text:
    William Laverack and Wife, complainants, v. Mary E. Allen, defendant.
    [Decided July 7th, 1924.]
    Deeds — Restrictions—Neighborhood Scheme of Restriction Must be Universal — Release From Restrictions* — Complainants’ Prayer Granted.
    On bill for injunction.

      Mr. George P. Vaughan and Mr. Elmer King, for the complainants.

      Mr. William A. Dolan, fox the defendant.
   Fielder, V. C.

By deed dated October 4th, 1920, Lilian Maxim and husband conveyed to William E. Beck a lot situate on the shore of Lake Hopatcong, abont fifty feet front on Maxim Drive and about two hundred and thirty-nine feet in depth to> the lake. The deed contained a clause that it was made and accepted subject to certain covenants and restrictions, among which .were that the grantee, his heirs and assigns, should not at any time thereafter permit or allow any building, which might be erected upon the granted premises, to be used as a place of business, or any building whatever other than a private dwelling; that the covenants and conditions restricting the use of said premises should attach to and run with the land, and that it should be lawful, not only for the grantors, but also for the owner of any lot in the vicinity, or adjoining the premises granted, deriving title from or through the grantors, to institute and prosecute any proceedings at law or in equity against the person violating said covenants. The deed also contained a clause reserving to the grantors full right and authority at any time thereafter to make all such changes in said covenants and restrictions as they might elect, and to release and annul the same.

By deed dated June 30th, 1921, Beck conveyed said lot to the complainants. His deed did not set out the covenants and.restrictions, but contained a clause-that his conveyance was made subject to the covenants, conditions and restrictions mentioned in the deed to him. On this lot complainants have erected a dwelling-house.

By deed dated July 1st, 1921, Lilian Maxim and husband conveyed to said William E. Beck an adjoining lot about sixty-eight feet front on Maxim Drive, running through about two hundred and fifty feet to the lake, which deed contained all the clauses, covenants and reservation contained in the first deed from Maxim to him.

By deed dated0July 7th, 1922, Beck conveyed’to the defendant a part of the last-mentioned lot, fronting on Maxim Drive about sixty-eight feet and having a depth of fifty-four feet, immediately adjoining the lands of the complainants. This deed did not set out the covenants and restrictions, but contained a clause that the conveyance was made subject to all reservations and restrictions contained in the second deed from Maxim to Beck.

About the middle of May, 1923, the defendant commenced tho erection of a building on her lot and completed the same in two weeks. This building presents the appearance of a bungalow dwelling, but the front windows on the porch are removable, and, when removed, the front of the building is open and the defendant conducts therein a store for the sale of groceries and other merchandise. The complainants seek to enjoin the defendant from violating the covenant or restriction against the use of any building on the premises as a place of business, set out in the deed of July 1st, 1921, from Maxim to Beck, and recited in the deed of July 7th, 1922, from Beck to the defendant. The defendant admits the violation, but defends against its enforcement on several grounds.

She contends that the restrictions were imposed pursuant to a scheme or community plan for the development and sale by lots of a large tract of land, and that it would be inequitable to enforce the covenant again her lot, because the character of the neighborhood has changed since the scheme was adopted.

To constitute a neighborhood scheme of restriction, the scheme must be universal — that is, the restrictions must apply to all lots of like character brought within the scheme. Unless it he universal, it cannot be reciprocal. If it be not reciprocal, then it must, as a neighborhood scheme, fall. Scull v. Eilenberg, 121 Atl. Rep. 788. The lots now owned by complainants and defendant are part of a large tract acquired by Mrs. Maxim, which is about two miles long in a northerly and southerly direction and about a mile wide. It is on the shores of Lake Hopateong and is largely occupied by summer homes. Mrs. Maxim conveyed many lots therefrom by deeds containing the same form, of covenants and restrictions and like reservation of right to the grantor to release or modify the same, as are contained in her deeds to Beck. Her predecessors in title, owning the same tract, con.veyed lots therefrom by deeds similar in form as to restrictions and reservations of right to- release. Whether such predecessors in title conveyed any lot without restriction, or exercised t'he reserved right to release or modify restrictions, does not appear. The evidence shows that Mrs. Maxim imposed the restrictions for the purpose of developing- residential sections in the tract and to protect her grantees who bought for residential purposes, and that she intended to reserve, and now claims the right to change, alter or annul any covenant at any time, as she sees fit; that she has recognized a necessity for business places in different sections of the tract, and by some of her deeds has conveyed without restrictions against business, or lias expressly granted the privilege to conduct various business enterprises, and, in some instances, where she had by deed imposed restrictions against business, by subsequent deeds, or by written agreement with her grantees, has modified or released the restrictions, and that she followed such course in various localities on the tract. The deeds from Mrs. Maxim and from her predecessors in title, contained no covenant or agreement on the part of the grantors, that covenants or restrictions similar to those imposed on their, grantees should he inserted in subsequent deeds made hv the grantors of their remaining land, nor in any other way restrict such grantors in the use or disposition of their remaining land. To the contrary, by the reservation referred to, they expressly notified their grantees that they proposed to make such use or disposition of their remaining lands and to- permit their grantees to make such use of theretofore conveyed lands, as they (the grantors) saw fit. Under this reservation Mrs. Maxim claims the right to- release the restrictions imposed on the complainants’ lot and to refused to release, or even modify, the same restriction oil the defendant’s lot.

On this state of facts I cannot treat the- covenant as having the characteristics of a neighborhood scheme of development. Ratlie-r, it is a special covenant entered into with Mrs. Maxim, limiting or restricting the use of the lands primarily for the beneiit of her retained adjacent lands, but which benefit grantees of such adjacent lands may also- enjoy, so-long as restrictions remain in force. Coudert v. Sayre, 46 N. J. Eq. 386; Bowen v. Smith, 76 N. J. Eq. 456; Scull v. Eilenberg, supra. Such covenant remains binding on the defendant’s lands until released or modified by Mrs. Maxim, or until the permissive general use of surrounding lands for other than residential purposes, renders the covenant of no beneiit of adjacent lands, and thus makes it inquitable to deprive the owner of the defendant’s lands of the use of such lands in the same manner as the owners of the adjacent lands are using theirs. Page v. Murray, 46 N. J. Eq. 325; Ocean City Association v. Chalfant, 65 N. J. Eq. 156; Scull v. Eilenberg, supra. On the large tract there- are several stores and business offices, a moving picture theatre, a livery stable and riding school, a church, several hotels and boardinghouses, a lumber yard and dancing pavilion, all of which are distant at least a mile from the property In question, and the only business conducted, in what may be called the immediate vicinity, is a bo-arding-house across the road, nearly opposite defendant’s lot, the renting o-f boats at a public clock about two hundred feet away, a grocery store and post office about three hundred feet away (on property never owned by Mrs. Maxim), and a store and dancing pavilion about a quarter of a mile distant; otherwise, the property within a radius of a quarter of a mile-, is vacant or occupied by dwellings. All the enumerated businesses in the immediate vicinity were in existence when defendant bought and became bound by the restrictions, and there was no- reciprocal covenant upon which she could rely for the- elimination of such businesses. I cannot regard the location of several or many business enterprises a mile away from defendant’s lot, or the few in the immediate vicinity of the lot, as material or as indicating such use of surrounding lands for business, purposes as will justify the defendant in depriving the complainants o-f the benefit of the restrictions on the defendant’s lot. The location of business places in one section of a large tract will not affect the binding force of restrictions for residences in another section whose character has not changed. Changes in the residential neighborhood depend upon their number and character, and if, as in this case, they do not interfere with the enjoyment by lot owners of the benefit of the neighborhood as a place of residence, or show a general intention to abandon such plan, they are not material. Morrow v. Hasselman, 69 N. J. Eq. 612; Sanford v. Kerr, 80 N. J. Eq. 240.

The defendant urges as a defense that, before she purchased her lot from Beck, Mrs. Maxim agreed with Beck to release the strictions, and that after she had opened her store Mrs. Maxim consented to its continuance. The evidence does not satisfy me that such are the facts, but, however that may be, the complainants, and not Mrs. Maxim, are seeking to enforce the restrictions, and the latter is not a party to this suit. The defendant was fully informed of the restrictions before she accepted her deed. She knew she was accepting a deed subject to them, and she must be held to have had notice of the complainants’ rights under them. In the usual case, where the grantor has conveyed a lot subject to restrictions imposed for the benefit of an adjoining lot, he has no right to release or modify the restrictions so far as they operate to confer a benefit on such adjoining lot, after he has conveyed it (Coudert v. Sayre, supra; Bowen v. Smith. supra), but in this case, by accepting a conveyance of their lot subject to tlie terms of the deed from Mrs. Maxim to theii grantor, whereby Mrs. Maxim reserved the right to release or modify the restrictions, complainants could probably not complain in case Mrs. Maxim had chosen to release the restrictions. However, until she has actually executed and delivered such release, either voluntarily or under a decree made in a suit In which she is a party, the complainants are entitled to the benefit of such restrictions.

The defendant’s final defense is that before she commenced the erection of her building, or during its erection, the complainants knew she proposed to use it as a store, and that, by consenting or making no objection thereto, they are now estopped from enforcing the restrictions as against her store. I am satisfied that the complainants did not have such knowledge before the defendant started work. The evidence is conflicting as to the complainants’ knowledge of the defendant’s intention after the supporting piers for the building were up and prior to the completion of the building, but because the building has the appearance of a bungalow and was wholly erected in two weeks, I do not think the complainants could have ascertained the purpose of the building by using their eyes during the progress of the work, and I shall have to find that they were not apprised by the defendant of her intention and that they did not acquiesce therein, or refrain from objecting when they should heve spoken. The defendant did not erect her building in ignorance of the complainants’ rights, and, knowing those rights, she proceeded at her peril. It does not now lie with her to complain that the complainants did not object. Bridgewater v. Ocean City Railroad, 62 N. J. Eq. 276, 292; affirmed, 63 N. J. Eq. 798.

The prayer of the bill of complaint will be granted.


source: Caselaw Access Project

author: Leaming, V. C.

license: Public Domain

text:
    The Township of Haddon, complainant, v. John M. Loeffler, defendant.
    [Heard and determined June 23d, 1924.]
    Contempt of Court — Obedience of Its Decrees — Punishment— Adequacy of Fine — Necessity of Imprisonment.
    On contempt, &c.

      Mr. Waller S. Keown and Mr. George Rothemal, for the complainant.

      Mr. Charlee W. Lelzgus, for the defendant.
   Leaming, V. C.

(orally).

Mr. Loeffler long ago made up his mind that he wouldn’t obey this decree, and he has been sticking to that determination stubbornly. There is no- question about that. I can see the workings of his mind from the beginning to- the end.- It has been a determination not to do it, and he is now less determined than before only because he has seen the dangers ahead; but what he has done he took a chance on; he did as little as he dare do and took a chance on it.

If there is anything I regret to do it-is to- put a man in jail, but the situation is like a criminal judge pronouncing sentence on a man that has been convicted of a crime — the law-has got to be enforced no matter how disagreeable it is, and the judge has got to enforce- it. If, when the co-urt of chancery makes a solemn decree, as the chancellor did in this case, directing the defendant to do- certain definite and defined acts, the defendant must do it, otherwise the decrees of the court of chancery would be of no> force or value. The courts of the land could not exist, government co-uld not continue, unless the judgments and decrees of the courts were obeyed, and the only way to enforce their obedience is to punish people who stubbornly refuse to obey them. It is for that reason it becomes my duty to punish this man for contempt, because he is in contempt, there is no- doubt about that. He has not only failed to- obey the decree of the court, but, in my opinion, he has stubbornly refused to obey it with a fixed determination that he would not obey it, and when he finally found that unless he did change his attitude he would probably be sent to jail; after I told him I would extend his time for performance a week, he made an effort, I suppose, to make it appear that he had undertaken to do the work which he understood he was obliged to do. But the evidence shows he didn’t do it; he didn’t do it"right; and by not doing it right it wasn’t done at all; so the decree has been no more obeyed at fhis. tjme than it was last Saturday. An imperfect obedience of the decree cannot satisfy it, it must be obeyed and obeyed fully, and it is just as important that it be obeyed fully as it is that it be obeyed at all, because partial obedience is not obedience in any real sense; so I don’t know how I can perform my duty but by punishing this man for contempt, and the only punishment for contempt, it seems to -me, that is adequate, is imprisonment. It may be that a fine would be adequate. I want to inquire of the engineer the approximate cost of finishing this work from where it was left by Mr. Loeffler to the time it is finished properly, the cost it will take to finish it from where he left it last Thursday.

Mr. Remington — $200 will cower it.

The Co-urt — Well, I will take this responsibility in not pronouncing a prison sentence at this time; I will postpone the further consideration of this case until next Monday, and my direction is that the township committee hand to Mr. Letzgus a statement of what it has cost to finish this work as soon as it is finished, which I understand will be in a wery short time, and if that is paid by the defendant by next Monday I will treat it, with doubtful right, perhaps, as a discharge of the contempt, otherwise I shall pronounce a sentence. That will be all.


author: Donges, J.

text:
    ALEXANDER SITNITSKY, PLAINTIFF, v. HOME FIRE AND MARINE INSURANCE COMPANY OF CALIFORNIA, A CORPORATION, DEFENDANT.
    Decided July 23, 1924.
    Insurance — Collision, Motor Vehicle — Transportation of Liquor Illegally — iWas There a Breach of Warranty? — Judgment for Plaintiff.
    for the plaintiff, David, T. Wilentz.

    Eor the defendant, Edwards & Smith and Raymond Dawson.

   Donges, J.

This case is submitted for decision without a jury. The stipulation of facts is as follows:

“It is hereby stipulated and agreed between the parties in the above-entitled cause that said cause shall be determined by the court without a jury, and only upon the following question of law:
“The automobile of the plaintiff was insured for collision, &e., under the policy of the defendant, dated January 29th, 1923, which policy is hereto attached. It is agreed that on the 14th day of April, 1923, at West Oollingswood, New Jersey, the autom'obile mentioned in the policy of insurance, while illegally transporting intoxicating beverages [beer], was struck by a trolley car and damaged.
“Question.
“Does the illegal transportation of intoxicating liquor on the 14th day of April, 1923, the date when the truck was damaged by collision, defeat the assured’s right to damages under the collision clause of the policy which is hereto- attached ?
“If the court decides that the illegal act, as hereinbefore set forth, defeats the assured’s right to recover his loss, judgment should bo for the defendant. If the court, however, determines that the illegal transportation on April' 14th, 1923, does not defeat the assured’s right, judgment should be for tilt; plaintiff in the sum of six hundred [$600] dollars.”

The sole question to be determined, as provided in the stipulation, is whether the illegal transportation of beer at the time of collision defeats the plaintiff’s right to recover “under the collision clause of the policy.” The defendant has argued at considerable length that no recovery can be had because of a breach of warranty. I conceive this argument to be inappropriate, in view of the limitation of the question to be decided to a construction of the collision clause only.

However, a brief statement will serve to show that there is no merit in this contention.

There are but two- answers of assured, under warranties, that are urged as- reasons to void the policy. The first is that — “(1) Assured’s occupation or business in trucking groceries“(4) The uses to which the automobile described is and will be put, are commercial.”

Neither of these- appears to be untrue in fact, ox inconsistent with the use of the truck a,t the time of collision.

The policy itself provided insurance against fire, theft, robbery or pilferage. By endorsement attached, it was provided:

“The perils insured against hereunder are excluded to include accidental collision, where the damage fro-m such collision to the automobile and/or equipment herein described is in excess of $100, each accident being deemed a separate claim, and said sum to be deducted from the amount of each claim when determined ; excepting—
“(1) Loss or damage to any tire, due to puncture, cut, gash, blowout or ether ordinary tire trouble; and excluding, in any event, loss or damage to any tire, unless caused in an accidental collision which also- causes other loss o-r damage to the insured automobile.
“(2) Loss or damage occurring while the automobile insured is engaged in any race or speed contest, or while being operated by any person under the age limit fixed by law, or in an}' event under the age'of sixteen years.” Then follow provisions as to the amount of coverage.

Did the illegal transportation of beer invalidate the policy ?

Plaintiff’s right to recover is to be determined by the contract of insurance.

There is nothing in the insurance contract expressly providing against liability if the collision and damage occur while engaged in or in consequence of a violation of law.

If it was stipulated that the collision occurred in consequence of and by reason of a violation of law, a different situation might be presented. It does not appear that the transportation of beer by the plaintiff was related in any degree to the collision.

The illegal quality of the act had nothing to do with the cause of plaintiff’s damage. The policy failed to provide against liability, if damage occurred in the commission of an illegal act, hence, the rational interpretation is that the insurance was valid, unless the damage occurred in consequence of the illegal act.

In this state it has been repeatedly held that one, who may be committing an illegal act, may recover for a tort, unless his violation of the law contributes to1 the accident, or is its proximate cause. Muller v. West Jersey and Seashore Railway Co., 122 Atl. Rep. 693.

. If this plaintiff' could recover from a tort-feasor for injury-occasioned him by the collision here under consideration, I see no reason for denying a recovery on a policy of insurance which fails to provide against recovery under such circumstances. Is plaintiff to be denied -the protection he paid for, merely because he was committing an illegal act, not related to the origin of defendant’s liability, for which he must answer elsewhere? Surely, it would be no defense to a recovery on a death policy for plaintiff’s death, if it had resulted, if there were no> provision in the contract covering it.

I have examined a number of cases in various jurisdictions, in which a recovery has been denied, where the policy 'contained suitable provision to bar a recovery, if the assured 'were in the performance of an illegal act when the claim arose. .But I have found no case which reads such a provision into the contract. All cases seem to hold that to avoid a policy on the ground of illegal use, in the absence of a special provision of the policy, it must appear that the illegal act was the cause of, or contributed to, the loss.

Under the terms of the policy under consideration, I conclude that plaintiff is entitled to judgment.


author: Dongbs, J.

text:
    SAMUEL B. DOBBS, PLAINTIFF v. NEW AMSTERDAM CASUALTY COMPANY, DEFENDANT.
    Decided July 8, 1924.
    Insurance — Theft—Two Policies — Agreement to Under One Assumed to be the One Covering Loss — The Second Afterward Alleged to be the Correct One, Under Which Recovery Would Have Been Impossible — Previous Agreement Stands.
    The facts are stipulated, and are submitted for del emulation by the court.
    Plaintiff had two policies issued by defendant. One covered burglary, theft and larceny from plaintiff’s home, in Haddonfied, New Jersey; the other covered “felonious abstraction” from plaintiff’s home in Ventnor, New Jersey, by any person, except the owner, who shall have made “felonious entry into the premises by actual force and violence, of which there shall be visible marks made upon the premises at the place of such entry, by tools or explosives.” This loss occurred at Ventnor.
    The facts stipulated show that a domestic servant of plaintiff stole $60 in money and a diamond ring worth $600 from a hand-bag hanging in a closet in a room in plaintiff’s house; that plaintiff made proof of loss, as required by the policy, disclosing the true facts; that after investigation, defendant proposed settlement by one of two methods, viz., by paying $600 in settlement, or by paying $50 and supplying a ring to replace the one that was. lost; that defendant made the proposition of settlement after due investigation and with knowledge of the circumstances of the loss; that “plaintiff agreed to accept $600 in settlement-;” that a voucher was drawn by defendant to pay the settlement when it learned that there were two policies issued to plaintiff, and that under the one covering the premises in question there would be no liability, because there was no forcible entry.
    Eor the plaintiff, Lewis Starr.

    For the defendant, Walter S. Keown.

   Dongbs, J.

The suit is brought on two counts. The first count alleges a right to recover on the policy. The second count alleges a right to recover on an agreement to settle.

The right of plaintiff, must rest upon the second count. On the facts stated there can be no recovery under the terms of the policy.

Plaintiff’s claim must be determined upon the facts as stipulated. From these facts it appears that plaintiff did nothing to mislead defendant either as to the 'circumstances of the loss or as to defendant’s rights. Every fact was within defendant’s knowledge, and it had every opportunity to resist plaintiff’s claim on- the ground of no liability. It must be assumed that plaintiff asserted a claim in good faith, and that the settlement proposed was made only after .consideration of the circumstances of the loss and defendant’s liability to pay therefor:

Throughout the stipulation it appears that there was in fact an agreement to- settle. The second, question submitted is:

“2. Is the plaintiff entitled to recover under the second count of-the complaint, based upon the agreement of the defendant to settle the liability for $600 ?” I find, as a fact, that there was an agreement to settle, by compromise, without litigation, the matter in dispute between plaintiff and defendant.

The trend of authority supports an agreement to settle, without litigation, a inatter in dispute, even though it appear that the claim is, in fact, without substance. 8 Oyc. 518.

In Bowers Dredging Co. v. Hess, 71 N. J. L. 327, the Court of Errors and Appeals, speaking through Mr. Justice Port, said:

“An agreement to so settle without litigation a disputed claim of infringement made in good faith furnishes a good consideration to support a contract, even though it should appear that such claim was, in fact, wholly unfounded. The court will not inquire into the adequacy or inadequacy of the consideration of a compromise fairly and deliberately made.” Citing cases.

To the same effect are Worcester Loom Co. v. Heald, 78 N. J. L. 172, and Weir v. Allen, 89 N. J. L. 597.

The right to have such an agreement enforced does not rest upon the merits of the original claim, but rests upon the new agreement to compromise without litigation. After the existence of such an agreement is satisfactorily established, neither party may withdraw, except for fraud or unfair concealment.

Nor will an error of law or mistake of facts relieve a party of his undertaking, where, by reasonable diligence, he might inform himself. 8 Cyc. 526 et seq.

In the instant case it is established that there was a claim for $650; that there was an agreement to compromiso and settle for $600; that there was no fraud or concealment. In such a case I am of opinion that the agreement must be enforced, although one of the parties may have acted on a mistaken assumption of its rights, and without due inquiry as to all of the facts within its knowledge and possession.

To decide otherwise would be contrary to sound policy and shocking to conscience. It would abort fair efforts at eompro'mi.se, which are encouraged in law.

Plaintiff is entitled to judgment on the second count of his complaint for $600.


author: Per Curiam.

text:
    CHARLES BARRY, PLAINTIFF, v. BORDEN’S FARM PRODUCTS COMPANY, A CORPORATION, DEFENDANT.
    Decided July 10, 1924.
    Negligence — Motor Vehicle Collision — Alleged Excessive Damages — Case to Court of Errors and Appeals in March — • Application Based on Affidavit of Physician Regarding Improvement of Defendant.
    On application for a rule to show cause.
    Before Justices ELalisoi-i, Black and Campbell.
    For the application, Heine, Bradner & Laird.

      Contra, Newton N. Crane.

   Per Curiam.

The defendant was sued by the plaintiff in this court for the recovery of damages sustained by him in a collision, the result of negligence on part of the defendant’s servant.

The case was -tried at the Middlesex Circuit in the month of May, 1923, before Judge Daly and a jury, and, after a trial lasting three days, resulted in a verdict of $25,000 for the plaintiff. An application was made by defendant to the trial judge for a rule to show cause on the ground that the. damages awarded were excessive. This application was denied. Thereupon an appeal was taken to the Court of Errors and Appeals, based upon two exceptions taken at the trial, to wit — 1. To the refusal of the trial judge to grant a nonsuit; '2. Refusal to direct a verdict for defendant.

. The case was brought on for argument in the Court of Errors and Appeals on March 24th, 1924, and was decided by that tribunal on May 19th, 1924, the court unanimously affirming the judment of the court below. There was an application made for a rehearing there which was denied. Mr. Justice Trenchard, in a Very careful and lucid opinion, makes it plain that the question of whether or net the taxicab which the plaintiff drove was lighted was one of the questions in dispute for the jury to determine, besides other questions of fact which bore, more or less, upon the alleged contributory negligence of the plaintiff, all of which questions were decided adversely to defendant’s contention by the jury. See 2 N. J. Adv. R. 914.

The present application was first made to Mr. Justice Kaliseh on the 28th of June, 1924. There liad been a previous application to the justice bv defendant’s counsel after the judgment was affirmed by the Court of Errors and Appeals, which application was based solely upon the affidavit of a physician, that the plaintiff had submitted to a second operation and was such improved physically thereby. This application was informally denied.

On the present application additional affidavits were produced before us which seek to retry the issues which were before the jury, upon the plea of newly-discovered evidence.

We find no merit in the application. There must be, at some stage, a finality to legal proceedings. A judgment regularly obtained bespeaks finality. The fact that the plaintiff made a better recovery than was anticipated, in the opinion of the physicians at the trial, is not a good legal ground for the granting of a new trial. ' To adopt any such theory would lead to a chaotic condition in the administration of the law. Litigation would never end. If a defendant, against whom a judgment has been obtained, may come into court and ask for a new trial, because the plaintiff has improved in physical condition contrary to the expectations and opinions of the physicians given at the trial, there would equally be no good reason to prevent a plaintiff, who had received a small verdict, because of the optimism of physicians as to prospects of his speedy recovery, from applying to the court, in the event of his becoming worse for a retrial. The absurdity of the proposition is too plain for further comment, except to say that in this class of cases it is left to the good sense of a jury to make an award which will compensate the plaintiff for his suffering, past and future, and for his impaired physical condition. If a jury goes beyond tins, and it is clear tha-t it has been swayed by mistake, passion, prejudice or partiality, a court will interfere. The instant ease does not fall within that class.

For the defendant it is argued that there is newly-discovered evidence which tends to show that the cab was not 'lighted on that evening, and that the lighting apparatus was out of order.

From reading of the affidavits we are satisfied that the alleged new testimony relied on is, not only cumulative, but that by the exercise of due diligence the defendant could have procured such testimony at the time of the. trial, or, at least, within a reasonable time after the trial. We are not satisfied from the affidavits presented that proper care and diligence was used by the defendant to obtain the presence of those persons who could testify as to the condition of the plaintiffs cab near the time of the collision. It is a situation to be frowned upon and not to be tolerated under any circumstance, that one may sit meekly by and shut his eyes and stop his ears to the merits of a controversy and experiment with tenuous objections during the progress of the cause, and when defeated cause delay by an appeal to a higher tribunal, and if defeated again then turn his attention to seek facts affecting the merits of the case. The accident happened on January 22d, 1922, so that at the time of the trial the defendant had had more than a year and four months to gather information concerning the accident, ■ the character of the alleged newly-discovered evidence indicates a want of the exercise of proper care and diligence to obtain it.

For the reasons given the application for a rule to show cause is denied.


text:
    SUNOCO SERVICE CORPORATION, RELATOR, v. FREDERICK W. DONNELLY, GEORGE B. LaBARRE. ABRAM SWAN, Jr., EDWARD W. LEE AND GEORGE W. PAGE, BOARD OF COMMISSIONERS OF THE CITY OF TRENTON, AND EDWARD B. HANCOCK, BUILDING INSPECTOR, RESPONDENTS.
    Argued May term, 1924
    Decided July 9, 1924.
    Building Permits — Application to Board of Commissioners! — Claim of Respondents That It Should be to the Director of Public Safety — Application in Proper Form — Writ Allowed.
    On rule to show cause why a peremptory mandamus should not issue.
    Before Justices Kalisch, Black and Campbell.
    For the relator, Jlervey 8. Moore.

    For the respondents, Romulus P. Rimo.

   Per Curiam.

The relator seeks a writ of mandamus requiring the respondents to issue to it a permit for the erection of a motor vehicle, gasoline and oil station'on its property at the southwest corner of Greenwood avenue and Chambers street in the city of Trenton.

It is not denied that the relator submitted proper plans and specifications and complied with all the requirements upon which to base his application for a permit, but the contention on behalf of the respondents is that the duty of issuing such a permit is reposed in the director of public safety or in the mayor and not in the board of commissioners, to whom the application in the present case was addressed.

It is conceded in the brief of counsel of respondents that the commissioners have, from time to time, issued such permits, but it is said that it Was done improvidently. ft is also conceded that the director of public safety and the mayor participated in the meetings of the board, in which the relator’s application for a permit was considered and denied. It appears that it has been the invariable practice of the board to grant the permits. Since the 1st day of January, 1924, more than thirty permits of the character applied fox by the relator have been granted by the board. The relator having complied with all the requirements pertaining to a proper application for a permit, and no sound legal reason having been furnished by the respondents why such permit should bq denied to the relator, we have.concluded that a peremptory mandamus should issue against-the respondents for the issuance of a permit to the relator for the erection of a motor vehicle, gasoline and oil station on its propertjr, according to the plans and specifications submitted.


author: Buchanan, V. C.

text:
    New Jersey Indemnity Company, complainant. v. Edward M. Carroll et al., defendants. Edward M. Carroll et al., complainants, v. New Jersey Indemnity Company, defendant.
    [Decided July 18th, 1924.]
    Insurance — Reciprocal—Exceptions to Master’s Report — Liability of Insurers Under Contract Limited to Amount Deposited by Them — Claims, for Allowances by Agent of Insurers — Expenses of Agent — Question of Settlement on Basis of Premiums Allowed or Premiums Collected — Alleged Knowledge and Acquiescence of Insurers.
    On exceptions to master’s report.
   Buchanan, V. C.

These consolidated causes involve the affairs of the New Jersey Indemnity Company acting as attorney in fact for the subscribers to. reciprocal insurance designated Motor Car Underwriters and Auto Bhs Underwriters. The matters of detailed investigation and accounting were referred to a special master, to. whose report the New Jersey Indemnity Company lias filed seventeen exceptions, and United Advertising Company has filed an exception which is included in the New Jersey Indemnity Company’s exceptions, and need not ho separately considered.

1. The first exception is “to. the master’s finding that under the contract between the New Jersey Indemnity Company and the subscribers, and between the subscribers ivier se sc, there can be no assessment, because the liability of the subscribers is limited to the amount deposited by them.”

Notwithsanding the able argument of counsel for the New Jersey Indemnity Company, I think the special master was correct in this determination. The scheme was of reciprocal insurance, all policyholders reciprocally insuring each other, with the New Jersey Indemnity Company acting as agent for all, writing the policies, and being the only party with which any policyholder had'any direct contact or dealings. The indemnity company had a schedule of rates, under which an -estimated premium was computed for each policy, which they called a “premium, deposit” in the policy. See Exhibits G-S.

An applicant for insurance presumably was told what “premium deposit” he would have to pay to get his policy (corresponding to- the premium paid for insurance in regular stock companies), and was given an “application, agreement and power of attorney” to sign. See Exhibit 0-9. Until he signed it, he had nothing to do with the scheme; he was neither insurer nor insured. Neither was he insurer or insured immediately upon signing this. Under it he became enlitled to receive a contract of insurance “to become effective at noon on the last day of the month;” he authorized the indemnity company to make him liable as insurer of the other policyholders; he bound himself to pay certain moneys, but “this instrument” was not to become effective until the date the policy became effective. See Exhibit C-9, next to last paragraph.

The most important provision of this “application,” &c., is the second paragraph, which specifies what the applicant authorizes the indemnity company to do in the way of binding the applicant as an insurer, and specifies what the applicant hinds himself to do in the way of payments. It reads as follows:

“My attorney shall exchange for me indemnity with other subscribers at said exchange, and have full power to do or perform every act I myself could do in relation to any such contracts of indemnity, including the appearance for me in actions, suits and proceedings, and the defense, compromise or adjustment" of same, provided, however, that my attorney shall not make me jointly liable with any other subscriber, but shall bind me separately and for myself alone, and for not more than one annual premium deposit on any one contract, which amount I hereby subscribe for the payment of excess losses, subject to the call of the board of trustees.”

It will be noted that it specifically provides that the indemnity company “shall bind me * * * for not more Hum one annual premium deposit,, * * * which amount I hereby subscribe for the payment of excess losses, subject to the call of the board of trustees.” He did not pay the '“annual premium deposit” when he signed this application; he paid that (or gave a note for it) when he got his contract; all lie did Was to “subscribe” it, promise to pay it at the call of the board of trustees.

What “the call of the hoard of trustee's” actually meant in practice does not appear. By clause “Q” of the policy contract the “subscriber agrees to advance for his credit with the attorney at the exchange ........ dollars, for the purpose of exchanging indemnity * * *. Unless this amount is paid in full within thirty days” the contract shall be void. (From the aggregate of these “advances” the agent was to pay expenses and losses as they occurred.) It seems clear that the subscriber’s “advances” and his “premium deposit” were one and the same thing. See, also, clause “0” of the contract. Indeed, this indubitably appears from the Ford special sample policy (part of Exhibit 0-3), which specifies '“premium deposit $57.70” at the top of first page, and also in item 13 of the warranties, and specifies $57.70 as the “subscriber’s advance” in clause “Q.”

It is probable, therefore, that the “call of the hoard of trustees” had been reduced to practice as “payment oil delivery of the policy, or within thirty days.” In any event, however, the applicant, as I have shown, bound himself only for one annual premium deposit or advance, and not more, and provided that the agent should not hind him for any more. That was specifically his total liability for losses, whether such losses were “excess” or otherwise. I do not understand why the word “excess” was used, but assuredly there is no provision for any liability or assumption of liability for losses which were not “excess” losses.

Moreover, the policy contract provides, at the very beginning, that the other reciprocal insurers agree to- indemnify the policyholder “in consideration of the premium deposit herein provided.” Nothing is said as to there being any assumption of liability for future possible payments, as consideration.

There is not the slightest doubt in my mind but that a policyholder or applicant understood, and was justified in understanding, from all that appears in the application and policy, that the specified advance or premium deposit Avas the maximum amount.that he would be called upon to pay.

Clause “0” of the policy does not afford any basis for argument either wajr. It reads as follows:

“O. The subscribers at the Motor Car Underwriters, herein called ‘exchange,’ are individuals, firms .and corporations that have each executed .an agreement [hereby made a part hereof], which vests in the New Jersey Indemnity Company, herein called ‘attorney,’ poAver to issue this contract for them. It is understood and agreed that there is assumed by each subscriber, as if a separate contract were issued therefor, a sum which is the same proportion of the aggregate liability hereunder that each subscriber’s advances bears to the aggregate of all subscriber’s advances under all contracts in effect at the time of loss.”

It is evident that this clause (except for its reference to the “agreement,” which presumably means the “application, agreement and poAi’er of attorney” hereinbefore mentioned) contains no limitation whatever upon a subscriber’s total liabihtAr for the losses of other policyholders. All that it limits is his proportion of each loss. The only limitation upon his total losses is that provided in the “application, agreement and poAver of attorney.” Suppose there were four thousand policyholders, who had paid a total aggregate of premium deposits of $200,000, policyholder A having paid $50. If policyholder Z has a loss of $4,000, A’s share, under the language of clause “O,” would be 50/200,000 or 1/4.000 of $4,000, or.one dollar. But if five hundred policyholders should have losses of $4,000 each, then A’s total liability under clause “0” alone, would be $500.

It is argued by counsel for the indemnity company that the provisions of the contract are ambiguous as to whether the subscriber is liable to make an additional payment not exceeding the amount of his premium deposit, to pay losses in excess of those anticipated or provided for by the premium deposits, and that this ambiguity must be resolved by a construction most strongly against the subscriber in his capacity as insurer. With this I cannot agree. Taking the application and contract all in all, I have no doubt that each subscriber’s or policyholder’s liability is limited to the amount of premium deposit stated in his policy, as I have already indicated.

Even if this were not so, whatever ambiguity existed can-mot be charged to a subscriber more as insurer than insured. He became insurer and insured at one and the same time'— and indeed it was his principal object to become insured. 'The responsibility for the ambiguities must rest upon the New Jersey Indemnity' Company, for it was that company which drafted the agreements and contracts; it was that company which fathered and instituted the whole scheme, and. of course, obviously did it principally for its own benefit, for the sake of the profits which it would derive from acting as agent; it was that company which solicited the subscribers to become such; it was that company which to the minds of the public was practically the actual insurer, and was held liable as such in Solomon v. New Jersey Indemnity Co., 94 N. J. Law 318; affirmed, 95 N. J. Law 545.

It is impossible to escape the suspicion, if not indeed the •conviction, that the provisions of the agreement and policy were purposely made ambiguous and uncertain. They were evidently drawn with care, and it would have been perfectly •easy to have made the matter plain and certain, with only a few words. There may he observed in this connection, the fact that clause “O” of the policy, which is the vital part, providing for the liability of the co-insurer, bears the astonishing ¡and utterly misleading bold-face title or caption “Definitions.”

2. The second exception is “to the master’s refusal to allow to the New Jerse]r Indemnity Company moneys paid for furniture and other items prior to the commencement of business of the New Jersey Indemnity Exchange.”

I see no reason to disturb the special master’s determination. He held that these moneys paid out prior to the commencement of business of the “exchange” were expenses of the indemnity company, and such they seem to me clearly to be.

Reference may be made again to the fact that this scheme of reciprocal insurance was the scheme of the indemnity company, gotten up- by it primarily for i'ts own benefit. It was not the case of an existing body of reciprocal insurers, or intending reciprocal insurers, calling on or negotiating with the indemnity company to act as their agent. There were no insurers until the indemnity company, by its solicitation and advertising (done as I have said primarily for its own benefit and profit), called them into being. Its expenditures prior to that time were its own expenditures.

It is argued that the subscribers authorized the indemnity company to charge these expenditures against them, by the fifth paragraph of the “application, agreement and power of attorney,” wherein it is provided:

“* * * My attorney shall pay out of my funds my proportion of the necessary expenses and of the cost of any and all claims or demands, as adjusted, contested, compromised or reduced to judgment. In full consideration for their services, and the payment by them of all clerical help and office rent, my attorney is authorized to retain twenty-five per cent, of all deposits of money made by me with the Motor Bus Underwriters at New Jersey -Indemnity Exchange.”

It is said these expenditures come within “necessary expenses. I do not agree. Prima facie, in this agreement, which was drafted by the indemnity company, which occupied a fiduciary relationship toward the subscribers, “necessary expenses” means the necessary future expenses in carrying on the business of the agenc3r. Assuming for the sake of the argument that the cost of furniture in future would be chargeable to the subscribers, as part of the “necessary expenses,” it is certainly not thereby indicated that the expenditures already made by the indemnity company, to produce a plant (which they had to have in order to induce persons to come into their scheme and become subscribers and furnish them with profits), wore to be paid for by these 'unwitting victims. Reading this clause arouses again the belief that it was eunningty contrived and worded so as to induce the belief in the minds of the subscribers, that twenty-five per cent, of the premium deposits and no more, was all that would go directly or indirectly to the indemnity company for its services or its expenses in rendering those services.

It appears that some of this furniture bought by the indemnity company prior to the commencement of business was sold by the receiver for the reciprocal insurers, he receiving $807 in payment therefor. This was erroneous on the part of the receiver, but a natural error, undoubtedly induced by statements of the indemnity company (to the same effect, as the argument now made here) that it was the property of the insurers. The indemnity company is entitled to reimbursement from the receiver, and the special master has properly credited the indemnity company with the $807 received by the receiver. There is no clairii that it was worth more.

3. The third exception is “to the master’s refusal to allow to the New Jersey Indemnity Company moneys paid by the New Jersey Indemnity Company for re-insurance amounting to the sum of $12,716.66.”

Here, again, I think the special master’s finding must be sustained. Counsel for the indemnity company puts forward an argument which at first impression has some appeal, to wit, that this reinsurance was for the benefit and protection of the reciprocal insurers; that it was reinsurance of certain risks as to which there were only a comparatively few policyholders, and as to which, therefore, the risk of loss was too dangerously high unless they were reinsured with another or other concerns.

Recognizing and conceding this, however, it still remains true that fh« indemnity company is not entitled- to credit for unauthorized expenditures out of the subscribers’ funds, and I can find no authority from the subscribers for these expenditures. The “application, agreement and power of attorney,” signed by the respective subscribers, gives — and correspondingly limits — the right of the indemnity company as agent to disburse the trust funds received from the subscribers. It commences with a preamble or preliminary agreement, to the effect that the subscribers agree with each other to secure protection against loss and "to obtain such indemnity by the exchange of private contracts.” The second paragraph (hereinbefore quoted) authorizes the indemnity company as agent “to exchange indemnity with other subscribers,” and gives it “full power to do or perform every act I myself could do in relation to any such contracts of indemnity.” It is this last clause on which the exceptant relies as conferring blanket powers and authority — overlooking the controlling and limiting significance of the word "such” which clearly refers only to the exchange of private contracts of indemnity therein before mentioned.

The only other clause which might be applicable is the fifth paragraph (also hereinbefore quoted), authorizing the indemnity company °to pay out “necessary expenses.” But here again the “necessary expenses” must be read in conjunction with the whole agreement, and when so read, must clearly be limited to the expenses of exchanging private contracts and adjusting losses thereunder. There is no provision, express or implied, authorizing the indemnity company to reinsure.

4. The fourth exception is “to the master’s conclusion that the account between the New Jersey Indemnity Company and the subscribers should be settled upon the basis of premiums charged, and not upon the basis of premiums uncollected, and to the master’s holding that the New Jersey Indemnity Company is liable for premiums uncollected.”

The indemnity company’s contention is that, under this scheme of reciprocal insurance, the liability of the subscribers was to each other, and not to the indemnity company, except as agent for the subscribers; and further, that by the application, agreement and power of attorney, the indemnity company was fully authorized, under the blanket power granted, to extend credit to' the subscriber-policyholder for the amount of his premium deposit.

Both of these propositions are doubtless true, but the conclusion which counsel seeks to draw therefrom is a non sequitur; and this for the reason that in this'argument the duty and liability of the indemnity company (as agent) to the subscribers is overlooked, the agent was a fiduciary to the subscribers in respect to the powers delegated to it, and the more unlimited the agent’s powers, the greater the duty of the agent in the exercise thereof.

As I have said before, it was the indemnity company which instituted this scheme of insurance, and which invited and induced the subscribers to enter into it. It, of course, represented to the prospective subscribers that it was a sound, feasible, money-saving scheme of insurance for them, and that it, the indemnity company (which was asking the subscribers to let it act as agent for them and get a twenty-five per cent, commission), was a capable agent to act for them in the scheme and to manage the entire proposition. Its duty, of course, was to manage the business properly and safely for the benefit of, and in the interests of, the subscribers.

Now, it is perfectly obvious that a reciprocal system of insurance would be utterly impractical, if the subscribers put up no money in advance — if each time a loss occurred the agent had to collect the amount for some thousands of subscribers in portions of a dollar or a fraction thereof from each. It was imperative that premium deposits he made, so as to eliminate the staggering costs of such piece-meal collections. It was the duty of the indemnity company, therefore, not only to provide that such premium deposits he made by the subscribers, but also to see that they were actually paid in.

This duty it recognized to a certain .extent, at least, as is evident from the provision in the policies (clause Q) that the premium deposits must he paid in full within thirty days, or the poliejr shall be void from the beginning. This duty, however, it failed to perform, as it failed to perform so many other duties — such as the failure to give bond, its failure to keep separate accounts of the subscribers’ moneys, its mingling of the subscribers’ funds with funds of the State Mutual Company and others of which it was also agent or attorney in fact, its misuse of subscribers’ fund (even though later returned) in purchasing a building, its saddling every conceivable item of expense possible upon the subscribers instead of itself, its apparently intentional lack of clarity in its contracts and agreements, and many others.

In my opinion, in view of its solicitation of subscribers and representation as to the scheme of insurance and its ability to manage the same, it was the duty of this agent to its subscribers to collect the premium deposit from each subscriber on the issuance of each policy; and its failure so to do is negligence and misuse of its trust powers, which would make it liable to the body of subscribers for the premiums uncollected. It perhaps is unnecessary, in the present instance, to go quite that far, for, as I have said, the policies require the premiums to be paid within thirty days, and the indemnity company did not perform the duty thus recognized, of collecting within thirty dav's or canceling the policies, but extended credit for ninety days and upwards, and took notes.

For these premiums I think the indemnity company is properly chargeable, and the master has correctly debited it with these amounts.

The indemnity company also seeks to spell out an estoppel against the subscribers with regard to this liability, arising out of an alleged knowledge and acquiescence — (1) by the subscribers themselves, and (2) by the board of trustees., and another estoppel arising out of the fact that the receiver took over the accounts due from subscribers for uncollected premiums and tried to collect them.

In the first place, it does not appear by the evidence that all or even the majority of subscribers had this improper credit extended to them by the company. Moreover, even if they had, such an experience by each subscriber was not •knowledge by him that it was being done in the case oí all subscribers, much less that it was being done in the name and at'the risk of the subscribers instead of as a matter between the subscriber and the agent and at the risk of the agent cnly.

In the second place, as to the board of trustees, the evidence shows that only one or two of the board of trustees knew of the practice. But even, supposing that all of them had known, I can see nothing which would make this knowledge binding or effective as against the subscribers, There is nothing in the application, agreement and power of attorney which provides or operates in any such way. So far as I am able to. perceive from this, instrument, the “board of trustees” was a mere form of words, a dummy set up for the purpose of inspiring confidence in the persons solicited to become subscribers. It was to be a board of five to fifteen members, not elected by the subscribers, but selected by the indemnity company from amongst the .subscribers. “The attorney is authorized to ask subscribers whom they desire to serve on such board.” This approaches the domain of pure humor. The attorney ivas in nowise bound to. heed such requests, and it appears from the evidence that in fact many or most of the trustees were employes of the attorney, the indemnity company. And the only powers given to this “board” were the approval of tire location of the agent’s place of business; the “call for subscriptions” (whatever that meant, which is not specified and does not otherwise appear) : the approval of secnrites in which subscribers’ funds were to be invested, and the fixing of the amount of, and approval of, the bond which the indemnity company was required to. give. There is nothing which constitutes the “board” a body representative of the subscribers, in anywise like a board of directors, nor in anywise like an ordinary hoard of trustees — the agent was itself the trustee. It is interesting to note that in the answer of the indemnity company to the bill filed by the “board of trustees,” the indemnity company denies “that the complainants are trustees for the subscribers, or that they are subscribers, or that they .have any right to represent subscribers."

Nor am I impressed with the argument that the receiver took over the uncollected premium accounts. The receiver was appointed by this court to wind up the affairs of this reciprocal insurance scheme at the instance and solicitation of the agent, and because it was unable itself so to do, and the receiver took over and undertook the collection of these unpaid premium accounts at the instance of and with the consent of the agent. Indeed, it may well be that one of the reasons for the action of the. indemnity company in this behalf, was the thought that it might thus escape liability. But, in any event, the taking over of these accounts by the receiver was proper. The liability of each subscriber is to the subscribers as a body, and hence to' the receiver, not to the agent. The agent’s liability, as I have said, arises from it wrongful act in misusing its trust powers to the detriment of its cesiwis que trust ent, in the improper extension of these credits.

This exception will be overruled.

o. The fifth exception is "to- the master’s allowance of the claims of subscribers for premiums as follows: Anthony T. Zwaek, Rufus M. Travers, Charles J. Ejnner, Walter Nemethy, D. Earbane and Charles Kraiiss.”

This exception must also be overruled. The claims in question were'by subscribers for the return of the "unearned" portion of their premium deposits. Their right to this is specifically provided in the seventh paragraph of the "application, agreement and power of attorney," which provides that, on notice of cancellation, the indemnity company "shall cancel all unexpired insurance granted by rhe through them * * * , liquidate my account, and return to' me my net surplus and unused advances.” It is also provided in clause "J" of the policy.

The ground of the exception is not a dispute of this right, nor of the amounts due to these subscribers, but is a corollary of the contention put forward in support of the first exception. In other words, the exceptant’s position is that all the subscribers are liable to an extra assessment, and that the claims of these subscribers for return of unearned premium should be withheld or postponed in order that there may be a 'set-off as against such extra assessment when made.

In view of the conclusion reached on the first exception, that there is no liability of any subscriber for extra assessment, this fifth exception necessarily fails.

G. The sixth exception is "to- the master’s- allowance of the claim of Watson Trucking Company for $626.38.”

This claim of Watson Trucking Company was for a loss by fire. The indemnity company contends that there was no evidence of the filing of proof of loss as required by the policy. The provision of the policy, however, though printed under the head of "Conditions,” does not specifically make the filing of the proof of loss a condition precedent to the right of recover under the policy. Many of the provisions printed under that head obviously are not conditions. There was some proof before the master that a proof of loss was filed (page 275 of the testimony), and there was no contradiction. This exception will be overruled.

7. The seventh exception is "to- the master’s allowance of the claim of Charles Schneider, Inc., $560.”

The exceptant, in its brief, "withdraws” this exception. The report of the special master will be confirmed as to this item.

8. The eight exception is "to the master’s allowance of the claim of Abraham Duff, $1,623.10.”

The claim of Abraham Duff is for moneys paid by the insured in settlement of a claim by a third party against him for damages. Under the policy' provisions the insured has no claim in such a case unless the settlement was authorized or ratified by the insurers. There is no proof at all of any such authorization or ratification.

This exception must be sustained.

8a. Exception eight (a) is as folloyvs: “To the master’s allowance of the claim of the Watson Trucking Company, $611.88.”

This claim of Watson Trucking Company is for legal expenses and counsel fees incurred in defending a suit for damages for an accident covered by a policy (being the suit resulting in the judgment referred to in the exception 0). The policy binds the insurers to defend such suits for the insured. The insurers did not so. defend this suit, because the receiver had been appointed in this cause before the suit was commenced. The claim was properly allowed, although, when the matter of distribution is up for determination, it may be that this claim will fall in a different class from some of the other claims.

The exception will be overruled.

9. The ninth exception is “to the master’s allowance of the claim of Anna Eedman, administratrix ad pros., $5,000.”

This exception must be sustained. The allowance of the claim in this form was evidently an inadvertence on the part of the special master. Anna Eedman, administratrix, was not, nor was her intestate, a policyholder. Her intestate was killed by Watson Trucking Company, which was a policyholder. She sued and recovered judgment against Watson Trucking Company for $6,000 damages. The limit of liability of the subscribers to. Watson Trucking Company under its policy7 was $5,000, and that liability does not accrue until the Watson Tracking Company shall have paid the judgment in question. The allowance of claim in favor of Anna Eedman would seem mistaken. The allowance should be to Watson Trucking Company as against the subscribers or their receiver, and only as a contingent claim — contingent upon its paying the judgment, or $5,000 thereof.

10. The tenth exception is “to the master’s disallowance -of the claim of the United Advertising Company7, $1,469.17.”

This claim of the United Advertising Company yvas for advertising, soliciting additional policyholders or subscribers to the co-insurance scheme, and was done under a contract with the indemnity company as attorney in fact of the subscribers. The question is therefore whether or not the indemnity company was authorized by the subscribers to incur this liability on their behalf.

The indemnity company c-ontends that such power is given by the'subscribers under those provisions of the application, agreement, &e., already referred to — the blanket authority to do every act the subscriber might do in relation to reciprocal contracts of indemnity, and the “necessary expenses” provision. It is further argued, and to some extent justly, I think, that this was a necessary and proper expense of carrying on this business for the subscribers, inasmuch as the greater the number of subscribers secured the lower the cost of the insurance would he to them, and, indeed, unless a proper number were secured the scheme must inevitably fail.

On the other, hand, it cannot he overlooked that the indemnity company would profit by these additional subscribers secured by this advertising, to the extent of twenty-five per cent, of the premiums paid by them, and that the whole scheme was concocted and put into operation by the indemnity company in order to get this tweuty-five per cent., and that the indemnity company was a fiduciary.

My conclusion is that the claim should have been allowed in part — that is to say, seventy-five per cent, thereof, as against the subscribers or their receiver, leaving twenty-five per cent, to be borne by the indemnity company.

11. The eleventh exception is “to the master’s, disallowance of the claim of the New Jersey Indemnity Company, $1,476.68.”

The special master disallowed this claim for want or insufficiency of proof in several respects, and the record sustains him.

The exception will he overruled.

1.2. The twelfth exception is “to the master’s disallowance of the claim of John Warren, $1,500.”

Mr. Warren’s claim was for legal services performed for, and at the instance of, the New Jersey Indemnity Company in and about defending the suit brought by the state hanking commission against the New Jersey Indemnity Company, to enjoin the issuance by it of reciprocal insurance policies, and in and about advising the officers of the New Jersey Indemnity Company from time to time in the conduct of the business.

I agree with the special master that this claim cannot be sustained as valid as against the subscribers. I do not see that either the second or fifth paragraphs of the application, agreement and power of attorney authorizes the indemnity company to incur such expense as this on behalf of the subscribers or to charge it against them. In view of what has already been said herein along similar lines, it will be unnecessary to go further into detail except to repeat that the scheme was the scheme of the indemnity company, instituted by it for its own benefit primarily; the contracts were its contracts, and must be construed most strongly against it; the authorization and grant of power in the second paragraph of the “application” is limited to matters relating to the exchange of contracts and the defense of suits under contracts, and “necessary expenses” under the fifth paragraph are likewise so limited.

It may very well be that an injunction against the indemnity company issuing reciprocal policies as attorney in fact would have harmed the subscribers as well as the indemnity compairy, but that fact does not show any authorization for incurring the charge in question. The indemnity company in starting this scheme and inviting and inducing persons to become subscribers, implied^ represented to the subscribers that it was a lawful project, and I can see no reason why the subscribers should’ be charged with the defense of the suit brought against the indemnity companj”, challenging its right to conduct the business which it was in fact conducting.

As to the advice to the officers in the conduct of the business — this I think is clearly a matter of expense to the indemnity company 'alone, covered as far as the subscriber’s are concerned by the twenty-five per cent, of premiums given the indemnity company “in full consideration for its services.” There is surely an implied warranty that the indemnity eompanjr knows how to perform those services, and legal advice in that behalf is at its own expense.

Tilts exception will be overruled.

13. The thirteenth exception is “to the master’s refusal to find, that there was cine from the subscribers to the Now Jersey Indemnity Compaq upon the account of moneys collected and disbursed, $22,636.03.”

In other words, this is an allegation that the special master erred in not accepting as and for the accounting which he was directed to make (or as and for a part of such accounting) a statement of account between the indemnity company and the subscribers as made up¡ by the indemnity company. The determination of the special master that this was not a correct statement of the accounts between the parties, and that he could not adopt it as such, as a whole, hut must himself state the account, was based in part upon matters of conflicting evidence and testimony and of credibility of witnesses. That alone affords a sufficient reason why this exception should be overruled, and, of course, the sustaining of other particular exceptions to the master’s report and account would also necessarily result in the overruling of this comprehensive, general exception. Mention may also be made of the accountant’s naive and illuminating testimony (at p. 7 7) that, as to all the expenditures of the indemnity company, he “followed the power of attorney by charging everything except clerical help and rent” to the subscribers.

14. The fourteenth exception is “to the master’s refusal to allow to the New Jersey Indemnity Company moneys expended by the New Jersey Indemnity Company since that date.” ' '

“Since that date” is elucidated by the exceptant’s brief as meaning since the date of the appointment of the receiver. 'The items and amounts which are intended to he covered by this exception are listed in the brief in conjunction with the items and amounts intended to he covered by the sixteenth exception.

16. The sixteenth exception is “to the master’s refusal to allow to the New Jersey Indemnity Company an amount sufficient to liquidate the claims not allowed, but which are contingent, to wit, $6,000 for the Walson Trucking Oompany, Ash Advertising Company, ICostander, Gray Burial Company, Fortunato claim, amounting, approximately, to the sum of $6,000; claim of the receiver of New Jersey Indemnity Company for assessment, $5,00Q; amounts referred to on page 45 of the testimony; amount sufficient to cover contingencies, approximately the sum of $25,000.”

Under these two exceptions, the fourteenth and sixteenth, the exceptant’s brief lists the following eleven items:

Ash Advertising Co................. $2,510.03

United Advertising Co.................... 1,200.00

Louis 'Schneider, Inc...................... 550.00

John Francis Cahill...................... 1,420.00

John Warren............................ 2,820.74

Claims adjusted and not paid.............. 2,840.02

Paid for expenses about claim............. 3,000.00

Gray Burial Co.......................... 1,123.00

ICostander............................... 1,500.00

Fortunato ............................... 500.00

Contingent claims ....................... 25,000.00

The only evidence before the master as to the Ash Advertising Company item was oral testimony by the treasurer of the indemnity company (at p. 45) that the Ash company “has a bill for $2,510.93 * * * for advertising under contract made by the New Jersey Indemnity Company, attorney in fact, for the Motor Car Underwriters,” and that the indemnity company “is now being sued on that contract.” The contract was not produced, nor any proof as to wliat advertising was to be done under it, nor any proof of any work done by the Ash company under the contract, nor that the indemnity company — much less the subscribers — are liable for the amount of the bill or any part of it. The master properly refused to allow the indemnity company a credit, either actual or contingent, against the receiver in respect of this item.

Practically the same thing is true as to the evidence (at p. 45) in regard to the bill of United Advertising Company, $1,296. The master properly refused credit, actual or contingent, in favor of the indemnity company against the receiver as to this item.

The Louis Schneider, Inc., $550 claim is a bill or claim by a policyholder in respect of a judgment obtained against him for an accident covered by his policy, plus counsel fees (see pp. JfiS, 228, 232). It is apparently a proper claim, by the policyholder against the receiver, at least, in part, and claim was presented by the policyholder to the receiver in respect thereof and apparently allowed. The policyholder is enjoined from suing the indemnity company, and the master properly refused credit of the item to the indemnity company as against the receiver, either actual or contingent.

As to the John Francis Cahill $1,420 item, the only evidence is (at p. J¡6) that “he has a bill of $1,420 for court costs and. filing fees for * * * fifty or sixty cases, growing out of the reciprocal exchange system.” There is no proof upon which the master would have been justified in allowing the indemnity company a credit, actual or contingent, against the receiver, in respect of this item.

The John Warren claim of $2,820.74 against the indemnity company includes the $1,500 claim which I dealt with under the twelfth exception, and held was properly disallowed as a claim against the receiver. Obviously, of course, the indemnity company is not entitled to a credit against the receiver in respect of this $1,500. The balance of $1,320.74, however, stands on a different footing. The evidence (at p. 239 et Hpq.) shows that this amount was for work on claims or suits by policyholders, and that the items charged were reasonable. No controverting evidence or argument was made as to this. The $1,320.74 is a proper claim by Mr. Warren against the receiver, and was duly presented and proved hv him as such, and I presume was allowed (the master disallowed the $1,500 item), but the indemnity company, of course, is not entitled to a credit against the receiver in respect thereof. That would duplicate the item. Mr. Warren knew, of course, that lie was acting for the subscribers, and has properly proceeded against the principal instead of the agent.

Claims adjusted and not paid, $2,849.92. This is elucidated by the brief as being “the amount arrived at by the claim adjuster as being a just amount to settle claims already made,” presumably by policyholders, against the indemnity company (see p. J¡£). What those claims are, or by whom made, does not appear. Doubtless some of them at least are claims proved by policyholders against the receiver before the master. In any event the claimants are enjoined from suing the indemnity company, and the latter is not entitled to airy credit against the receiver in respect thereof.

Paid for expenses about claims, $3,000. The master properly refused a credit to the indemnity company for this item. There is no proper proof thereof. The evidence is (at p. hh) simply that Treasurer Randolph "thinks” it would amount to $3,000.

Gray Burial Compairy, $1,123.66. This is a claim by a polic3diolder, and it appears that judgment has been entered against the indemnity company on it, which judgment is being attempted to be opened. A contingent credit should be allowed to the indemnity company in respect of this item, but this contingent credit will not be allowed as an actual credit if the judgment is one which was enjoined under the original restraining order issued in this cause.

Kostander claim, $1,500. The same thing is true of this item, which is a suit by a policyholder against the indemnity compan}1, pending but not tried. A contingent credit should be allowed the indemnity companjr, but with the same restriction.

Fortunato claim, $500. This is another policyholder’s claim. He is enjoined from suing the indemnity company, and his application to this court for modification of the restraint, to permit him to sue the indemnity company, has been denied. He has proved his claim against the receiver. The indemnity company is entitled to no credit for this item, actual or contingent.

Contingent claims, $25,000. This item is in respect of "500 accidents reported, upon which no suits have been brought, but upon which suits may be brought.” (See p. J/.7.) In view of the restraining order, no suits can be brought against the indemnity company on these accidents, and that company is not entitled to any credit, actual or contingent.

It is evident from the foregoing that the fourteenth exception cannot be sustained, nor the sixteenth either, except to the extent of allowing the restricted, contingent credit in respect of the Gray Burial Company and Kostander claims, as above mentioned.

15. The fifteenth exception is “to the master’s refusal to allow to the New Jersey Indemnity Company the total of the amount of claims allowed by the master.”

The “claims allowed by the master” are presumably those by policyholders against the receiver. Having been presented and proved against the principal (the subscribers), the claimants cannot sue the agent, the indemnity company, and, moreover, they are enjoined from so doing. The indemnity company is entitled to no credit, actual or contingent, in this regard.

17. The seventeenth exception is “to the master’s refusal to order an assessment upon the subscribers sufficient to make up the sum necessary to liquidate the indebtedness and contingent indebtedness of the subscribers to the New Jersey Indemnity Company.”

This exception will be overruled, for the reasons set forth in the discussion of the first exception.


author: Foster, V. C.

text:
    Spartan Realty Company, complainant, v. Miriam Engel et al., defendants.
    [Submitted June 28th, 1924.
    Decided July 7th, 1924.]
    Mortgages — Equitable—Vendor’s Lien — First Mortgage Covering Additional Property — Payment Thereon by Original Owner to Secure Release — Consent of Present Owner to Transaction — Liability of Present Owner.
    On bill, &c.

      Mr. Ward Kremer, for the complainant.

      Messrs. Insley, Treeland cC- Decker, for the defendants Mrs. Engel and her husband.

      Mr. George Reynolds, for the defendant Camden Safe Deposit and Trust Company.
   Foster, V. C.

About June 25th, 1920, complainant sold and conveyed to the defendant Miriam Engel for $27,500 a certain hotel property ón the corner of Grand and Piftli avenues, in Asbury Park, in this state.

This conveyance was made subject to a first mortgage for $15,000, made by the defendants Henry W. Denton and wife to the defendant Camden Safe Deposit and Trust Company, and dated April 1st, 1920. By the terms of this mortgage animal installments of $500 each were to be paid for five years from its date, and interest was to be paid at the rate of five and one-half per cent. Mrs. Engel and husband, under date of July 10th, 1920. gave their bond and mortgage to complainant for $12,500, in payment of the balance of the purchase price.

The first mortgage held by the Safe Deposit and Trust Company covered, in addition to the property conveyed to Mrs. Engel, other property belonging to complainant.

This additional property complainant later, in 1920, sold to one Hertsberg and, in, order to convey the same freed and released from the first mortgage lien, complainant was obliged to pay the Safe Deposit and Trust Company $6,000 on account of the $15,000 mortgage.

In June or July, 1920, Frank L. Ferguson, who is in fact the owner of complainant company, informed Mr. and Mrs. Engel that he was obliged to pay this $6,000 m order to obtain the release of the first mortgage, and they consented that he should do so; and, as the trust company refused to grant the release without the Engels’ 'consent, this consent was given by the Engels joining in the execution of the release.

Itv the $6,000 payment made by complainant, and hv installments aggregating $1,500, paid by Mrs. Engel, the amount due on the mortgage held by the Safe Deposit and Trust Company has now been reduced to $7,500, with interest to he added.

These facts are not disputed by the Engels, except that they claim the payment of $6,000 made by complainant to the trust company was a volutarv one, made solely for complainant’s benefit, in order to enable it to make an advantageous and profitable sale of its lot to Hertsberg, and that complainant is therefore not entitled to che relief it seeks, to have this $6,000 made a lien upon this hotel property as part of. or in place of part of, the $15,000 mortgage.

From what lias been said, it is apparent that the complainant and the Engels in July, 1920, agreed that the hotel property conveyed by complainant to Mrs. Engel was worth $27,-500. That this amount was to he paid by them by the coneyanee to them being made subject to the first mortgage of $15,000 and by their second mortgage of $12,500 to complainant, and while it is true that there is no agreement of assumption of the first mortgage, and a-lso that there is no agreement on the part of Mrs. Engel to pay the principal of the first mortgage beyond the five annual installments of $500 each, together with interest thereon, yet it clearly appears that she agreed to pay in some form $27,500 as the purchase price of the hotel property. To allow her present contention to stand, that complainant should lose the benefit of the $6,000 paid on account of the first mortgage, would, in effect, reduce the purchase price of the property to- $21,500, and would give Mrs. Engel the benefit of this $6,000, to which she is not entitled. It is, under the circumstances, impossible to grant the complainant the relief it seeks for the reformation of the mortgage. Under the amended pleadings complainant can, however, have a vendor’s lien or an equitable mortgage, upon the premises conveyed to Mrs. Engel, to secure the payment of the sum of '$6,000, with interest at the rate and upon the terms and ‘conditions stated in the mortgage to the trust company. And this vendor’s lien, or equitable mortgage for $6,000, will take the place of and be entitled to all the rights and subject to- the like defenses as was the $6,000 paid by complainant to- the trust company. But this lien or mortgage will, of course, be subject to the prior lien of the Safe Deposit and Trust Company’s mortgage for the balance due of $7,500, and interest.


author: Backes, V. C.

text:
    Rynda Development Company and Arlington Realty Company, complainants, v. Amelia R. Gluck et al., defendants.
    [Decided July 15th, 1924.]
    Sale of Land — Quiet Title — Peaceable Possession — Mechanics’ Liens and Sale Thereunder — Photostatic Copy of Deed on Record.
    On final hearing.

      Mr. O. Herbert Walker, for the complainants.

      Mr. Michael J. Tansey, for the- defendants.
   Backes, V. C.

The amended bill is to- quiet the title to- land. The complainants’ allegation of peaceable possession is denied.

The proofs show that the Rynda Development Company, owner, agreed, in writing, to sell the land — a building lot— to the Ohemtee Company, Inc., and lot the purchaser into possession for the purpose of building a house. The Chemtec company transferred its interest to, and agreed to- build the house for, Amelia R. Gluck, and partly built it. The Rynda company thereupon negotiated with her as buyer, but the deal was not consummated, each blaming the other for the failure to conclude it. Materialmen filed mechanics’ liens-, recovered judgments and sold the property under special fi. fas. It was struck off to the Arlington Realty Company, which refused to take title until it co-uld he determined what title it would get under the sheriff’s deed. The Arlington company, nevertheless, took possession of the house, under permission of the Rynda company, over the protest of Mrs. Gluck.

Mrs. Gluck was last in lawful and peaceable possession. The Arlington company acquired no right to possession by its incomplete sheriff's sale purchase. The Rjmda, company's permission to take possession and the Arlington company’s ouster of Mrs. Gluck did not vest a peaceable possession.

Actual peaceable possession, not a disputed possession under a claim of right of possession, is the jurisdictional test in actions under the statute. Fittchauer v. Metropolitan Fire Proofing Co., 70 N. J. Eq. 429.

The complainants have failed to meet the statutory requirement, and the bill will be dismissed, but without prejudice.

If the complainants will present a properly drawn - bill charging that the defendant Gluck claims title to the property under the deed, the photostatic copy of which is on record, and that it is a cloud on the title, and. prays that the original and photostatic copy be declared null and void, relief may be granted. I am satisfied that the original deed was never delivered and that the recorded copy is a fraud.-


author: Walker, Chancellor,

text:
    Helen Elizabeth Horton, petitioner, v. John Wesley Horton, defendant.
    [Decided July 18th, 1924.]
    Divorce — Adultery—Evidence—H earsay — Leading Questions— Proper Certificates of Official Character — Duty of Special Masters. '
    On petition for divorce. On final hearing on master’s report and depositions e.r parte.

      Mr. Daniel D. Loeb, for the petitioner.
   Walker, Chancellor,

This is a petition for divorce for adultery. ¡The proofs show that the petitioner and defendant were married April 3d, 1918, and that defendant afterwards went through a form of a, ceremony of marriage' with Lillian McIntyre, May 21st, 1919; that the petitioner and defendant separated on account of this woman. Petitioner says that on the day President Harding died (date not given) she read in a newspaper about her husband being arrested with Lillian McIntyre: that she Went to police headquarters to inquire, and they told her that his wife had been arrested for robbery in Spring Lake, New Jersey, and had a marriage certificate in her trunk, which was seized. Of course, she could say that she read in a newspaper that they were arrested, but there the hearsay would have to stop, and what she did in consequence she could tell, confining her testimony to her own actions and to- facts within her own knowledge, and such, facts as were not known to her personally could only be spoken to hv those who did know them. The petitioner goes on to testify that on account of the robbery defendant was convicted and sentenced at Freehold, New Jersey', to the state prison at Trenton, and that she saw him there (state prison). The only admissible testimony on this head is that the petitioner saw the defendant in the New Jersey State Prison. That he was convicted and sentenced at Freehold is the giving of verbal testimony of the contents of a record, which is not, and never has been, admissible. In re McCraven, 87 N. J. Eq. 28. Petitioner also- testifies that her husband “admitted” to Detective Higgins in New York that she was his first wife. Detective Higgins could lawfully have testified to this, provided he would give the language used and not his conclusion from that language- to the effect that it amounted to an admission. That conclusion would be for the court. The testimony coming from the petitioner is hearsay.

Mr. Stubbs, proprietor of the Warren Hotel at Spring Lake, testified that about August 1st, 1923, there was a rob-' berv at the hotel, for which John Wesley' Horton was after-wards convicted at Freehold and sent to the state prison at Trenton. Here again we have verbal testimony of the contents of a record. And this was brought about by the asking of leading questions, which is not permissible. He also said that Horton had been a guest at the hotel for about one month; that Lillian McTntyre, known as Eogers, was a chambermaid in the hotel during the same time; that he found out her name was Lillian McIntyre from papers and letter which were in her trunk at the time of the robbery'; that he searched herrtrunk with the detective and found out that she was known as Lillian Horton, as well as Lillian Eogers and Lillian McIntyre. Mr. Stubbs, after saying that he was not present m the- Monmouth quarter sessions, was examined as follows:

“Q. He pleaded non vult, didn’t he, or was he convicted by a jury?

“.4. He finally pleaded guilty and did not stand trial.

“Q. Do you know what they did with him?

“--i. He was sentenced to serve a term in prison for, I think, seven years.

“Q. In the State's Prison at Trenton, New Jersey, is that the prison ?

“.4. It must have been.”

And this remarkable examination also took place: Mr. Stubbs was speaking about Lillian and was asked and answered as follows:

“Q. Did she say anything- about his being- her husband, or married to him, or living together?

‘‘.-I. Well, it is my impression that she referred to her life with him in such a way that it left the intimation in our minds that they were man and wife.

“Q. \Yhat made you believe that?

“.1. She. gave me that impression: I cannot remember anything specific: it- seems to' me that we would not have had this definite thought, which to my mind amounts to knowledge of the fact lhat they were married, if it had not been confirmed by many different expressions of her own. It seems to me that it was so definitely understood that an expression such as ‘he is my husband’ would be entirely out of place: she told about her life with him.

“Q. Did she say anything about their having lived together somewhere else, outside of the fact that they had been at this hotel: did she say that they had been living together, let us say, in Philadelphia or New York, or some other place: in other words, did they have a home somewhere; did she say that?

“.1. No, sir; in these letters you will find that the letters show that they were in Cleveland for a time, that they were out in Cleveland or Detroit, and that she worked in a hotel there; and that he was out there at the same time; and then she came back to New York and sent money for him to get back to New York. There are twenty-nine letters here in this bunch, and there are also thirty-1 our letters and pictures in this other lot.”

flow any statement of Lillian McIntyre’s o-ut of the presence of the defendant, and when he had no opportunity to deny it, can he made evidence, I am at loss to understand. Of course, it cannot. Besides, the witness giving his “impression,” and reasoning or arguing about facts tending to show that she and Horton were married, has not the slightest semblance of legal evidence about it. The solicitor should not have elicited, nor the master permitted, such evidence.

The petitioner was recalled and was shown a letter addressed “Dearest Jack,” and subscribed, “From a lonesome wife, Lillian.” and was asked if she recognized the handwriting. She replied in the affirmative-, and was- asked, “In whose handwriting is that?” and answered, “It is the handwriting of Lillian McIntyre.” Asked how she knew her handwriting, she said that Lillian was a friend of hers and she knew her handwriting well. That is not the way to prove handwriting. The proper question is: “Did the witness ever see So in So write?” and if the reply is in the affirmative the next question would be, “Do you know her handwriting ?” and if the reply is in the affirmative, the next question should be, “In whose handwriting 'is this and that?” It can be argued that the witness here studiously avoided saying that she had seen Lillian write, and therefore did not lay a foundation for testimony that the letter was iir her handwriting. The above criticisms apply to much of the other testimony taken.

Another thing: There are two certificates by the clerk of the orphans court of Philadelphia. They commence, “I, James JB. Sheehan, Esquire, register of wills and ex-officio clerk of the orphans court of Philadelphia,, do certify,” &c., and are signed “William E. Campbell, register of wills and ex-officio clerk of orphans court.” And this follows a certificate by Lion. Joseph T. Lamorelle, president judge of the orphans court, that James- B. Sheehan, Esquire, is register of wills and clerk, &c. Of course-, this will have to he corrected.

Besides the case In re Graven, supra, Avhiclx holds that the rules of evidence which do not permit of leading questions, characterizations, hearsay and conclusions, and which require that facts only may be testified to by witnesses, leaving all inferences to- be suggested by way of argument and to be decided by the court, apply as well to- ex parte cases as to litigated ones, I sent a circular letter to the special masters on April 5th, 1923, which is Appendix No. 8 to the Rules of 1983 p. 118, in which I admonish them not to- permit the talcing of hearsay or other incompetent testimony; but, I regret to say, that neither the decision nor the letter is being complied with to the extent that I had hoped and expected. .Tn several recent cases I have taken occasion to- send back the records to the master, with leave to- take the depositions de novo according to law and the rules of evidence, and that will be done In this case. Divorces will not be granted on illegal testimony.

From what has been said in the above memorandum, it would appear that this case is susceptible of legal proof.


text:
    John Often, complainant, v. George Stout, defendant.
    [Decided July 22d, 1924.]
    Restraint Pendente Lite1 — Conditional.
    On order to show cause.

      Mr. Waller (). Sedam, for the complainant-

      Mr. Max A. Sturm, for the defendant.
   Buchanan, V. C.

My conclusion is that the restraint pendente lile should he granted, upon condition, however, that the complainant pay in to the clerk of this court the nine hundred dollars ($900), balance of the alleged cash portion of the purchase price. If such payment be made to the clerk before July 29th, 1924, an order continuing the restraint pendente lile will be allowed.


text:
    In re estate of John Tootle, deceased.
    [Decided July 8th, 1924.]
    Intestacy — Degrees of Consanguinity — Legitimacy of Exceptant —Necessary for Exceptant to Prove Non-existence of Nearer Next of Kin.
    On appeal of Jennie Kirkman Higgs. On appeal from Union count]' orphans court. On final hearing.

      Messrs. Walter & Gilhooly, for the appellant.

      Mr. Clarence I). Meyers, for the administrator-respondent.
   Buchanan, V. C.

John E. Kirkman, as administrator of John Tootle, deceased, filed his account in the Union county orphans court. Jennie Kirkman Higgs, claiming to be one of the heirs-at-law and next of kin, filed exceptions. The order or decree of the orphans court overruled and dismissed the exceptions on the ground that the exceptant was not one of the next of kin and had no legal interest in the estate, and allowed the account. Erom this the exceptant appeals.

The priman' issue before the orphans court, and the only one determined by it, was the question as to* whether the ex-ceptant was entitled to file exceptions — whether she had an interest in the estate — whether she iras one of the next of kin. John Tootle had died intestate. The burden of proof was upon the exceptant to show that she was one of the next of kin '(or a transferee from one of the next of kin), and the burden of proof is also upon her in this appeal.

The exceptant’s claim of relationship to the intestate is that she is the daughter of Ann Tootle, wlm was a sister of Eichard Tootle, who was the father of John Tootle, the intestate, her alleged relationship being thus of the fourth degree of consanguinity. The particular dispute in the evirence is as to the legitimacy oí exceptant’s birth, as to whether her mother, Ann Tootle, was the wife of Andrew Kirkman (exceptant’s father). The orphans court determined this question in the negative.

The review has entailed the consideration of a large number of questions (out of the ordinary) as to> the admissibility of testimony and other evidence, and also a number of questions as to the weight of evidence. The conclusion I have reached is that the decree of the orphans court must he affirmed. The detailed exposition of the separate determination of the many questions above referred to would require so much time and space that I omit them here. If necessary or advisable, they can be added hv way of supplement hereto, if an appeal be taken.

It may be added that there i's another reason, not argued in the briefs, which, I think, necessarily leads also to an affirmance, and that is this: Even assuming the fact of ex-ceptant’s legitimacy, and accepting the facts as proven that she is related to the intestate in the fourth degree, it is a necessary element in -the establishment of her. right to file the exceptions, her claim to he one of the next of kin, that she prove, by at least a preponderance of evidence, that there were at John Tootle’s death no relatives of a nearer degree than her own. There are no proofs either way on this question. The record contains no evidence to show that there were, in fact, any nearer relatives living at the time of the intestate’s decease, but that is not enough.” The burden of proof, as T have said, was on the exceptan!, to establish her right, and to that end required of her some “affirmative” proof that there were no nearer relatives. The record discloses no such proof, either directly or by necessary inference.

1 think the case is one where the costs of both parties, including reasonable counsel fees, should be paid out of the estate.