author: McGeehan, S. J. A. D.

text:
    STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT, v. LAWRENCE G. BLEICHNER, DEFENDANT-APPELLANT.
    Superior Court of New Jersey Appellate Division
    Argued January 8, 1951- —
    Decided February 6, 1951.

      Before Judges McGeenan, Jayne and Wm. J. Brennan, Jr.

      Mr. Samuel P. Orlando argued the cause for defendant-appellant (Mr. John L. Morrissey, attorney).

      Mr. Benjamin Asbell, Assistant County Prosecutor, argued the cause for plaintiff-respondent (Mr. Mitchell H. Cohen, Prosecutor of Camden County, attorney).
   The opinion of the court was delivered by

McGeehan, S. J. A. D.

Lawrence G. Bleichner and William J. Sheehan were jointly indicted, and at the trial in the Camden County Court the defendant Bleichner was convicted and defendant Sheehan was acquitted. Defendant Bleichner appeals from the judgment of conviction.

The indictment charged that Lawrence G. Bleichner and William J. Sheehan “being the contractors engaged to -erect a certain dwelling house, to wit, a bungalow, on Walnut Street, Audubon, New Jersey, for one Edgar A. Heubel, and being entrusted as such contractors with the sum of ($2,930.00) two thousand nine hundred and thirty dollars, they, the said Lawrence G. Bleichner and William J. Sheehan, did unlawfully and fraudulently convert the said sum of two thousand nine hundred and thirty dollars ($2,930.00) to their own use, with intent to cheat and defraud the said Edgar A. Heubel, contrary to the provisions of R. 8. 2 :124^16.”

R. 8. 2:124-16 provides:

“All moneys received by a contractor from the owner or mortgagee of real estate or any leasehold or other interest therein, while a building is being erected, constructed, completed, altered, repaired or having an addition made thereto, are hereby declared to be trust funds in the hands of such contractor to be applied to the amount of all claims due or to become due and owing from such contractor to all persons furnishing labor or materials to him for the erection, construction or completion of the building or any alteration, repair or addition thereto, and any other reasonable and necessary charge in connection with the carrying on and completion of the work on the building. Any contractor or any officer, director or agent of such contractor who pays or consents to the appropriation of such funds for any other purpose prior to the payment of all claims and charges for the payment of which such funds constitute a trust fund as above provided, shall be guilty of a misdemeanor.”

On May 5, 1948, Edgar A. Heubel, the complaining witness, and Margaret, his wife, called at the defendants’ place of business in Camden, in answer to an advertisement. There they met the defendant Sheehan, who told them that his partner Bleichner was the “contractor and builder in this organization” and that he would be in soon. When Bleichner came in, they discussed with him the building of a home. They were shown a scale model of a five-room bungalow and agreed to have such a home built for them on a lot which they owned in Audubon. Defendant Bleichner then produced a printed form of contract headed: “William J. Sheehan Go., Building Contracting, 333 Market Street, Camden, New Jersey” and filled it out. This contract provided that a standard five-room bungalow would he completed for $6,930, which was to be paid by the Ileubels in installments at specified times. This agreement was signed by the Ileubels and by the defendant Bleichner. The Ileubels paid $250 to defendant Sheehan, in defendant Bleichner’s presence, at the time of the signing of the contract on May 5, 1948; and between May 5, 1948, and September 11, 1948, made additional payments of $2,680 to defendant Bleichner, and receipts for all the payments totaling $2,930, signed by defendant Bleichner, were endorsed on the hack of the written agreement of May 5, 1948. The payments made by the ileubels not only met the required instalments under the agreement at the time, but were in excess thereof.

When the agreement was signed, Bleichner informed the Ileubels that the house could lie built within ten to twelve weeks. When the Ileubels complained from time to time about the failure to start the construction, Bleichner gave various excuses. After the last payment by the Ileubels in September, 1948, the defendants moved from their place of business and left no forwarding address. When the Ileubels finally located them, the defendants said they would start immediately on the construction of the building. Shortly thereafter a cellar was dug, but nothing further was done on the construction. The parties stipulated that the value of all work done was $500. The demand of the Ileubels for the return of the money paid was not complied with.

In his charge to the jury, the trial judge stated:

“If, on the other hand, you should find, after a consideration of the testimony in this case, that Bleichner and Sheehan were partners, and were in the contracting business, and that as a result of such relationship or association this man Ileubel paid to them the sum of $2,930 for the erection and construction of a building and that they failed to erect or construct the building, and those facts have been established to your satisfaction beyond a reasonable doubt, then I say to you you should return a verdict of guilty as against both of these defendants * * * you can find one guilty and the other innocent, or you may find both innocent, or, of course, you can find both guilty, depending on your consideration of the evidence submitted.”

The defendant Bleichner objected to this portion of the court’s charge on the ground that the acceptance of moneys by a contractor for the erection or construction of a building, and the failure to erect or construct such building, does not of itself constitute a crime under the statute.

The defendant contends that the trial court committed reversible error in its charge, and we agree. The crime sought to be charged in the indictment was a violation of E. S. 2:124^-16. Under this statute all moneys received by a contractor from the owner or mortgagee of real estate, or any leasehold or other interest therein, for the erection, construction or completion of a building, the alteration or repair thereof, or the addition thereto, are constituted trust funds to be applied to the amount of all claims due or to become due or owing from such contractor to all persons furnishing labor or materials to him for the erection, construction or completion of the building, or any alteration, repair or addition thereto, and any other reasonable and necessary charge in connection with the carrying on and completion of the work on the building. To be guilty of a violation of this section the contractor or an officer, director or agent of such contractor must pay or consent to the appropriation of such funds for some other purpose prior to the payment of all claims and charges for the payment of which such funds are constituted a trust fund by the statute. The effect of the court’s charge was to instruct the jury to return a verdict of guilty against the defendant Bleichner if they found (1) that Heubel had paid $2,930 to Bleichner, individually, as the contractor, or to Bleichner and Sheehan, as partners in the contracting business, for the erection and construction of the building, and (2) that the building was not erected or constructed. This constitutes reversible error. The violation of the statute does not depend upon the failure of the contractor to erect or construct the building. The violation may occur whether the building is erected or constructed, or is not, but it can occur only when the contractor pays or consents to the appropriation of the moneys for another purpose prior to the payment of all claims and charges for the payment of which the moneys constitute a trust fund under the statute.

We also agree with the defendant’s contention that the court erred in denying his motion to dismiss the indictment. Every constituent element of the crime charged must be sot forth in the indictment and not left to intendment. State v. Solomon, 97 N. J. L. 252 (E. & A. 1922). It is fundamental, of course, that an indictment, to be effective as such, must set forth the constituent elements of a criminal offense: if the facts alleged do not constitute such an offense within the terms and meaning of the law or laws on which the accusation is based, or if the facts alleged may all be true and yet constitute no offense, the indictment is insufficient. 27 Am. Jur., Indictments and Informations, § 54. A constituent element of the offense under this statute is that the moneys were received by the contractor from “the owner or mortgagee of real estate or any leasehold or other interest therein” and this indictment, in failing to state that the moneys involved were received from such an owner or mortgagee, fails to state a constituent element of the crime. Also, the payment or consent to the appropriation of such moneys by the contractor for other purposes is not necessarily a crime under the statute. A constituent element of the crime is that the contractor pay or consent to the appropriation of such funds for any other purpose “prior to the payment of all claims and charges for the payment of which such funds constitute a trust fund” under the statute. The indictment fails to state this constituent element of the crime.

The judgment is reversed.


source: Caselaw Access Project

author: Dodges, J. S. G.

license: Public Domain

text:
    MARY F. O’BRIEN, PETITIONER-RESPONDENT, v. NEW JERSEY STATE HIGHWAY DEPARTMENT, RESPONDENT-APPELLANT.
    Superior Court of New Jersey Appellate Division
    Argued January 29, 1951 —
    Decided February 14, 1951.

      Before Judges Jacobs, Eastwood and Donges.

      Mr. Roland Vreeland argued the cause for petitioner-respondent (Mr. Gerald T. Foley, attorney).

      Mr. Osie M. Silber, Deputy Attorney General, argued the cause for respondent-appellant (Mr. Theodore D. Parsons, Attorney General of New Jersey, attorney for respondent-appellant) .
   The opinion of the court was delivered by

Dodges, J. S. G.

(temporary J. A. D.). This is an appeal from a judgment entered in the Essex County Court.

There is no dispute as to the facts in this case. The petitioner’s decedent, an employee of the New Jersey State Highway Department, was fatally injured on April 26, 1948, as the result of an accident arising out of and in the course of his employment.

The accident was caused by the negligent operation of an automobile owned by a person not connected with the decedent or the State Highway Department.

Thereafter, the petitioner and the respondent entered into an agreement whereby the respondent paid the petitioner the sum of $250 for funeral expenses, and further agreed to pay compensation for a period of 300 weeks at the rate of $18.31 per week, totaling $5,495.

Meanwhile, petitioner retained the services of an attorney to represent her in an independent action against the person responsible for the death of decedent. This suit was settled for the sum of $7,500, out of which the attorney took $1,500 as his fee.

The respondent has paid to petitioner the sum of $1,519.73 in compensation plus $250 for the funeral expense. Petitioner claims that she is not required to reimburse the respondent for the $250 funeral expense. The Deputy Director of the Workmen’s Compensation Bureau ordered full reimbursement of all money paid by respondent, including the $250 funeral expense. The County Court reversed this judgment as to the funeral expense, and the State Highway Department has appealed to this court.

The question to be determined is whether an employer, who pajrs the sum of $250 towards the funeral bill of a decedent, pursuant to R. 8. 34:15-13 as amended by P. L. 1945, c. 74, p. 387, § 6, is entitled to be reimbursed for that amount, when recovery is had from a third person for the death of the employee.

Respondent’s contention is based upon the provisions of R. 8. 34:15-40 (b) which provides as follows:

“If the sum recovered by the employee from the third person or corporation, after the expenses of suit and attorney’s fee or either of them, as hereinafter defined, have been deducted therefrom, is equivalent to or greater than the liability of the employer or his insurance carrier under this statute, the employer or his insurance carrier shall be released from such liability and shall be entitled to be reimbursed, as hereinafter provided, for the medical expenses incurred and compensation payments theretofore paid to the injured employee or his dependents.”

The precise point raised here has not been decided before by our courts. However, the respondent relies upon the case •of Prudential Insurance Company v. Laval, 131 N. J. Eq. 23 (Ch. 1942). While the facts were somewhat similar to the present case, the question here involved was neither raised nor decided. The court, in computing the amount of reimbursement, included the funeral bill. However, since the question here presented was not raised, that case can not be •authority for the proposition urged here.

The word “compensation” has received the attention of our present Supreme Court in an opinion by Justice Case in Harper v. New Jersey Mfrs. Cas. Ins. Co., 1 N. J. 93 (Sup. Ct. 1948). Although the ease involved a different section of the Workmen’s Compensation Act, the question presented was whether the term “total compensation” included medical expenses and funeral expenses. The court said:

“Compensation is a word of broad significance. It is widely and ■commonly used with varying shades of meaning. * * * The Court of Errors and Appeals, in Everhart v. Newark Cleaning and Dyeing Co., 119 N. J. L. 108 (1937), construing a part of the Workmen’s Compensation Act, said (p. 114) : ‘Compensation is measured by * * * earning power.’ Manifestly, if the criterion there mentioned be true of that which is to be called compensation, neither medical services nor funeral expenses are compensation because they have no dependency upon or admeasurement by earning power; * * *”
“® * * The Legislature has made clear by sharp distinction in terms that it does not, at least that in all cases it does not, include medical expenses as a part of ‘compensation,’ * *

It is quite clear that the term “compensation” as used in its present context does not include funeral expense. The act makes a clear distinction between medical expenses and compensation. Certainly, the Legislature in including medical expenses as a separate item of reimbursement could have, if it so intended, placed the words funeral expenses in the act also.

This interpretation of the statute is strengthened by an analysis of paragraph (f) of B. 8. 34:15-40. This section permits the employer to institute suit against the third party, where the employee or his dependents do not do so, “and such right of action shall be only for such right of action that the injured employee or his dependents would have had against the third person or corporation.” It is quite evident that the Legislature intended to give the employer reimbursement for those elements of damages which the employee ox his dependent could recover against the third party. It is basic that a tort-feasor in this State is not liable in a civil action for the funeral expenses of a decedent whose death was the result of the tort-feasor’s negligence. Consolidated Traction Co. v. Hone, 60 N. J. L. 444 (E. & A. 1897).

One other provision of the statute should be mentioned in connection with this matter. B. 8. 34:15-13 expressly provides for the payment of funeral expenses and medical services by the employer and does not include them as part of “compensation.” It is logical to assume that the Legislature intended them as separate items and not as compensation.

Accordingly, the judgment of the Essex County Court is affirmed.


author: Stanton, J. S. C.

text:
    SID KRUGER, PLAINTIFF, v. HARBER REALTY CORP., A NEW JERSEY CORPORATION, DEFENDANT.
    Superior Court of New Jersey Chancery Division
    Decided January 25, 1951.

      Mr. Morris Chester, attorney for the plaintiff.

      Mr. Louis Kraemer, attorney for the defendant (Messrs. Furst, Furst & Feldman, attorneys).
   Stanton, J. S. C.

Plaintiff brought this action for the return of $3,000 paid by him as a deposit under a contract for the purchase of lands from defendant, and for the impression of a lien for that sum upon the said lands. The only issue is whether a judgment entered against John Sarubbi on February 18, 1933, when he was the owner of the premises in question, is still a lien thereon despite an adjudication of bankruptcy against him on May 1, 1933. Sarubbi was discharged in bankruptcy in October, 1933, but the proceeding was reopened years later and on March 21, 1937, the premises were conveyed by the trustee for a nominal consideration to the holder of a substantial mortgage lien on the premises, subject however “to any and all encumbrances whatsoever.”

Defendant contends that the lien is null and void as to it, as one claiming under and through the trustee in bankruptcy. Section 67 (f) of the Bankruptcy Act, at the time with which we are concerned, provided as follows: -

“All levies, judgments, attachments, or other liens, obtained through legal proceedings against a person who is insolvent, at any time within four months prior to the filing of a petition in bankruptcy against him, and any bond which may be given to dissolve any such lien so created, shall be deemed null and void in case he is adjudged a bankrupt, and the property affected by the levy, judgment, attachment or other lien, and any nonexempt property of his which he shall have deposited or pledged as security for such bond or to indemnify any surety thereon, shall be deemed wholly discharged and released from the same, and shall pass to the trustee as a part of the estate -of the bankrupt, unless the court shall, on due notice, order that the right under such levy, judgment, attachment, or other lien shall be preserved for the benefit of the estate; and thereupon the same may pass to and shall be preserved by the trustee for the benefit of the •estate as aforesaid. And the court may order such conveyance as •shall be necessary to carry the purposes of this section into effect: Provided, That nothing herein contained shall have the effect to •destroy or impair the title obtained by such levy, judgment, attachment, •or other lien, of a bona fide purchaser for value who shall have ae•quired the same without notice or reasonable cause for inquiry.”

"With respect to this, Mr. Justice Roberts in Fischer v. Pauline Oil Co., 309 U. S. 294, 302 (1940), stated:

“Although sec. 67 (f) unequivocally declares that the lien shall be deemed null and void, and the property affected by it shall be deemed wholly discharged and released, the section makes it clear that this is so only under specified conditions. At the date of creation •of the lien the bankrupt must have been insolvent; the lien must have been acquired within four months of the filing of the petition in bankruptcy; and the property affected must not have been sold to a bona fide purchaser. Furthermore, the lien is preserved if the trustee elects to enforce it for the benefit of the estate. These conditions create issues of fact which, as between the trustee, or one claiming under him, and the lienor, or one claiming by virtue of the lien, the parties are entitled to have determined judicially. The courses open to the trustee under the Bankruptcy Act of 1898 were to proceed to have the lien declared void, by plenary suit, or by intervention in the court where it was obtained, or by applying, in the bankruptcy cause, to restrain enforcement, as might be appropriate in the circumstances.”

In Kobrin v. Drazin, 97 N. J. Eq. 400 (Ch. 1925), it was held:

“Furthermore, judgments recovered within four months of the filing of the petition are not automatically dissolved by the adjudication. Insolvency of the bankrupt, at the time they were recovered, is an indispensable condition to the operation of the act. Insolvency must be established as a fact. Simpson v. VanEtten, 108 Fed. 199. The right to annul such judgments is in the trustee for the benefit of the bankrupt estate. He alone may invoke the act. He cannot assign the privilege, or abandon it to the bankrupt. 7 C. J. 197, 199.”

It is admitted that there was no judicial determination that Sarubbi was insolvent at the time the judgment was entered. Defendant contends that the insolvency of Sarubbi on the date of the creation of the lien was adequately established by the submission to plaintiff of an affidavit by Sarubbi, the jurat of which is dated April 19, 1950, and a copy of which was submitted on this motion. The invalidity of the judgment lien cannot be established in this manner. Nor does it appear that the trustee in bankruptcy moved to avoid the lien. The contrary is indicated by this conveyance of the premises subject “to any and all encumbrances whatsoever.” Fischer v. Pauline Oil Co., supra; Kobrin v. Drazin, supra; Grimbalis v. Stelling, 126 N. J. L. 82 (Sup. Ct. 1941).

Plaintiff may have summary judgment.


author: Grimshaw, J. S. C.

text:
    EAST RIDGELAWN CEMETERY, PLAINTIFF, v. WALTER G. WINNE AND TOBY FURST, SUBSTITUTED TRUSTEES, ETC., ET AL., DEFENDANTS.
    Superior Court of New Jersey Chancery Division
    Decided February 5, 1951.

      Messrs. Carey, Pforr, Knoeppel & Ziff, attorneys for plaintiff.

      Mr. Theodore D. Parsons, Attorney General, attorney pro se.

      Mr. Isadore Glauberman, attorney for Walter G. Winne and Toby Durst.

      Messrs. Bilder, Bilder & Kaufman, attorneys for Adam Drank, trustee.

      Messrs. Kessler & Kessler, attorneys for H. Jerome Sisselman.

      Mr. William L. Rae, attorney for Vivian D. Bell, et al.

      Mr. Benedict Krieger, attorney for Kay Holding Company.
   Grimshaw, J. S. C.

The plaintiff, East Ridgelawn Cemetery, has been engaged in litigation since 1910. In the present action it hopes to have determined all open questions and thus put an end to litigation. This is a pious hope in which we all join.

Plaintiff seeks to have adjudged the question as to whether it must pay for the cemetery lands which it now holds, and, if so, to whom payment shall be made and in what amount. It also seeks to have established the priority as between the amount owed to creditors of the cemetery and the amount owed to the holders of land purchase certificates.

The history of the cemetery is so well known as a result of the prolonged litigation that no useful purpose would be served by a detailed statement of the facts. A brief resume will suffice.

In 1905 the defendant Adam Erank conceived the idea of establishing a cemetery in Acquaekanonk Township, now the City of Clifton. With two associates, Pond and Tait, Erank set about the business of securing options on suitable property. The options covered some 270 acres. They were taken in the name of Herbert Gruber, a dummy for Erank.

Since'the statute, R. 8. 8:2-l, limited the area of any one cemeterjr to 125 acres, it became necessary for Erank and his associates to form two cemeteries. This they did, calling one-East Ridgelawn and the other West Ridgelawn.

East Ridgelawn Cemetery was organized on October 3, 1905. The trustees were selected by Erank. A franchise was granted to the cemetery by the township committee on December 12, 1905.

On December 28, 1905, Erank and his associates offered to deed to the two cemeteries the 270 acres of land in return for 13,500 shares or certificates of interest in the money to be obtained by the cemeteries from the sale of plots for burial purposes. Erank’s offer was accepted by both cemeteries. In order to carry out the scheme, Erank arranged for Gruber to convey the property to the Passaic Trust and Safe Deposit Company, later known as the Passaic National Bank & Trust Company. The deed for the lands now held by the plaintiff, a tract of some 121 acres, was dated December 21, 1906. On the same date the bank executed a declaration of trust which is in part as follows:

“FIRST. That on a request in writing of the said Herbert B. Gruber, his administrator or executor, it will convey the said land and premises above described to the East Ridgelawn Cemetery, a body corporate of the State of New Jersey, carrying on business in the Township of Acquackanonk in the County of Passaic and State of New Jersey, upon the following conditions:
Cl) That the said land is to be used by it for cemetery purposes.
(2) That the said East Ridgelawn Cemetery shall pay as consideration therefor such amount as it may receive from time to time as the proceeds of sale of said lots or plots in the following manner, viz.:
The said East Ridgelawn Cemtery shall first deduct from the proceeds of sale of said lots or plots such sum as the said East Ridgelawn Cemetery shall deem necessary to set aside for the perpetual care fund, which sum, however, shall not be less than six cents per square foot of land sold for burial purposes. Said perpetual care fund shall be paid over by the East Ridgelawn Cemetery to the Passaic Trust and Safe Deposit Company, and shall be invested together with income-therefrom by the said Passaic Trust and Safe Deposit Company.
One-half of the balance of the proceeds of the sale of said lots and plots shall be paid by the East Ridgelawn Cemetery to the Passaic Trust and Safe Deposit Companj-, and out of the remainder of the proceeds of said sales, the said East Ridgelawn Cemetery shall pay 1o the said Passaic Trust and Safe Deposit Company as the further consideration for such conveyances, all moneys remaining after the-deduction of the expenses of preserving, improving and embellishing the said cemetery grounds, and avenues and roads leading thereto, and for buildings thereon, and the debts contracted for said cemetery and for salaries, wages and expenses incurred by the said cemetery in carrying on its business, and such an amount in addition thereto as the said cemeterj- may- deem proper to retain from time to time-for the future embellishing of said cemetery. It however being understood that the way in which said money shall be expended shall be-entirely under the control of said Cemetery Company, the Trust Company being in no manner liable therefore. The proceeds of said sale herein referred to shall be paid over to the said Trust Company, its successors or assigns monthly.
(3) That the infice for the sub-lots or plots in said cemetery shall be fixed by the cemetery.
(4) That said proceeds of sale of said sub-lots or plots is hereby appropriated and is to be divided by said cemetery into Thirteen thousand five hundred (13,500) shares to represent which the said East Ridgelawn Cemetery shall issue a certificate or certificates to the said Trust Company in such form as shall be hereinafter recited.
(5) That the said certificates, when issued and delivered as herein provided, shall be negotiable and assignable by the holder thereof, his executors, administrators, successors or assigns, and on the surrender up or cancellation of any certificates first issued under this agreement, new certificates in place thereof shall be issued by the-said East Ridgelawn Cemetery to tlie person lawfully entitled to receive the same, and the same shall be endorsed as hereinafter provided by the said Trust Company, its successors or assigns.”

A declaration of trust was also executed covering the property conveyed to West Ridgelawn. The two declarations of trust are identical.

On January 3, 1907, the bank conveyed to East Ridgelawn Cemetery the 121 acres of land which had been deeded to it by Gruber. The conveyance was made subject to the trust agreement. Gruber received the 13,500 shares or certificates as provided for in the trust agreement and immediately turned them over to Prank. Gruber also disclaimed any beneficial interest in the certificates. The distribution of the certificates does not concern us. That question was settled in the case of Bittles v. West Ridgelawn Cemetery Co., 94 N. J. Eq. 808 (E. & A. 1923).

It was not long before the trust agreement became the subject of an attack in the courts. In 1910, Vice-Chancellor Stevens, in sustaining a demurrer to a bill for specific performance filed by East Ridgelawn, held the cemetery to be without power to issue the certificates provided for in the trust agreement. At the same time, the vice-chancellor indicated his disapproval of the provision for a dividend fund. East Ridgelawn Cemetery Co. v. Frank, 77 N. J. Eq. 36 (Ch. 1910). Then came the case of Atlas Fence Co. v. West Ridgelawn Cemetery, 119 N. J. Eq. 552 (E. & A. 1935), in which the appellate court affirmed a determination by then Vice-Chancellor Bigelow that: (1) the direct beneficiary of the perpetual care fund was the cemetery association; (2) the provision in the trust agreement for a dividend fund was void, and (3) that the trustee was entitled to receive the fair value of the estate conveyed to the cemetery as of the time of the conveyance, with interest, but without priority over other creditors. And, finally, in Passaic National Bank & Trust Co. v. East Ridgelawn Cemetery, 137 N. J. Eq. 603 (E. & A. 1945), same case, 139 N. J. Eq. 488 (E. & A. 1946), the former Court of Errors and Appeals denounced the provision in the trust agreement for a dividend fund as being in contravention of the essential policy of the statute and, therefore, void. The cemetery then filed the present complaint.

The plaintiff has never paid for the land which was conveyed to it by the trustee. That it must do so is not now open to question. Atlas Fence Co. v. West Ridgelawn Cemetery, supra; Attorney-General v. Linden Cemetery Ass’n., 85 N. J. Eq. 501 (E. & A. 1915), same case, 89 N. J. Eq. 193 (E. & A. 1918). The fair value of the estate conveyed is the equity in the lands plus a reasonable allowance for the services of the promoter and their value to the cemetery. Attorney-General v. Linden Cemetery Ass’n., supra. And, in the latter case, which is strikingly similar to the present one, the court decided that a reasonable allowance for the services of the promoter would be 10% of the value of the land for cemetery purposes as of the time of the original conveyance. That determination will be followed in this case.

On the question of land values, the plaintiff produced a tax expert who testified that a cemetery franchise hurt rather than helped the value of land. This is so completely at variance with the adjudicated cases and with common experience that it must be disregarded. Plaintiff also offered two experts who testified to the value of the property as farm land. Since we are concerned with the value of the land for cemetery purposes this testimony was not helpful. One of defendants’ experts fixed the value of the land for cemetery purposes, in 190?, at the sum of $660,000. Another placed the figure at $651,300. If we consider the latter sum as representing the value of the land for cemetery purposes, then 10% of that amount, or $65,130, would be a reasonable allowance for the services of the promoter.

The purchase price for the land was $?3,380. The reasonable allowance for the services of the promoter is $65,130. The sum of these two figures, or $138,510, is the allowable purchase price. To this amount must be added the sum of $41,005, being the amount realized by the cemetery from the sale of land purchase shares, which constitutes a liability the cemetery must recognize. Bliss v. Linden Cemetery Ass’n., 83 N. J. Eq. 494 (Ch. 1914). The total liability of the plaintiff is $179,515. From this amount will be deducted mortgage payments in the sum of $32,810.17 made by the cemetery and the sum of $16,691.98 heretofore paid to the trustee by the cemetery. After the indicated deductions are made, the net liability of the plaintiff is the sum of $130,012.85.

This obligation is payable to the defendant trusteed as the successors of the Passaic National Bank & Trust Company. They are not entitled to priority of payment over the other creditors of the plaintiff. They are, however, entitled to interest. Atlas Fence Co. v. West Ridgelawn Cemetery, supra.

In its brief, plaintiff argues that the claim of the trustees is barred by the Statute of Limitations. It asks the court to fix the amount of the liability and then argues that the claim is no longer payable. The argument ignores the fact that as late as 1946 the plaintiff recognized its obligation although questioning the amount. No authorities are cited in support of plaintiff’s position. In my opinion it is without merit.

When it comes to the question of the payment of the plaintiff’s obligations, there would appear to be no reason why the method outlined in the trust agreement should not be followed.

Judgment in accordance with the above views.


author: Stein, J. S. C.

text:
    NATHAN SPEIZER, SAMUEL CHINITZ, ANTHONY A. LUCAS, HENRY BONNEAU, WALTER BAUMANN, WILLIAM BACHMURA AND PHILIP SAPERSTEIN, PLAINTIFFS, v. HARRY LERNER, DAVID E. FELDMAN, HERMAN FELDMAN, DAVID OXFELD AND LINCOLN MUTUAL CASUALTY INSURANCE CO., A CORPORATION OF NEW JERSEY, DEFENDANTS.
    Superior Court of New Jersey Chancery Division
    Decided February 9, 1951.

      For the motion:

      Mr. Charles Handler, attorney for plaintiffs.
    Against the motion:

      Messrs. Rothbard, Harris & Oxfeld, attorneys for defendants David Oxfeld and Herman Feldman.

      Messrs. Furst, Furst & Feldman, attorneys for defendant David E. Feldman.

      Messrs. Ruback, Albach & Weisman, attorneys for defendant Lincoln Mutual Casualty Insurance Co.

      Messrs. Crummy & Consodine, attorneys for defendant Harry Lerner.
   Stein, J. S. C.

The plaintiffs moved for an order permitting them to join as a party plaintiff in this action the Newark Twentieth Century Taxicab Association.

On behalf of the defendants it is argued that with a single exception the complaint in this action is no different than the complaint in an earlier action brought by the Association against the same defendants, which earlier action was dismissed for the reason that the plaintiff Association had no such interest in the controversy as would entitle it to the relief sought. Thereupon the present complaint was filed by seven members of the Association as a class complaint in behalf of themselves and all other members of the Association. A comparison between the new complaint and the one that was dismissed shows only one material variance. The present complaint contains an allegation that the defendant David E. Feldman is indebted to the Association itself in a stated sum, for which an accounting is sought. All other allegations of the present complaint are the same as in the earlier complaint, upon which no relief may be had by the Association. It would he both nugatory and futile to allow the Association to be joined generally as a co-plaintiff and then, on motion, to dismiss its complaint for the same reasons that its first complaint was denied a hearing. Therefore, so far as the defendants other than David E. Feldman are concerned, the plaintiffs’ motion to join the Association is denied. So far as the defendant David E. Eeldman is concerned, plaintiffs’ motion to join the Association generally is denied, but it may be added as a plaintiff against the defendant David E. Eeldinan only, and only with respect to the indebtedness alleged in paragraph 34 of the present complaint and the accounting therein sought from that defendant in favor of the Association. This limited admittance of the Association is allowed on the term and condition, that the Association’s presence in the cause be subject to a pending motion for summary judgment heretofore made by the defendant David E. Eeldman with respect to that part of the complaint which consists of paragraph 34 thereof. It should not he necessary for the defendant who has moved for summary judgment against the class representatives of the Association to proceed de novo for summary judgment against the Association itself where on the face of the complaint it appears that the action was brought for its benefit. The Association should be bound by the result of that motion in the same way as are its representatives, the individual plaintiffs herein.

After the motion to join the Association was made and argued and decision was reserved, the plaintiffs filed an amendment to paragraph 6 of the complaint, and they now claim that by reason of that amendment the Association should be admitted generally as a party plaintiff. The motion which has been under advisement must be decided with regard only to the state of the pleadings as they existed at the time the motion was made, argued, and the court reserved decision. Therefore, for the purposes of the said motion, the substance and effect of the amendment is disregarded.

Since the foregoing views were expressed, the court was advised by letter from the plaintiffs’ attorney that he had previously in open court agreed to the arrangement that if the Association is admitted as a party plaintiff, it shall be deemed to have received due notice of the above mentioned motion for summary judgment. On this point the order to be signed will contain an appropriate provision as one consented to by the plaintiffs.

Present order in accordance with the foregoing conclusions.


author: Donges, J. S. C.

text:
    ELLIOTT-LEWIS CORPORATION, A PENNSYLVANIA CORPORATION, PLAINTIFF, v. E. SHELDON GRAEFF, DEFENDANT.
    Superior Court of New Jersey Law Division
    Decided February 1, 1951.

      Mr. Frederick P. Greiner, for the plaintiff (Messrs. Boyle, Archer & Greiner, attorneys).

      Mr. J. Norman Brierley, attorney for the defendant.
   Donges, J. S. C.

This matter is before this court on plaintiff’s motion for summary judgment pursuant to Rule 3:56-2 of the Rules of Civil Procedure, and also on a motion by plaintiff to dismiss defendant’s counterclaim. The motions are supported by an affidavit of an officer of the plaintiff corporation. Defendant has filed his affidavit also.

The suit is based upon a judgment obtained against the defendant by the plaintiff in the Common Pleas Coiirt 'of Philadelphia County, Pennsylvania, for $5,616. Plaintiff’s complaint has annexed thereto, as “Schedule A,” an exemplified copy of said judgment. Defendant, by his answer, admits his indebtedness to plaintiff, but avers he has no knowledge of the existence of'the judgment. Defendant claims, therefore, that since such a plea under Rule 3 :8 — 2 has the effect of a denial, a dispute of fact is presented.

The rule dealing with summary judgments should not be used by the court for the trial of disputed questions of fact upon affidavits. However, where, as here, the pleadings, affidavits and documents show palpably that there is no genuine issue as to any material fact, and in the absence of any showing by the defendant that he has a ground of defense, the plaintiff is entitled to a summary judgment. Taub v. Taub, 9 N. J. Super. 219, 75 A. 2d 822 (App. Div. 1950).

The facts in the present case are clearly beyond dispute. Defendant admits his indebtedness, and, although he, in effect, denies the existence of a judgment against him, the existence of the judgment is shown by the exemplified copy attached to the complaint. The defendant has not shown, nor can he show, any valid defense to the foreign judgment.

Judgment will be entered in favor of plaintiff in the sum of $5,616.

There remains for consideration plaintiff’s motion to strike the defendant’s counterclaim. Plaintiff claims that defendant cannot assert his counterclaim in this court because he did not present his counterclaim in the suit in Pennsylvania. He cites While v. Mindes, 105 N. J. L. 298, 145 A. 865 (Sup. Ct. 1929) ; affirmed, 106 N. J. L. 606, 148 A. 781 (E. & A. 1930) .

Begardless of what the rule was prior to the present Buies of Civil Procedure, Rule 3 :13-1 now permits a party to set up as a counterclaim any claim against an opposing party. Under this rule, a counterclaim would be permitted in an action on a foreign judgment where the defendant was not obliged to set up the counterclaim in the foreign action. See Comment No. 2 of the comments on the tentative draft of the new rules after Rule 3 :13 — 1.

Pennsylvania rules of procedure provide that a defendant may set up in the answer under the heading “counterclaim” any cause of action he may have against the plaintiff which arises from the same transaction or series of transaetions from which plaintiff’s canse of action arises. See Rule 1031 of the Pennsylvania rules. This is a permissive counterclaim and does not oblige the defendant to set it up at the time of his answer, but he may reserve it and sue upon it at a later time.

The remaining point argued by plaintiff is without merit at this time, but may be the subject of proof at the hearing. Plaintiff claims that defendant’s counterclaim is barred by a compromise agreement. However, defendant asserts that this compromise agreement was only as to one part of his claim. The agreement itself is not very clear on this point.

The motion to dismiss the counterclaim is denied. I further order and direct that plaintiff be enjoined from taking any steps to secure satisfaction of its summary judgment until after the counterclaim is tried and the issues therein determined.


author: Ziegener, J. C. C.

text:
    CLAUDIA DETTMAN, PLAINTIFF, v. ALFRED GOLDSMITH, DEFENDANT.
    Hudson County Court Law Division
    Decided January 31, 1951.

      Mr. Charles W. Broadhurst, attorney for the defendant (Messrs. Markley & Broadhurst, attorneys).

      Mr. Louis Steisel, attorney for the plaintiff.
   Ziegener, J. C. C.

This matter is before the court on motion by defendant for summary judgment under Buie 3:56.

Plaintiff was injured in an accident arising out of and in the course of her employment with the Arrow Manufacturing Company on November 15, 1948. As a result, plaintiff filed a petition for compensation, under the Workmen’s Compensation Act, and obtained an award and was paid for 45 6/7 weeks’ temporary disability, at $22.67 per week, plus 40% permanent injury to the left arm, or $2,720.40. Said award was entered on December 21, 1949.

It appears that plaintiff was treated and attended by Dr. Goldsmith, the defendant herein, for the injury she sustained in said accident. She was discharged from the hospital on November 17, 1948, but returned there on December 4, 1948, on instructions from the defendant. Thereafter, the defendant performed an operation upon plaintiff’s injured arm, and plaintiff now contends that defendant was negligent in the diagnosis and treatment thereof, and said negligence resulted in permanent disability of the arm.

Plaintiff is suing to recover damages allegedly sustained as the result of defendant’s negligence, and defendant now moves for summary judgment on the ground that plaintiff’s sole and exclusive remedy for all the injuries sustained as a result of the accident was under the Workmen’s Compensation Act, and that she cannot recover against the defendant for any alleged malpractice which may have aggravated her injuries, inasmuch as she has already received compensation for all her injuries, including any alleged aggravation thereof.

To support his contention, defendant relies solely upon the case of Burns v. Vilardo, 26 N. J. Misc. 277 (Sup. Ct. 1948), wherein the court held that the Workmen’s Compensation Act provides an exclusive remedy to employees for accidental injuries arising out of and in the course of employment, and this remedy is in substitution of any right to any other method, form, or amount of compensation, and an employee is entitled to but one satisfaction for an injury. The facts in that case are analogous to these herein, and the court said, at page 280: “It is important to note that the original injury was not caused by the act of a third party tort-feasor, other than the employer, and for which wrong the employee would have a remedy for the recovery of damages. Here, at best, the injury was aggravated by the- alleged negligence of the plant physicians. Since the original, substantive injury was not caused by the defendants, the case does not come within the rule permitting an employee to recover damages from a third party tort-feasor. The remedy provided by the Compensation Act is exclusive and any aggravation of the original injury not caused by an independent, intervening act is considered compensable.” The court then dismissed the action.

However, I do not hold to that view. First, the Workmen’s Compensation Act provides a remedy for an employee who is injured as a result of an accident arising out of and in the course of his employment. In addition, R. 8. 34:15-40 provides that: “Where a third person or corporation is liable to the employee * * * for an injury * * *, the existence of a right of compensation from the employer or insurance carrier under this statute shall not operate as a bar to the action of the employee * * *, nor be regarded as establishing a measure of damage therein.” Subsequently the act recites the liability of the employer should such a situation exist, and the employer’s right to reimbursement.

In my opinion, where an employee is injured in an accident arising out of and in the course of his employment, and subsequently a tort-feasor causes aggravation to said injury, and the employee recovers compensation from the employer for all his injuries, the employee may still maintain an action against the said tort-feasor. This is almost the same situation as an employee being originally injured, during the course of his employment, by the action of an independent third party, and it has been held that the employee can recover under the Workmen’s Compensation Act and also maintain an action against said third party. The obligation of the employer to pay compensation to the employee arises from a legislative contract, regardless of whether or not the employer was negligent. Jacowicz v. D., L. & W. R. R. Co., 87 N. J. L. 273, at page 276. The obligation of a tort-feasor to pay damages to the party he injures is not vitiated by the injured party’s recovery of compensation under the Workmen’s Compensation Act. And this is true even if said tort,.feasor was only responsible for the aggravation of the original injury, and even though the injured party has recovered compensation for all injuries. Said act was amended in 1936 (P. L. 1936, c. 162) to reimburse the employer in the event the employee recovered damages from a third party tortfeasor. And this amendment was not for the purpose of eliminating the employee’s cause of action against a third-party wrongdoer, but merely to effect reimbursement to the employer in such an event. The common law right of a person wronged to recover against the wrongdoer is not negated by the recovery of compensation by such person (as employee) from his employer. And this holds true where the treating physician allegedly commits a wrong against an injured employee, thereby aggravating his injury. Even assuming there might me a master and servant relationship between the employer and the treating physician (and our courts have held there is not), when the latter is charged with negligence bjr the employee he can be held answerable therefor.

I will grant an order denying the defendant’s motion for summary judgment.


author: Hughes, J. C. C.

text:
    IN THE MATTER OF THE APPLICATION OF MICHAEL DAMATO FOR ISSUANCE OF WRIT OF HABEAS CORPUS.
    Mercer County Court Law Division
    Decided February 9, 1951.

      Mr. Walter D. Cougle, for the petitioner, in forma pmperis.

      Mr. Theodore D. Parsons, Attorney General of the State of New Jersey (Mr. Eugene T. Urbaniak, Deputy Attorney General, appearing), for the State.
   Hughes, J. C. C.

On the basis of a petition alleging his unlawful detention by the Principal Keeper of the New Jersey State Prison, the writ of habeas corpus was issued to Michael Damato under the authority of R. 8. 2:82-1 et seq. On the return of the writ, a full hearing was had, testimony taken and certain stipulations of fact entered in the record by consent of counsel and under the supervision of the court, resulting in the following factual situation being presented:

On January 14,1944, on conviction for the crime of assault with intent to rape, petitioner was sentenced in the appropriate court in Somerset County to serve not less than 3 nor more than 12 years in the New Jersey State Prison, and immediately entered upon service of such sentence. On February 25, 1946, he was paroled by license issued by the former Court of Pardons, pursuant to its authority under R. 8. 2:198-1 (repealed P. L. 1949, c. 18), and was thereafter at large. On September 4, 1947, on conviction of the crime of assault, lie was sentenced by the appropriate court in Middlesex County to serve not less than 2% years nor more than 3 years, and immediately entered upon service of such sentence. The maximum term of this sentence was served by the petitioner and it, after credit of uniform commutation time allowances earned by him under B. S. 30 :4U140, expired on July 14, 1950. Meanwhile, on December 22, 1947, the former Court of Pardons had revoked the previous license granted by it on February 25, 1946, by reason of the subsequent conviction of crime.

This being the prisoner’s status on July 14, 1950, at the expiration of the sentence imposed upon him in Middlesex County, the State Prison officials, by reason of a clerical error concerning the fact of revocation of such license, released him from prison. This error was later discovered in routine fashion and the petitioner was apprehended on a parole warrant issued by the Principal Keeper of the prison, pursuant to the authority of B. S. 30 :4-118, which authorizes service of “a warrant for the arrest of any institutional inmate who shall have left the institution without parole or discharge or whose parole has been revoked * * Immediately upon such apprehension, the prisoner was returned to the prison on August 5, 1950, to complete service of the sentence on which he had inadvertently been released, i. e., the unexpired maximum of the sentence imposed upon him in Somerset County on January 14, 1944.

Among several contentions, the prisoner urges that the act of the prison authorities in placing him at liberty is conclusive so far as the State is concerned and that all intendments or presumptions resulting therefrom must run in his favor.' It is, however, clear to me that the erroneous release of July 14, 1950, was completely without warrant in law. A condition of the parole license to be at large, which was granted to petitioner in 1946, required him, in the event of revocation thereof, to serve the unexpired maximum term due on such sentence from the time of parole. The time between his release on such license and his return to prison by reason of any subsequent conviction of crime, does not apply in reduction of such obligation (B. S. 2 :198-4, repealed P. L. 1949, c. 18). Such a condition is sanctioned by law (B. 8. 2 :198 — 1, supra) and is valid and binding on acceptance of the license.

Nor did the time between petitioner’s arrival at prison on the subsequent sentence, on September 4, 1947, and the expiration of the maximum term thereof on July 14, 1950, apply in reduction of the unexpired maximum of the first sentence on which said license was revoked, for that interval of time is attributable only to the second sentence, i. e., that imposed in Middlesex County. In re Macejka, 10 N. J. Super. 393, 76 A. 2d 843 (Cty. Ct. 1950).

Neither a court nor the prison authorities were empowered to release this prisoner before service of the maximum of the sentence, which he was bound to serve by reason of the revocation of his license to be at large thereon. To excuse him from service of any part thereof (except for commutation time credits under B. 8. 30 :T-140, supra, to which he was entitled uniformly with other prisoners), would amount to parole and the sole custodian of the power of parole, is the New Jersey State Parole Board. In re Fitzpatrick, 9 N. J. Super. 511, 75 A. 2d 636 (Cty. Ct. 1950). The mechanical act of the prison authorities in permitting the prisoner to leave the prison on July 14, 1950, even though it had been intentional rather than in error, has no legal effect whatever.

This being so, the petitioner’s apprehension under the authority of the warrant issued by the chief executive official of the prison was fully authorized by law (B. 8. 30:4r-118, supra), and the circumstances of its execution represent no infringement of due process, nor invasion of constitutional rights. While such inadvertent release was regrettable and the legal necessity of later apprehension unfortunate because of the psychological impact on the mind of the petitioner, these elements, of course, have no effect to avoid the right and the duty of those representing the State to reinstate his status of imprisonment.

There is no merit to the petitioner’s contention that a greater punishment was imposed by his second sentence, due to subsequent revocation of parole caused thereby. Such revocation was due to the subsequent conviction, but in a legal sense was attributable to the solemn contract entered into by the petitioner upon accepting the benefits of his license to be at large, namely that he would avoid later commission of crime and fulfill any other conditions. His case does not come within the principle of State v. Lutz, 135 N. J. L. 603 (Sup. Ct. 1947).

No right exists to a hearing on revocation of a license to be at large as involved in this case. R. S. 2 :198-4, supra.

Regarding another contention of petitioner, it is noted that all commutation time to which he is entitled by reason of P. L. 1950, c. 315 has been restored to him.

Accordingly, the prisoner is now serving the unexpired maximum term of the sentence imposed upon him on January 14, 1944, on which his license to be at large was revoked on December 22, 1947, as stated. He is not entitled to immediate release and is required to complete service of such maximum term, unless sooner paroled by the New Jersey State Parole Board.

The writ is, therefore, discharged and the petitioner remanded to the custody of the Principal Keeper of the New Jersey State Prison.


text:
    HELEN GREENBERG, PLAINTIFF, v. MORTIMER GREENBERG, ET AL., DEFENDANTS.
    Superior Court of New Jersey Chancery Division
    Decided February 7, 1951.

      Messrs. Kristeller & Zucker (Mr. Saul J. Zucker appearing), attorneys for the plaintiff.

      Messrs. Ruback, Attach & Weisman (Mr. Meyer E. Ruback appearing), attorneys for the defendant Mortimer Greenberg.
   Stein, J. S. C.

Six motions came before me in this cause. One was by the plaintiff, under an order to show cause allowed ■herein, that the defendant Doctor Greenberg be restrained from removing assets deposited with or under the control of two banking or savings institutions in Newark; another motion by the plaintiff that the temporary receiver appointed herein, to hold assets in this State belonging to Doctor Green-berg, should be continued; and a third motion by the plaintiff that a safe deposit box at the Fidelity Union Trust Co., in the name of Ruth Realty Co., should be sealed or its contents delivered to the said receiver. The defendant Doctor Green-berg countered by motions (a) to dismiss this action on the ground that the plaintiff had brought herself within the unclean hands doctrine by failing to reveal to the court at the time ad interim relief was obtained by her that substantially the same action was already pending between the same parties (husband and wife) in the Supreme Court of New York and that in that earlier action the plaintiff had already obtained an ad interim restraint enjoining the husband from transferring or disposing of assets “no matter where situate;” (b) to abate the within action because of the pendency of the Yew York action; and (c) to vacate and discharge the writ of ne exeat issued in this cause against the husband. All motions were submitted on affidavits and on arguments, written and oral, furnished by the parties.

The motion to dismiss on the unclean hands doctrine has already been disposed of. It was not denied that when the complaint was filed herein, and on an ex parte application an ad interim, restraint was imposed against the defendant, a temporary receiver appointed over his assets in this State, and a writ of ne exeat allowed under which his arrest was ordered, there was not revealed to the court the existence of the Yew York suit which had already been commenced and in which the defendant had already been served personally in Yew York. The proofs before me present the complaint in the Yew York action. In respect of substance the two actions are the same. It was argued before me that the existence of the earlier suit in another state and, particularly, the character of the restraint there already allowed were material facts which the plaintiff, as a suitor in this court, was obliged to reveal. It was emphasized that the omission so to do was not attributable to any ignorance on the part of the plaintiff, who is herself a lawyer in Yew York, though not engaged in practice. The attorney for the plaintiff in this State assumed the responsibility for the failure to disclose to this court the stated facts but insisted that the omission was not willful and, further, that the disclosure would not have altered the court’s action, taken ex parte. I believed that the undisclosed facts were material but I was of the further opinion that their nondisclosure did not in the instant case constitute so serious an omission as to justify the denial to plaintiff of a hearing on the merits of her case. Accordingly, I denied the motion to dismiss. In some jurisdictions one seeking relief is required in his moving papers to state to the court that no like application was previously made to any other court, and, if made, what disposition thereof occurred. The purpose of such requirement is not unlike that of our own rule in matrimonial causes, where the petitioner must reveal all previous proceedings between the parties affecting the marital status. A previous or a pending proceeding between the same parties and for the same or related cause is always material to a subsequent action between those parties, and certainly may be revealing of important attitudes or other facts. Our courts have time and time again indicated their expectation and requirement that suitors in a court of conscience must fully and candidly present the entire situation. In the case of Philip A. Singer & Bro. v. A. Hollander & Son, 104 N. J. Eq. 352, 145 A. 621 (Ch. 1929), Vice-Chancellor Backes said: “Suppression of facts material to the issue is neither ingenious nor ingenuous, and proper discipline would be to deny a hearing.” It is to be clearly understood that whenever hereafter relief is sought in this court, particularly when the application is made ex parte and the relief asked is drastic, such as an ad interim, restraint or the appointment of a temporary receiver or the issuance of an order for arrest, the applicant shall fully and explicitly reveal to the court all then pending actions between the parties in any way relating to or touching the subject of the controversy.

I next consider the motion to vacate and discharge the order of ne exeat. The defendant-husband’s proofs are not controverted with respect to the following facts: He is a physician and was married to the plaintiff in February of 1941. The parties at first resided at Hillside, in this State. That residence was taken up so that Doctor Greenberg could look after the medical practice of his brother-in-law, who had joined our armed forces. The defendant practiced at Hillside from May, 1941, for about a year. His wife was not satisfied with residence at Hillside and wished to move to Brooklyn, where she had spent much of her life, and she wanted her husband to establish himself in Brooklyn as a practicing physician. He jdelded to her desires and the couple moved from New Jersey in January of 1942, taking up their residence in Brooklyn, where they lived together without interruption until October 5, 1950. About four months after the parties moved to Brooklyn the doctor discontinued practicing at Hillside and at once opened, in May of 1942, a medical office in Brooklyn, where he has practiced continuously to the present time. He lias not for about nine years practiced anywhere in New Jersey. His practice is an extensive one and embraces considerable work in the field of obstetrics. He is required to hold himself available at all hours of the night for patients in delivery and other patients approaching such event. He admits that ho has been financially successful, and if that success is to be measured by the wife’s statements of his wealth, he has become a person of large and substantial means. Obviously his interests require that he continue to practice where he has over the years built up a large following and enjoys a lucrative practice. It is exceedingly unlikely that against self-interest he would wish to depart to another state to start from scratch and endeavor to build up an entirely new following.

The wife asserts in her affidavit verifying the complaint that he made the threat that when he would obtain the delivery of the Cadillac automobile which he has on order he will depart for California, to reside there permanently. Forgetful of this assertion she stated in a later affidavit that he became a resident of New Jersey because of his infatuation with a certain lady residing in New Jersey, his purpose in moving to New Jersey being not only to be near her but to reside in this State, where a divorce is obtainable on grounds not cognizable in the State of New York. She is evidently mindful of the grounds of desertion and cruelty, traces of which may be found in the husband’s charge that she mistreated him and that on October 5, 1950, she changed the locks of their Brooklyn home, barred him therefrom, and even prevented him from removing therefrom bis clothes and personal belongings. The charge of having locked out her husband is denied by her and there is no need for determining now that disputed fact. We are here concerned with the simple question of the propriety of the issuance of the writ of fie exeat. In her application for that writ, the wife stated that her husband was then, on December 11, 1950, living with his parents at Hillside, New Jersey. In her most recent affidavit, sworn to on January 8, 1951, she says: “I have charged that my husband, the defendant, Mortimer Greenberg herein, was a resident of New Jersey when this suit was started.” The within action was in fact started upon the filing of the complaint on December 11, 1950. The allegations which moved the court to allow the writ of ne exeat were those that he was a resident of this State and was about to depart therefrom to California. In support of those claims she offers proof which, in the form offered, is inadmissible because it is clearly founded on hearsay. Assuming that such proof were free of that objection, it amounts to the following: He was on or about September 12, 1950, one of the incorporators of a company in New Jersey known as Ruth Realty Oo. It is not denied that he was named in the certificate of incorporation as the registered agent and the address of the company’s office was given as that of the parents’ home in Hillside, New Jersejf, and that one or more safety boxes were opened in this State in the name of that company, with the defendant designated as president and access furnished to him. The attorney who prepared the charter explains in his affidavit that he was engaged to incorporate the company by a Mrs. Orris (another of the three incorporators and the sister of the defendant), that in designating the registered agent he, the attorney, had committed an error, and that he had known for some time that the defendant lived in Brooklyn and practiced medicine there. The attorney explains in his affidavit that he had intended to designate Jacob Greenberg (the third incorporator and the defendant’s father) as the registered agent, but through error and because of similarity of surnames the name Mortimer Greenberg was inserted instead of that of the father, Jacob Greenberg. He further says that it was he who chose the name of the registered agent. The other two incorporators say that when they signed the certificate of incorporation they did not notice who had been designated as the registered agent. From the fact of such designation and from the further fact that on the application for a safety box the defendant’s address was stated as that of his parents, the plaintiff concludes that the defendant changed his residence from Brooklyn to that of Hillside, New Jersey. This conclusion cannot prevail against the very persuasive circumstances that the defendant has not only lived continuously in Brooklyn for almost nine years but that his professional interests require the continuance of such residence. It is the defendant himself who in his answering affidavit volunteers the information that when he was locked out from his home in Brooklyn he came to Hillside two or three nights a week to sleep at his parents’ home, and that on all other nights he slept in his Brooklyn office so as to be available for the night calls in his obstretrical work. It is not denied that he did this only while looking around in Brooklyn and Manhattan for suitable accommodations for himself, which he found early in December in New York City, where he has lived ever since. It is not denied that the last night he slept at his parents’ home was Saturday, December 2, 1950, and that he has not been in New Jersey since the morning of Sunday, December 3, 1950. As to his state of mind in coming to New Jersey two or three nights a week during the alleged period of lockout, he asserts, and the court believes him, that at no time during that period did he intend to change his residence from Brooklyn to Hillside, New Jersey. I also believe the attorney, Mr. Oastelbaum, that his designation of the defendant as the registered agent and that of the residence of the defendant’s father as the registered office resulted from an error on the part of counsel and that what was intended was to designate the father and the father’s home respectively, as agent and office. Even if this were not so, the mere designation of the defendant as registered agent would not accomplish the change of residence which the plaintiff alleged and upon which she obtained the order for the defendant’s arrest. The defendant’s own use of the Hillside address in connection with the renting of a box does not by itself make out the plaintiff’s claim that her husband became a resident of New Jersey. All the circumstances indicate plainly that his coming into the State between October 5, 1950, and December 2, 1950, to sleep two or three nights a week in his parents’ home, was a temporary make-shift arrangement to tide him over until he could ñnd. suitable residence in New York. The fact that he slept in his Brooklyn office four or five nights a week more than just outweighs the fact that other nights he slept at Hillside. A very important circumstance on this question of residence is the fact of the defendant’s well-established medical practice in Brooklyn. Of like significance is the fact that in that community he has served and continues to serve on the medical staff of three Brooklyn hospitals but has no such connection anywhere in this State.

A somewhat similar problem was considered by this court in the case of Friedland v. Isquith, 106 N. J. Eq. 344 (Ch. 1930). There the defendant moved to discharge a writ of ne exeat. The defendant was the complainant’s son-in-law. He was a doctor and until 1929 lived in Brooklyn, where he practiced medicine. Due to marital difficulties between himself and his wife, he moved in 1929 from Brooklyn to Weehawken, New Jersey. The wife did not accompany him. The question before the court was whether in coming to New Jersey and opening an office to practice medicine he had established a bona fide residence here, or whether coming to New Jersey was for the purpose of evading process in the State of New York and for the further purpose of avoiding the payment there of alimony, pendente lite. The court held that he was a bona fide resident of this State not only because that was the stated intention of the defendant but also because he sought and obtained a license to practice medicine in this State. The same reasoning which led the court in the cited case to find the defendant a bona fide resident of New Jersey leads me to find that at the time the writ of ne exeat issued in this cause the defendant was, and for many years had been and still is, a bona fide resident of the State of New York, and was not, as is claimed by the plaintiff, a resident of New Jersey. The alleged change of the defendant’s residence from New York to New Jersey is not supported by any proof of such clarity and persuasiveness as to overcome the powerfully strong reasons which anchor the defendant’s interests in Brooklyn and make his suggested departure therefrom highly incredible. The wife’s affidavit asserting a change of residence is unsupported by any other witness and her self-contradiction seriously impairs the value of her assertion. Initially her claim was that her hubsand’s intentions pointed to the State of California, to which he intended to move and wherein he intended to live. In her later affidavit herein she attributed an entirely different purpose to her husband. Latterly she charged that he came to New Jersey to be near a named woman and suggested that this was for the reason that grounds for divorce were available to him here which were not cognizable in New York. By that statement she revealed a certain acquaintance with our law and she must be held to have known that the maintenance by the husband of a suit in this State required a bona fide residence here of two years. Such alleged purpose rules out the alleged intention to depart for California in the near future or as soon as the defendant obtains delivery of a Cadillac automobile. The two allegations clash violently with one another and indicate that the wife is stirred by what are mere apprehensions, not sufficient to warrant the issuance of a writ of ne exeat. Friedland v. Isquith, supra. On the state of the proofs and in the present posture of the case I am convinced that when the writ of ne exeat was applied for, the defendant was a bona fide resident of New York and had no intention of becoming a resident either of this State or of the State of California.

Plaintiff’s attorney insists, however, that the writ may issue even against a non-resident, and he relies on the case of MacDonough v. Gaynor, 18 N. J. Eq. 249 (Ch. 1867), where it was held that the writ “will be issued against a non-resident temporarily here, even if not in the state at the time.” If to the language quoted is sought to be given the meaning that a non-resident merely'' passing through this State or here on a visit of a dayr or so may be arrested at the suit of a non-resident (herself residing permanently where the defendant resides permanently), I should decline to follow such construction. I do not give to that early case the authority of such a holding. I incline to the view that what is meant by the quoted language is that where one establishes a temporary residence in this State he is amenable to the writ even though on the particular day of issuance he be out of the State. An example of that would be where a non-resident lives at the Jersey shore during the summer season but has his permanent home outside this State. The writ could issue against him during his customary summer residence in this State, even though on the date of issuance he were outside the State. That, however, is not the situation here. If the fact that the defendant slept at his father’s home in this State two or three nights a week might be said to constitute a “temporary residence,” the fact is undisputed that that “temporary residence” terminated the morning of December 3, 1950, since which time the defendant has resided in his newly-found apartment in New York City. To say the very least, the facts relied on by the wife are attended with doubts, and the rule is settled that in a doubtful case the writ should not issue. Friedland v. Isquith, supra.

Nor do I see how in the present posture of the case the plaintiff’s cause could be defeated if in fact the husband departed from Brooklyn with either of the intentions attributed to him by the plaintiff. If he came into New Jersey in order to avail himself of desertion as a ground for divorce, then, surely, his intended residence here for two years is to be reasonabty assumed and he would be here subject to our processes. As was said in Foote v. Foote, 102 N. J. Eq. 291 (E. & A. 1927), the purpose of the writ is “to maintain the presence of the defendant within the state, for the purpose of securing the practical application of legal process.” If, on the other hand, the defendant did go to California, his departure would not defeat the plaintiff’s cause, for both in New York and in this court sécurity is furnished her, of which I shall hereafter speak.

Plaintiff’s counsel has made the point that the motion to vacate the writ of ne exeat should not be entertained until the defendant has first submitted to arrest and has put up a bond to secure his appearance in this State. It is well settled that the defendant may at any time exhibit to the court anything which shows that the writ should not have been granted and any reason for its discharge, and that affidavits may be read both in support of and against the motion to discharge the writ. See Cary v. Cary, 39 N. J. Eq. 3 (Ch. 1884), and cases there cited; also 2 Dan. Ch. Pr. 1712. A different rule would, as is pointed out in the last cited case, work to the great prejudice of the defendant, for the rule would “put it out of his power to seek relief for a long period of time, and so give to the complainant a great and unjust advantage, and ought not to exist.” The requirement that a defendant must first submit to arrest before he can challenge the validity of a writ of ne, exeat would be a monstrous rule. The writ might be founded on a non-existent cause or be based upon false allegations of intended departure from the court’s jurisdiction, and yet before these facts could be shown the indignity of incarceration would have to be suffered. Such outrage would be aggravated in cases where the defendants have not the means to post the security fixed in the order for the writ. I therefore hold that a defendant against whom the writ of ne execd is directed may at any time, and without submission to arrest and without posting security, challenge the validity or propriety of the writ.

One other reason should be mentioned why the writ here should be vacated. The writ issues only from the necessities of a given case and to prevent a failure of justice. Palmer v. Palmer, 84 N. J. Eq. 550 (Ch. 1915, opinion by Chancellor Walker). In view of the relief which has been awarded the plaintiff by the New York courts in her like action against her husband, and in view of the relief which, is hereinbelow awarded, substantial justice is being done to file plaintiff and there is no reason or need to hamstring the defendant with the writ and its dire consequences. The arrest of the defendant, who is a practicing physician, might well impair, if not destroy, his professional standing, bringing with it an impairment of his ability to respond financially fo such money decree as may finally be awarded to the plaintiff by the courts of New York, in which she is maintaining and prosecuting her major effort.

For ihe reasons stated the order for the writ of ne exeat and the writ are vacated and set aside.

Defendant moves to alíate the within action because1 of the pendency of the New York action. Roth actions are between the same parties and are substantially alike. That motion must be denied. It is settled law in this State that the pendency of another action, either at law or in equity, in another state is no bar to the prosecution of a like action in this State between the same parties. The rule is laid down that where such actions are brought “the defendant who is harassed by successive suits in different jurisdictions may apply to the court in which the subsequent suit is brought for relief, and the court may, in its discretion, stay proceedings, or refuse to permit final judgment until the prior suit has been determined.” Mumford v. Ecuador Development Co., 50 A. 476 (Ch. 1901, not officially reported); Fulton v. Golden, 25 N. J. Eq. 353 (Ch. 1874); Kerr v. Willetts, 48 N. J. L. 78 (Sup. Ct. 1886); Fairchild v. Fairchild, 53 N. J. Eq. 678 (E. & A. 1895); Mennonna v. Penna. R. R. Co., 5 N. J. Misc. 233 (Sup. Ct. 1927).

It will be ordered that when the defendant shall have filed a general appearance herein, as below directed, this cause will be stayed to abide the finality of the New York action between these parties.

This court, on ex parte application, appointed a temporary receiver over the defendant’s assets in this State, imposed a restraint against removal of assets, and directed that the defendant show cause why the receiver should not be continued, why a safe deposit box or boxes should not either be sealed or its contents delivered to the receiver, and why the ad interim restraint should not be continued. Since these things were done the New York Supreme Court heard the New York action, in which the wife asserts the same facts, makes the same claims, and seeks the same money award. In the New York action the court has jurisdiction over both subject-matter and person, since the defendant was served personally within that state. The defendant appeared in that action and .litigated the relief sought, pendente lite. The contest resulted in an order entered on January 9, 1951. That order is, by consent of both counsel, part of the record before me. By that order it is directed that the defendant post a bond in the penal sum of $25,000, “conditioned for performance of, compliance with and satisfaction of, anjr judgment that may be Tendered in this action.” By “this action” is meant, of course, the New York action. The same order provides that the defendant may, in lieu of furnishing such bond, deposit with the Clerk of the New York Supreme Court, for safe keeping and subject to the further order of that court, “any or all of the items referred to in subdivisions (b), (c) and (d) of paragraph I hereof, and in the event he does so, the amount of the undertaking shall be reduced, by the amount specified in such subdivisions, with respect to the item in question so deposited.” Item (b) is described in that order as a $20,000 note executed by Marshall Zirinsky and endorsed by Louis Zirinsky, dated on or about December 5, 1949. Item (c) is identified as consisting of $7,400 face value bonds. Item (d) is identified as $19,112.50, the proceeds of a check given by the plaintiff to the defendant on September 14, 1950. It is further provided in the order that in the event the defendant fails to post the bond or fails to deposit with the clerk of the court such securities amounting to $25,000, an application may be made, on notice, for the appointment of a receiver of the defendant’s assets. This court is advised that the bond in New York has not been furnished, but that the defendant is ready to post items (b) and (c), amounting to $27,400, but is unable to do so because those items are in a safe deposit box in this State and are subject to the control of the receiver appointed in this action. I regard the New York order as constituting an acceptable admeasurement of the amount of security to which the plaintiff is entitled in respect of her entire money and property demands being the same demands made in this State), and that the fixation of $25,000 security made by the New York court reflects its appraisal of the plaintiff’s chances of recovery. It would be unjust to exact from the defendant double security for the identical claims. In fact, the exaction of security under the New York order might well have justified the denial of any relief, pendente lile, in this State. In Mumford v. Ecuador Development Co., supra, the fact that the complainants had exacted in the Federal Court of New York a $50,000 bond as “partial security for any judgment that the said complainants might be able to recover in said action” was deemed a sufficient ground for the denial in this State of a preliminary injunction. Whether what the defendant furnishes in New York is a surety bond or the deposit of securities as directed, or a receiver is appointed over his assets, any such eventuality would make it unnecessary and quite unjust to impose additional security burdens on the defendant. It will therefore be ordered that (a) the receiver herein appointed deliver to the Clerk of the New York Supreme Court items (b) and (c) above mentioned, being the promissory note for $20,000 and bonds of the face value of $1,400, such delivery to be against the receipt of said clerk; (b) the residue of the assets subject to the receiver’s control in this State be surrendered and delivered to the defendant’s attorneys herein; and (c) the receiver be discharged and his bond cancelled, but only upon payment to him of his reasonable charges and expenses to be approved by this court, the same to be paid in the first instance by the defendant, the ultimate liability therefor to abide the further order of this court. In the event security items (b) and (c) aforementioned are not accepted by the Clerk of the New York Supreme Court, or in the event that before their delivery is tendered the defendant will have posted in that court a surety bond, or if a reeciver of his assets will have been appointed by the New York court, then said promissory note and bonds shall be retained by the receiver appointed in the within action and shall be disposed of as this court shall by order direct.

By Buie 3 :12-2 special appearances are done away with in this State. However, a question may arise concerning the character of the defendant’s appearance in this action on the several motions above mentioned and in response to the outstanding orders to show cause. It may well be that if the stay of this action is for any reason lifted in the future, the defendant may make the point that his appearance herein was for limited purpose and did not constitute a general appearance. This he must not be allowed to do and should be placed in a position where, if the stay be lifted and this cause be proceeded with in the future, he shall be obliged to answer as though he had been served with process in this State. The order or orders to be entered on the above conclusions will be conditioned upon the defendant first entering in the within action his general appearance. Upon such appearance being filed, the prosecution of this action will be stayed until the further order of the court.

Present order.


text:
    IRVING STENZLER AND WALLACE WELTER, PLAINTIFFS, v. WIGTON-ABBOTT CORPORATION, A CORPORATION, AND THE VULCAN DETINNING CO., A CORPORATION, DEFENDANTS.
    Superior Court of New Jersey Law Division
    Decided February 9, 1951.

      Mr. Nathan Baker, attorney for the plaintiff Irving Stenzler.

      Mr. Reynier J. Wortendyke, Jr., attorney for the plaintiff Wallace Welter.

      Mr. Gerald Foley, attorney for the defendant Wigton-Abbott Corporation.
   Ziegener, J. C. C.

(on assignment as J. S. 0.). The plaintiffs have moved for an order requiring the defendant WigtonAbbott Corporation to produce for inspection, copying or photographing certain blueprints of a building; sketch of a scaffold; model of said scaffold; photographs of said building, scaffold and model; the contract between the defendants concerning construction work at said building; and plans, sketches and model of said scaffold, pursuant to Rule 3 :34-l.

Plaintiffs were employees of Research Construction Company on March 9, 1949, and said company was doing work on a structure being erected at the plant of defendant The Vulcan Detinning Co., and the defendant Wigton-Abbott Corporation built a scaffold upon which plaintiffs were working on that date. The scaffold allegedly collapsed causing plaintiffs to fall 40 feet and suffer injuries. Each brought suit against the defendants and the cases have been consolidated. The defendant Wigton-Abbott Corporation is the only defendant involved for the purposes of this motion.

Plaintiffs now urge that they are entitled to an inspection of the items referred to herein in order to properly prepare for trial, and particularly an inspection of the model of the scaffold. It appears that defendant Wigton-Abbott Corporation made plans indicating the manner in which said scaffold was constructed and also made a model of the scaffold, at its plant. Defendant opposes plaintiffs’ motion on the grounds that (1) before Rule 3 :34^-l may he invoked there must be a showing of “good cause therefor,” and (2) a diagram, sketch or model falls within the “work-product” principle as contemplated by the exclusion provision of Rule 3 :26-2, .and therefore evidence of injustice or undue hardship is required.

This matter appears to he one of novel impression inasmuch as a review of the cases covering the rules mentioned herein do not refer to “models,” such as the one in this case. Rule 3 :34-l reads as follows:

“Upon motion of any party showing good cause therefor and upon notice to all other parties, and subject to the provisions of Rule 3:80-2, the court may (1) order any party to produce and permit the moving party, or someone acting on his behalf, to inspect and copy or photograph any designated books, papers, documents, or tangible things, not privileged, which constitute or contain evidence relating to any of the matters within the scope of the examination permitted by Rule 3 :2(i 2 and which are in his possession, custody, or control; or (2) order any party to permit entry upon designated land or other property in his possession or control for the purpose of inspecting, measuring, surveying, or photographing the property or any designated object or operation thereon within the scope of the examination permitted by Rule 3:20-2. The order shall specify the time, place, and maimer of making the inspection and taking the copies and photographs and may prescribe such terms and conditions as are just.”

In Waltziuger’s New Jersey Practice, vol. 1, page 685, the author, in commenting upon (he above rule, says: “Note that under this rule it is possible to photograph anything which is not privileged and to make a physical examination of land or other property.” In addition, the tentative draft comment on this rule states, in part: “This is Federal Civil Eule 34 as amended, except for some slight changes in verbiage which were taken from Federal Criminal Eule 16. The changes do not alter the import of the rule in any respect.” Rule 3 :26-2, which is mentioned in Rule 3 :34-l, reads as follows:

“Unless otherwise ordered by the court as provided by Rule 3:30-2 or 3 :30-4, the deponent may 1)0 examined regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action, whether it relates to the claim or defense of the examining party or to the claim or defense of any other party; including the existence, description, nature, custody, condition and location of any books, documents, or other tangible things and the identity and location of persons having knowledge of relevant facts. It is not ground for objection that the testimony will he inadmissible at the trial if the testimony sought appears reasonably calculated to lead to the discovery of admissible evidence. Jfor is it ground for objection that the examining party has knowledge of the matters as to which testimony is sought. The deponent shall not be required to produce or submit for inspection any writing obtained or prepared by the adverse party, his attorney, surety, indemnitor, or agent in anticipation of litigation and in preparation for trial unless the court otherwise orders on the ground that a denial of production or inspection will result in an injustice or undue hardship; nor shall the deponent be required to produce or submit for inspection any part of a writing which reflects an attorney’s mental impressions, conclusions, opinions, or legal theories, or, except as provided in Rule 3 :3f>, the conclusions of ¡in expert.”

Again, Waltzinger’s New Jersey Practice, vol. 1, page 606, the author comments: “The examination may deal with anything which is relevant, which is not privileged, and which does not involve secret processes. The examination must be conducted so as not to annoy, embarrass or oppress a party or a witness.” The tentative draft comment states in part: “Under the proposed rule it is of no avail to raise the familiar cry of 'fishing expedition.’ The very object of the rule is to enable a party to obtain the details of his adversary’s evidence.”

First, let us consider whether or not there is good cause for plaintiffs’ motion. The scaffold on which plaintiffs were working is no longer in existence, having been destroyed at the time of the accident. It is probable that the defendant spent a great deal of time and effort in erecting the model of the scaffold, and it is possible that this model may become evidentiary at the trial. Should that be the case it would certainly place a hardship upon plaintiffs to then begin their examination of the model to meet the situation, or for their own purposes. Defendant’s argument that “while the Rules of Civil Procedure were designed to permit liberal examination and discovery, they were not intended to be made the vehicle through which one litigant could make use of his opponent’s preparation of his case,” is not entirely so. A litigant can make use of his opponent’s case when the subject thereof is relevant, not privileged, or does not involve secret processes.

It would be a step backward in our judicial system not to allow plaintiffs to proceed with the inspection requested in this motion. Chief Justice Vanderbilt, speaking at the induction of the Supreme Court of our State, on September 15, 1948, said: “Litigation is no longer to be thought of as a battle of wits, or a trial as a sporting event conducted for the benefit of the spectators.” (Rutgers Law ReviewNovember, 1948, Special Number, page 69.) When the present case comes to trial the plaintiffs’ attorneys should not be in the possible position of watching defendant’s attorney bring forth the model of the scaffold for evidentiary purposes, and then be expected to proceed from there. That, in itself, is good cause for the granting of plaintiffs’ motion. In addition, the fact that an inspection, as requested, will enable plaintiffs in preparing their case, or facilitate the progress of the trial, is sufficient for the granting of the order.

Defendant’s contention that the model of said scaffold is a “work-product” and, therefore, not subject to inspection, is without merit. I do not agree with defendant’s allegation that “one cannot deny that a diagram, sketch, or model is a reflection or expression of one’s thoughts.” A model which is constructed from plans is not an invention of the mind, but is an expertly constructed duplicate in miniature. It is not conceived as something new in one’s mind, but is made by following plans and specifications adopted from the original, and, in this case, by the party who built the original. The plans showing the original construction of the scaffold were made by the defendant, and the latter then constructed the model from these plans. Certainly plaintiffs cannot know how defendant constructed the original scaffold, because that is within defendant’s own knowledge. Where a defendant prepares plans showing how a certain structure was erected, in this case the scaffold referred -to, and from those plans it makes a model, the plaintiffs are entitled to know the circumstances thereof. Such an examination may develop information which may not be admissible at the trial, but that is beside the point. The fact that the plaintiffs might be exposed to surprise at the trial, and not be in a position to meet the proposition, is enough to allow them to inspect the items referred to. Plaintiffs are not attempting to pry into any secret processes of defendant; they are attempting to get information which they consider essential by inspecting these items, which are not privileged.

The intendment of the new rules is to see that justice is done to all concerned, and to promote the methods of practice, pleading and trial.

I will grant an order allowing the plaintiffs to inspect the items requested.


author: Barrett, J. C. C.

text:
    STATE OF NEW JERSEY, PLAINTIFF, v. WILLIAM NIMMO, 3rd, DEFENDANT.
    Morris County Court Law Division
    Decided February 8, 1951.

      Mr. John D. Collins, County Prosecutor, attorney for plaintiff.

      Messrs. Camarata & Colonna, attorneys for defendant.
   Barrett, J. C. C.

This is an appeal from a conviction in the Magistrate’s Court of the Borough of Riverdale on a charge of violating B. 8. 39 :4-50, driving automobile while under the influence of liquor.

The defendant did not take part in the proceedings before the magistrate except to move for a dismissal on the ground that no warrant was issued for the purpose of bringing the defendant before the magistrate. It is agreed between the prosecutor and attorneys for the defendant, that this court should first rule upon the question of the jurisdiction of the magistrate to hear the matter, and that if the decision upholds the magistrate’s jurisdiction, that then a date will be fixed for a trial de novo on the merits. This was on the theory that in the event that this court determines that the magistrate did not have jurisdiction, the whole matter would fall and there would be no need of proceeding on the merits o£ the case.

The defendant contends under Rule 8 :10 — 1 that the complaint was not sufficient and proper as it did not comply with Rule 8 :3 — 1. Evidently the defendant failed to take notice of the change in Rule 8 :10~1 as amended on November 10, 1949. The amendment of this rule leaves out any reference to Rule 8 :3-l.

The defendant also contends that the magistrate did not have jurisdiction because no warrant was issued for defendant’s arrest as provided in R. 8. 39 :5-25. The cases referred to in defendant’s brief were decided prior to the adoption of our present rules of court and prior to the decision in the case of Winberry v. Salisbury, 5 N. J. 240 (1950). On November 10, 1949, Rule 8 :10 — 1 was amended to provide for a new “uniform traffic ticket” consisting of four parts, one of which was the summons. It is my opinion that, under the decision in the case of Winberry v. Salisbury, supra, the question at issue here is a matter of procedure and not of substantive law, and that under Rule 8 :10-1 it was proper to serve a summons on the defendant and not a warrant. I have read the transcript of proceedings in the magistrate’s court and am satisfied that the complaint was sufficient and the defendant was properly before the magistrate’s court by the service of a summons rather than a warrant.

The parties may arrange for a date, if desired, for a trial de novo on the merits.


text:
    THE TOWNSHIP COMMITTEE OF MOUNT OLIVE TOWNSHIP AND WILBUR S. HICKEY, CHAIRMAN OF THE POLICE COMMITTEE, PLAINTIFFS-RESPONDENTS, v. FRED VITAL, DEFENDANT-APPELLANT.
    Morris County Court Law Division
    Decided February 19, 1951.

      Messrs. Scerbo, Porzio & Kennelly, attorneys for defendant-appellant.

      Mr. Robert M. Davis, attorney for plaintiffs-respondents.
   Barrett, J. C. C.

The chairman of the Police Committee of Mount Olive Township preferred charges against the defendant-appellant, who had been chief of police for some time, for violating rules and regulations of the local police department. lie was tried before the township committee and found guilty of violating a number of specifications set forth in the charges.

Defendant-appellant appealed to the County Court for a trial de novo under R. S. 40:47-10. The Township of Mount Olive does not operate under the provisions of the Civil Service Act.

Plaintiffs-respondents claim that the County Court does not have jurisdiction to hear the appeal under R. S. 40 :47-l 0 and contend that the case of Winberry v. Salisbury, 5 N. J. 240 (1950), is controlling and that under the decision in that case the rules of court supersede the statute in so far as they affect practice and procedure. Plaintiffs-respondents argue that because prior to the adoption of the Constitution of 1947 the action of the township committee could have been contested by a writ certiorari, and since actions by prerogative writs have been superseded under Rule 3 :81, this matter should have been taken to the Law Division of the Superior Court.

Plaintiffs-respondents concede that prior to the adoption of the Constitution of 1947 defendant-appellant might have proceeded either by certiorari or by appeal to the County Court under the statute referred to.

In the case of Winberry v. Salisbury, supra, a rule of court had been promulgated definitely changing the procedure set forth in the statute that was contested. In the case under consideration there is no rule of court nullifying or changing the procedure under R. S. 40 :47-10, unless it can be construed that Rule 3 :81 — 2 does that. In my opinion the statute referred to sets forth the practice and procedure to be followed; in case of an appeal such as we are considering.

It is my opinion that Rule 3:81-2 refers only to proceedings in lieu of prerogative writs and does not affect other methods of procedure that were in effect at the time of the adoption of the rules.

Rule 3 :81-2 must be considered in connection with Rule 3 :81-1 which reads as follows:

“Prerogative writs are superseded and in lieu thereof review, hearing and relief may be had as of right in the Superior Court in the manner hereinafter provided by these rules.”

A most important part of Rule 3 :81 is section 14, which to my mind conclusively provides that all possible remedies in a County Court must be exhausted before a matter is taken to the Superior Court. Rule 3 :81 — 14 reads:

“Except where it is manifest that the interests of justice require otherwise, proceedings under Hule 3 :S1 shall not be maintainable, so long as there is available judicial review to a county court or inferior tribunal or administrative review to an administrative agency or tribunal, which has not been exhausted.”

I am very definitely of the opinion that the County Court has jurisdiction to entertain the appeal in this case as a trial de novo and the plaintiffs-respondents will be directed to send a copy of the record of conviction, including the rules and regulations violated, and the charge or charges upon which the defendant-appellant was tried, to the clerk of this court by March 5, 1951, and a determination may be entered accordingly.