, which were most frequent, his feet would become wet, indicating that he became wet almost up to the knees. It was his judgment that this rain water would accumulate to the extent of two to three feet in height immediately in front of the boilers at which he worked. He stated that on the night of February 11th, 1939, he came to work at ten P. M., and that around midnight there was a severe rain storm which resulted in water accumulating in front of the bioler to the height of three feet. His feet became wet up to a point just below the knees and he stated that shortly thereafter he felt sick. He continued to work until six a. m.. the following morning, when he was relieved at his regular quitting time by the day man. Ho took the bus home and as he left the bus, he started to spit blood. He went to bod that day and continued to expectorate considerable quantities of blood. On February 14th, 1939, he went to the office of Dr. James M. Fine, a lung specialist. He was subsequently sent to the Newark City Hospital where he remained for five weeks under the care of Dr. Fine. Upon his discharge from the Newark City Hospital he then went to the Newark City Dispensary where he continued under the treatment of Dr. Fine for a number of months. Tie further stated that he has not worked since February, 1939, with the exception of a few days in November, 1939, when he worked as a fireman. At the present time, he feels fairly well except that he complains of shortness of breath and pain in his right side.

Under cross-examination, the petitioner admitted that he lost no time from work from 1931 up to February 12th, 1939, with the exception of a week in March, 1936. Tn March, 1936, he stated that he suffered from a severe cold and ou this occasion, he was also treated by Dr. Fine. Tn other words, although according to the petitioner he worked subject to great variations in temperatures, and in the boiler room which was always damp and the floor of which was frequently covered with water, he suffered from no illness and lost no time from work from 1931 up to 1939 with the exception of one week in March, 1936.

Dr. Fine, who is well known as a specialist in diseases of the lungs, testified on behalf of the petitioner that he first treated Mr. Collazo on March 28th, 1936, at which time the petitioner was suffering from an acute cold and lost approximatety one week from his work. Dr. Fine suspected tuberculosis at this time and X-rays taken by Dr. Pomerantz on March 28th, 1936, showed an obstruction of the bronchi at the base of the right lung. It might also be said that at this time Mr. Collazo was expectorating blood. The petitioner next came to Dr. Fine for treatment on February 12th, 1939, complaining of having been taken sick about a week or so prior. He was coughing and expectorating blood. Dr. Fine referred Mr. Collazo to the Newark City Hospital where he was confined for a period of five weeks, under the doctor’s care. After his discharge from the Newark City Hospital, he was referred to the Newark City Dispensary and treated by Dr. Fine at that institution up until November 3d, 1939. Dr. Fine’s treatment consisted of collapsing the right lung. A series of some twelve X-rays were taken during this course of treatment. Briefly these X-rays taken in 1939 showed an obstruction of the bronchi at the base of the right lung similar to the one that existed in March, 1936, although somewhat larger in size. Mr. Collazo was discharged by Dr. Fine on November 3d, 1939, as well enough to work. It was Dr. Fine’s opinion that the petitioner never had tuberculosis, but may have been suffering from acute pneumonia or bronchitis.

On cross-examination, Dr. Fine stated that he had never received a history from the petitioner, although he had inquired of the petitioner for a complete history on several occasions, which indicated that petitioner had been exposed to great variations in temperature or to dampness. The only history given by the petitioner to Dr. Fine was that he attributed his cold to working with coal dust. In answer to a question incorporating all of the facts surrounding the petitioner’s working conditions, Dr. Fine stated that it was his opinion that the petitioner’s employment in no way contributed to the petitioner’s illness, and further stated that at the time of Mr. Collazo’s discharge from treatment on November 3, 1939, the petitioner had no existing disability.

Dr. Irving Applebaum testified on behalf of the petitioner and stated that he had treated him for some period of time after his discharge by Dr. Fine. He was also asked to read the X-ray films taken during the course of Dr. Fine’s treatment and his interpretation of them was in substance the same as that related by Dr. Fine with one exception. He stated that in his opinion the X-ray film of March 28th, 1936, did not indicate any obstruction of bronchi at the base of the right lung. It was Dr. Applebaum’s opinion that the petitioner had contracted pneumonia a matter of a week or two prior to February 12th, 1939, and that this disease was due to Mr. Collazo’s exposure to dampness and the varying temperatures, although he admitted that it was most unusual for a man who had been suffering from a similar episode in March, 1936, to work for a period of three years subject to the conditions disclosed by Mr. Collazo without having another episode until February 12th, 1939. Dr. Applebaum estimated the petitioner to have an existing permanent disability of fifteen per cent, of total due to the episode of February 12th, 1939.

This concluded the testimony offered on behalf of the petitioner at which time the respondent’s attorney moved for a dismissal of the petition on the ground that petitioner had failed to prove an accident arising out of and in the course of his employment by the respondent company.

I have carefully considered the testimony of the petitioner and both doctors. The doctors directly contradict one another. This being so, it necessarily follows that the petitioner has failed to meet the burden cast upon him by law of establishing his cause of action by a fair preponderance of the evidence. The contradictory opinions expressed by the petitioner’s experts nullify each other. I am further impressed by the fact that Dr. Fine was unable to elicit from the petitioner a history which in any way indicated that the petitioner’s condition was attributable to the conditions which the petitioner has described, and that Dr. Fine treated this petitioner without charge at the Newark City Hospital and at the Newark City Dispensary. Dr. Fine has stated that assuming the petitioner’s working conditions to have been as described by the petitioner, that such working conditions in no way contributed to the petitioner’s illness. Dr. Fine was the petitioner’s witness and the petitioner is bound by this testimony. If the conditions under which Mr. Collazo worked were as he described, having in mind the episode of March, 1936, it is most peculiar that he was able to work subject to such conditions for approximately three years without a recurrence. As Dr. Applebaum said, he would not recommend that a well and healthy man work under such conditions. How then was a man obviously of low resistence, as Mr. Collazo was, able to continue his employment without a recurrence of the lung condition which he has been suffering from as far back as March, 1936.

Concluding as I must that the petitioner has failed to sustain the burden of proof cast upon him by law and that his employment in no way contributed to his present condition, it is hereby ordered that the petition be and is hereby dismissed.

John C. Wegnek,

Deputy Commissioner.


text:
    State Board of Tax Appeals.
    BUXTON COUNTRY DAY SCHOOL, INC., PETITIONER, v. TOWNSHIP OF MILLBURN, RESPONDENT.
    Decided July 2, 1940.
    For the petitioner, Dcinforih Geer, Jr.

    For the respondent, Beynier J. Wortendylce, Jr.

   Quinn, President.

This appeal brings before us the 1938 assessment levied by the township of Millburn upon the buildings, land and personal property owned by petitioner and used by it in the operation of the educational institution hereinafter described. An appeal to the Essex County Board of Taxation, praying cancellation of the assessment, was dismissed.

The appeal is based upon the contention, urged by petitioner and denied by respondent, that the property is actually used for a school not conducted for profit, within the intent of P. L. 1918, ch. 236, § 303 (R. S. 54:4-3.6; N. J. S. A. 54:4-3.6). It is not disputed that on the assessing date the building was in use as a school, but it is specifically denied by the township that it was “not conducted for profit,” within controlling adjudications of the courts.

An application of the law to the facts in eases of the type herewith presented, requires a full and exhaustive evaluation of the background, auspices, aims, financial set-up and operation of the particular institution involved, and no one circumstance or set of circumstances can control the determination of the fact of operation for profit in a particular case. Dana College v. State Board of Tax Appeals (Supreme Court, 1936), 14 N. J. Mis. R. 308; 184 Atl. Rep. 412. In this connection our courts have stated at different times, distinctly differently shaded tests for “operation for profit” of schools. In Institute of Holy Angels v. Bender (Supreme Court, 1909), 79 N. J. L. 34 (at p. 36); 74 Atl. Rep. 251 :

“The school must be conducted for the purpose of making a profit, i. e., as a commercial enterprise, in order to be deprived of its exemption. The argument is quite as clear in the case of the charge for tuition as in case of the charge for board. Unless the tuition charges are so fixed as to evince a purpose to make a profit over and above the cost of tuition, the school is exempt. Princeton University and Eutgers College, like all our endowed institutions of learning, make a charge, sometimes not an inconsiderable charge, for tuition; and it is quite probable that in individual cases the tuition fee may exceed the actual cost of the instruction; yet no one would suggest that either institution was conducted for profit. The reason is that such institutions upon the whole give more than they get, and make up for the deficiency of the tuition fees to pay for the actual cost of the instruction, in part by the self-sacrificing devotion of the teachers, and in part by the bounty of past generations. Such appears to be the aim of the present prosecutor. The school is conducted by a religious .sisterhood; the teaching sisters receive no salary; some of the pupils pay no tuition, some pay less than the full charge. The receipts do not suffice to meet the expenses, and the prosecutor depends upon donations to meet the deficiency..”

In Borough of Princeton, &c., v. State Board of Taxes and Assessments (Supreme Court, 1921), 96 N. J. L. 334 (at p. 339); 115 Atl. Rep. 342 (case of Miss Pine’s School) :

“The question being whether the school is “conducted for profit,’ within the meaning of the act, the test is not whether there is or may be a profit, but whether the school is conducted for the purpose of making a profit; that is to say, whether the charges for tuition and board are fixed with the intention of yielding a profit over and above the actual cost. Institute of Holy Angels v. Bender, 79 N. J. L. 34.

“In the case of a day school [such as the one now in question], unless the tuition charges are so fixed as to evince a purpose to make a profit over and above the cost of tuition, the school is exempt.

“In the present case the evidence shows conclusively that the charges are not fixed with the intention of yielding a profit. It shows that the school is supported in part by an endowment and gifts from friends, and that the charges for tuition are much lower than other schools of like character. It shows that in fact the school did not yield a profit, but was conducted at a loss.”

But in each of the following eases the test for exemption was stated as consisting in whether or not the purposes and objects of the school are “fundamentally charitable or philanthropic.” Dwight School of Englewood v. State Board, &c. (Supreme Court, 1935), 114 N. J. L. 594; 177 Atl. Rep. 888; Princeton Country Day School v. State Board (Supreme Court, 1934), 113 N. J. L. 515; 175 Atl. Rep. 136; Bancroft School v. State Board (Supreme Court, 1932), 10 N. J. Mis. R. 656; 160 Atl. Rep. 390; Carteret Academy v. Stale Board (Court of Errors and Appeals, 1923), 98 N. J. L. 868; 120 Atl. Rep. 736, and (Supreme Court, 1926), 102 N. J. L. 525; 133 Atl. Rep. 886. It is significant that in each of the eases cited in this paragraph exemptions were denied, whereas in those first cited, they were allowed. It appears to us that all of the cases cited were decided, not by facile application of the difficult criterion as to whether a particular school was “fundamentally charitable or philanthropic” (Princeton University, undoubtedly entitled to exemption from taxation, could hardly be described as essentially charitable, though philanthropic in a general sense), but upon a thorough consideration of whether the institution gave to the public at large substantially more than it received, “as a public work of service to the state, without expectation of remuneration,” considering the nature of the inspiration for its inception, the calibre and scholarship of its faculty and leaders, the scale of its fees, the extent of its acceptance of free students, its freedom from expensive exclusiveness, the moderateness of the compensation of its faculty, the incidence of self-abnegation rather than substantial pecuniary return to its founders and managers, and such other circumstances as would contribute to an understanding of whether the prime motivation for the carrying on of the enterprise was that of public service or private emolument.

An examination of petitioner’s application must be undertaken in the light of all of the foregoing. From its inception, Buxton Country Day School has been the result of the enterprise and organization of Mrs. Ellen Geer, its director. It was incorporated in 1929 as a stock company under the General Corporation act, the form of the incorporation contributing to the failure of its application for exemption from payment of 1931 taxes on its property. Buxton Country Day School, Inc., v. Township of Millburn (State Board Tax Reports 1912-1934, p. 542). In 1935 the school was reincorporated as an association not for pecuniary profit, at that time receiving by conveyance all of the property of the former stock company. These transfers were subject to a mortgage of $12,000 placed on the buildings by the stock company with The Howard Savings Institution. The new corporation also assumed a mortgage of $11,000, held by the Summit Trust Company, which Mrs. Geer and her husband had previously placed on their own home for the purpose of constructing buildings for the school, and likewise assumed three unsecured loans, the proceeds of which were also used for school buildings, held by Mr. Bentley W. Warren, Mrs. Warren and Mrs. Lillian Harmon, in the sums of $10,000, $7,500 and $2,500, respectively. The Warrens are the parents of Mrs. Geer, and have continuously waived interest upon their loans. The land upon which the buildings stand was the free contribution of Mrs. Geer, personally, to the corporation, she retaining no interest in it of any kind.

The stock corporation by-laws Aid not provide for the payment of dividends, and none have ever been paid. Mrs. Geer, who has devoted her full time to the school since its inception, has never received any financial remuneration from it whatever, being able to devote her efforts thereto gratuitously through the financial support of hex husband. Tbe Geer family has, furthermore, contributed an average of $1,000 per annum to make up for the operating deficit of the institution, exclusive of the waiver of interest by the Warrens upon loans aggregating $17,500.

Mrs. Geer’s original organization of the school was the result of observations made by her of the effectiveness and growth of progressive methods in elementary education in schools fostered by private charity, free from the restrictions attending educational experiment in the public schools. She determined to devote her time and such financial resources as she could muster to the establishment of a laboratory for experimentation in progressive education, through the medium of a private school. She has since continued the operation of the petitioner institution toward the objective outlined, despite offers to undertake similar work elsewhere, attended by the financial compensation which petitioner has never given her. She testifies that a number of specific projects in music, art and dramatics developed at Buxton, have been adopted by other schools, public and private. Public school teachers are invited to visit the school, and to observe at first hand the methods employed, which methods were described and exemplified at length at the hearing.

The Buxton School accommodates 142 pupils, who pay from $125 to $475 for their tuition. In the 1937-1938 school year, seventeen of the students were awarded scholarships aggregating twelve per cent, of the tuition income, which increased to a total of twenty-seven students the following years, receiving scholarships equal to twenty-five per cent, of the tuition income. Compensation to teachers at the school averages between $1,500 and $1,800 per year, which is less than the general public school average of compensation to teachers. Por each of the school years referred to, the school operated at a loss, which was made "up hy the Geers, parents of students, and other friends of the school.

Petitioner emphasizes the availability of its curriculum to students of every economic class, so far as its facilities will permit, and its studied effort to keep itself free from exclusiveness in the social sense, hut unique in the sense of its development of a contribution to progressive education.

It appears to us beyond question that the school is not conducted for profit, and that it qualifies for exemption from taxation, under the authority of Mayor of Princeon v. State Board, cited supra. The assessment appealed from is canceled.


author: Leyden, S. C. C.

text:
    THE FIRST NATIONAL BANK OF BLOOMINGDALE, A NATIONAL BANKING ASSOCIATION, PLAINTIFF, v. THE NORTH JERSEY TRUST COMPANY, RIDGEWOOD, NEW JERSEY, A CORPORATION, DEFENDANT.
    Decided July 8, 1940.
    For the motion, Evans, Smith & Evans.

    Opposed, J. Chester Massinger.

   Leyden, S. C. C.

The defendant moves to strike the several' counts of the complaint upon the ground that each is insufficient in law. This motion was denied on May 13th, 1940, upon the erroneous assumption that it was a general motion addressed to the complaint as a whole. Malone v. Brotherhood, &c., 94 N. J. L. 347; Van Schoick v. Van Schoick, 76 Id. 242. A re-argument was permitted on June 28th, 1940. Counts 1 and 3 are allegedly based upon the theory of the defendant’s breach of its guaranty of prior endorsements. Count 2 is upon the theory of conversion. Count 4 is a repetition of counts 1 and 3 with the assertion of the plaintiff’s right to bring the present action against the defendant to avoid a circuity of action. Count 5 is based upon the theory that the defendant received money for the use of the plaintiff. Count 6 alleges a duty owing by the defendant to the plaintiff to make inquiry to determine whether the purported endorsements of the payees were genuine and the failure or neglect of the defendant to do so constituted a breach of duty whereby the defendant became liable to the plaintiff. The seventh count is on the common law action of general assumpsit.

A reading of the allegations of the complaint discloses the following: The plaintiff, The First National Bank of Bloomingdale, having agreed to lend Richard Albers and Lillian Albers the sum of $6,900 upon a bond and mortgage executed by them, drew its check dated October 16th, 1939, to the order of Richard Albers, Lillian Albers and Mortgage Service Bureau, for that amount upon the Manufacturers Trust Company, a banking institution having its place of business in the city of New York.

On the same day the Mortgage Service Bureau, without authority from or knowledge of the Albers, caused the check to be endorsed with their names as well as its own, with the further endorsement: “For deposit, Mortgage Service Bureau, Inc.,” and delivered the item to the defendant, The North Jersey Trust Company, for collection.

The defendant endorsed the check: “Pay to the order of any bank, banker or trust co. October 16th, 1939, all prior endorsements guaranteed, The North Jersey Trust Company, Ridgewood, N. J. David E. Roman, Sec’y,” and transmitted it to its correspondent, the National City Bank of New York, which collected the face amount of the cheek from the drawee thereof, the Manufacturers Trust Company, and transmitted the said sum to the defendant bank, charging the amount thereof to the account of the plaintiff.

Upon the return of the item the plaintiff drawer discovered the forged Albers endorsements, carried out its commitment to make the original loan by paying the Albers a further sum of $5,900 and now seeks to recover the proceeds of the first cheek from the collecting bank, the defendant, The Forth Jersey Trust Company.

As already indicated, counts 1 and 3 sound on the guaranty arising out of the endorsement by the defendant “Pay to the order of any bank, banker or trust eo. October 16th, 1939, all prior endorsements guaranteed.” These counts are insufficient in law and will be stricken.

Few Jersey adopted the Uniform Bank Collection Code in the year 1929; Pamph. L. 1929, ch. 270; N. J. S. A. 7:6-1. The purpose of the act, gathered from its provisions, is to make the law relating to bank collections uniform and to substitute its provisions for the rules of law and equity including the law merchant and the rules relating to trusts, agency, negotiable instruments and banking as to all transactions provided for therein. N. J. S. A. 7:6-2.3. By its terms the endorsement of an item by a payee or other depositor, “for deposit” is a restrictive endorsement and indicates that the endorsee bank is the agent for collection and not the owner of the item.

The endorsement “pay to the order of any bank, banker or trust co. all prior endorsements guaranteed,” is an express guaranty by the endorser to all subsequent holders and to the drawee or payor of the genuineness of and the authority to make prior endorsements, and to save the drawee or payor harmless in the event that a prior endorsement is defective or irregular in any respect. It is apparent then that no cause of action arose in favor of this plaintiff as drawer against the collecting defendant bank on said endorsement.

Although there is some contrariety of opinion among the states on this point, Few York seems to hold the view above expressed, not citing the Uniform Bank Collection Code, however. See Hartford Accident Indemnity Co. v. First National Bank and Trust Company of Hudson, 281 N. Y. 162. The industry of counsel has not disclosed any Few Jersey case dispositive of the question. It may be said without fear of successful contradiction that the State of New York is the center of finance and banking in the United States, and its Court of Appeals is a respectable authority which may be safely followed on this question.

The second count in conversion is bad. There is no allegation that the property and right to immediate possession of the check was in the plaintiff.

The essential elements of the common law action in conversion are: (a) that the property and right to immediate possession thereof belong to the plaintiff; and (b) the wrongful act of interference with that right by the defendant. 1 Chit. Pl. (7th ed.) 166 et seq.; Woodside v. Adams, 40 N. J. L. 417; Prome v. Dennis, 45 Id. 515. The endorsement “for deposit” is restrictive and makes the endorsee bank agent for collection, not owner of the item. Uniform Bank Collection Code, section 8, N. J. S. A. 7:6-8; Negotiable Instruments law, section 36, N. J. S. A. 7:2-36; Hoffman v. First National Bank of Jersey City, 46 N. J. L. 604. To pass title, the authorized endorsement of all payees, not partners, was necessary. Negotiable Instruments law, section 41, N. J. S. A. 7:2-41. The property right, the beneficial ownership in the check was in the payees, the Albers. Their title could be divested only by their proper endorsement or by an endorsement under their authorization. Singer Sewing Machine Co. v. Citizens National Bank and Trust Co., 111 N. J. L. 199; 168 Atl. Rep. 32; affirmed, 112 N. J. L. 497; 171 Atl. Rep. 796; Passaic Bergen Lumber Co. v. U. S. Trust Co., 110 N. J. L. 315; 164 Atl. Rep. 580; Teas v. Third National Bank and Trust Co., 125 N. J. Eq. 224; 4 Atl. Rep. (2d) 64. That the Albers would have a right of action in conversion against the defendant as the collecting bank (Passaic Bergen Lumber Co. v. U. S. Trust Co., supra; Teas v. Third National Bank and Trust Co., supra) is not disputed. Such is not the situation here. The plaintiff is the drawer of the check, not the payee.

The fourth count is a reiteration of the third with the added allegation that the paying bank, the Manufacturers Trust Company, is indebted to the plaintiff; that the defendant is indebted to the National City Bank which in turn is indebted to the Manufacturers Trust Company and therefore to avoid a circuity of action the plaintiff has just cause to take a short cut, so to speak, and bring the action directly against the defendant.

This count is subject to the same infirmity as counts 1 and 3. Circuity of action in so far as this plaintiff is concerned is not apparent. It would seem that the plaintiff has a cause of action against the Manufacturers Trust Company, the paying bank, for disbursing its funds on a forged endorsement. There is nothing circuitous about that. It is direct and to the point. This count will be stricken as insufficient in law.

The fifth count is likewise subject to the same objections as counts 1 and 3, being based on the guaranty of the genuineness of the prior endorsements. The added allegation is that this defendant received the sum of $5,900 for the use of the plaintiff. As already has been pointed out, the defendant received the money for the use of the payees, the Albers, as is disclosed by the complaint. Ho right of action in the plaintiff arose by reason of the defendant’s guaranty of prior endorsements.

The sixth count reiterates the allegations of the first count and seeks recovery on an alleged breach of duty owing by the defendant to the plaintiff. What this alleged duty was, does not clearly appear in the complaint. True, the defendant as the collecting bank owed a duty to the payees to exercise ordinary care in the collection of the item. Uniform Bank Collection Code, N. J. S. A. 7 :6-9. There is no allegation of facts which give rise to a duty owing by the defendant to this plaintiff, and there is nothing to indicate that the defendant allowed the forged endorsement to slip by because of its failure to exercise ordinary care. This count is insufficient and will be stricken.

The seventh count is in general assumpsit. The common law basis for such a cause is the relation of debtor and creditor. The existence of a debt due from the defendant to the plaintiff is essential to the action. Obviously a reading of the complaint demonstrates that the real cause of action is neither for a debt for the value of goods sold and delivered by the plaintiff to the defendant, nor for the price and value of goods bargained and sold, nor for the price and value of work done and materials furnished; nor for a sum of money for moneys lent; nor for moneys received by the defendant for the use of the plaintiff; nor for moneys paid by the plaintiff for the use of the defendant at its request; nor for interest due; nor for an account stated between them as alleged in the complaint.

The money counts give some pause, but the way seems clear when the status of the plaintiff as drawer of the item is kept in mind. However, it may well he that there was another transaction between these litigants giving rise to the debt as alleged. This count is good. Perdicaris ads. The Trenton City Bridge Co., 29 N. J. L. 367.

The motion to strike counts 1, 2, 3, 4, 5 and 6 of the complaint on the ground that each is insufficient in law will be granted. The motion to strike count 7 will he denied, with costs.


author: Leyden, G. 0. J.

text:
    Passaic County Circuit Court.
    BEATRICE MANDELL, PLAINTIFF, v. PASSAIC NATIONAL BANK AND TRUST COMPANY, A BANKING CORPORATION, DEFENDANT.
    Decided July 8, 1940.
    Por the plaintiff, Benjamin Rabinowitz and Abraham J. Cohen.

    Por the defendant, Feder & Rinzler.

   Leyden, G. 0. J.

This matter presents two motions to strike, one addressed to the amended answer upon the grounds that it is insufficient in law and sham in fact, and the other to the complaint upon the ground that it is sham.

Considering the complaint first, it is in three counts. The first alleges that on and prior to June 19th, 1934, the plaintiff, an infant under the age of twenty-one years, maintained a savings account in the defendant institution; that one Samuel Mandell borrowed from the defendant the sum of $1,200 and as collateral security for the loan the plaintiff signed a note for said sum pledging her savings account as security; that on January 17th, 1936, there was a balance of $1,120.05 remaining unpaid on the note and the defendant bank, without authority and authorization from the plaintiff, deducted said sum from the account of the plaintiff and applied it in payment of the balance of the note. The plaintiff attained her majority of twenty-one years on December 29th, 1939, and immediately disaffirmed any agreement she might have had with the defendant bank and communicated said disaffirmance to the bank. The plaintiff demanded of the defendant the return of the $1,120.05 which was improperly withheld from her savings account, with interest from January 17 th, 1936.

The second count additional^ alleges that the defendant converted the withdrawal slip which the plaintiff signed for the sum of $1,120.05. The third count, after repeating the allegations of infancy and disaffirmance contained in the first count, states that on or about the 17th day of January, 1936, the defendant, without justification, deducted the sum of $1,120.05 from the account of the plaintiff and seeks its return.

The complaint inar.tistically sets forth a cause of action and its allegations are substantiated by an affidavit of the plaintiff. While there appears to be a discrepancy in the date and amount of the note, which may be cured by amendment there being only one note transaction between the parties, for present purposes the complaint is not sham and the motion of the defendant addressed to it will therefore be denied.

The moving papers disclose the facts to be as follows:

On December 24th, 1925, when the plaintiff was six years old, she went to the defendant institution, signed her name to a signature card (spelling the surname “Mandel”) and opened savings account Wo. 80795 with a deposit of $1,272.50. Thereafter additional deposits were made by the plaintiff increasing the account to $3,276.96.

On June 26th, 1933, when the plaintiff was fourteen years of age, she again signed the same signature card, changing the spelling of her surname to read “Mandell.” On this occasion she was accompanied to the bank by her father, Samuel Mandell, and they conferred with Matthew H. Scheel, an assistant cashier of the defendant. Pursuant to this conversation the plaintiff, on June 26tli, 1933, signed a check to the order of the bank in the sum of $1,500 drawn upon her savings and payable out of the funds represented by said account and delivered the check to the bank to facilitate the repayment of a loan should default be made, as and when due. At the same time she executed and delivered a collateral note agreement and the passbook So. 80795. The officer of the bank thereupon gave the plaintiff a bank check dated the same day payable to her order in the sum of $1,500, which check was subsequently endorsed “Beatrice Mandell,” “S. Mandell.” Payments were made on account of the loan, by whom it does not appear, reducing the $1,500 obligation to, with interest, $1,120.05. On January 17th, 1936, when the plaintiff was seventeen years of age, she went to the defendant bank accompanied by her mother and as a result of a conversation with the assistant cashier, she issued a check payable out of her savings account bio. 80795 in the sum of $1,120.05 to the order of the defendant bank in full payment and satisfaction of the unpaid balance of the principal and interest due upon the said loan. She also signed a vault withdrawal slip calling for the production of the passbook, the collateral note agreement and her check for the $1,500 which the plaintiff had signed and left with the defendant bank at the time the loan was made. These instruments were thereupon returned to the plaintiff and the defendant thought the transaction was closed.

The plaintiff legally reached her majority on December 28th, 1939, the day before her twenty-first birthday, for the law takes no cognizance of the part of a day. A day begun is a day done. Thereafter the plaintiff, by a writing bearing date January 18th, 1940 (which writing the defendant admits receiving about January 31st, 1940) notified the defendant bank as follows:

“I, Beatrice Mandel, having arrived at age, do hereby choose to void the contract which you allege was entered into between us by virtue of a note executed by me under date of June 19th, 1934, and by Virtue of which you deducted from my account number 80795, the amount of $1,120.05, on date of January 17th, 1936.

I hereby demand that you restore to my account the aforesaid amount.

(Signed) Beatrice Mandell.”

The date of June 19th, 1934, as contained in the notice is obviously an error, the correct date being June 26th, 1933, but it is deemed of no material importance because as already pointed out, there was only one note transaction between this plaintiff and the bank, and this both parties knew. Obviously it cannot be said that the defendant was misled thereby. The important fact was the note executed by the plaintiff during her infancy, regardless of the date.

There is not the slightest suspicion that the loan was made for necessaries.

The amended answer upon which attack is directed specifically denies the allegations contained in the various paragraphs of the first, second and third counts, with the exception it admits that account Ho. 80795 was recorded in the name of the plaintiff, and sets up seven separate defenses to all counts.

The material allegations of the complaint are supported by the affidavits of the plaintiff. The complaint alleges the loan was made to the father, S. Mandell, and the plaintiff pledged her account as collateral security for said loan. This is denied in the answer. The affidavits of defendant bank substantiate the denial and assert the loan was made to plaintiff and received by her. Thus a question of fact as to who obtained the proceeds of the loan is raised.

The first separate defense sets up the voluntary repayment of the loan by the plaintiff on January 17th, 1936, and the contemporaneous return to her of the collateral note, passbook and $1,500 check to order of the bank dated June 26th, 1933. Just what is intended by this defense is not entirely clear. If ratification is meant, it is no defense. The plaintiff on January 17th, 1936, being then seventeen years of age, was under the disability of infancy. While an infant may dis-affirm a voidable contract during infancy, effectual ratification of such a contract can only be made after majority. The same disability prevents ratification during minority. 1 Williston on Contracts 455, § 235. If restoration of consideration is meant, this defense may be good. Much seems to depend on whether the plaintiff in fact received the proceeds of the loan. If she borrowed the money and repaid it during infancy she has now no just cause of complaint. The parties are in statu quo. There is no subject-matter; nothing to litigate. It would be unjust to permit her to disavow the repayment of moneys received by her. On the other hand, if the loan was to the father to the knowledge of defendant bank and the proceeds went to him, the plaintiff receiving no benefit for her collateral agreement, the bank has been enriched at her expense in the sum of $1,120.05. This defense may be good. It will not be stricken.

The second separate defense asserts the plaintiff never dis-affirmed her contracts or acts. ■

This defense is sham. Admittedly she disaffirmed by the notice in writing dated January 18th, 1940, which notice defendant admits receiving about January 31st, 1940, within thirty-four days after her twenty-first birthday. This defense is insufficient in law. The mere silence or inaction of a former infant after reaching full age does not amount to a ratification of contracts entered into during infancy. Majaika v. Jamison, 115 N. J. L. 358; 180 Atl. Rep. 402.

In Montgomery v. Erie Railroad Co., 97 Fed. Rep. (2d) 289, it was held that a lapse of two years and seven months after majority before steps were taken to disaffirm payment was insufficient to constitute ratification.

The third separate defense alleges the plaintiff's failure to disaffirm during infancy or within a reasonable time thereafter. She was under no obligation so to do. Majaika v. Jamison, supra. The defense is insufficient in law.

The fourth defense asserts the agreements and contracts of plaintiff are executed.

Whether executory or executed, the contract is not binding on the minor until and unless the infant ratifies the agreement after reaching majority. The defense is bad.

The fifth defense sets up ratification by plaintiff after reaching her majority by maintaining a savings account and continuing to do business with defendant by making further deposits and by applying for employment with the defendant institution.

The defense is sham. The affidavits disclose she still maintains the account. The deposits and application for employment were all made prior to December 28th, 1939. Assuming such conduct-would amount to a ratification, the acts set forth occurred during her infancy.

The sixth defense alleges the moneys on deposit in the savings account belonged to and were the property of Samuel Mandell and not the plaintiff, and that she was his agent and servant in the matter of the loan. There is nothing in the moving papers to contradict or contravert the plaintiff’s affidavit that she was the sole owner of the fund. The defense is sham.

The seventh defense alleges the plaintiff signed, executed and delivered her check to the order of defendant for $1,120.05 and that she executed a receipt and acquittance for such withdrawal out of her savings account. Eeliance for this defense is placed upon the statute, N. J. S. A. 17:9-1 and 2. This statute relates to deposits by infants and provides an infant may deposit and withdraw funds as if an adult person and in connection therewith as between the infant and the bank be subject to all the obligations, equities and defenses to which an adult would be subject in similar transactions. The receipt or acquittance of the minor is made a valid release and discharge for the deposit to the bank.

The intent of this act is obvious. It is to place an infant in the same category with an adult in the matter of depositing and withdrawing funds to the credit of the infant with the bank. It has no application here where the suit is to recover payment of an extraneous obligation now sought to be avoided on the ground of infancy.

The motion to strike the amended answer is general. It is equivalent to a general demurrer. Part of the answer is good and raises questions of fact which must be determined by a jury. The motion is therefore denied. Hudson v. Inhabitants of Winslow, 35 N. J. L. 437; Rogers v. Cox, 66 Id. 432; 50 Atl. Rep. 143.