author: Hartshorne, C. P. J.

text:
    Essex County Court of Common Pleas.
    GEORGE EVERHART, PETITIONER-APPELLEE, v. NEWARK CLEANING AND DYEING COMPANY, RESPONDENT-APPELLANT.
    Decided April 9, 1936.
    Eor the respondent-appellant, Fmnldin J. Marryolt.

    Eor the petitioner-appellee, Charles M. Grosman.

   Hartshorne, C. P. J.

The main question on this workmen’s compensation appeal is whether disfigurement, per se, separate and apart from any effect on the functioning of the body and mind, constitutes a basis for compensation.

The petitioner-appellee while employed in the cleaning and dyeing industry was severely burned by cleaning fluid on the face, neck, arms and chest. In addition to the proof that the keloidal scars resulting therefrom did affect his functions to some extent, the testimony and a glance at the man’s face showed a serious repulsive disfigurement.

Such disfigurement has an obvious effect on his employ-ability. The loss of the ability to obtain employment directly connotes the loss of earning power. The question therefore becomes—does the act cover the loss of earning power, irrespective of any loss of function in the body and mind.

The act by section 2, paragraph 7 (Pamph. L. 1911, ch. 95; Cum. Supp. Comp. Stat. 1911-1924, pp. 3870, 3872, §§ **236-7, 11 (a), (b), (e), provides “compensation for personal injuries to or for the death of such employe * * * according to the schedule contained in paragraph 11." Paragraph 11 provides for recovery for injuries producing: (a) temporary disability, (b) permanent total disability, (c) partial permanent disability. But in each and every one of the items contained in the long category there set forth the amount of the recovery is to be calculated upon the basis of the employe’s wages or compensation. The general theory of the act is thus to give the employe a substantial proportion of the wages he would have earned but for the accident, in return for the earnings lost thereby. In fact as to total permanent disability, upon the termination of the first four hundred weeks, loss of earning power is expressly made the sole basis of recovery.

It is equally true that, in providing for compensation for partial disability, the specific provisions for recovery in the event of the loss of a member or function of the body, may entitle one to recovery, where loss of earning power never occurs. This may be true for instance in the case of an etcher who loses a toe. Such is the reason for the decisions of the courts of this state in De Zeng Standard Co. v. Pressey, 86 N. J. L. 469; 92 Atl. Rep. 278; Burbage v. Lee, 87 N. J. L. 36; 93 Atl. Rep. 859; Hercules Powder Co. v. Morris County Court, 93 N. J. L. 93; 107 Atl. Rep. 433. But such cases are the exceptions which prove the rule, and in all these cases the right of the employe to recover if he had lost earning power, was assumed. In the Burbage case, for instance, Mr. Justice Parker said, “and the term “'disability’ is not restricted to such disability as impairs present earning power at the particular occupation, but embraces any loss of physical function which detracts from the former efficiency of the body or its members in the ordinary pursuits of life.’’ In the Hercules Powder Company case the court said, “the criterion of a disability, partial in character and permanent in quality, under the statute, is not limited to the loss of earning power.”

True, in the last of the numerous paragraphs of section 11 scheduling recovery for partial permanent disability, it is provided that “in all lessor or other cases involving permanent loss, or where usefulness of a member or any physical function is permanently impaired, the compensation shall be * * *.” Pamph. L. 1911, ch. 95, § 11 (W), as amended by Pamph. L. 1919, ch. 93; Cum. Supp. Comp. Stat. 1911-1924, p. 3874, § **236-11 ('W). It is possible to argue by á purely literal interpretation, that the “loss” there referred to does not include a loss of earning power, but solely the same kind of a loss named in the immediately preceding paragraphs, to wit, a physical or functional loss. But this is a mere implication, and it must be borne in mind that each and all of these named losses would ordinarily give rise to a loss of earning power, and are to be measured in terms of earnings. Moreover, since it is so restrictive of and contrary to, the basic theory of recovery under the statute, as above set forth, such implication, while possible, is not permissible, particularly since the statute, being “a remedial law of prime import, should be liberally construed.” Jersey City v. Borst, 90 N. J. L. 454; 103 Atl. Rep. 1033.

The conclusion therefore follows that, while not the sole basis of compensation, loss of earning power due to disfigurement is a sound basis therefor. This in fact has been recognized by our courts for more than twenty years. Clooney v. Crescent Glass Specialty, 37 N. J. L. J. 82; Ecedi v. Corn Products Co., 40 Id. 265; Dent v. Butterworth-Judson Co., 43 Id. 339. The sole case to the contrary (Bodewig v. Hubert, 39 Id. 172), must be deemed incorrect. Nor would it deem necessary to have gone to the above length merely to follow the above rule, were it not for the fact that the opposite view is so earnestly pressed by able counsel, upon the basis of pertinent decisions and statutes, cited throughout the length and breadth of the land. But the fact that in many other states compensation for disfigurement, per se, is expressly provided for, and expressly limited, as it is not in New Jersey, does not prove that the New Jersey legislature did not intend to permit compensation for such condition causing a loss of earning power, when loss of earning power appears for other reasons to have been the major basis of recovery our legislature had in mind. Not only are there doubtless many other states where disfigurement is not specifically provided for, but variant statutes in different jurisdictions ordinarily prove simply the truth of the maxim “many men, many minds.”

On the other hand, the English Workmen’s Compensation act is not variant from, but quite similar to, ours in its general tenor, so much so in fact that decisions thereunder have many times been considered valuable precedents in construing our own statute. Bryant, Adm’x, v. Fissell, 84 N. J. L. 72; 86 Atl. Rep. 458; Hulley v. Mossbrugger, 88 N. J. L. 161; 95 Atl. Rep. 1007; Phillips, Administrators, v. Hamburg-American, 36 N. J. L. J. 167. In England, despite the fact that disfigurement is not expressly covered—exactly the situation here—the courts have permitted recovery for disfigurement, irrespective of its effect on the functioning of the body, on the very basis that such disfigurement affects the employability and earning power. Ball v. Hunt, 1912 A. C. 496, 507. Later, the English act apparently was amended so as to limit recovery for disfigurement expressly. But this possible similar legislative lack in our statute, of course, does not justify judicial refusal to carry out the legislative intent, in Eew Jersey any more than in England.

The employer further objects to the allowance of compensation for such disfigurement, per se, on the ground thát there was insufficient proof of its effect upon the employe’s ability to obtain employment. The verbal proof to this effect was weak, being merely to the point that this former worker in a cleaning factory was refused employment as a waiter in a beer garden. But the exhibit in the case, the petitioner himself, offered ample evidence to prove the effect of such disfigurement upon his employability. It is the effect in fact which is determinative. The only reason why proof, as to inability to obtain employment in the same or a similar line of employment to that held at the time of the accident, is to be preferred to proof as to inability to obtain employment in other lines, is because the latter proof is subject to other possible explanations, i. e., that the failure to obtain employment was due to lack of skill rather than to the disfigurement. Of course, to be the basis of recovery, the accident must be the cause of the loss of earning power, and not extraneous circumstances, social or economic, affecting either the petitioner or the public.

Objection is raised to the amount of the award for the disfigurement, per se, same being thirty per cent, of total permanent disability. While a scrutiny of the employe’s scars does show them to be lengthy, lumpy, and repellant, the color of his skin does not make them stand out in such bold relief as they otherwise might. Bearing in mind that a separate award has already been made for the functional effect of such disfigurement, and that the highest award previously made by the courts of this state, for disfigurement per se, has been fifteen per cent., such award here, will be reduced to ten per cent, of total permanent disability.

The employer’s final objection is to the award of counsel fee in the sum of $450, this because of an offer of settlement in the amount of thirty-five per cent, of total permanent disability made by counsel after the case had been marked ready and contested on the list, but before testimony had been taken. The statute provides “when, however, prior to any hearing, compensation has been offered or paid, the reasonable allowance for attorney fee shall be based upon only that part of the judgment or award in excess of the amount of compensation theretofore offered or paid.” Pamph. L. 1918, ch. 149; Cum. Supp. Comp. Stat. 1911-1924, p. 3889, § **236-42, as amended by Pamph. L. 1928, ch. 224, § 17; Cum. Supp. Comp. Stat. 1925-1930, p. 1986, § **236-58, 17. The purpose of this provision of the statute was clearty to avoid the unnecessary waste of time and expense necessitated by litigation, if fair compensation for the employe was available without resort thereto. Surely it is not too liberal an interpretation of this “remedial statute of prime import,” to hold that a compensation offer comes too late, when made after full preparation for trial, attendance of all witnesses and counsel before the court, and the court is officially advised by counsel that the case is ready to proceed. Otherwise, the above statutory provision is rendered largely meaningless. The award of counsel fee by the lower court, which of course must be reviewed upon the basis of the work done and results attained in such court, and not the ultimate correctness of such results, will stand.

The order of the workmen’s compensation bureau in favor of the petitioner, as above modified, is affirmed, and a determination may be entered accordingly.


source: Caselaw Access Project

author: Egan, V. C.

license: Public Domain

text:
    Max Sulken, complainant, v. United Holding Company, a corporation of the State of New Jersey; Jean E. Kayden, Gustave L. Kayden and Hildreth Varnish Company, Incorporated, defendants.
    [Decided March 31st, 1936.]

      Mr. Leo Blum,berg (appearing for Gross & Gross), for the complainant.

      Mr. Joseph J. Corn, for the defendant United Holding Company.
   Egan, V. C.

This is a suit to foreclose a mortgage because of default in the payment of interest and taxes. The defendant United Holding Company, on June 3d, 1931, executed a bond and mortgage for $150,000 to Jean E. Kayden, the defendant. Subsequently, on March 21st, 1935, the defendant Hildreth Varnish Company, Incorporated, borrowed from the complainant the sum of $5,000 for which it gave its promissory note which was endorsed by Gustave L. Kayden. To secure the payment of that note, the mortgagee, Jean E. Kayden, assigned by written instrument to the complainant, the bond and mortgage. The assignment was duly recorded. The note became due September 21st, 1935; it was not paid. The taxes, due against the mortgaged premises, remained unpaid for a period exceeding the sixty days grace provided in the mortgage. In fact, the lands and premises were sold on October 10th, 1935, by the borough of Kenilworth for delinquent taxes approximating $7,540.91.

Payment of the $5,000 note was demanded by the complainant from the maker and the endorser; and they failing to- comply, the complainant instituted this suit to foreclose the mortgage assigned to him as collateral.

The answer filed by the only answering defendant, United Holding Company, discloses a general denial of the allegations of the bill. At the final hearing, the denials were with-, drawn and the allegations of the bill .were admitted. The only point made by the defendant United Holding Company, the owner of the fee, at the hearing, was that the assignor of the bond and mortgage, Jean E. Kayden, the defendant, should havé been joined as a party complainant rather than having been made a party defendant. I was not impressed by this argument. The general rule is that an objection for want of parties, if apparent on the face of the bill, should be taken by demurrer; otherwise the question should be raised by plea or answer. Wilson v. American Palace Car Co., 67 N. J. Eq. 262; 58 Atl. Rep. 195.

Again, a bill is not demurrable for want of proper parties, when all persons whose rights are to be affected by the decree are joined. Rector, &c., Swedesborough Church v. Shivers, 16 N. J. Eq. 453; Fletcher v. Newark Telephone Co., 55 N. J. Eq. 47, 51 et seq.; 35 Atl. Rep. 903.

Rule 67 (1 N. J. Mis. R. 745) of this court abolishes demurrers, and pleas; in lieu thereof, the objection may be presented in the answer. The answer filed herein is barren on this point. I am satisfied that there is no want of parties in this suit, and those who have been made such, have been properly made. It might be observed that a defendant cannot object to a bill merely because others are not properly made defendants to this suit. I think that objection must be made .by the parties themselves. Miller v. Jamison, 24 N. J. Eq. 41.

In the instant case, the assignor of the bond and mortgage being joined as a party defendant impliedly acquiesced in these proceedings by her failure to appear. She, by her nonappearance, permitted a decree to be entered against her—a decree pro confesso having been taken.

Certainly, a bond and mortgage may be pledged as collateral security for an indebtedness. Shaw v. Hughan, 109 N. J. Eq. 317; 157 Atl. Rep. 126; Mott v. Newark German Hospital, 55 N. J. Eq. 722; 37 Atl. Rep. 751; Kamena v. Huelbig, 23 N. J. Eq. 78. If a default is made, the pledgee may proceed to collect the pledge. Polhemus v. Prudential Realty Corp., 74 N. J. Law 570; 67 Atl. Rep. 303.

A suit may be instituted by either the assignee or the assignor in foreclosure proceedings. Rose v. Rein, 116 N. J. Eq. 70; 172 Atl. Rep. 510; Lettieri v. Mistretta, 102 N. J. Eq. 1; 139 Atl. Rep. 514; Derechinsky v. Epstein, 98 N. J. Eq. 79; 130 Atl. Rep. 720; Underhill v. Atwater, 22 N. J. Eq. 16; 41 Corp. Jur. 884, 885.

In the instant case the proceedings show that the assignee made his assignor a part}r to the suit; she being a proper and necessary party defendant. In 41 Corp. Jur. the following appears (at p. 885) :

“The assignee of a mortgage taken as collateral security may foreclose it, cutting off the rights not only of the mortgagor but also of his assignor, if the latter is properly joined as a party in the proceedings; but in that case the assignor will have a claim upon the proceeds of the sale in so far as they exceed the amount of the debt for which the mortgage was pledged as security, although he will not be liable for any deficiency; and if the mortgage is foreclosed without the joinder of the assignor, or by a private arrangement with the mortgagor, involving the release of the equity of redemption to the assignee, the latter can be credited, only with the amount of the debt for which the mortgage was pledged and will be chargeable with the balance.”

The defendant United Holding Company contends that the proceedings are defective because Jean E. Kayden, the assignor of the mortgage, should have been a party complainant with the complainant herein instead of being made,as she was, a party defendant. He cites rule 5 of the rules of this court to the effect that a person entitled to join as complainant, but declining to do so, may be joined as defendant, the reason therefor being stated in the bill of complaint. There is no doubt about the language of the rule and this court is guided by it. But I am not swayed by the defendant’s thought, under the circumstances, that the pledgor is necessarily a party complainant. A consideration of rule 5 (1 N. J. Mis. R. 724), and the rules 6 to 17 (1 N. J. Mis. R. 725, 728) inclusive, and rule 23 (1 N. J. Mis. R. 729), indicate, in my opinion, that it is a matter of no consequence whether a party to a suit is such as complainant or defendant. In Lettieri v. Mistretta, supra, the court said:

“It appears that the mortgage [and bond] was, by an instrument bearing date March 29th, 1926, assigned by Car-faro, the mortgagee, to the complainant, Alfonso Lettieri. Counsel for defendants, on the hearing of the motion, argued that making the assignee of the mortgage a party complainant was improper. It appears from the proofs that the aforesaid assignment was made as collateral security for an indebtedness owing by Carfaro to Lettieri. In Derechinsky v. Epstein et al., 98 N. J. Eq. 79; 130 Atl. Rep. 720; affirmed, 99 N. J. Eq. 447; 131 Atl. Rep. 922, it was held that the assignor of a mortgage may foreclose the mortgage, making the assignee a party, especially where, as in the case sub judice, the mortgage was assigned as security, or pledged for a loan less than the amount of the mortgage. Whether the assignee be made a party complainant or defendant is of no material consequence.”

The defendant refers to the ruling of the court of errors and appeals in the case of Rose v. Rein, supra; but in that case the suit was brought by the assignor, while the assignee was made a defendant therein. The court decided that the assignor was a proper party complainant; but I do not gather from the opinion any statement which would indicate that the assignor could not be a party defendant. In the opinion it was said:

“It therefore follows, that the right of Schaub in the mortgage was superior to that of the receiver representing the judgment creditor. We think, however, that it was error to dismiss the bill of complaint. While an assignee of a mortgage has a right to foreclose same in his own name, such right is not an exclusive one, as it seems to be well settled that where the owner of a mortgage has pledged it as collateral security for a debt of less amount than the mortgage, he still has such interest as entitled him to bring an action for the foreclosure of the mortgage, making the assignee a party to such proceeding. Derechinsky v. Epstein, 98 N. J. Eq. 79; 130 Atl. Rep. 720; affirmed, 99 N. J. Eq. 447; 131 Atl. Rep. 922.”

The complainant is entitled to a decree for sale, and out of the proceeds of sale, the sum of $5,000 and interests and costs should be paid to the complainant, and all in excess thereof shall be deposited with the clerk of this court.


author: Brown, S. C. C.

text:
    ROSIE PAVIGNANO, AS ADMINISTRATRIX AD PROSEQUENDUM OF THE ESTATE OF NATALE PAVIGNANO, DECEASED, PLAINTIFF, v. ATLANTIC CASUALTY INSURANCE COMPANY, A CORPORATION, DEFENDANT.
    Decided April 20, 1936.
    For the plaintiff, William Perlis.

    For the defendant, Green & Green.

   Brown, S. C. C.

On April 11th, 1935, the plaintiff recovered a judgment against Frank Sorgento, Incorporated, as owner of an automobile and Joseph Sorgento, its operator, for death resulting from injuries to Natale Pavignano. The judgment was not paid by the owner or operator and this suit was brought against the defendant as their insurance carrier. The defendant moves to strike the complaint on the grounds that the plaintiff is without authority in law to bring this suit; that the complaint does not set forth a cause of action and is sham or frivolous. The defendant contends the Death act, as amended (Pamph. L. 1917, ch.’ 180, p. 531; Cum. Supp. Comp. Stat. 1911-1924, p. 928, § 55-10), limits the duties of the plaintiff to bringing the original suit for damages for the death and prosecuting the same to final judgment and that he is without authority to bring suit against the defendant. The plaintiff contends he has authority under the Death act to bring this suit and has control of all litigation up to the time of payment of the judgment. While the Death act does not permit payment in settlement or in satisfaction of any judgment recovered under the act to be made to the administrator ad prosequendum it does empower such administrator to bring suit for damages on account of death resulting from injuries and a suit against the insurance carrier of the defendant in the original suit is an action in furtherance of that suit. Devlin v. Herr, 98 N. J. L. 324. Giving attention to the objection that the complaint does not set forth a cause of action, a reading of the complaint shows an allegation that at the time the injuries were sustained that resulted in death the defendant insured the owner of the automobile and its operator against claims for damages by persons sustaining personal injuries caused by or resulting from the ownership and use of the automobile and that attached to said policy was an endorsement amending the policy to conform to chapter 116 of Pamph. L. 1929, p. 195. Cum. Supp. Comp. Stat. 1925-1930, p. 1056, § 135-119, 1. The plaintiff urges that those allegations in the complaint charge a contractual as well as statutory liability. Usually when an insurance company insures an automobile owner against a claim for damages by a third party the party injured has no privity of contract with the insurance company. One not a party to a contract has no status to sue upon it if he be a person with whom the contracting parties never meant to come into contractual relations and that a possible benefit to such party by the performance of a contract is not enough to give him the right to maintain an action. It must appear that the contract was made for his benefit. Knapp v. Heidritter Lumber Co., 99 N. J. Eq. 381; 131 Atl. Rep. 909; Suydam v. Public Indemnity Co., 10 N. J. Mis. R. 868; 161 Atl. Rep. 499. A right of action may be created by statute as appears in chapter 153, Pamph. L. 1924; Cum,. Supp. Comp. Stat. 1911-1924, p. 1589, § 99-90e. Saxon v. U. S. F. & G. Co., 107 N. J. L. 266; 153 Atl. Rep. 596. The plaintiff cannot effectively invoke the benefits of the statutes mentioned in the endorsement amending the policy unless the insured is one of the class mentioned in the statute. Brodsky v. Motorists Caualty Insurance Co., 112 N. J. L. 211; 170 Atl. Rep. 243; affirmed, 114 N. J. L. 154; 176 Atl. Rep. 143. The plaintiff lias wholly failed, in his complaint, to charge that Frank Sorgento, Incorporated, the insured, was within the statutory class where liability would attach to its insurance carrier. He has also failed to allege in his complaint the issuance and return of an execution unsatisfied in the original suit which are conditions contained in chapter 153 of Pamph. L. 1924. Cum. Supp. Comp. Stat. 1911-1924, p. 1589, § 99-90e. When a statute gives a remedy under particular circumstances the party seeking such remedy should in his pleading allege all the facts necessary to bring him within the statute. Lapsley, Administratrix, v. Public Service Corp., 75 N. J. L. 266; 68 Atl. Rep. 1113. The motion to strike the complaint is granted with leave to the plaintiff to file an amended complaint.


author: Lawrence, S. G. C.

text:
    LEONARD JOHNSON, PLAINTIFF, v. ASBURY PARK PRESS, INCORPORATED, ET AL., DEFENDANTS.
    Decided April 27, 1936.
    For the motion, Lester C. Leonard.

    Opposed, Roger M. Yancey and Robert 8. Hartgrove.

   Lawrence, S. G. C.

This is a suit resulting from an alleged libelous publication relating to plaintiff. The article complained of appeared in the issue of the Asbury Park Press of March 7th, 1934. The defendant in question moves to strike the reply to its answer on the ground that it is frivolous. The answer, in addition to the defenses, pleads the new statute of limitations (Pamph. L. 1934, ch. 98, p. 287) in bar. It is as follows:

“xYn act limiting the time for the bringing of civil actions for libel or slander.

Be it enacted by the Senate and General Assembly of the State of New Jersey:

1. Every civil action for libel or slander shall be commenced and sued within one year next after the publication of the alleged libel or slander, and not thereafter.

2. This act shall take effect immediately. Approved April 30th, 1934.

Plaintiff’s reply denies the application of this statute, asserting that his cause of action arose prior to its enactment, that it is not retroactive, and since the state of the law, as generally recognized, prior to the approval of the new act, limited suits for libel, as in cases of slander, to two years, the present action was brought within such period and is not consequently controlled by the new act. Counsel for defendant argues that plaintiff had a reasonable time within which to bring his suit, but failed to do so, with the result that the bar of the statute is applicable. He invokes the rule that “statutes of limitation affecting existing rights are not unconstitutional, if a reasonable time is given for the commencement of an action before the bar takes effect; the legislature may change the form of action or mode of remedy, at its discretion, provided adequate means of enforcing the right remain.” Terry v. Anderson, 95 U. S. 365. In New Jersey the rule appears to have been applied, with the accent that it is essential that all statutes of limitation which affect existing rights and remedies shall allow a reasonable time after they take effect for the commencement of suits upon such causes of action. Marston v. Seabury, 3 N. J. L. 28; Smith v. Tucker, 17 Id. 82; Vreeland v. Town of Bergen, 34 Id. 438 (at p. 441); Warshung v. Hunt, 47 Id. 256; affirmed, 48 Id. 613; 9 Atl. Rep. 199, and Barnaby v. Bradley & Currier Co., 60 N. J. L. 158; 37 Atl. Rep. 764.

Ordinarily statutes, unless the contrary intent clearly appears, are not to be given retrospective operation (Borger v. Board of Freeholders, 13 N. J. Mis. R. 676, 678; 180 Atl. Rep. 495), but the rule is not applicable where the right to sue is not affected and only the remedy involving the time within which the action must be brought is the subject of the legislation. Lapsley, Admx., v. Public Service, 75 N. J. L. 266; 68 Atl. Rep. 1113; Bretthauer, Admr., v. Jacobson, 79 N. J. L. 223 (at p. 225); 75 Atl. Rep. 560.

It is to be observed that until the new act there was no special legislation limiting the time within which a suit for libel was required to be brought. There was as to words. Rev. 1877, p. 594, as amended, Pamph. L. 1896, p. 119; section 3 of an act for the limitation of actions, 3 Comp. Stat., p. 3164. See, also, section ante, p. 3162, excepting actions for slander from the six years period. As libel and slander at common law sounded in tort and were in form actions on the case (37 C. J. 16, § 310), it has been generally supposed that the act limiting suits for slander also applies to those for libel, although this is said not to be necessarily so. C. J., supra, § 314. No case was cited on the argument of the present motion, however, in an appellate court here discussing the subject.

It may thus be said that the new statute (supra) is the first relating to libel and limiting the time within which a suit may be brought. While there is nothing in the act indicating in terms that it was intended to be retroactive, still following the rule laid down in Marston v. Seabury, supra, it would seem to be susceptible of such an interpretation and applicable to a given case where it appears that a reasonable time remained after the date of the approval of the act within which suit could be brought. In Eldridge v. Philadelphia and Reading Railroad Co., 83 N. J. L. 463; 85 Atl. Rep. 179, the doctrine that when the legislature frames a new and general rule covering the entire subject-matter, all earlier and different rules touching the same matter are to be discarded in favor of such later rule was regarded as applicable to a new statute limiting the time for bringing a suit under the Death act. Here there appears to have been no special statutory provision relating to actions for libel, and so it may be said that the new legislation provided a general rule applicable to all cases in which a reasonable time remained for the institution of suits thereafter, even though the publication complained of had taken place prior to the enactment. See, also, 37 G. J. 694, § 12.

Here the alleged libelous publication, as stated, was on March 7th, 1934. The new act was approved April 30th, 1934, and went into effect immediately. The suit was not brought until February 25th, 1936, nearly ten months after the time limited in the new act had expired. Plaintiff had had practically ten months between the date of the approval of the act and the expiration period within which to bring the suit, an adequate period, it would seem, to bring it within the rule as to reasonable time. Plaintiff apparently continued to be a resident of the state and there was no suggestion that circumstances existed which made it legally impossible for him to institute the suit within the time available to him under the new act. Defendant’s contention that the suit is barred appears to be supported by the authorities. It follows that the motion to strike the reply to the answer as without legal foundation and therefore frivolous must prevail.


text:
    BYRON VREDENBURGH, Jr., ET AL., v. ROY WEIDMANN AND JOHN WEIDMANN.
    Decided February 29, 1936.

      Before Justic'e Parker, at chambers.
    Por the plaintiffs, Lord & Lord.

    Por the rule, Franklin J. Marryoli.

   Memorandum of decision.

Defendant Roy Weidmann claims to have appeared specially for the purpose of this rule. Por the plaintiffs it is claimed that by his subsequent actions in the cause the appearance became general; but I find it unnecessary to go into this question as the rule will be discharged for other reasons.

The determinative question is whether defendant has shown that the sheriff’s return is false in that service, made in Essex county at the house of John Weidmann, a co-defendant and father of Roy Weidmann, and upon said John as a member of the household, was not made “at the usual place of abode” of defendant Roy. Practice act, 1903, section 52 (3 Comp. Slat., p. 4067), amended, Pamph. L. 1912, p. 469 (Cum. Supp. Comp. Stab. 1911-1924, p. 2798, § 163-52).

The original rule provided for service of affidavits in support of it, and of counter affidavits for the plaintiffs. This seemed to contemplate instead of depositions (the usual course) ex parte affidavits in addition to those presented at the granting of the rule. No further affidavits, however, were served by either side. Later, there was a counter-rule taken out by the defendant requiring plaintiff to show cause why depositions on behalf of defendant Roy should not be taken. None were taken, however, and the'matter seems to be submitted on the affidavits of Roy and John, sworn to on the day previous to the original rule to show cause. This is very loose practice, for reasons that will presently appear.

Certain facts are plain. Roy is the son of John, and during minority Roy’s home would normally and presumably be with his father. Roy is now of age, and for a year or more has been a student at the Yale law school in Yew Haven. The two affidavits are discreetly silent on this point, but it appears in the plaintiffs brief and my recollection is that it was conceded at the argument. The affidavits admit that Boy spends his vacations with his father. As to his usual place of abode, they state conclusions rather than facts. I am clear that they should not be allowed to countervail the sheriffs return, there being every presumption of its correctness. The pertinent decision in this state is Missell v. Hayes, 84 N. J. L. 196; 85 Atl. Rep. 818; affirmed, 86 N. J. L. 348; 91 Atl. Rep. 322, and not the line of cases like Sweeney v. Miner, 88 N. J. L. 361; 95 Atl. Rep. 1014, and Feighan v. Sobers, 84 N. J. L. 575; 87 Atl. Rep. 636, referring to a house closed up and merely protected by a watchman or a caretaker.

In Missell v. Hayes the son was actually spending his vacation at his father’s house, but that does not distinguish the case, for if that house was not his “usual place of abode” the service would still be ineffective.

It will be pertinent to quote at length what the late Judge White said in Missell v. Hayes, 86 N. J. L. at p. 351, about using ex parte affidavits instead of taking depositions on notice:

“As was pointed out by the Supreme Court, in Baldwin v. Flagg, 43 N. J. L. 495, the proper practice to support motions (or, rather, as they should be, rules) of this character in courts of law, is by depositions taken under rule, or in accordance with the rules of the Supreme Court, and not be ex parte affidavits, as was done in this case. If depositions had been taken in this ease, doubtless cross-examination would have sifted out and developed facts which would have enabled the court to say with much more certainty than is now possible whether there was or was not such an actual change of residence when the son went away to college as to deprive his father’s residence, even while the son was actually there on vacation, of the character of the latter’s ‘usual place of abode’ within the meaning of the act of assembly. Under the ex parte affidavits, however, consisting as they did largely of conclusions resulting from facts rather than a statement of the facts themselves, the Supreme Court was unable to say with any certainty that the writ had not been properly ‘served/ ”

The rule to show cause will be discharged, with costs of argument before me of this matter and of entry of a suitable rule in conformity with the present decision. The intermediate rules indicate some little confusion in procedure and I think as to them there should be no costs either way pending the final result, particularly as the propriety of those intermediate rules was not before me.


author: Per Curiam.

text:
    ST. MARY’S OF MT. VIRGIN’S CHURCH OF NEW BRUNSWICK, NEW JERSEY, PROSECUTOR, v. BOARD OF ADJUSTMENT OF THE CITY OF NEW BRUNSWICK, HARRY S. FELLER, CLERK OF THE BOARD OF ADJUSTMENT, AND JOHN P. LYNCH, BUILDING INSPECTOR OF THE CITY OF NEW BRUNSWICK, DEFENDANTS.
    Argued January 22, 1936
    Decided April 23, 1936.
    Before Justices Case and Bodine.
    For the prosecutor, C. Raymond Lyons.

    For the board of adjustment of the city of Few Brunswick and John F. Lynch, building inspector, Thomas E. Eageriy and William F. McCloslcey.

    For the Sanitary lee and Coal Company, James J. Curran.

   Per Curiam.

The writ of certiorari brings np for review a permit issued by the building inspector of the city of New Brunswick upon the recommendation of the board of adjustment of that city to Sanitary Ice and Coal Company for the erection of a motor vehicle service or gas station on premises at the corner of llenasen avenue and Sandford street. The application for the permit was denied by the city building inspector upon the general ground that the granting of it would be in “violation of the zoning ordinance.” On appeal the board of adjustment found that the construction would be in violation of sections III and VI of the zoning ordinance but nevertheless resolved as follows:

“Now therefore this Board finds and determines that such construction would be a violation of such sections of said ordinance as alleged by said Building Inspector, and

“Be it further resolved that this Board finds and determines that such construction, however, due to the peculiar circumstances of the case would not be contrary to the public interest, and that owing to the special conditions existing a literal enforcement of the provisions of the ordinance would be observed and substantial justice done if a permit were granted to the said Sanitary Ice and Coal Company, for the erection of a motor vehicle service station (drive-in gas station) on premises at No. 186 Eemsen Avenue, in the City of New Brunswick, and

“Be it further resolved that this Board does hereby recommend to the said John J. Lynch, Building Inspector of the City of New Brunswick that said permit be granted to the said Sanitary Ice and Coal company for the erection of said motor vehicle service station (drive-in gas station) on premises at No. 186 Eemsen Avenue, New Brunswick, N. J.”

Sections TIT and VI of the ordinance were made a part of the return. Section III provides that “In a business zone, no building or premise shall be used, and no building shall be erected or altered which is arranged, intended or designed to be used for any of the following specified trades, industries or uses: * * * 15. Motor vehicle service station except as permitted in Section XIII. * * *.” The provisions of section XIII are not before us. Section VI provides that “Under no circumstances shall a permit be issued for the erection or enlargement of * * * a motor vehicle service or gas filling station * * * in any business or industrial zone, if any part of the lot or plot in question is situated within a distance of two hundred feet as measured along the public streets of or within any portion of a .street between two intersecting streets in which portion there exists: * * * 4. A church. * * * No exception shall be made to the provision of this section by the Board of Adjustment.”

There are formal returns to the writ by the secretary of the board of adjustment and by the building inspector. These returns contain a synopsis of the original application for permit, the full application for variation made to the board of adjustment, a notice of appeal from the decision of the building inspector, the resolution of the board of adjustment to which we have already referred, the application for permit and the granting of a permit based thereon and section III and section VI excerpted from the zoning ordinance. Those papers, with the addition of prosecutor’s reasons, constitute the entire state of case. We have no showing of the proofs taken before the board of adjustment, no depositions incidental to the writ, no stipulation of facts. Affixed to the state of case is a blueprint map purporting to show radial distances between the property of the prosecutor and that of the permitee, and affixed to the defendants’ brief is a blueprint map purporting to show distances between these properties by a different method of calculation. But neither of these maps appears to be officially incorporated into the case or to be directed towards any question save that of distance.

Both the building inspector and the board of adjustment found that the proposed construction violated the third and sixth sections of the ordinance. It is conceded by the defendants that that finding was correct as to the third section. Section 9 of the Zoning act, chapter 274, Pamph. L. 1928; Cum. Supp. Comp. Stat., 1925-1930, p. 1247, § *136-4200J(9), gives to the zoning board power to authorize, upon appeal in specific eases, such variances from the terms of the ordinance as will not be contrary to the public interest where, owing to special conditions, a literal enforcement of the provisions will result in unnecessary hardship, and so that the spirit of the ordinance shall be observed and substantial justice done “provided, that no such variance shall be made to grant or allow a structure or use in a district restricted against such structure or use unless the lands in respect of which the variance is made abut a district in which such structure or use is authorized by the zoning ordinance; and provided, further, that no such structure or use shall be allowed more than one hundred and fifty (150) feet beyond the boundary line of the district in which such structure or use is authorized by the zoning ordinance.”

There is nothing in the record to sustain the finding of the board. We start with the proposition that the proposed construction is contrary to the provisions of the zoning ordinance. Without some proof or certification of peculiar circumstances or of special conditions we are quite unable to find that a variation of the ordinance may, in the reasonable exercise of discretion, be permitted. One of the statutory jurisdictional essentials to board intervention is that, owing to special conditions, a literal enforcement of the provisions of the ordinance will result in unnecessary hardship. Eecitals in an application to the board of adjustment for a variance and assertions in brief of counsel do not have the status of proofs. We may not guess away the prohibitions of the zoning ordinance.

The board action and the issuing of the permit thereunder will be set aside with costs to prosecutor but without prejudice to a renewal of the application for permit.


author: Kosenstein, J.

text:
    Second District Court of Paterson.
    WILBUR MacPHAIL AND NATHAN J. FINEMAN, PLAINTIFFS, v. BARNETT NASSAU, DEFENDANT.
    Decided March 30, 1936.
    Por the plaintiffs, Rubinson & Bornsiein.

    Por the defendant, William V. Rosenlcrans and A. Leo Bohl.

   Kosenstein, J.

This is a motion to set aside service of the summons and dismiss the above action, on the ground that the territorial jurisdiction of this court is within the boundaries of the county of Passaic, and that, therefore, service on the commissioner of motor vehicles in Trenton is invalid, inasmuch as Trenton is not within the territorial limits of Passaic county. In considering the motion, I have come to the following conclusions:

1. The case of Bischoff v. Schmidt, 133 N. Y. Misc. 293, cited by the defendant, has no bearing on the present question. A reading of that case discloses that the City Court, whose process was there involved, is a constitutional court, with territorial jurisdiction limited to the county in which the court is set up. It follows, therefore, that even if the legislature expressly conferred on that court jurisdiction to serve process outside of the county, such legislative enactment would be invalid.

2. District Courts in New Jersey are not constitutional courts. They are the creatures of the legislature, which may, therefore, assign them such territorial jurisdiction as it may see fit. By the act creating them, District Courts have a limited territorial jurisdiction, namely, the boundaries of the county, in which they are set up. Nevertheless, the legislature may, in a limited number of cases, or in all cases, increase this territorial jurisdiction.

3. The question presented is whether by the statute creating the commissioner of motor vehicles the agent of nonresident owners and drivers of automobiles for the acceptance of process, the legislature meant to enlarge the jurisdiction of this court. I am cited the case of Gabriel v. Mason Art, 2 N. J. Mis. R. 50; 125 Atl. Rep. 125. The authority of that case for the proposition that service upon the commissioner in Trenton is valid is lessened considerably by the fact that the Supreme Court admitted that, in that case, defendant, after challenging the jurisdiction of the court below, went to trial on the merits of the case. Upon that ground alone, the Supreme Court was justified in affirming the judgment of the lower court.

It is true that the Supreme Court also says (although this seems unnecessary to its affirmance) that the service upon the secretary of state was valid. I have always doubted the soundness of this view. The court in that case, was construing section 43 (a) of the Corporation act. 2 Comp. Stat., p. 1626. While the language of that section is general, “it shall be lawful, * * * to serve process against any such corporation upon the secretary of state,” nevertheless, the section ought to be read as a whole, and then it will be found that the statute was remedial. The statute being remedial, what was the defect it was designed to remedy? It was intended to cover the situation where a default was existing, namely, the failure of either a domestic corporation or foreign corporation authorized to transact business in this state, to designate an agent for the service of process, or where such agent was designated, but had died, resigned or removed from the state. While such default continued, the secretary of state was to be considered such agent. If the default did not exist, obviously a summons from a District Court could not go outside of the county in which the court was set up, even though the designated agent of the corporation resided in another county. When, therefore, the corporation had no agent for the service of process, the remedial statute designated the secretary of state for that purpose, and to make the remedy effective, it was not necessary to make it broader than in cases where there was no default by the corporation, unless the legislature expressly said it should be broader, and section 43 (a), supra, of the Corporation act does not expressly provide that process from the District Court shall, in such event, be capable of service outside of the county. For this reason, I doubt the soundness of Gabriel v. Mason Art, supra, as authority for the proposition that the process of this court served upon the commissioner of motor vehicles in Trenton is valid.

4. The statute here involved is chapter 69 of the laws of 1930 (Cum. Supp. Comp. Stat. 1924-1930, p. 1048, § 135-96a (1) as amended by chapter 69 of the laws of 1933, page 129 (N. J. Stat. Annual 1933, p. 264, § 135-96a(l). By this legislation, the commissioner of motor vehicles is made the agent of any non-resident owner of an automobile, who accepts the privilege of driving his automobile in Hew Jersey, for the acceptance of process in any civil suit in this state. Obviously, if there were no such statute, and if a foreign automobile owner designated an agent in this state for service of process, such service would be valid only if made in a county where the court, out of which the process emanated, had territorial jurisdiction. Thus, if such agent resided in Trenton, process from this court could not be served upon him there. The fact that the statute designates the agent to be served cannot enlarge the territorial jurisdiction of this court.

As was said in Valentine v. Franklin Surety Co., 11 N. J. Mis. R. 822; 168 Atl. Rep. 35, “the process which the commissioner, as attorney, may accept is the process which 'may be served’ and 'is served.’

“The jurisdiction of the District Court was co-extensive with the confines' of the county of Essex, and its process did not run into the county of Mercer.”

And see Makohon v. Millers National Insurance Co., 12 N. J. Mis. R. 282; 171 Atl. Rep. 513.

There being nothing in the statute authorizing service of process on the commissioner of motor vehicles to show clearly that the legislature intended to enlarge the territorial jurisdiction of District Courts for the service of summons in this class of cases, but that it simply intended to designate an agent for service of summons, the motion will be granted.


author: Hartshorne, J.

text:
    Essex County Court of Common Pleas.
    JULIUS OTTEN, PLAINTIFF, v. MAXIMILIAN E. CAVALLI, DEFENDANT.
    Decided April 24, 1936.
    For the plaintiff, Joseph A. Furrey.

    For the defendant, James H. McLeod.

    For the garnishee, Wall, Haight, Carey & Hartpence.

   Hartshorne, J.

The question arises, on motion to quash

an execution levy, as to whether insurance policy proceeds payable in annual installments are subject to garnishment proceedings, particularly when such annual installments, if paid weekly, would amount to less than $18 per week.

While a question is raised as to the right of the garnisheed insurance company to move to quash, this will be passed over, in view of the representation to the court that if same were considered material, exactly the same action would be taken by the defendant himself, who, in fact, does raise the meritorious questions.

As stated in the very recent case of Passaic National Bank and Trust Co. v. Eelman, 116 N. J. L. 279; 183 Atl. Rep. 677, N. J., “it is the general policy of the law to lend the creditor all reasonable assistance for the enforcement of his claim, especially against a debtor who, though possessed of the means to paj’, seeks to evade his obligation.” Against this it is urged, first, that the policy contract, by its terms, prevents a garnishment; and, second, that such garnishment is against public policy. Such constitutes the main issue.

It must be borne in mind that the policy contract in question is not the original policy on the life of the insured, but is a contract between the company and the beneficiary in the original policy, as to how the proceeds of such original policy shall be paid such beneficiary, the defendant here. It provides, “no assignment or hypothecation of this contract, or of any part thereof, or interest therein, or of any installment accruing thereon, made by said beneficiary, shall be valid, and no payment shall be made by the company during the lifetime of the beneficiary, except to said beneficiary, personally, or upon his order for each payment as the same may become due.” Reliance thereupon is had on the case of Seventy-First Street and Broadway Corp. v. Thorne, 10 N. J. Mis. R. 99; 157 Atl. Rep. 851, holding that payments from a private corporation pension fund, not assignable by the fund rules, are not garnishable on attachment. This case, however, has been substantially overruled by Passaic National Bank and Trust Co. v. Eelman, supra, holding that even a public pension fund payment is garnishable, at least “where the pensioner does not remain subject to further calls for public service.” Of course, a pensioner from a private corporation neither is, nor was, subject to such call. Further, while the Eelman case does say that “the general, if not the exclusive, test of the liability of a right or claim to garnishment is whether it is the subject of assignment,” its citation thereunder (28 C. J. 151) gives as the “Reason for the Rule”—“It is entirely obvious that if a claim be of such a nature that the claimant cannot make a voluntary assignment of it, the law will not enforce a compulsory assignment,” citing St. Joseph Manufacturing Co. v. Miller (Wis.), 34 N. W. Rep. 235. A reading of this last case makes it clear that it is the inherent nature of the claim itself, and not any peculiar inter-party restrictions, which restrict the normal rights of third parties. This is for the reason that an inherently unassignable res, such as the unassignable tort in the above Wisconsin case, obviously cannot be assigned at all, either by the parties or by operation of law. But, on the other hand, a res which can ordinarily be assigned, such as the mere obligation here to pay money, and is only restricted by the parties, against assignment by such parties, is not restricted against assignment by an entirely different method; to wit, by operation of law at the instance of third parties. Fleming v. Fleming Hotel Co., 69 N. J. Eq. 715; 61 Atl. Rep. 157; 28 C. J. 151, tit. “Garnishment.” Further be it noted that while assignment of the policy contract in question by the beneficiary is generally prohibited, such assignment by him is permitted "upon his [the beneficiary’s] order for each payment as the same may become due.” The levy here, being upon a payment coming due a few days thereafter and before the return day of the writ of execution, would, consequently,'seem not to contravene even the terms fixed by the parties for themselves.-

The second objection to the garnishment is that to garnish such insurance proceeds at all is against public policy. Except as definitely established in the common law as inherited by 'this country or the constitution, this somewhat nebulous entity is not for the courts but the legislature to declare, the latter, of course, having the right to modify such common law public policy. Dimick v. Metropolitan Life Insurance Co., 69 N. J. L. 384, 396; 55 Atl. Rep. 291; Bigelow v. Old Dominion Copper Co., 74 N. J. Eq. 457, 508; 71 Atl. Rep. 153. While certain other states may have protected insurance policy proceeds from the reach of creditors of the beneficiary, the action of their legislatures does not apply here. On- the contrary, our legislature has clearly expressed the public policy of this state, and apparently to the contrary. For while insurance policy proceeds are expressly exempted from seizure by creditors of the insured, except to the extent of premiums paid in fraud of such creditors, the exemption goes no further. Pamph. L. 1909, p. 422; 2 Comp. Stat., p. 2850, § 38. Tuberculosis act. “Expressio unius esi exclusio alterius.” And, surely, if payment by the public to a former servant of the public is not exempt on grounds of public policy, except as same may interfere with further service to the public (Passaic National Bank and Trust Co. v. Eelman, supra), payment by a private corporation in return for no service, public or private, cannot be so exempted, further than the legislature has required.

The further objections to the levy may be more briefly disposed of. As to the objection that same was untimely, note that the supplement to the Execution act, under which the levy was made, provides for same on debts “due or accruing.” Pamph. L. 1915, p. 183, § 9; Cum. Supp. Comp. Stat. 1911-1924, p. 1207, § 71-9i, 9. An installment of the proceeds was accruing at the time of the levy, since it fell due shortly after the levy and shortly before the return day of the writ. Nor was such installment at all contingent so as to bring it within the rule laid down in Riegelhaupt v. Russow, 13 N. J. Mis. R. 278; 177 Atl. Rep. 878. Should the beneficiary, perchance, have died on the day between the levy and the day of payment, it would, by the terms of the policy, have been payable to his estate.

The final objection is that, since the amount of the annual installment, $300, would, if payable in equal weekly installments, be less than $18 a week, it is not leviable at all. This amounts to saying that no person in receipt of a weekly income of less than $18 a week is subject to execution in the State of New Jersey. In other words, one might be in possession of thousands of acres of unimproved land, and land poor, and yet his creditors could take no steps to reach these assets. Such an intention is not lightly to be ascribed to our legislature; nor does a glance at our Execution acts rationally support any such interpretation. These acts fall into three main categories, each independent of the other. First, we have the original acts respecting executions as amended and embodied in the 1910 Compiled Statutes (2 Comp. Stat. 1910, p. 2242). Thereunder, after discovery proceedings in the court issuing the execution, a' garnishee may, on notice, be forbidden to transfer the debt, and the judgment debtor ordered to pay it. hfext, we have the proceedings under the supplement to the above act (Pamph. L. 1915, ch. 115, p. 182; Cum. Supp. Comp. Stat. 1911-1924, p. 1205, § 71-9b, 2), under which the present proceedings were apparently taken. This statute permits a levy even on equitable choses in action (section 2), and, after levy on the garniphee, permits an order on notice “requiring the garnishee to pay said debt.” Finally, we have the eighteen-dollar a week statute, so-called, enacted but two weeks after the latter of the above statutes, and setting up an entirely different procedure therefrom, authorizing an order on the third party to pay without notice, hut only obtainable if the income equals or exceeds $18 a week. Pamph. L. 1915, ch. 266, p. 470; Cum. Supp. Comp. Stat. 1911-1924, p. 1207, § 71-91, as amended by Pamph. L. 1933, ch. 102, p. 210; N. J. Stat. Annual 1933, p. 146, § 71-91. In fact, this amendment to this last statute was enacted the very day that the final amendment to the first of the above statutes was enacted. Pamph. L. 1933, ch. 99, p. 204; N. J. Stat. Annual 1933, p. 147, § 71-23. Both the fact that the procedures in these three statutes are different, and the respective times of their enactment, clearly establish the legislative intent that they are concurrent, not exclusive, remedies, and that the limitations set up in one do not ordinarily apply to the others. Again, in view of the fact that an express exemption clause exists, applicable in terms to “any execution or civil process whatever” (2 Comp. Stat. 1910, tit. “Executions." p. 2245, art. 3, § 10), it is even clearer that the $18 a week limitation applies only to proceedings under the act creating such limitation, and not to the act under which the instant proceedings are taken.

Finally, the interesting point in this entire situation, so technically presented by counsel, is that the original judgment in the District Court, now docketed here, to collect which this execution was issued, was in the stupendous sum of $33. But justice must be served, and the motion to quash will be denied.


author: Pee Cubiam. '

text:
    JESSIE M. ROMANO, PROSECUTRIX, v. VILLAGE OF RIDGEWOOD AND ZONING BOARD OF ADJUSTMENT OF THE VILLAGE OF RIDGEWOOD, DEFENDANTS.
    Submitted January term, 1936
    Decided April 23, 1936.
    Before Justices Pabkeb, Case and Bodine.
    For the prosecutrix, Winne & Banta (Walter G. Winne).

    For the defendants, Thomas L. Zimmerman, Jr.

   Pee Cubiam. '

The case presents a phase of the zoning problem which calls for determination on its own peculiar facts. The property involved is in, but on the outskirts of, the village of Eidgewood and is in an area zoned for residential uses. The traffic past it for ten years or more had been heavy to the point of congestion. Then the state, in constructing a new highway, took over parcels of the land by condemnation at a price of over $15,000 and divided the traffic in such fashion that the portion of the tract upon which stand the buildings forms what is called an island, a rather sizable island, but nevertheless hemmed in by highways and by-passes on all sides. The result is that this part of the property is less valuable for residence purposes and more valuable for a very few kinds of business than formerly it was. However, the factors that detract from the desirability of the property for residence uses seem to differ in degree but not in kind from those incident to neighboring properties, the owners of which are opposed to any broadening of the ordinance.

Prosecutrix owns the property in question and complains that the ordinance is an unreasonable and arbitrary exercise by the municipality of its powers and that an application made by her, and refused, for permission to erect a gasoline station and restaurant should have been granted. The ordinance was adopted nearly five years ago, and other owners in the near vicinity bought their homes in reliance thereon. Also neighboring owners, among them the Paramus Keformed Church, have resisted the lucratively tempting impulse to yield to business uses. However well placed the property of the prosecutrix and a few other conspicuously located properties nearby may be for gas station or roadhouse uses, it cannot be said that the neighborhood has been given over to those or like uses or that it is at all fitted for general business purposes, and it cannot well be denied that the proposed uses with kindred others that would almost inevitably follow in the train would detract from the residential value of the adjacent territory.

It seems clear that the compensation allowed the prosecutrix for the taking of the property for highway purposes comprehended a damage to the property that remained. The state paid $11,100 for 1.73 acres of land, a price which on a quantative basis was at the rate of nearly $6,500 per acre, and, later, $4,000 for nine-tenths of an acre. It is incredible that bare land would there have so large an acreage value. The taking was by condemnation for the purposes of the construction which, it is said, has disturbed the residential aspect of the property. We find no confiscation in the official acts under review.

The prosecutrix stood by while the ordinance was being passed and for years thereafter while others, on the strength of the ordinance, were making their investments and building their homes close at hand. We are not satisfied that the ordinance is an unreasonable or an arbitrary exercise of the powers conferred by the zoning laws or that the refusal of the local authorities was beyond their discretion.

The writ will be dismissed, with costs.


text:
    FIRST NATIONAL BANK AND TRUST COMPANY OF PAULSBORO, PLAINTIFF-RESPONDENT, v. ANDREW LUGAR AND WOODBURY TRUST COMPANY, EXECUTOR, DEFENDANTS-APPELLANTS.
    Submitted January 31st, 1936
    Decided April 21, 1936.
    Before Bbogax, Chief Justice and Justices Lloyd and Donges.
    For the plaintiff-respondent, Charles Camp Cotton.

    For the defendant-appellant Woodbury Trust Company, George B. Marshall.

   Per Curiam.

This is an appeal from a judgment of the Gloucester County Circuit Court in favor of the plaintiff. The suit was on a promissory note of defendant Andrew Lugar in the sum of $4,000, dated December 18th, 1930, payable on demand to Susanna M. Heritage and Mary E. Heritage, and endorsed by them. They were admittedly accommodation endorsers. Lugar paid the interest on the note up to October, 1934, but made no payments on the principal.

Mary E. Heritage died February 23d, 1932, and no claim was made against her or her estate.

Susanna M. Heritage died January 3d, 1933. Her will was probated and a rule to bar creditors made on July 16th, 1933. The first accounting of her estate was allowed September 20th, 1934, showing a balance for distribution of over $11,000. On or about December 27th, 1933, the plaintiff bank learned of her death and began negotiations with the defendant-appellant Woodbury Trust Company, executor of her estate looking to payment. On April 2d, 1934, plaintiff made demand of Lugar for payment and sent notice of protest to the appellant.

The sole question raised at the trial was that of demand and presentment within a reasonable time. The trial court submitted this question to the jury, which found for the plaintiff.

The appellant first argues that its motion for a nonsuit should have been granted because when plaintiff rested, after merely proving the note and the amount due thereon, there was no evidence at all of demand within a reasonable time. However, this may be, “it is well settled that a ruling denying a motion for nonsuit, erroneous at the time it is made, may be cured by subsequent proofs.” McGee v. Kraft, 110 N. J. L. 532; 166 Atl. Rep. 80. We think appellant cannot complain that some evidence on this subject came on rebuttal, because no objection was made to the admission of testimony on the ground that it was not proper rebuttal.

It is next argued that it was error to refuse to direct a verdict for defendant on the ground that there was no question of fact for the jury as to demand within a reasonable time. We think this is not so. This is the theory on which the case was tried by both sides. The appellant itself opened this question by asking one of its witnesses whether a delay of three years and four months in presenting such a note was reasonable or unreasonable. The plaintiff produced bankers in the locality who testified that it was not unreasonable to allow a demand note, upon which there were endorsers, to run for such a period of time, when the principal debtor promptly made payments of interest. This question was tried out and there was evidence on both sides, requiring submission to the jury. Such evidence is material under the one hundred and ninety-third section of the Negotiable Instruments act (3 Comp. Stat., p. 3757) :

“In determining what is a ‘reasonable time’ or an ‘unreasonable.time’ regard is to be had to the nature of the instrument, the usage of trade or business (if any) with respect to such instruments, and the facts of the particular case.”

We conclude there was no error in refusing to direct a verdict.

The third point deals with requests to charge, all of which, admittedly, were in effect directions to return a verdict for the defendant-appellant. What has been said above disposes of this point.

The judgment is affirmed, with costs.


text:
    AGNES VAN COTT, PLAINTIFF, v. GERLOF DE ROOS, DEFENDANT.
    Submitted January 31, 1936
    Decided April 21, 1936.
    Before Bkogam, Chief Justice, and Justices Lloyd and Do.nges.
    For the appellant, David Kwiat and Paul Riltenberg.

    For the respondent, Cohn & Kohlreiter.

   Per Curiam.

This matter comes into this court on petition to review an adjudication that the petitioner, Ernest Mutzberg, is guilty of contempt of court. He was held in contempt by the Passaic County Circuit Court for failure to obey a subpoena duces tecum issued out of that court and fined $100, which has been paid. Thereupon he filed a petition which prays:

“Wherefore, your petitioner prays that a trial de novo be granted him, reviewing the entire contempt proceedings and the findings of the court, and for an order to take depositions in this matter, in accordance with the statute in such case made and provided.”

It was signed by two counselors-at-law, in accordance with the statute, 2 Comp. Stat., p. 1736.

The state of the case contains this petition, certain orders in the court below, affidavits used on the return of the rule citing petitioner in contempt, and testimony of the petitioner before the Supreme Court commissioner at the hearing when he was subpoenaed to produce certain documents and failed to do so. There was no order of this court as to the manner in which the appeal Avas to be presented. Nor was any application made for such an order.

The argument in the brief is directed to the record brought up from the court below. It is argued that the conviction is without basis in law and in fact.

The practice in matters of this kind is outlined in Attorney-General., ex rel. Hudson County Quarter Sessions v. Verdon, 90 N. J. L. 494; 102 Atl. Rep. 66. There Yerdon was convicted in the Common Pleas of contempt. He filed a petition under the statute in the Supreme Court, which court reversed for practically a trial error, the refusal of the Common Pleas to grant a demand of the accused that interrogatories be submitted to him, and remanded the cause to the Common Pleas for a new trial. Hpon appeal to the Court of Errors and Appeals this action was held to be error. It was held that upon the filing of a petition under the act, the upon the law and facts, and to give such judgment as shall Supreme Court is required to rehear the matter de novo both seem lawful. It was said:

“The failure of the Supreme Court to proceed under the statute requires a reversal of its judgment, and a remission of the record to it in order that it may, in the language of the statute, rehear the matter of contempt upon which the conviction was founded, both upon the law and upon the facts, by the taking of depositions, or in such other way or manner as it shall deem advisable, and render such judgment thereon as shall seem to it to be lawful and just under all the circumstances of the case.”

In that case the matter went back to the Supreme Court. Leave was given to take depositions. By stipulation the record below was used and was supplemented by the testimony of one additional witness whose deposition was taken by the prosecution. The Supreme Court then considered the matter de novo and found the defendant not guilty. 91 N. J. L. 491; 104 Atl. Rep. 317.

Obviously, the proper procedure has not been followed in this case. The respondent objects to the practice and complains that the record is incomplete, and that the statute has not been followed. However, the respondent has failed to object to the state of the case in the manner provided by the rules of this court, and, in the situation presented, we are of the opinion that the petition should be held and leave given to the petitioner-appellant to apply on notice to the court for an order directing the perfecting of the record and presentation of the evidence in order that this court may rehear the matter anew both upon the law and the facts.

Such will be the order.


author: Pee Cuhiam.

text:
    DANA COLLEGE, PROSECUTOR, v. STATE BOARD OF TAX APPEALS AND CITY OF NEWARK, A MUNICIPAL CORPORATION, DEFENDANTS.
    Argued January 23, 1936
    Decided April 23, 1936.
    Before Justices Case and Bodine.
    Bor the proseertor, Arthur T. Vanderbilt.

    Bor the city of Newark, Frank A. Boettner and Walter P. Reilly.

   Pee Cuhiam.

On October 1st, 1933, the land and building of the prosecutor at No. 38-54 Rector street, Newark, was assessed at $201,900. Prosecutor appealed first to the Essex county board of taxation and then to the state board of tax appeals, and both of those bodies affirmed the assessment. The judgment of the state board is brought before us by writ of certiorari. The issue is whether, on October 1st, 1933, prosecutor was entitled to exemption under section 203, subdivision 4 of the General Tax act of 1918, as amended Pamph. L. 1931, ch. 372; N. J. Stat. Annual 1931, p. 467, § 208-66d (203) subdiv. (4), applicable to colleges or schools not conducted for profit, subject to the proviso that charitable or benevolent work of an appropriate institution may be supported partly by fees and charges if the building is wholly controlled by and the entire income therefrom is used for charitable or benevolent purposes. There is much in the record that seems to us irrelevant to the issue framed as of that date. Incidents in proof -which occurred thereafter tend to establish that the institution, as it now is, is in the exempt class but are of little evidential value on the present issue. The state board of tax appeals was of the opinion that the institution had not, on the mentioned date, sufficiently demonstrated that it had emerged from the class of commercial enterprises.

The New Jersey Law School and its affiliate, the Seth Boyden School of Business, were admittedly, until a few weeks before the assessing date, operated commercially and at a profit. Dana College was incorporated April 2d, 1930, as an association not for pecuniary profit and is said not to have produced a profit. It was operated, however, by those who were interested in the other schools at a time when, as is generally known, a college course as a pre-legal requirement was being urged and shortly before the adoption of the Supreme Court rule requiring two full years’ attendance and study at an approved college or university, later modified with the alternative of the academic equivalent of two such college years. Shortly prior to October 1st, 1933, there was a merger agreement between the New Jersey Law School, the Seth Boyden School of Business and Dana College, which, however, reserved to those who had owned the two affiliate schools and the real estate a marked measure of control over and protection in the merged institution and the property thereof. The land and building had been purchased in 1927 by the New Jersey Law School from the Ballentine Brewery Company for $155,000. In 1931 the law school conveyed the property to 40 Bector Street Corporation which, as a part of the merger proceedings, conveyed the property to Dana College in August, 1933, for the consideration of $405,000. It is said that the difference between $155,000 and $405,000 had been expended on the property to fit it for school uses. Dana College paid that purchase price with $2,000 in cash and a mortgage for $403,000 bearing interest ranging from two to four per cent. The law library and personal property and fixtures had been owned by Dorset Investment Corporation which undertook to sell the personal property, exclusive of the law library, to Dana College for the sum of $5,000, payable in five annual installments, and to lease the library at a charge of $1,500 per annum for a period of three years. There was a reservation to the law school whereby it might change its name to Litchfield School of Law, or some other name not in conflict with New Jersey Law School, and continue outside of Essex county without further connection with Dana College.

On April 24th, 1933, Mr. Richard D. Currier was president of 40 Rector Street Corporation, of Dana College, of Dorset Investment Company and of the New Jersey Law School and was the person who, on behalf of these several corporations, signed each of the offers leading to the merger. There was also an agreement whereby Mr. Currier was to be retained as treasurer of Dana College over a period of years at the compensation of $10,000 per year. Incidental to the merger there were contributions by Mr. Currier, his daughter, Mrs. Mason, and others to an endowment fund of Dana College, which fund, on the 1st of October, 1933, amounted to $78,000.

Without going into greater detail we express our thought that, except for the creation of this modest endowment fund, there seems to have been no difference in the functioning of the institutions after the merger from that which theretofore had existed when the law school and the business school were admittedly being operated for commercial gain. The equity of Dana College in the property was very slight, and while there was a provision in the merger agreement that if there should be a failure of Dana College its assets should be applied to similar educational purposes, the property was subject to the vast mortgage which, upon default, could, of course, be foreclosed and the equity of the college shut out. The law library continued in the ownership of the Dorset Company, and the law school was protected in perpetuating its existence against default or failure of the college.

The fact of incorporation under the non-pecuniary act is not conclusive proof that the corporation is a charitable institution. The facts of each case determine the character of the corporation. Town of Montclair v. State Board of Equalization of Taxes, 86 N. J. L. 497; 92 Atl. Rep. 270. So it was for the prosecutor to demonstrate that on October 1st, 1933, not at some later date, it was entitled to the exemption. It is a question of fact. The assessing authorities and the two appellate taxing bodies determined that question in the negative. We are inclined to think that the college had not sufficiently emerged from its chrysalid state for us, on the printed book, to say that the state board of taxation was wrong in its conclusions. The property, the law school, the business school and the college were being operated precisely as theretofore. The former owner of the real estate held a mortgage, in the full amount of the sale price save only a pittance, rental was being paid for the property in use but not bought, those who had made conveyances were fully protected against default, compensation for services was being paid then as theretofore, and the proceeds of the enterprise were dedicated, so far as necessary, to those requirements. There was no lessening of the charge to students and no broadening of the charitable function. We are of the mind that on the facts in proof bearing upon the first day of October, 1933, the finding of the state board of taxation should not be reversed.

The writ will be dismissed, without costs.


author: Bbogan, Chief Justice.

text:
    STATE OF NEW JERSEY, DEFENDANT IN ERROR, v. HERMAN RITZAU, PLAINTIFF IN ERROR.
    Submitted January term, 1936
    Decided April 30, 1936.
    Before Beogan, Chief Justice, and Justices Lloyd and Donges.
    For the defendant in error, T. Raymond Bazley, prosecutor {Edward F. Juslca, assistant prosecutor, on the brief).
    For the plaintiff in error, Edward W. Wise {Frederic M. P. Pearse, of counsel, and George Such Pearse, on the brief).
   Bbogan, Chief Justice.

The plaintiff in error, Ritzau, and eight other defendants, were convicted upon five indictments, two of which charged that they “did manufacture and possess certain alcoholic beverages without first having obtained a license for that purpose from the department of alcoholic beverage control of the State of Flew Jersey, contrary to the statute,” and three of which charged that “they did have in their possession or custody, or under their control, a still or distilling apparatus set up, without having registered same with the commissioner of alcoholic beverage control of the state, contrary to the form of the statute.” Eitzau alone appeals.

The case comes to us for review on a strict writ of error and bill of exceptions, and the judgment is also challenged under section 136 of the Criminal Procedure act.

The argument in the briefs submitted for the plaintiff in error is directed to the general proposition that the conviction should be reversed because the state failed to make out a case against the plaintiff in error on either class of indictment. It is therefore argued that the verdict was against the weight of the evidence; that the trial court erred in denying motion to dismiss the indictments charging the plaintiff in error with manufacturing and possessing intoxicating liquor; that there was no evidence that the plaintiff in error had possession, custody or control of any still or distilling apparatus set up, and the like. The remaining assignments of error as well as the specification of causes for reversal are not argued and therefore are abandoned.

It appeared that Eitzau owned two apple farms in Shrews-bury township, one on each side of a public road known as Eiverdale avenue, comprising over three hundred acres, one known as the Eiverdale farm and the other as the Cloverhill farm. Upon each were erected dwelling houses and other outbuildings and barns. The barn on the Eiverdale farm housed over a four thousand gallon still with eight vats of fermenting mash and over nine hundred gallons of alcohol in tins. Electric power was brought to this apparatus from a service line which supplied the dwelling house, which service line was installed on the application of Eitzau in December, 1930. In the cellar of the house a quantity of apple whiskey was found. The investigation, which resulted in these indictments, was made on May 17th, 1934.

From the barn on the Eiverdale farm, where a still was found, a tunnel was constructed to the edge of the river, a distance of about two hundred feet, for a water supply obviously, and in a smaller barn on this farm was a dismantled apple whiskey still.

On the Cloverhill farm, another still, similar to the first, was found, along with five ten thousand gallon tanks, three fifty horsepower steam boilers, and another large quantity of alcohol in tins. All of the equipment was unquestionably used for the manufacture of liquor on a large scale on these two farms. At the time of the investigation, the columns and boilers were still hot.

Eitzau’s defense was that he was in no way connected with this illegal manufacture of alcoholic beverages; that the property on which this operation was conducted had been leased out to others, and that he was not in possession or control of any still or distilling apparatus which was set up.

In support of this defense, the state of case discloses that that section of the Eiverdale farm, on which the barn which housed the still and other equipment stood, had been leased on March 1st, 1934, to one Williams, and that that section of the Oloverhill farm, where the second still and other equipment was found, had been leased on April 21st, 1934, to one Macks. The leases had, at a hearing before the commissioner in charge of the alcoholic beverage control bureau, some time before the trial, been offered in evidence and had not been returned to Eitzau. It is admitted that defense counsel called upon the state’s attorney to produce them at the trial in the court below and they were not produced. Consequently, the court admitted secondary evidence of their contents, which testimony was supplied by Eitzau’s attorney, Mr. Wise, who had drafted the leases in question. He said that he represented Eitzau in March, 1934, and prepared two leases, one for a section of the Eiverdale farm property and the other for a part of the Oloverhill farm; the former tract was leased for use as a fertilizing plant; the latter was to be used as a picnic ground. It was on these leased tracts that the stills, equipment and liquor were found.

Turning to the indictments themselves, we find that they charge the defendant with manufacturing certain alcoholic beverages. There is nothing in the testimony, so far as the plaintiff in error, Eitzau, is concerned, that would justify submitting the case to the jury on that issue. The record discloses that the plaintiff in error was in and about the property constantly but at no time, according to the evidence, did he go into the structures where the stills were housed. It may be that he knew all about it, but we search the record in vain for any testimony that links him with the manufacture of alcoholic beverage. He is also charged with possessing alcoholic beverages. Granting that there was proof sufficient to justify the conclusion that he possessed alcoholic beverages, yet possession in itself is not a violation of the statute unless it be coupled with proof of intent to manufacture, sell, distribute, &e., alcoholic beverages. Chapter 85, laws of 1934, section 48, page 250; N. J. St. Annual 1934, p. 180, § 100-359, subdiv. 48. We find no such proof.

The second class of indictment charged that the defendant and others had in their possession or custody, or under their control, a still or distilling apparatus set up. The proofs clearly show, according to the testimony of Yan Schoick, one of the state’s witnesses, that the still possessed by Eitzau, was dismantled. Now while chapter 84, Pamph. L. 1934; N. J. St. Annual 1934, p. 189, § 100-391, provides that every person having in his possession or custody, or under his control, any still or any distilling apparatus set up, dismantled, or in the process of construction, or parts thereof, shall register same with the commissioner of alcoholic beverage control (section 1, statute, supi’a), and failure to do so renders an offender liable to conviction for misdemeanor (section 9, N. J. St. Annual 1934, p. 191, § 100-399), none the less, the indictment against this plaintiff in error charged possession, custody or control of a still or distilling apparatus set up without having registered the same, &c.

The proofs offered do not support the charge in the indictment that Eitzau had in his possession or control a still or distilling apparatus set up and, consequently, the state’s case failed.

The judgment of conviction is reversed.


text:
    GEORGE M. FREEMAN, PETITIONER-DEFENDANT, v. RAILWAY EXPRESS AGENCY, RESPONDENT-PROSECUTOR.
    Submitted January 31, 1936
    Decided May 6, 1936.

      Before Justices Parker, Case and Bodine.
    Por the prosecutor, Cox & Walburg (Arthur F. Mead, of counsel).
    Por the petitioner, D. Joseph Novaría (David L. Horuvilz, of counsel).
   Per Curiam.

The questions of facts and law in this case were fully discussed in the opinion filed by Judge Loder and set forth above. As to the facts, he concurred in the finding of the deputy commissioner on the original hearing and, after a careful examination of the evidence, we see no reason for overruling the conclusion of these tribunals.

As to the law, we also concur in the views expressed by Judge Loder and agree with him that the case is principally controlled by Jackson v. Florence Thread Co., supra, cited by him.

The judgment under review will therefore be affirmed.


author: Case, J.

text:
    JEANETTE BODNAR, PROSECUTRIX, v. THE BOARD OF HEALTH OF THE BOROUGH OF CARTERET, DEFENDANT.
    Heard May 2, 1936
    Decided May 8, 1936.

      Before Justice Case pursuant to the statute.
    For the prosecutrix, John E. Toolan.

    For the defendant, Nathaniel A. Jacoby.

   Case, J.

The writ brings up a resolution of the board of health of the borough of Carteret, adopted January 9th, 1936, declaring vacant the position of board of health nurse. The effect of the resolution was to sever prosecutrix from her position without the preferment of charges and without hearing. The case actually turns upon whether or not the board of health of the borough had the authority, on January 10th, 1935, to appoint, as it did, Mrs. Bodnar to the position for a term extending beyond the prospective date of reorganization in January, 1936. Such authority as the board had lay within the provisions of section 31, chapter 68, Pamph. L. 1887—the Board of Health act—which provides as follows:

“That such local boards of health shall have power and authority to appoint such subordinate officers and agents to carry into effect the powers hereby conferred as they may deem necessary, to fix the term of such appointments and the compensation of such appointees; and in every city, town, borough or other local municipal government, containing a population of two thousand inhabitants or more, there shall be at least one inspector appointed by such board; the duties of the officers and appointees of the said board shall be prescribed and defined bjr rules, regulations or ordinances made for that purpose.”

That section has been specifically construed by the Court of Errors and Appeals in Browne v. Hagen, 91 N. J. L. 544; 104 Atl. Rep. 207, and Clay v. Browne, 96 N. J. L. 303; 114 Atl. Rep. 808, affirmed on the opinion below, 97 N. J. L. 315: 116 Atl. Rep. 926. The language and reasoning of these opinions, particularly in Clay v. Browne, are such that T am constrained to conclude that the Court of Errors and Appeals considered that the section authorized the appointment of officers and agents by a local board for a period longer than one year. I am not unmindful of the decisions in Skladzien v. Board of Education of the City of Bayonne, 12 N. J. Mis. R. 602; 173 Atl. Rep. 600; affirmed, 115 N. J. L. 203; 178 Atl. Rep. 792; Board of Education of Cedar Grove v. State Board, 115 N. J. L. 67; 178 Atl. Rep. 208; O’Connell v. Bayonne, 116 N. J. L. 61; 181 Atl. Rep. 902, and Evans v. Board of Education, 13 N. J. Mis. R. 506; 179 Atl. Rep. 475. Those cases, however, seem to leave untouched the findings in Browne v. Hagen, supra, and Clay v. Browne, supra, which, neither overruled nor distinguished, are so directly in point that I, sitting in my present capacity, regard them as controlling. This leads to the conclusion that the board, in January, 1935, did have the authority to appoint for a period of more than one year.

The statute further provides, in section 36, that “the appointees, agents and officers of the said boards, except those merely temporary, shall hold their offices during the term for which they were severally appointed, and shall not be removed therefrom except for cause and after an opportunity has been given them for a hearing.” This makes quite plain that one who has been lawfully appointed shall be permitted to serve for the designated term unless removed in accordance with the statute.

My conclusion, therefore, is that, as against any reason presented to me, the prosecutrix held her position by a valid, subsisting appointment and that the resolution declaring the position vacant was invalid.


author: Pee Cueiam.

text:
    THE COUNTY OF BERGEN, PLAINTIFF-RESPONDENT, v. ENGLEWOOD TITLE GUARANTEE AND TRUST COMPANY, A CORPORATION OF THE STATE OF NEW JERSEY, DEFENDANT-APPELLANT.
    Submitted October 11, 1935
    Decided May 8, 1936.

      Before Beogan, Chiee Justice, and Justices Lloyd and Donges.
    For the plaintiff-respondent, Walter G. Winne.

    For the defendant-appellant, Cohen & Klein (Louis J. Cohen, of counsel).
   Pee Cueiam.

A judgment of the District Court for the Fifth Judicial District (Bergen county), in favor of the plaintiff, is before us for review.

The defendant is a banking institution and undertook, in conformity with section 8 of the statute (New Jersey Bank Stock Tax act, chapter 265, Pamph. L. 1918; Cum. Supp. Gomp. Stai. 1911-1924, p. 3562, § 208-500a(8) to have assessed to and in its name the entire taxable value of all the shares of stock therein instead of having same assessed against the individual owners thereof, and promised to pay such tax. The institution suspended business on March 1st, 1933, was taken over by the commissioner of hanking and insurance on March 1st. 1934, and its affairs administered by the commissioner under the jurisdiction and control of our Courf of Chancery later in that year. The plaintiff’s claim is for the amount of this tax for the year 1934. The claim was resisted upon the theory that if the commissioner in charge of the defendant hank, paid this tax there was no property of the individual stockholders of the institution from which he might he reimbursed. This contention has no merit, the question raised by the appellant having been, in our judgment, entirely settled by the ease of Ferguson v. Fidelity Union Trust Co., 24 Fed. Rep. (2d) 521.

The appellant further contends that the tax is too high; that if any tax was payable it should have been for a lesser amount, on the theory that the amount of the tax was not computed in accordance with the true value of the shares of stock. This likewise has no merit. The tax apparently was ascertained when a statement showing the amount of the capital, surplus, and undivided profits, &c., was filed with the Bergen county tax board by the bank’s treasurer. The amount of the tax cannot be attacked collaterally. Certainly the District Court has no jurisdiction to review a tax assessment, and the time for appeal through the regular tribunals has passed.

We agree entirely with the comprehensive memorandum filed by Judge Lloyd of the District Court.

The judgment will be affirmed.


author: Pee Cukiam.

text:
    PETER KENNY, PLAINTIFF-APPELLANT, v. WILLIAM A. WACHENFELD, PROSECUTOR OF THE PLEAS OF ESSEX COUNTY, AND JAMES F. MASON, CHIEF OF PROSECUTOR’S DETECTIVES OF ESSEX COUNTY, DEFENDANTS-APPELLEES.
    Argued May 5, 1936
    Decided May 11, 1936.
    Before Justices Bodine and Heher.
    For the plaintiff-appellant, Nathan A. Rubin.

    For the defendants-appellees, Leon W. Kapp, assistant prosecutor of the pleas.
   Pee Cukiam.

The appellant brought an action in replevin to recover $147 in bills, sixteen cents in pennies, $6.05 in silver, money of the United States. When arrested by the Newark police, the money, the subject-matter of the suit, was in his pocket. $6.21, for which he had judgment, was receipts from his legitimate business. The balance, for which there was no recovery, he admitted at the time of his arrest, was bets on race horses which he had collected that day in the pursuit of the bookmaker’s business.

Although at the trial appellant denied that he had said the money was tainted with gambling but contended that it was money which he had borrowed from a loan company, however, the admission duly proved, supports the finding of the trial court that the money was being used in an unlawful pursuit.

It seems clear that since the money was earmarked and segregated, as part of a gambling operation, it could be as well seized as a gambling device. Because of the use, the money became contraband and the appellant may not receive possession thereof.

The judgment is affirmed.


text:
    WILLIAM KLEIN, PLAINTIFF-APPELLANT, v. CAROLINE T. BOYLAN, DEFENDANT-APPELLEE.
    Argued May 5, 1936
    Decided May 11, 1936.

      Before Justices Bobine and Heher.
    For the plaintiff-appellant, Edmund A. Hayes.

    For the defendant-appellee, Morgan B. Seifert.

   Per Curiam.

The plaintiff sued to recover for the value of professional services rendered in giving expert testimony at the trial of an action brought by the defendant for personal injuries. Testimony in the case disclosed that the plaintiff was employed by the defendant’s attorney, and that he looked to the defendant for payment for his services. It was settled in this case, when previously before the court, that an attorney has implied authority to obligate his client to pay the fee of an expert witness called by him. Klein v. Boylan, 115 N. J. L. 295; 179 Atl. Rep. 638.

We can find no evidence, from our examination of the case, which justified the trial judge in charging the jury in the present action that if the physician was employed by the defendant’s attorney acting in his own behalf and for his own benefit that the verdict should be in favor of the defendant. The proofs are clear that the plaintiff looked to the defendant for payment, and there is not a word to indicate that the attorney obligated himself personally, and we fail to see on what basis this issue was submitted to the jury.

The other errors complained of need not now be considered.

Judgment is reversed.


author: Bo dine, J.

text:
    MADISON REALTY COMPANY, INCORPORATED, A CORPORATION OF NEW JERSEY, PLAINTIFF-APPELLEE, v. ALBERT V. COLLINS, DEFENDANT-APPELLANT.
    Argued May 5, 1936
    Decided May 11, 1936.

      Before Justices Bodjnb and Hehbk.
    For the defendant-appellant, George A. Henderson.

    For the plaintiff-appellee, Zemel & Miller (Joseph Zemel).

   Bo dine, J.

Plaintiff had judgment for rent. A written lease made June 26th, 1931, for the term of one year from October 1st, 1931, covered a six-room apartment on the fourth floor of the building at 178 Plane street, Newark. The rent was payable in equal monthly installments of $52, subsequently reduced to $45. The tenant held over for four 3’ears. On May 31st, 1934, he moved from the premises, giving notice of intention dated February 28th, 1934. The recovery was for rent which had accrued from July 1st. 1934, to June 1st, 1935. The notice given was not directed to the end of the term, nor was it sufficient.

In Heckel v. Griese, 12 N. J. Mis. R. 212; 171 Atl. Rep. 148, it was held: “The defendant, by reason of his holding over and paying the rent, became a tenant from year to year of the demised premises (Meier v. Champion, 97 N. J. L. 493; 117 Atl. Rep. 603), and in order to terminate such tenancy, the defendant would have had to serve upon the plaintiff a six months’ notice of his intention to terminate the tenancy. Zabriskie v. Sullivan, 80 N. J. L. 673; 77 Atl. Rep. 1075; affirmed, 82 N. J. L. 545; 81 Atl. Rep. 1135.”

The only possible defense offered at the trial was that the president of the plaintiff company had said in February of 1934, that he would accept a month’s notice to quit.

“Under the statute of frauds (Gen. Stat., p. 1602, §.2; now 2 Comp. 8ta>t., p. 2610), no lease may be surrendered except by writing or by act and operation of law. It has been held in our Supreme Court, as well as in other jurisdictions, and we approve the doctrine, that when the minds of parties to a lease concur in the common intent of relinquishing the relation of landlord and tenant and execute this intent by acts which are tantamount to a stipulation to put an end thereto, there at once arises a surrender by act and operation of law.” Miller v. Dennis, 68 N. J. L. 323; 53 Atl. Rep. 394.

In vain we search for proof of any acts which are tantamount to a stipulation to put an end to the term at the expiration of one month from date of the alleged conversation. The terms of the lease and the extention thereof by the holding over after the expiration thereof, could not be effected by mere words alone. There must be either a writing or' acts done indicative of the intent to relinquish the relationship.

There being no issue to submit to the jury, the direction of a verdict in favor of the plaintiff was proper.

The judgment is affirmed.


author: William A. Smith, C. C. J.

text:
    Essex County Circuit Court.
    HELEN ROGOVIN, PLAINTIFF, v. HARRY KRIDEL AND SAMUEL K. SOBEL, EXECUTORS OF THE ESTATE OF GEORGE KRIDEL, DECEASED, DEFENDANTS.
    Decided April 1, 1936.
    Eor the plaintiff, Edward R. McGlynn (by Joseph Weiniraub).

    Eor the defendants, Samuel K. Sobel.

   William A. Smith, C. C. J.

This matter is presented to the court on a motion to stay the issuance of an execution on a judgment entered in favor of the plaintiff and against the defendants.

The plaintiff is the obligee of a bond secured by mortgage on real estate and sues the executors of George Kridel, the obligor, to recover the face amount of the bond. The bond, at the time of the commencement of the suit and at the present time is not due by its terms, nor is it in default. However, a proof of claim for the full amount of the bond was submitted to the defendant executors; they rejected the claim, and this suit was instituted thereon. On defendants’ motion, the complaint was stricken on the ground that the obligation was not due.

The striking out of the complaint by this court was reversed by the Court of Errors and Appeals. Rogovin v. Kridel, 116 N. J. L. 97; 182 Atl. Rep. 828, that court holding that this suit was instituted* for the purpose of determining the validity of the plaintiff’s claim after its rejection by the executors, and not for the purpose of collection.

On the return of the remittitur on the reversal and in accordance with the directions of the Court of Errors and Appeals, this court entered judgment in favor of the plaintiff and against the defendant executors for the amount remaining unpaid on the bond, it still not being due or in default under its terms.

The defendants now move to stay execution on the ground that this suit is brought onh for the purpose of establishing the validity of the plaintiff’s claim, and that it cannot be used for the purpose of collection. From my examination of the opinion on which the reversal was predicated I must conclude that it was the opinion of that court that this proceeding could not be used for the purpose of collection and the application for a stay of execution will therefore be granted.