author: Neutze, C. P. J.

text:
    Camden County Orphans Court.
    IN THE MATTER OF THE ESTATE OF CHARLES E. DERBY, DECEASED.
    Decided July 13, 1935.
    For the substituted trustee, Camden Safe Deposit and Trust Company, George Reynolds.

    For Elden EL Jennison, Boyle <& Archer.

    For Alice Pratt and Josephine Ward, Grover C. Richman.

   Neutze, C. P. J.

The Camden Safe Deposit and Trust Company, substituted trustee under the will of the testator, Charles E. Derby, has filed its final account, which was duly allowed by this court, and now petitions for a decree of distribution under the terms of the will.

The testator, Charles E. Derby, died testate in 1901 with inter alia, the following provision in his will:

“I give and devise unto my grandson Charles Derby Milton during his natural life, the income from twenty-five thousand dollars, the said sum to be invested by my executor and trustee, or the survivor of him, and the income thereof, to be paid by him, at such times as he may think proper; and after the death of the said Charles Derby Milton, I give, devise and bequeath the said sum of twenty-five thousand dollars, to his child or children, share and share alike, and should the said Charles Derby Milton die without leaving-issue suj-viving him, then and in such case I direct my executor and trustee, or the survivor of him, to divide the said sum of twenty-five thousand dollars, among the heirs of my brother John L. Derby and the heirs of my two sisters, Caroline M. Clark and Ann Mary Jennison, respectively.”

The facts that exist to-day give rise to a dispute as to the intention of the testator in respect to this clause.

The life tenant, Charles Derby Milton, died in August, 1934, without leaving issue. Therefore the latter portion of this bequest becomes operative in favor of the substitutionary legatees. Such legatees are the heirs of the testator’s brother and two sisters. Briefly reiterating such bequest verbatim from the will, it reads, “to divide the said sum of twenty-five thousand dollars, among the heirs of my brother John L. Derby, and the heirs of my two sisters Caroline M. Clark and Arm Mary Jennison respectively.”

At the time of the death of the life tenant, the testator’s brother and sisters were all deceased. The brother, John L. Derby, predeceased the testator leaving no issue but only the two children and one grandchild of his two sisters are his heirs. The testator’s sister, Caroline Clark, died in 1915, survived by her daughter, Alice Pratt, and a granddaughter, Josephine Ward, who is a daughter of a deceased son, Charles Clark, by name. The testator’s sister, Ann Mary Jennison, died in 1916, survived by a sole son, iElden Jennison.

The heirs of testator’s sister, Caroline Clark, contend that this substitutionary bequest should be divided per capita among all the heirs of the brother and sisters. This would provide for a one-third distribution to the three parties concerned.

The heir of testator’s sister, Ann Mary Jennison, contends on the other hand, that a per stirpes division is what the testator intended and the heirs take under the measurement of representation. This construction would inure to the benefit of this particular legatee by ultimately giving him one-half of the fund.

The “heirs” of a person are never capable of being determined until that person dies. In this case, the brother and sisters are all deceased at the time of the death of the life tenant, who died without leaving issue. Therefore the estate may at this time be distributed among the “heirs” of the brother and the heirs of the two sisters respectively. The question is—did the testator intend to divide his estate “per stirpes” or “per capita” among the various heirs.

In determining the intention of the testator in each particular will, the court looks at the provisions of the will as a whole and attaches a natural meaning to the words used (Holcomb v. Lake, 24 N. J. L. 686; Stout v. Cook, 77 N. J. Eq. 153; 75 Atl. Rep. 583; Woodruff v. White, 79 N. J. Eq. 225; 81 Atl. Rep. 1134; affirming 78 N. J. Eq. 410; 79 Atl. Rep. 304), unless, of course, the words used have a legal connotation in which case the testator is presumed to know that that meaning will be attached to his words if nothing further is said in the will to show a contrary intention. Supp v. Second National Bank and Trust Co., 98 N. J. Eq. 242; 130 Atl. Rep. 549; Bonnell's Ex’rs v. Bonnell, 47 N. J. Eq. 540; 20 Atl. Rep. 895.

The testator, Charles B. Derby, intended that the heirs of his brother and two sisters were to take “per stirpes” and not “per capita.” Aside from the fact that whenever the question has arisen as to whether the testator intended a “per stirpes” or “per capita” distribution, the courts have adopted the former construction if the testator has not clearly shown his intention. In this case the testator has actually manifested an intention to have the bequest distributed “per stirpes.”

Negativing the possibility that the testator intended to create as one class of legatees, the heirs of the testator’s brother and as the second class the heirs of the two sisters, the most reasonable construction of the words actually used by the testator is that the testator intended to constitute the heirs of his brother, John L. Derby, as one class, the heirs of his sister Caroline M. Clark as a second class and the heirs of his sister Ann Mary Jennison as a third class.

This intention is manifested by the creation of a skeleton of the phrase actually used by the testator as follows: “among the heirs of my brother * * * and the heirs of my two sisters * * * respectively.” Particular notice attaches to the words “heirs,” “two” and “respectively.”

The word “heirs” has been denoted as meaning “representation” if all the legatees are not in equal relationship unless the testator has evidenced a contrary intention in his will. In New Jersey, this rule applies equally in cases where the heirs take an original bequest as when they take as substituted beneficiaries. Leavitt et al. v. Dunn, 56 N. J. L. 309; 28 Atl. Rep. 590.

If the testator had seen fit to put a different construction upon the word “heirs” he could have said “to be divided among the heirs equally,” or of like import. In such cases, the testator manifests an intention that a “per capita” distribution is intended even though the heirs are of unequal degree. But lacking such manifest intention, where a testator makes a bequest to heirs and they are not in equal degree, those who take, take by representation or per stirpes. Scudder v. Van Arsdale, 13 N. J. Eq. 109; Smith v. Palmer, 7 Hare 225; Welsh v. Crater, 32 N. J. Eq. 177. The testator could have manifested a division of his estate “per capita” by using the word “children.” This he did not do and the court is bound by the terms he has actually used. In the case of Roome v. Counter, 6 N. J. L. 111 (at p. 114), Chief Justice Kirkpatrick said, “* * * and besides the bequest is not to the children of Peter but to his heirs, a term which always carries with it the idea of representation, which the term children does not.”

In the bequest now under construction it was only to heirs of unequal degree with no further directions. It clearly comes within the cases adopting the construction of such terms to be a “per stirpes” and not a “per capita” bequest.

As further evidence of the testator’s intention to create a per stirpes division, the will provides for the heirs of his brother and two sisters respectively. His use of the word “two” coupled with the word “respectively” sets off the heirs of each sister in a separate class, and with the heirs of the brother makes three separate classes of beneficiaries. If only one class of beneficiaries had been intended, the testator would not have gone to the trouble of enumerating his sisters and then tagging their heirs with the appendage “respectively.”

In leaving this phase of the case before the court, it is well to remember the rule of construction set forth in Chancellor Eunyon’s opinion in the case of Stoutenburgh v. Moore, 37 N. J. Eq. 63 (at p. 71). It is as follows: “If it is doubtful whether he intended the distribution among his grandchildren to be per stirpes or per capita, the court should adopt a construction in favor of the former method, not only as being most probably in accordance with his intention but also as being in accordance with the policy of the law.”

The bequest in this case was $25,000 in personalty. The question is who are the persons meant by the testator when he used the words “heirs.” One sister had one child, the other sister had one child and one grandchild and the brother has as his heirs all three foregoing persons, children and grandchild of his sisters.

Citing from Chancellor McGill in Reen v. Wagner, 51 N. J. Eq. 1; 26 Atl. Rep. 467, he said: “It is a cardinal rule in the interpretation of wills that the testator’s intention as it is manifested by his will shall control. In seeking that intention, courts by a long line of adjudications have given a fixed meaning to certain phrases, words and methods of disposition, which govern where there is nothing in the will to indicate that a different meaning was contemplated by the testator; and from such adjudications spring a large number of subsidiary rules for the interpretation of wills, which are from time to time invoked to solve perplexing questions of construction where it is doubtful what the intention was. Such rules are of the utmost importance in the interest of certainty in will making, putting it within the power of the intelligent scrivener to safely and accurately express that which the testator wishes; and for this reason those rules should not be departed from unless it clearly appears that the testator intended another meaning than that which they declare. It is one of those subsidiary rules that, where personal property is bequeathed to the heirs of A or the heirs of the testator, the next of kin are entitled to claim under such description as the persons appointed by law to succeed to the personal property.”

It is well established that the word “heir” when used in reference to the disposition of personal property, without any express contrary definition by the testator, has come to mean the next of kin of the testator or named person. Not the next of kin in its literal meaning of nearest blood relations but rather within the meaning of the statute of distribution. Scudder v. Van Arsdale, supra; Welsh v. Crater, 32 N. J. Eq. 177; Ward v. Dodd, 41 Id. 414; 5 Atl. Rep. 650; Leavitt v. Dunn, 56 N. J. L. 309; 28 Atl. Rep. 590; Meeker v. Forbes, 84 N. J. Eq. 271; 93 Atl. Rep. 887; In re Young’s Estate, 163 Atl. Rep. 433.

The substitutionary bequest in the testator’s will is to the heirs of the brother and the two sisters. A person has no heirs until his or her decease. In this case, the testator gave the heirs of the brother and sisters a vested interest subject to being divested by the death of the life tenant leaving issue. The testator’s brother, John L. Derby, died in 1899, while the testator died in 1901. At the death of the testator, the heirs of the testator’s brother then secured their vested interest subject to being divested as aforesaid. At that time the heirs of the testator’s brother were his two sisters, Caroline Clark and Ann Mary Jennison, he not having any children or descendants of children. The statute of distribution (Pamph. L. 1899, eh. 83, p. 204, amending the act of 1898), at that time provided as follows in such cases (3 Comp. Stat., p. 3875, § 169 III) : “And in case there be no widow, then all the said estate to be distributed equally to and among the children; and in case there be no child, then to the next of kindred, in equal degree, of or unto the intestate and their legal representatives as aforesaid.” This amendment to the statute of distribution in effect at the time of the death of the testator allowed representation after children of brothers and sisters. See Fisk v. Fisk, 60 N. J. Eq. 195; 46 Atl. Rep. 538. There was no limitation among collaterals after deceased brothers’ and sisters’ children as there was prior to and subsequent to this particular statutory amendment. (See for present act Pamph. L. 1930, ch. 130, p. 395, § 169b; Cum. Supp. Comp. Stat. 1925-1930, p. 1339, § 146-169b.)

The heirs of the brother being of unequal degree, namely, a nephew of one sister and a niece and grandniece of the other sister, they take per stirpes or by representation of their respective parent. The sole child, Elden Jennison, of Ann Mary Jennison, takes a one-half of the one-third interest allotted to the heirs of John L. Derby and Alice Pratt takes a one-half of one-half of this same one-third while Josephine Ward takes the other one-half of one-half of the one-third as heirs of John L. Derby, both taking by representation of the sister Caroline Clark. Briefly, by virtue of being heirs of John L. Derby, his nephew Elden Jennison, son of Ann Mary Jennison, secures one-sixth and his niece, Alice Pratt, daughter of Caroline Clark, and Josephine Ward, daughter of his deceased nephew Charles Clark, who in turn was a son of Caroline Clark, are both entitled to a one-twelfth share of the entire bequest.

The respective heirs of the two sisters of the testator take in accordance with the provisions of the act of 1914, chapter 47, page 71, section III (Cum. Supp. Comp. Stat., p. 2629, § 146-169 III), which is, in effect, similar to the provisions of the statute in force at this time. It is as follows: “If there be no husband or widow as the case may be, then all of the said estate to be distributed equally to and among the children; and in case there be no child, nor any legal representative of any child * *

Elden Jennison, only child of-Ann Mary Jennison, takes one-third of the entire bequest by virtue of being her heir.

Alice Pratt, daughter of Caroline Clark, takes one-half of one-third of one-third of the entire estate by virtue of being one of the heirs of Caroline Clark. Josephine Ward as the sole child of a deceased son of Caroline Clark is entitled to the remaining one-half of the one-third of one-third which goes to the heirs of Caroline Clark.

Reducing all the various rights of the heirs of testator’s brother and two sisters to this bequest to a common denominator, Elden Jennison is entitled to one-half of the entire bequest. Alice Pratt is entitled to one-fourth of the entire bequest and Josephine Ward is entitled to one-fourth of the entire bequest.


source: Caselaw Access Project

author: Pope, D. C. J.

license: Public Domain

text:
    First District Court of Somerset County.
    PLAINFIELD MOTOR COMPANY, PLAINTIFF, v. MARIE SALAMON, DEFENDANT.
    Decided July 3, 1935.
    For the plaintiff, Richard B. Magner.

    For the defendant, Frederick I. Pelovitz.

   Pope, D. C. J.

The plaintiff sold defendant an electric refrigerator on a conditional sales contract. Upon default in making payments, the article was repossessed. Less than fifty per cent, having been paid,‘the seller elected to resell for the account of the buyer. The sale having produced less than the amount due on the contract, this action is to recover the deficiency. Uotice of sale was sent to defendant by registered mail to her proper address. She having refused to accept the registered letter, it was returned to the plaintiff. The sale took place fifteen days after the goods were retaken.

Defendant’s motion for a direction and judgment is submitted and rested upon three grounds: (1) That plaintiff failed to give notice as required by the statute; (2) that even if the attempt to give notice by registered mail (which defendant refused to accept), was a compliance with the statute, it was mailed before the expiration of the ten days redemption period fixed by section 19 of the Uniform Conditional Sales act (Pamph. L. 1919, ch. 210, p. 461 (at p. 468); Cum. Supp. Comp. Stat. 1911-1924, p. 3134, § 182-105), and was, for that reason, ineffective, and (3) plaintiff was obliged to wait until the expiration of the ten days redemption period and then give ten days notice of a sale to he held after twenty days from the date of retaking.

The first reason advanced was practically disposed of at the time of argument for a nonsuit, when I held that the section referred to only requires—“the seller shall give to the buyer not less than ten days written notice of the sale, either personally or by registered mail.” Plaintiff complied with this requirement and defendant will not now be heard to say she didn’t receive notice because she refused to accept the registered letter. Indeed, counsel for defendant upon learning of defendant’s refusal to accept the letter frankly conceded this to be correct.

The remaining reasons are interdependent and will be treated together. Whether the two ten days periods are intended to run consecutively or may run concurrently, is a question which seems never to have been passed upon by our appellate courts, if so, the decision has escaped the diligence of both counsel and the court as well.

Counsel have called my attention to cases by the Appellate Divisions of Yew York State (Freeman v. Engal (N. Y.), 185 App. Div. 218, which was followed in Strickland v. Hare & Chase (N. Y.), 217 Id. 196, and Alvin Transport v. Fiske Discount Corp., 152 N. Y. Misc. 401), in construing a similar provision; it was held—the statute did not require “postponing the giving of notice of sale to the expiration of the first thirty days period,” that being the period allowed for redemption by the Yew York act at that time. The defendant cites Uptown Transportation Co. v. Fiske Discount Corp., 150 N. Y. Misc. 829. This branch refused to subscribe to the conclusions of the Fourth Department in Freeman v. Engel, and held, that the redemption period must expire before notice of sale is given. The reasoning seems to be that the words, “if the buyer does not redeem,” express a legislative intent that the exemption period must expire before the property can be advertised for sale. Thus, we have a sharp conflict between the appellate departments, and none of the cases cited seems to have reached the Court of Appeals. In this situation I am forced to rely upon my own reasoning.

A careful study of the act has led me to these conclusions: The buyer has until midnight of the tenth day in which to redeem, and no sale can be held in any event sooner than the eleventh day after retaking exclusive of the day of retaking. That the two ten-days periods mentioned in section 19 of the act may run concurrently, and that notice of sale given within the redemption period, the sale to be held not sooner than the eleventh day after retaking, is a substantial compliance with the requirements of the act. Of course, the giving of notice or advertising the sale would not deprive the buyer of the right to redeem. This is a chance the seller would have to take, and probably he could not add costs of advertising to the bill of expense and demand it of the buyer.

The Uniform Conditional Sales act was drafted by a commission of able lawyers after most careful consideration of the remedies to be accomplished. The welfare of the buyer was given especial attention and every reasonable safeguard erected and embodied therein for his protection. Its primary purpose seems to be to protect the buyer from imposition and loss. And while it is to be construed with this object in mind the court cannot read into the statute something the legislature omitted.

After retaking, if there is to be a resale, it must be held within thirty days. Had the authors of this act intended the seller to wait until the expiration of the redemption period before giving notice of sale, it would have been so easy for them to have added—“if the buyer fails to redeem within ten days the seller shall give ten days notice, &e.or other appropriate language. The act is very specific in its requirements, and it does not seem reasonable to suppose, the framers of this law, zealous as they were of the interests of the buyer, could have overlooked such an important feature, if it was so intended, nor is it reasonable to believe that our legislature would have passed it by.

Heither does there seem to be in the statute any reason apparent for such a construction. The buyer would gain nothing by the delay as he could not redeem and thus prevent a sale after the expiration of the tenth day. Eather it would be to his disadvantage because storage and perhaps other charges would accumulate, increasing his liability in case of deficiency. Just how solicitous the framers were of the buyers’ welfare is manifested by a perusal of its sections and particularly of sections 25, 26 and 29. Cum. Supp. Comp. Stat. 1911-1924, pp. 3135, 3136, §§ 182-111, 112, 115.

Being unable to find anything in the statute to justify the construction that the seller must wait until the expiration of the ten days redemption period before he gives to the buyer the prescribed ten days notice of sale, I conclude that this may be done within the redemption period providing full ten days notice be given of a sale to take place not sooner than the eleventh day after retaking.

The motion for a direction and judgment for the defendant will be denied and judgment awarded the plaintiff.


author: Turp, C. P. J.

text:
    Mercer County Court of Common Pleas.
    DOMINICK FURFERI, PETITIONER-APPELLEE, v. PENNSYLVANIA RAILROAD COMPANY, RESPONDENT-APPELLANT.
    Decided July 15, 1935.
    Por the petitioner, Felcone Felcone.

    Por the respondent, W. Holt Apgar.

   Turp, C. P. J.

This matter is on appeal from a judgment of the workmen’s compensation bureau. Carmelia Purferi, petitioner, is the widow of Pietro Purferi, and the action was brought for compensation for his death alleged to have been caused by an accident which occurred on August 15th, 1933, while the decedent was employed by the Pennsylvania Railroad Company. The matter presents two questions for decision, namely, (1) whether or not decedent was engaged in interstate commerce at the time of the alleged accident, and if not, then (2) whether or not the alleged accident is compensable under the Workmen’s Compensation act.

Decedent was working for the Pennsylvania Railroad Company, respondent-appellant, hereinafter referred to as appellant, at the time of the alleged accident. Specifically he was unloading ties from a car standing on a track to the ground. These ties had been moved on the car from Morrisville, Pennsylvania, to the barracks yard of appellant in Trenton, New Jersey, and the car was kept for several days on a work track. Eventually, the yardmaster wanted the car released, and the car was released by having the ties unloaded. They were unloaded in a part of the yard which was used more or less for storage purposes, inasmuch as it was an open space and a handy spot to take material. While engaged in unloading these ties the decedent became sick and had pains about the region of his stomach apparently, and had to go home before the end of the day’s work. A short time thereafter he died from a strangulated hernia. Either the same day that the ties were being unloaded or the next day, the foreman ordered some of these ties to be placed under number 5 track, which is a track over which trains engaged in interstate transportation pass, and some ties were so placed the next day.

The matter was first argued before this court in the absence of counsel for the appellant and the court affirmed the judgment of the workmen’s compensation bureau. Thereafter upon motion of counsel for appellant a rehearing was allowed by the court and was subsequently had and both counsel argued the matter orally and have presented briefs. Practically the entire argument on the rehearing in behalf of appellant was directed to the interstate commerce phase of the case, and two recent cases decided by the New Jersey Supreme Court, namely, Rossi v. Pennsylvania Railroad Co., 115 N. J. L. 1; 178 Atl. Rep. 77, and Martin v. Central Railroad Company of New Jersey, 115 N. J. L. 11; 178 Atl. Rep. 82, were stressed. Counsel stated frankly that no reliance was placed upon the fact that the ties originally came from Morrisville, Pennsylvania, outside of this state, to the State of New Jersey, but contended that the ties were being unloaded so as to be available for use in repairing track number 5, and that, therefore, decedent was engaged in interstate commerce. The test of employment in interstate commerce, within the intendment of the federal statute, is this: was the employe at the time of the injury engaged in interstate transportation or in work so closely related to it as to be practically a part of it. Careful consideration has been given to the cases above mentioned decided by the Supreme Court of New Jersey and also the decision of the United States Supreme Court in Pedersen v. Delaware, Lackawanna and Western Railroad Co., 229 U. S. 146; 33 S. Ct. 648.

The court finds as a matter of fact that these ties were not brought from the State of Pennsylvania specifically for the purpose of being put under track number 5, nor were they being unloaded at the time the decedent was injured for the express purpose of being used only under track number 5. They were being unloaded for storage purposes to be used as needed thereafter. The case, therefore, is different from the Pedersen case in the United States Supreme Court where the material which was to be used in the repair of a bridge was being carried to the bridge for the purpose of being used therein, and in the opinion of this court the transaction involved here is one step removed therefrom. The situation in the case at bar is more nearly analogous to the situations referred to by Mr. Justice Heher in the Eossi and Martin cases, supra, wherein he cites cases which hold the employment not to be in interstate commerce and particularly to the cases holding that one engaged in conveying to or depositing in storage bins coal to be used by locomotives engaged in interstate commerce is not within the federal statute. Martin v. Central Railroad Company of New Jersey, 115 N. J. L. 11 (at p. 16); 178 Atl. Rep. 82.

If decedent had been injured while moving one of these ties from the pile, after they were unloaded from the car, to track number 5, then undoubtedly the decedent would have been engaged in interstate commerce, but at the time he was injured he was merely unloading the ties and storing them in the storage yard for the time being.

The court, therefore, holds that decedent was not engaged in interstate commerce at the time he was injured and, therefore, that the case falls within the New Jersey Workmen’s Compensation act. A case very similar to this is that of Sailor v. Missouri Pacific Railroad, 18 S. W. Rep. (2d) 82.

With respect to whether or not the alleged accident is compensable under the Workmen’s Compensation act, there seems to be no case in New Jersey directly in point. Counsel for appellant contends it is a regular hernia case and should fall within paragraph II (x) of the act of 1911, chapter 95, as amended, Pamph. L. 1919, ch. 93 (Cum. Supp. Comp. Stat. 1911-1925, p. 3874, § **236-11 (x), and that the case is not compensible because the provisions of that paragraph were not complied with. If the case falls within this paragraph, counsel for appellant would undoubtedly be correct. The case, however, is not brought for death caused by a newly developed hernia, but for death caused by an aggravation to an already existing hernia; in other words for death caused by aggravation of a pre-existing condition.

Legislative intent in enacting paragraph II (x), supra, apparently was for the purpose of preventing frauds being worked upon employers by employes claiming to have been injured and a hernia developed, and for that purpose hernia is defined, and it is only when the hernia is caused and certain developments take place promptly that hernia, itself, is compensable. However, here the man had a hernia for several years and the court finds from the medical and other testimony submitted that the hernia became caught on the day of the accident by reason of the work which the man was doing and thereafter the hernia became strangulated causing the man’s death. In the court’s opinion this is analogous to other cases involving the Workmen’s Compensation act where the courts have held cases compensable where a pre-existing condition has been aggravated by an accident and that the case is, therefore, compensable. It also falls squarely within the case of Tragle v. Hollis Chocolate Co., 169 Atl. Rep. 472, decided by the Superior Court of Pennsylvania.

The judgment of the workmen’s compensation bureau is, therefore, affirmed, with costs to be taxed.


author: Caeerey, C. C. J.

text:
    Bergen County Circuit Court.
    FRANK CAMPBELL, PLAINTIFF, v. CITY OF HACKENSACK, DEFENDANT.
    Decided July 15, 1935.
    Bor the plaintiff, DeTurch & West.

    Bor the defendant, Donald M. Waesche.

   Caeerey, C. C. J.

This is an application to file an amended complaint. By this complaint the plaintiff seeks to recover against the defendant for work, labor and services rendered on the basis of quantum meruit. The suit as originally instituted was predicated upon the theory of a contract by force of a resolution authorizing the plaintiff to act as city engineer. The case was tried and a verdict rendered in favor of the plaintiff, which was subsequently reversed by the Court of Errors and Appeals on the ground that parol evidence was inadmissible to establish the allegedly lost or non-recorded resolution.

The amended complaint sets up as a cause' of action the same services claimed in the first suit. Thé objection raised as to the acceptance of this amended complaint is that a new cause of action is attempted to be pleaded. However, as I see it, no new cause of action is stated. What the plaintiff is asking for is compensation for the work which he alleges was rendered to the city of Hackensack. In some of the counts the plaintiff is seeking to recover for compensation which would be ordinarily barred by the statute of limitations. However, this will not affect plaintiff’s right to amend.

Chancellor Campbell, in a very recent case of Pellegrino Magliaro v. Modern Homes, Inc., 115 N. J. L. 151; 178 Atl. Rep. 733, lays down the rule:

“In amendments to complaints, after the statute of limitations has run against plaintiff’s cause of action, fit is quite generally held that if the identity of the transaction forming the same cause of action originally declared upon is adhered to, an amendment is not ordinarily regarded as substantially changing the plaintiff’s claim or stating a new or substantially different cause of action. So an amendment will not, as a rule, be held to state a new cause of action if the facts alleged show, substantially, the same wrong with respect to the same transaction, or, if it is the same matter more fully and differently laid, or, if the gist of the action, or the subject of the controversy remains the same; and this is true although the form of the liability asserted, or the alleged incidents of the transaction, may be different. Technical rules will not be applied in determining whether the cause of action stated in the original and amended pleadings are identical, since, in the strict sense, almost any amendment may be said to change the original cause of action.’ ”

See, also, New Jersey Law Journal, issue of June 6th, 1935. 58 N. J. L. J. 185.

On the authority of this opinion and the cases cited therein the annexed amended complaint may be filed.


author: Per Curiam.

text:
    GERTRUDE BRADLEY, PROSECUTRIX, v. THOMAS L. ZIMMERMAN, Jr., JUDGE OF THE JUVENILE AND DOMESTIC RELATIONS COURT IN AND FOR THE COUNTY OF BERGEN, AND ROBERT AYLING, RESPONDENTS.
    Argued May 8, 1935
    Decided July 22, 1935.
    Before Justices Parker, Case and Bodine.
    Por the prosecutrix, Nathan J. Littaner (Georg.e J. Kaplan, of counsel).
    Por the respondents, Walter G. Winne.

   Per Curiam.

A writ of certiorari issued to review the determination of the Juvenile and Domestic Relations Court in and for the county of Bergen on an application by Robert Ayling to compel Mrs. Gertrude Bradley to contribute to his support. The proceeding was based on section 74 of the revised Poor act, “An act for the settlement and relief of the poor, and providing for municipal, county or joint county relief, excepting from county or joint county relief, certain municipalities, Revision of 1924,” being chapter 132 (Pamph. L. 1924; Cum. Supp. Comp. Stat. 1911-1924, p. 2732, § 161-24), as amended by chapter 238, Pamph. L. 1930; Cum. Supp. Comp. Stat. 1925-1930, p. 1398, § 161-197. That section reads in part as follows:

“The father and the grandfather, mother and grandmother, the children and grandchildren, husband and wife, severally and respectively, of every poor, old, blind, lame or impotent person or other poor person or child not able to work, being of sufficient ability, shall at his, her or their charges and expense relieve and maintain every such poor person or child as aforesaid in such manner as the overseer of the poor shall order, or the court, upon its own initiative or the information of any person, after notice to such person or persons and hearing the said overseer, may so order.”

The Juvenile and Domestic Delations Court directed the mother, Mrs. Bradley, to pay the sum of two dollars per week toward the support of Ayling during the time that he “remained so ill that he was unable to work.”

The proofs disclose that Ayling is now thirty-four years of age; that during the lifetime of his blind father he had run away from his home and had refused to help towards the family expense; that the father had subsequently died and the mother, after being supported for a time by her remaining sons, had recently remarried; that the mother had variously assisted Ayling, on one occasion by paying his way home from Minnesota and on another by fitting him out with a complete new outfit of clothing; that Mrs. Bradley now has a savings bank deposit of $5 and no income other than that she receives weekly from her present husband $30 with which to take care of certain household expenses for herself and her husband and the latter’s five children.

The first, second and third points advanced by the appellant are substantially the same, namely, that there is no proof that she is of sufficient ability to meet the maintenance payments directed by the court. We think that the point is well made. The order upon Mrs. Bradley is in effect a charge upon her present husband who is not related to, and is under no liability to support or contribute toward the support of, Eobert Ayling. There is no finding, or factual foundation upon which to base a finding, that Mrs. Bradley, after the expenditures necessary for the operation of her husband’s household, has a surplus which may be treated as her personal income.

Points four, five and six raise jurisdictional questions which it is unnecessary to consider.

The order under review will be vacated, without costs.


text:
    BEACH CONSTRUCTION COMPANY, PROSECUTOR, v. JOHN L. SULLIVAN, DEFENDANT.
    Submitted May term, 1935
    Decided July 22, 1935.
    Before Justices Parker, Case and Bodine.
    Por the prosecutor, Edwin J. O’Brien.

    Por the defendant, Thomas F. Shebell.

   Per Curiam.

Sullivan, unassisted, was in the act of lifting a radiator of more than three hundred pounds weight. He experienced a slight blow from the radiator, felt a sharp stinging pain in the location of the appendix, fell to the floor where he remained in agony for about ten minutes, was placed in bed for a few hours, then taken to the hospital and there, the next morning, was operated upon for appendicitis. That the lifting of the radiator was in the course of his employment and that, when operated upon, he actually had an acute appendicitis are accepted facts.

Prosecutor contends that the radiator incident was neither the underlying nor the provoking cause of the appendicitis. The deputy commissioner, sitting for the workmen’s compensation bureau, found that Sullivan had not carried the burden of proving the affirmative of that proposition and therefore dismissed the application for compensation. The Common Pleas, on appeal, found to the contrary and granted temporary compensation from January 31st, 1933, to June 5th, 1933, together with medical and hospital expenses. The dispute is factual and there are proofs both ways. We have reviewed the testimony and find substantial support, including expert medical testimony, for the judgment in the Common Pleas. The proofs sustain the finding in that court.

It is next said that compensation over too long time was allowed; and the proofs are that from the beginning of, the disability on January 31st, 1933, until March 20th, 1933, Sullivan was paid his full wage. It is also in proof that Sullivan used $50 of this money to pay men for doing his work during the early period of his incapacity. Money paid by the employer and disbursed for the employer’s uses is not in satisfaction of disability payments allowed by the statute. The net that remained in Sullivan’s hands after paying his substitutes should be credited in reduction of the order.

Prosecutor’s final point is that the court below erred in its allowance for hospital and medical expenses for the reason that the emplojrer had not authorized the operation and had neither been requested to supply medical aid nor refused to do so. Sullivan’s superior—one Tice, manager of the apartment house where Sullivan was employed—-was informed of the accident immediately after it happened, and drove Sullivan to the hospital. Considering the emergent need for surgical treatment we are perplexed as to what other notification or solicitation was possible. The provisions of section 14 of the Workmen’s Compensation act as amended by chapter 149 (Pamph. L. 1928; Cum. Supp. Comp. Stat. 1925-1930, p. 1981, § **236-14), were, we think} complied with.

The record will be remitted to the pleas and the order will be amended to give the credit above mentioned; without costs on this certiorari proceeding.


author: Case, J.

text:
    ELIZABETH STREEPER, PROSECUTRIX, v. AUDITORIUM KENNEL CLUB, CITY OF ATLANTIC CITY, HARRY BACHARACH, PHILIP E. M. THOMPSON, BERTRAM E. WHITMAN, RESPONDENTS.
    Argued May 10, 1935
    Decided July 22, 1935.
    Before Justices Parker, Case and Bodine.
    For the prosecutrix, Alexander Blatt (Milford J. Meyer, of the Pennsylvania bar).
    For the respondents city of Atlantic City, Harry Bacharach,. Philip E. M. Thompson and Bertram E. Whitman, Anthony J.- Siracusa.

    For the respondent Auditorium Kennel Club, Emerson Richards.

   The opinion of the court was delivered by

Case, J.

The writ challenges the legality of a lease made on February 27th, 1935, wherein the city of Atlantic City rented the main portion of its convention hall to Auditorium Kennel Club for the conducting, by the lessee, of dog races under the pari-mutuel system.

Kespondents present three points in defense: First, that there is no proof of an illegal object; second, that prosecutrix presents no argument for the allowance of the writ; third, that the prosecutrix is not qualified to prosecute the writ.

The pari-mutuel system is too well and too generally known to require elaborate description. Pari-mutuel is sometimes spelled thus, as a hyphenated word, and sometimes appears as two words and with variant spelling. Webster’s New International Dictionary briefly defines pari mutuel or paris mutueis as “a form of betting on horses in which those who bet on the winning horse share the total stakes, less a small per cent, to the management.” See, also, title “Paris mutueis or Paris mutuals,” 27 C. J. 976, and title “French Pool,” 27 C. J. 987. The system was long ago classified, and condemned, as a lottery by the courts of this state. State v. Lovell, 39 N. J. L. 458. It is immaterial that in the case before us the racing and attendant betting concerned dogs rather than horses. Chapters 56 (N. J. Stat. Annual 1934, § *136-4600 (95, 96) and 179 (N. J. Stat. Annual 1934, § 7-212 to 217) of the laws of 1934, under the provisions of wdiich the lease was made, have been declared unconstitutional by the Court of Errors and Appeals; as has, also, chapter 391 of the laws of 1933. N. J. Stat. Annual 1934, § 85-8. Hyman v. Long Branch Kennel Club, 115 Id. 123; 179 Atl. Rep. 105. The object of the lease agreement was palpably unlawful.

Prosecutrix is a citizen and taxpayer of the city of Atlantic City. There wras no proof introduced against the status of the prosecutrix; and after the allowance of a writ of certiorari the status will be presumed in the absence of proof to the contrary. Levy v. Elizabeth, 81 N. J. L. 643; 80 Atl. Rep. 498.

The argument upon which respondents rest their second point, and their remaining points as well, has been adversely determined by this court in Gimbel v. Peabody, 114 N. J. L. 574; 178 Atl. Rep. 62.

The motion to vacate the allocatur heard as a part of the argument is denied.

The proceedings brought up for review are set aside, with costs.


author: Pee Ctjkiam.

text:
    ANTHONY J. PORSKIEVIES, PROSECUTOR, v. BOROUGH OF ATLANTIC HIGHLANDS ET AL., DEFENDANTS.
    Submitted May 17, 1935
    Decided July 26, 1935.
    Before Justices Pabkek, Case and Bodine.
    Por the prosecutor, Theodore D. Parsons and Theodore J. Labrecque.

    Por the defendant borough, J. Frank Weigand.

   Pee Ctjkiam.

The writ in this case, tested December 8th, 1934, and probably allowed on that date, calls for a borough ordinance of September 11th, 1934, providing for repairs and improvements in the local sewage and water systems, and for a contract of the borough with defendant Fairbanks Morse Company pursuant thereto. Various defects, procedural and otherwise, are urged as reasons for setting aside the ordinance and contract, but we have not considered them because of what we deem the obvious laches of the prosecutor.

The ordinance passed first and second readings on August 29th, at a meeting claimed to be irregular. It was then advertised to be brought up for final passage on September 11th. Specifications for a pumping plant were adopted with directions to advertise for proposals to be submitted September 4th. All this was public property through advertisement in the local papers. The ordinance was adopted on September 11th. No one had taken any action in opposition. The contract was awarded on October 16th, and still no one had moved. On October 23d prosecutor threatened suit, but no legal step was taken until some date not appearing, but probably in late November or early December, when prosecutor through counsel gave notice of application December 8th for a rule to show cause why a writ should not issue. The writ was allowed about December 8th (it is tested as of that date as we have said) and was served on the borough December 13th, and on the contractors for the pumping plant on the 21st. By that time the engines and pumps, of special design, had been constructed and were ready to ship to the place where they were to be installed. The rule is clear that in matters of this kind the attack must be reasonably prompt. Carver v. Camden, 78 N. J. L. 293; 73 Atl. Rep. 47; Duffy v. Jersey City, 81 N. J. L. 114; 79 Atl. Rep. 603; Wood v. Millville, 85 N. J. L. 734; 90 Atl. Rep. 379; Carr v. Merchantville, 102 N. J. L. 553; 142 Atl. Rep. 1.

The writ will be dismissed, with costs.


author: Pee Ctjeiam. -

text:
    JOHN K. P. VOIGHT, PETITIONER-RESPONDENT, v. McEWAN BROS., PROSECUTOR.
    Argued May 7, 1935
    Decided July 22, 1935.
    Before Justices Parker, Case and Bodike.
    For the petitioner-respondent, Herman M. Cone.

    For the prosecutor, Clarence B. Tippett.

   Pee Ctjeiam. -

Voight, an employe of McEwan Bros., filed a petition for compensation upon a claim of accidental injury alleged to have been suffered by him from an accident arising out of and in the course of his employment. A finding in Voight’s favor was made in the workmen’s compensation bureau, and upon appeal a judgment to like effect was entered in the Morris Common Pleas. The writ brings up the judgment in the pleas.

Voight was employed as electrician’s helper, and his case is that on Sunday, December 15th, 1929, as he was working upon some electric wires, he received a shock of electricity and as a result of that shock developed hematomyelia and suffered in consequence an apathy or wasting away of the muscles of his hands and arms.

The points presented on the employer’s brief are, first, that the petitioner did not meet with the accident of which he complains; second, that statutory notice of injury was not given to the employer, and third, that the hematomyelia did not result from the alleged electric shock. These questions constitute factual disputes upon which there is evidence pro and con and which have been resolved by both the workmen’s compensation bureau and the Court of Common Pleas against the employer. When two independent and distinct tribunals have examined the facts and reached a like result, a conclusion so formed should not be lightly disturbed by this court. Mountain Ice Co. v. Durkin, 6 N. J. Mis. R. 1111; 144 Atl. Rep. 6; affirmed, 105 N. J. L. 636; 147 Atl. Rep. 451. There is evidence to sustain the findings below.

The writ of ceriioram will be dismissed, with costs.


text:
    PETER SEMANSKY, PROSECUTOR, v. THE COMMON PLEAS COURT OF ESSEX COUNTY AND RICHARD H. THIELE, RECORDER OF THE TOWNSHIP OF MAPLEWOOD, RESPONDENTS. LENA ALBRIGHT, PROSECUTRIX, v. THE COMMON PLEAS COURT OF ESSEX COUNTY, AND RICHARD H. THIELE, RECORDER OF THE TOWNSHIP OF MAPLEWOOD, RESPONDENTS. ALICE ROSENDAHL, PROSECUTRIX, v. THE COMMON PLEAS COURT OF ESSEX COUNTY AND RICHARD H. THIELE, RECORDER OF THE TOWNSHIP OF MAPLEWOOD, RESPONDENTS. ELLA HERING, PROSECUTRIX, v. THE COMMON PLEAS COURT OF ESSEX COUNTY AND RICHARD H. THIELE, RECORDER OF THE TOWNSHIP OF MAPLEWOOD, RESPONDENTS.
    Argued May 7, 1935
    Decided July 22, 1935.
    Before Justices Parker, Case and Bodine.
    For the prosecutors, Jacob 8. Karlcus.

    For the respondents, Abram II. Cornish and Ervin 8. Fulop.

   The opinion of the court was delivered by

Case, J.

All of the above entitled cases involve the same issue and by stipulation of counsel are argued as one. Prosecutors were respectively charged with and convicted of the offense of canvassing from house to house in the township of Maplewood without first having reported to and received a written permit from the chief of police as required by the ordinance recited at some length by Mr. Justice Perskie in Dziatkiewicz v. Township of Maplewood, 115 N. J. L. 37; 178 Atl. Rep. 205.

The single point presented on the appeal is that the prosecutors in going from house to house, handing out pamphlets and suggesting to the recipients that if the latter so desired the canvasser would accept a contribution, were engaged in an act of religious service, and that the ordinance is therefore not to be understood as applicable to prosecutors or, if held to be applicable, is contrary to the constitutional provision that “no person shall be deprived of the inestimable privilege of worshiping Almighty God in a manner agreeable to the dictates of his own conscience.” We are unable, and counsel for prosecutors does not attempt, to distinguish the facts, the issue and the determination of this case from those in Dziatkiewicz v. Maplewood, supra. That determination, with the reasoning of which we agree, leads to a dismissal of the writs in the instant case.

In the absence of pertinent and favorable judicial determination prosecutors quote extensively from the Old and Mew Testaments. The ordinance requirement is clearly directed toward a police effort to have knowledge of those who go from house to house and to have assurance that such persons are of good repute. Our study of the Scriptures leads us to the conclusion that the teachings thereof are very much to the effect that citizens should render themselves accountable to temporal authority in all matters so reasonable as that which is before us. Asked whether tribute should be given unto Caesar, the Master said, “render therefore unto Caesar the things which be Caesar’s, and unto God the things which be God’s.” Luke 20:25. To say that obstinate refusal to seek the permit required by the ordinance is an act of worship is to say that disobedience of any statutory or ordinance provision may be so designated. "We find no support for the argument that the ordinance is not applicable to the prosecutors or, so applied, is unconstitutional.

The writs are dismissed, with costs.


author: Pee Cukiam.

text:
    R. MILTON FULLE, RELATOR, v. WHITE METAL MANUFACTURING COMPANY ET AL., RESPONDENTS.
    Submitted January 25, 1935
    Decided July 31, 1935.
    Before Justices Lloyd, Case and Donges.
    For the relator, Lum, Tamblyn & Fairlee and William A. Wachenfeld.

    For the respondents, Pitney, Hardin At SMnner.

   Pee Cukiam.

This is an application by a stockholder for an alternative or peremptory writ of mandamus to compel the respondent corporation White Metal Manufacturing Company, and its treasurer, Hubert Richter, to permit an examination of the books of the corporation by relator and his accountant. The relator is ihe owner of one hundred and thirty-nine shares of the capital stock of the respondent corporation, which he acquired from his father, who was president of the corporation from 1919 to May, 1932. At that time, the father retired and relator was elected a director and secretary of the corporation. He was also given a contract for a two-year period, at a salary of $18,000 per year, as he testified: “to devote the major portion of my time to the promotion of sales.” He was paid the salary for the two years, during which time, he testified: "Q. Now, let me ask you again, as a result of your devoting some sixty per cent, of your time, as you say, to the promotion of sales for a period of two years, what was the amount of gross business that you brought to the company as a result of your efforts ? A. Very small amount. I should not say in the aggregate more than a thousand dollars gross.” His explanation of his failure to make more sales was that the prices given him were too high. The gross sales of the company for the period of relator’s contract were $1,349,000.

In May, 1934, relator’s contract of employment was not renewed, and, thereupon, it is apparent serious differences arose between relator and the other two directors, who were Colonel Eumbough, who succeeded relator’s father as president, and Mr. Eichter, the treasurer. These were the active persons in the management of the company. These differences led to offers by relator to sell his stock to the other directors, but no agreement as to price was ever arrived at.

It appears beyond question that the business is profitable and the only real criticism of the management by relator is that the respondent corporation sold to one of its customers at less than cost. This is denied by the officers of the corporation and there appears in the record nothing to support such statement. One purpose of relator’s demand for inspection of the books is probably disclosed by his answer to the following question on his direct examination: "Q. Have you any other purpose in mind in making or asking for an inspection and examination of the books, other than what you have told us? A. Well, in all frankness, I might add that it would lead—such an examination would lead to a more equitable determination of what our family’s stock interest is worth.”

A careful reading of the record leads to the conclusion that the dissatisfaction of relator arose when his contract was not renewed, and that from that date, he entered upon a course of objection designed to bring about his re-emplojonent or the purchase of his family’s stock at a high price.

It appears that there have been annual audits of the books made by a reputable firm of accountants and annual reports based thereon, all of which have been available to the relator.

We think that the showing by relator is not such as to entitle him to the extraordinary aid of this court. The motive behind this action appears to be animus engendered by separation from a large salary. The probable benefit to the corporation from such an examination does not appear. The embarrassment to the conduct of the corporation business will not be offset by any substantial benefit. In this situation, the relator should not have his application granted.

It is the settled law of this state that the power to order an inspection of the books of a corporation is so great, and its exercise may have such ruinous consequences, that it will be ordered only when “a case is presented which indicates not only a Iona fide desire to safeguard the interests of all stockholders but a probability that the interests of all will be served by the proposed investigation.” In re De Vengoechea, 86 N. J. L. 35; 91 Atl. Rep. 314; Vernam v. Scott, 12 N. J. Mis. R. 177; 171 Atl. Rep. 171.

The rule is discharged, and the application for a writ of mandamus is denied, with costs.


author: Per Curiam:.

text:
    HOWARD JOHNSON, PROSECUTOR, v. CITY OF WILDWOOD, DORIS W. BRADWAY, COMMISSIONER OF PUBLIC SAFETY, ET AL., DEFENDANTS.
    Argued May 7, 1935
    Decided July 24, 1935.

      Before Justices Parker, Case and Bodine.
    For the prosecutor, E. G. 0. Bleakly.

    For the defendants, William George.

   Per Curiam:.

The prosecutor, a police officer of Wildwood, apparently a patrolman, was tried before the commissioner of public safety, who was also the mayor, on written charges of neglect of duty and conduct unbecoming an officer, found guilty, and dismissed from the force. To review this dismissal he sued out the present writ.

We think it safe to say that if the filed reasons had stated certain grounds appearing plainly on the record, and to be presently noticed, this court would have little difficulty in setting aside the conviction and dismissal. The trial was disorderly throughout, as the transcript of the testimony plainly shows. Fundamentally, the specifications seem insufficient, as they allege without assigning any date, that prosecutor observed the presence of certain slot machines at specified places and willfully failed and neglected to report them; and when questioned why he had so omitted to report, said that they were on another man’s beat; also that he “did willfully make false and untrue statements to The chief of police,’ ” &c. The trial was in 1934, and it appeared that the dereliction, if any, was in 1932, when the chief of police who signed the complaint was not in office as such. But no objection was made to the charge and specification. What is before us is the transcript of a sort of go-as-you-please trial, with no substantial legal point now argued; based on anything raised below.

Taking up the reasons seriatim, the first reason is:

“The said complaint, the making thereof, the hearing thereof and the evidence submitted in support thereof, were based on political animosity and prejudice and the prosecutor was removed from office for political reasons.”

As to this, there is ground for suspicion, but the proof is in our estimation inadequate.

The second is:

“The prosecutor did not have a fair and impartial trial or a reasonable opportunity to make his defense to said charges.”

As to the first branch of this, it is covered by what has just been said. The second branch is without support; and no such point was made below. Prosecutor was represented by counsel, who went into the hearing without objection.

The third is:

“There was no competent or relevant evidence given at said hearing to support the charges made or to afford a rational basis for the dismissal of the prosecutor.”

Our examination of the testimony shows this to be without substance.

The fourth is:

“Prosecutor was found guilty of several matters not set forth in the charges and as to which no evidence was submitted at said hearing.”

This relates to comments of the mayor in pronouncing judgment and imposing sentence, touching alleged behavior of prosecutor at the trial. But there was no such charge considered, nor did the adjudication of guilt go outside the charges preferred.

Five and six (in general terms) :

Illegal testimony admitted for the prosecution, and legal testimony for the defense excluded.

We do not find any rulings on evidence specified as a ground of reversal. Some of them as discussed in support of reason 7, which is in substance that the mayor “acted in a biased, prejudiced, unfair and illegal manner, highly prejudicial to the rights of the prosecutor.” It may have been, and probably was, unfortunate that the mayor should have been concerned in certain side issues relating to the prosecutor; but the law laid on her the duty of presiding at the trial, and provided no substitute. After all, the question is whether the evidence supported the conviction. We think that it did.

Reason 8 is that no police department rules were put in evidence, and consequently no breach of them was shown. The first answer is that no such point was made at the trial; the second, that the duty of a police officer to suppress crime goes with the office and needs no code of rules.

Reason 9 is general illegality, and requires no discussion.

We find no sufficient ground of reversal properly raised, and the writ is therefore dismissed with costs.

Counsel for prosecutor called as a witness the mayor herself, who was sitting in judgment on the ease, and she refused to testify. We do not observe that this refusal is urged for error, but it may be well to note that the refusal is'fully supported by the cases of Crawford v. Hendee, 95 N. J. L. 372; 112 Atl. Rep. 668, and State v. DeMaio, 69 N. J. L. 590; 55 Atl. Rep. 644; affirmed, 70 N. J. L. 220; 58 Atl. Rep. 173.


text:
    FRANCES WENK, RELATOR, v. POLISH LADIES’ CIRCLE, RESPONDENT.
    Decided July 30, 1935.
    Heard by a single justice pursuant to the statute.
    For the relator, Salvatore F. La Corte.

    For the respondent, Norbert T. Burke.

   Case, J.

The relator was expelled from the respondent society. She charged that the expulsion was unlawful and sued out an alternative writ of mandamus to compel reinstatement. The return denied certain allegations of fact contained in the inducement in the writ, and relator joined issue. For the determination of the factual issues thus joined the case was sent to the Union Circuit for trial before a jury. The verdict returned by the jury was: “1. We, the jury, find that the relator was illegally and improperly expelled. 2. We, the jury, find the reinstatement of the relator to membership in the Polish Ladies’ Circle would tend to cause confusion, dissention and bring hardship upon it.” The relator thereupon asks for a peremptory writ of mandamus.

The difficulty is that the disputed facts have not been determined. Whether the expulsion was lawful depends upon how certain traversed allegations of fact are settled—such for instance as whether there were or were not charges laid against the relator by the respondent, whether the relator was notified of the charges, if made, and given an opportunity to defend herself against them, and whether she did in fact appear and present her defense against the charges or was prevented by the respondent from so doing. All of these questions were at issue. The legality of the expulsion, when these and other factual disputes are settled, will be determined by the court. The purpose of sending down a transcript of the record for trial at nisi prius is to obtain an ascertainment of the material facts by verdict of a jury under proper instructions of the trial judge. Freda v. Societa Di Mutuo, &c., Jersey City, 106 N. J. L. 17; 148 Atl. Rep. 204; Cummings v. Policemen's Pension, &c., Belmar, 109 N. J. L. 97; 160 Atl. Rep. 641. One of the functions of the alternative writ is to give the opposing party the benefit of a return and an opportunity for the ascertainment of the facts before judgment is pronounced. State, ex rel. Kelly v. Mayor, &c., of Paterson, 35 N. J. L. 196; Kenny v. Hudspeth, 59 Id. 504, 527; 37 Atl. Rep. 67; Freeland v. Sargeant, 6 N. J. Mis. R. 906; 143 Atl. Rep. 73. Jones v. Guttenberg, 66 N. J. L. 659, 51 Atl. Rep. 274, is an illustration. There the relators sought, by mandamus, to compel a municipality to issue certain of its bonds, and upon an alternative writ, return and replication, a factual issue was raised and sent down for trial—not whether the city had lawfully refused to issue the bonds but whether one of the factual reasons given by the city for its refusal, namely, that it did not owe the amount of debt charged against it, was true. So, here, the question was not whether the action of the society in expelling was lawful but what the factual foundation was.

The order sending the matter down did not specifically state the several questions to be determined. But the order was signed precisely as presented by the relator ex parle, and if it be inept she may not profit from the ensuing confusion. She made no effort to frame the questions either by stipulation, more definitive order or otherwise.

The issues of fact have not been settled sufficiently to enable the court to determine whether or not a peremptory writ should issue.


author: Masucci, D. C. J.

text:
    Second District Court of Essex County.
    THE SILENT WATCHMAN CORPORATION, PLAINTIFF, v. ALBERT KATZ, LAST KNOWN TO BE TRANSACTING BUSINESS UNDER THE NAME—THE CAPITOL OIL COMPANY, DEFENDANT.
    Decided August 5, 1935.
    For the plaintiff, Albert L. Halkin.

    For the defendant, Kapp Brothers (by Herman W. Kapp).

   Masucci, D. C. J.

This is a small claims suit in which the facts have been heard by a referee and wherein counsel for both parties have stipulated that the hearing be so heard for their convenience and without prejudice to a special appearance entered by the defendant. The legal question raised is to be disposed of by the court.

The defendant was served with a statutory notice or summons issued out of the Small Claims Division of this court. There is no question as to the mode or manner of service or that it did not substantially follow the form in the statute. See Pamph. L. 1926, p. 373, § 6; Cum. Supp. Comp. Stat. 1925-1930, p. 476, § 61-221g, or Eckman's District Court Practice (4th ed.) § 35-g.

It is contended that, as the writ was not issued in the name of “The State of New Jersey” that it is in violation of the provisions of section 3 of article VIII of the constitution of New Jersey of 1844, as amended 1 Comp. Stat., p. c. Ho briefs have been submitted. The case in point seems to be Lennig v. Newkirk, 7 N. J. L. J. 87. Mr. Justice Reed, in commenting upon a writ issued by a justice of the peace, was of the opinion that the constitutional provision applied only to some writs and not to all writs.

He said:

“* * * The objection to this process is based upon that part of the requirement of article VIII, section 3, of the constitution of this state, reading as follows: ‘All writs shall be in the name of the state.’

“In the constitution of 1776 the provision was ‘that all commissions granted by the governor or vice-president shall run thus: “The colony of New Jersey to A B and greeting,” and that all writs shall likewise run in the name of the colony.’

“I think it is obvious that the inducing cause of the enactment of these provisions was the dissolution of the allegiance to the British government in the first instance, and the change from a colony to a state government in the second instance. All writs before the revolution ran in the name of the king. The act of severance by the adoption of the colonial constitution by the provincial congress two days before the declaration of independence by the continental congress, required as a substitution for the discarded sovereignty a new sovereignty by a new name. The name ‘The Colony of New Jersey’ was substituted for the words ‘His Majesty.’ Then upon the organization of the state government the name of the State of Hew Jersey was substituted for that of the colony of New Jersey.

“I conclude, therefore, that the force to be given to the clause in the constitution is that all writs which, before the revolution, went in the name of the king, afterward should go in the name of the colony or state, and that only such processes as at common law were required to be in the name of the sovereign, now have to run in the name of the sovereign power of the state.”

The Small Claims Division of the District Court is a statutory tribunal, existing only since 1926-and its writs do not come within the purview of section 3 of article VIII of the constitution (1 Comp. Stat., p. c.), and the statutory notice or summons, otherwise good, is not void because it was not issued in the name of the state. A judgment of no cause of action will enter on the findings of fact contained in the referee’s report and filed in the cause.


text:
    SOL FRIEDMAN, PLAINTIFF-RESPONDENT, v. HENRY STEINHAUSER, TRADING AS SERVICE MOTOR COMPANY, DEFENDANT-APPELLANT.
    Argued May 7, 1935
    Decided August 7, 1935.
    Before Justices Trenchard, Heher and Perseie.
    Por the appellant, William V. Rosenkrans.

    Por the respondent, Samuel Heller.

   Per Curiam.

This appeal brings up for review a judgment of the District Court rendered by the judge, sitting without a jury, in favor of the plaintiff, in an action to recover damages for an injury sustained by the plaintiff whilst an invitee on the premises of the defendant where was conducted an automobile repair shop.

The trial now under review was the second trial of the case, a prior judgment in favor of the plaintiff having been set aside and the cause remitted for a new trial. 12 N. J. Mis. R. 167; 170 Atl. Rep. 630.

The defendant’s first point is that the court erred in refusing a jurjr trial. But we think this point is determined adversely to defendant’s contention in Lerner v. McDermott, 11 N. J. Mis. R. 99; 164 Atl. Rep. 864.

The defendant’s second point seems to be in effect that the court erred in taking into consideration, upon the trial and decision, his notes, or recollection of his notes, or his recollection of the testimony in the former trial.

We think there is substance in this contention. During the cross-examination of a witness for the defendant he was asked as to his alleged testimony at the former trial. He answered that he did not remember it. Thereupon the court said: “The court has notes of his previous testimony,” and the defendant objected to the use of such notes without more. Then the defendant, and without more, made a motion for a directed verdict and plaintiff said in reply: “When your honor said he had notes of the first trial, well, I did not think it necessary to proceed any further.” The court replied: “I cannot erase it from my mind,” to which defendant objected. Then followed the denial of defendant’s motion for a direction, and judgment for the plaintiff, to which defendant excepted.

Now, when we remember that this was a trial de novo, the impropriety of what appears to be the action of the judge, sitting as a jury, in treating as evidence his impression of the testimony in the same cause in a former trial becomes manifest. To allow a verdict or judgment reached in that manner to stand would establish a dangerous precedent, not only because it would be to ignore fundamental principles of judicial procedure, but also because it would leave the injured party remediless against unintentional or other errors or mistakes of the trial judge, for the apellate court could only conjecture what was in the judge’s mind.

We are therefore constrained to think that the judgment must be reversed.

Since there must be a new trial it may not be amiss to state that our impression is that it was not erroneous to permit the plaintiff to testify that he was invited to get on the running board of the car by the defendant’s foreman.

A further discussion of points made by the defendant seems inappropriate in .view of the conclusion we have reached.

The judgment will be reversed, and the cause remitted for a new trial, costs to await the event.


author:
John C. Wegnbk,
      Referee.

text:
    New Jersey Department of Labor, Workmen’s Compensation Bureau.
    A. DI CARVALLO, PETITIONER, v. G. DI NAPOLI, INCORPORATED, RESPONDENT.
    Decided August 1, 1935.
    For the petitioner, Robert Kasdin.

    For the respondent, Bdwin Joseph O’Brien.

   The above entitled matter came on for a hearing before me in the Hackensack court house on the 'loth day of July, 1935, and the 22d day of July, 1935, as the result of a petition filed by the petitioner through his attorney, Eobert Kasdin, Esquire, and an answer filed by the respondent through its attorney, Edwin Jos. O’Brien, Esquire. Petitioner sustained an injury to his foot while working in Suffern, New York, which is not denied by the respondent. Though the contention of the respondent, as set forth at the hearing, and the answer of the respondent is that petitioner was hired in New York, was injured while working in New York and that in addition thereto having brought his case before the New York compensation commission and having been represented by an attorney of his own choosing, whom he paid, and having accepted the benefits under the New York Compensation act, that said petitioner is estopped from recovering in his present suit, so the question in the case sub judice is one of jurisdiction. .

It is agreed that petitioner met with an accident arising out of and in the course of his employment. Accident occurred in New York State. Petitioner alleges he was hired in New Jersey.

Claim was adjudicated in regular manner' before a referee of the New York State compensation bureau. At the time of this hearing petitioner was represented by counsel.

At the trial it developed that petitioner was working upon an PWA project in which from the testimony of a representative of the federal re-employment service it was necessary, in order to obtain employment on this particular job, to be a resident of New York State for six months and register with the federal re-employment service.

Exhibit R-l reflects the fact that petitioner did so register under date of May 15th, 1935, and gave as his address Hill-burn, New York, and further stated he lived in New York State for five years.

Petitioner alleges that this procedure was merefy a matter of form in order to obtain employment, he was hired in New Jersey and lived in New Jersey during time of employment.

In view of the conduct of petitioner in: 1. Representing himself to be a resident of New York. 2. Submitting himself to the jurisdiction of the New York State compensation bureau. 3. Accepting compensation under that act is he estopped from now making application to the New Jersey State compensation bureau.

In In re Walsh’s Estate, 80 N. J. Eq. 565; 74 Atl. Rep. 563, it was held “where a person takes a certain position before a court and submits it to the court for decision he cannot afterward deny that which he admitted in the previous suit.”

In re Grattan Estate, 78 N. J. Eq. 225; 78 Atl. Rep. 813, held parties who affirm the validity of a decree of a court of another state to the extent of charging one with receipt of money paid under it, cannot deny its validity with respect to the character in which it was awarded him.

In my opinion from facts as stated petitioner has elected to accept compensation under the New York statute and from his conduct placed himself under the jurisdiction of that bureau is now estopped from repudiating benefits so received and if further relief is desired make application to the New York State compensation bureau for same.

I further find as a fact that the contract of hire and employment both were in New York State.

The petition is hereby dismissed.

John C. Wegnbk,

Referee.


author: Here, A. M.

text:
    Joseph L. Farden, petitioner, v. Mabel Hester Farden, defendant.
    [Decided November 2d, 1935.]

      Mr. Franlc G. Turner (Mr. Bernard M. Degheri), for the petitioner.

      Mr. Simon L. Fisch, for the defendant.
   Here, A. M.

The petition praj^s for a decree of divorce a vinculo on the ground of adultery, the charge being that the defendant on December 5th, 6th, 7th, 8th, 9th, 10th, 11th, 12th and 13th, 1931, committed adultery “at some place unknown to your petitioner with a person whose name is unknown to petitioner and whom petitioner is unable to describe,” and that thereafter the defendant became ill and was discovered to be suffering “from a sudden acute fresh attack of a vile and loathsome venereal disease, which disease she acquired and contracted through her adulterous relations between the dates of December 5th and December 13th, 1931.”

The answer denies adultery, and denies that the defendant suffered “from a sudden acute fresh attack of a vile and loathsome venereal disease.” It sets up that the defendant was discovered to be suffering from “a gonorrheal infection of long standing,” which was transmitted to her by the petitioner through sexual intercourse, the petitioner having been for a number of years afflicted with gonorrhea.

The defendant also counter-claims for separate maintenance on the ground of extreme cruelty, setting up sundry instances of alleged extreme cruelty practiced upon her by the petitioner, culminating in the charges of adultery brought against her by the petitioner, which she says were false charges, aggravated by his “calling her vile and indecent names, such as 'dirty rat,’ 'that she was worse than a dirty street bum/ that she was dower and rottener than the worst nigger in the world/ and in his communication to her of the venereal disease of gonorrhea,” whereby her health became greatly impaired, &c.; and charges that he is still afflicted with the disease and that it would be greatly prejudicial to her health to continue to cohabit with him. In his answer to the counter-claim the petitioner admits having accused his wife of adultery and having characterized her as charged, and admits having himself suffered from the disease of gonorrhea prior to his marriage, but alleges that he was cured of the disease and was not responsible for his wife’s infection, and further that she had never had the disease prior to December, 1931. He also denies that he has refused to support the defendant, as she charges.

On the issue of adultery the factual question is whether or not there is a reasonable possibility that the infection of the wife was transmitted by the husband: If there was such reasonable possibility, the husband’s suit must fail.

The petitioner is a practicing physician in Newark, and his marriage to defendant took place on October 4th, 1919. During all of their married life the parties have lived in Newark. Until 1928 their relations to each other were harmonious and their marriage happy. Difficulties then arose, due principally to the wife’s jealousy because of the husband’s apparently undue familiarity with a female patient. It is not necessary to determine whether such jealousy was justified, since the wife does not charge her husband with adultery nor does the husband charge the wife with extreme cruelty. Suffice it to say that the parties commenced to draw apart from then on, and that the husband commenced to chafe under the yoke of his marriage and showed on more than one occasion that a divorce from her would be welcome to him.

When the petitioner was about eighteen years of age he contracted the venereal disease known as gonorrhea. Apparently his infection was not promptly or efficiently treated, but he believed himself to be cured and married a nurse whom he had met in his army service. In 1918, after cohabitation with her, he came reinfected with the disease, and claiming (and perhaps believing) that the reinfection was contracted from her, secured a divorce from her in Maryland on the ground of adultery, the action being undefended.

The reinfection produced an acute and severe attack of the disease which incapacitated him for many weeks, ever since which time he has suffered from rheumatism. It was a fact issue in the case whether this rheumatism was caused by the continued presence of gonococci in his system. That he believes it might be so is proved, in my judgment, not only by his declarations to that effect, but by the character of the remedial measures adopted and pursued by him.

It is difficult to believe that after the experience which the petitioner had had, in view of his training and experience as a physician with considerable genito-urinary practice, he could have believed that it was safe for him to marry the defendant, as lie did on October 4th, 1919. Even though he was, or professed to be a disciple of that school of medicine which holds that a deep-seated infection such as his had been can bo positively pronounced cured on the basis of negative tests, still as a physician he was well aware of the Imposing medical authority to the contrary. The only conclusion possible Is that he recklessly exposed his wife to an infection which he knew or should have known was at least a reasonable possibility, using no contraceptives of prophylactics in his sexual relations with her, and taking no precautions to minimize the danger.

The defendant, a healthy and normal woman before her marriage to the petitioner, suffered during her marriage abdominal pains and other symptoms consistent with the presence of a gonococcal infection in her body. She was treated by the petitioner from time to time by applying tampons, a treatment indicated in cases of infection. Here again it is difficult to credit the petitioner’s claim that defendant could not have been suffering from a gonococcal infection. He certainly should have known or at least suspected it, as I believe he did.

In the early part of December, 1931, the defendant developed an acute salpingitis, due to gonococcal infection. It is conceded that the petitioner and defendant had had no sexual relations for several weeks prior to defendant’s illness, so that the petitioner could scarcely have infected his wife with a fresh case of gonorrhea, hut there is ample medical evidence in the case to justify the conclusion that the defendant’s infection, although acute, was not fresh, but an exascerbation of a long standing chronic gonorrhea, which might have been latent in her system for many years, and which was originally communicated to her from her husband.

On the question of adultery, the only issue which the defendant was called upon to meet was whether she had contracted the disease otherwise than from her husband. The charge is that she had committed adultery on certain dates at places unknown and with a person or persons unknown. Under this general charge it was sought to show that the defendant had misconducted herself with one Harrison. In my judgment these charges were fully met and overcome by the proofs.

The petitioner’s solicitor insists that where it appears, or is conceded as it is in this case, that the defendant is suffering from gonorrhea, the burden is on her to prove by a preponderance of the evidence, at least, that she derived it from contact with her husband, citing as authority Thornton v. Thornton, 67 N. J. Eq. 499; 58 Atl. Rep. 647, and quoting from page 501:

“In my judgment the presence of this disease places upon the husband [the defendant] the duty of clearly satisfying the court that he contracted it from his wife, if he would avoid the proper inference to be drawn from his condition.”

But he failed to quote the very next sentence:

“The evidence is devoid of the slightest proof that the wife ever showed any evidences of such a disease.”

That the charge of adultery must be proved beyond a reasonable doubt is too well settled to need citation of authority. In this case it is not necessary to go further than to hold that there is a reasonable possibility that the defendant’s infection came from the petitioner in order to defeat the charges he brings against her. In my judgment the proofs amply justify such a find, and the petition must therefore be dismissed. Smith v. Smith, 98 Atl. Rep. 844, affirmed, 88 N. J. Eq. 599; 102 Atl. Rep. 1054; Mount v. Mount, 15 N. J. Eq. 162.

The petitioner does not contend that the proofs under the counter-claim fail to show a refusal or neglect on his part to maintain or provide for the defendant. He does contend, however, that he has not been guilty of the extreme cruelty charged.

It may be conceded that none of the cruelty charges, singly or collectively, amount to extreme cruelty under the statute, except the charges that the petitioner falsely and without justification charged the defendant with adultery, characterized her conduct and character as debased and immoral, and particularfy, that he in fact infected her with gonorrhea, greatly impairing her health. Upon the issue of extreme cruelty because of the communication by the husband of the venereal disease, I hold that it has been proved by the preponderance of the evidence that the disease was in fact so communicated to her. On the facts, the case is similar to Cook v. Cook, 32 N. J. Eq. 475, where this conrt laid down the rule that if a husband, knowing that he is in such a state of health that, by having connection with his wife, he will run the risk of communicating venereal disease to her, recklessly has connection with her and thereby communicates the disease to her, he is guilty of extreme cruelty, and the presumption is that he knew his own state of health and the probable result of the connection.

In Ciocci v. Ciocci, 26 E. L. & E. 604, 611, Dr. Lushington says:

“I hardly think it necessary to inquire whether there is evidence of his [the husband’s] having been warned of the danger, if lie married in the state in which he is clearly j)roved to have been, for I am of opinion that common sense, ordinary experience—I speak not of higher motives—must have suggested to him the probable consequences, the consequences likely to result in the ordinary course of things, from marriage under the circumstances proved to have existed; and if this were a point necessary to be determined, I should hold, and without doubt, that if a man married under such circumstances [having had venereal disease for some time immediately prior to the marriage, and, though in a convalescent condition, not entirely cured] and communicated to his wife the venereal disease, it was, to use the mildest term applicable to such conduct, such utter recklessness of the health and comfort of his wife, that if lie did communicate such disease, he was guilty of cruelty in the eye of the law. and I should hold this upon the principle that whoever does an act likely lo produce injury, and the injury follows, can never excuse himself hv saying that he hoped a probable consequence might, by some peculiar good fortune, not follow.” Language approved by this court in the Cook Case, supra. See, also, Danielly v. Danielly, 93 N. J. Eq. 556; 118 Atl. Rep. 335.

In the instant ease the husband, as already pointed out, is a physician. He must have known that in marrying the defendant, and in indulging in sexual relations with her, without taking any precautions whatever, there was risk of his communicating the disease to her. If he did not know it he is not to be excused: he ought to have known it. His conduct in this respect amounts to extreme cruelty.

I am of opinion also that his unfounded and unjustified charges of adultery, coupled with'the knowledge or imputed knowledge, that it was at least reasonably possible that he might have been responsible for her infection, constitute extreme cruelty. Black v. Black, 30 N. J. Eq. 215; Hill v. Hill 97 N. J. Eq. 237; 127 Atl. Rep. 584.

The defendant’s health has been grievously injured, to say nothing of the mental suffering she has undergone. To deny her relief, and thereby to force her to return to her husband (assuming he would receive her) would be to subject her to the risk of reinfection. It would be to further endanger her health, and to render her life one of such extreme discomfort and wretchedness as to incapacitate her, physically or mentally or both, from discharging her marital duties. The court will act to prevent such future harm. Bonardi v. Bonardi, 113 N. J. Eq. 25; 116 Atl. Rep. 207.

Tor the above reasons a decree will be advised dismissing the petition and granting the prayer of the counter-claim.


author: Keaet, A. M.

text:
    Elva O. Newton, petitioner, v. John J. Newton, defendant.
    [Decided May 22d, 1935.]

      Mr. Le Boy W. Loder, for the petitioner.

      Mr. Francis A. Slanger, Jr., and Mr. Frederick B. Edwards, for the defendant.
   Keaet, A. M.

The petitioner alleges in her petition that the defendant procured a divorce from her in the civil branch first instance judicial district of Nogales, Sonora, Mexico, which is a nullity, and which she prays may be annulled and for nothing holden; that on April 19th, 1930, the defendant went through a pretended marriage ceremony with one Maud D. Filer, since which time the said Maud D. Filer and the defendant have lived together continuously as husband and wife at Bridgeton, New Jersey; that the defendant has been guilty of adultery with said Maud D. Filer since April 19th, 1930, down to the present time, and the petitioner prays a decree of divorce for said adultery, and that the defendant may be decreed to provide support for herself and her two minor children. The defendant filed an answer in this cause as a defense to the petitioner’s prayer for relief, the validity of the Mexican divorce.

The uncontradicted testimony on the part of the petitioner shows that she and the defendant were married on April 10th, 1918, and that she and the defendant immediately went to live in Bridgeton, New Jersey, where they lived together in the same house continuously from the time of their said marriage until March 23d, 1929, when the defendant left their home, and that he has lived at other places in Bridgeton aforesaid continuously from that time down to the present time; that the petitioner and defendant had two children born to them: namely, John J. Newton, Jr., born January 31st, 1920, and Thomas Martin Newton, born July 18th, 1922, both of whom have lived with the petitioner since the defendant left their home on March 23d, 1929; that the defendant has been in continuous employ of the Martin Dyeing and Finishing Company at Bridgeton (in which company he is also a stockholder) for the past eighteen years, at present receiving a salary of sixty-five hundred dollars ($6,500) per year besides a bonus.

The petitioner testified that sometime in January, 1929, the defendant told their children that he was going away on a business trip, and that he remained away for eleven days; that on February 17th, 1929, a paper was served upon her by the sheriff of Cumberland county, and that she could not read the paper because it was in a foreign language; that about a half-hour after the paper had been served the defendant called her on the telephone and asked her whether a paper had been served upon her and she said, “yes, Jack, what is the meaning of this?” Defendant said, “I am coming over shortly and will talk it over with you.” She also testified when the defendant came home he told her he had been to Mexico and wanted a divorce, and had started it in Mexico; that she told him she felt terrible and he said, “well, that was his final decision and was definite.” She further testified that this was the first time she knew what he had done while he was away from the home for eleven days; that she had never been to Mexico in her life, and she and her husband had never been domiciled there; that she entered no appearance in said Mexican divorce suit nor did she employ or authorize any lawyer or anyone else to enter any appearance for her in said suit.

Counsel for the defendant stated that at no time has the defendant ever represented himself to be a citizen of Mexico, and that the defendant on April 19th, 1930, went through a ceremonial marriage with one Maud D. Filer at Hartford, Connecticut, ever since which time the defendant and said Maud D. Filer have lived together continuously as husband and wife at Bridgeton, aforesaid.

The defendant and his counsel were present and were in conference throughout the final hearing in this cause, yet the defendant did not take the stand to give any testimony. At the conclusion of the taking of the testimony on the part of the petitioner, counsel for the defendant stated that no testimony was to be offered on the part of the defendant, he stating, “we rest. We believe that the testimony that is now in the case is sufficient to be considered by the court.”

By consent of counsel, a certified copy of the Mexican decree of divorce (written in the Spanish language), and a translation thereof into the English language, were put in evidence, which decree among other things, recites:

“TJpon the papers and proceedings of the action for divorce by John J. Newton against his wife, Elva Otto Newton, both American citizens and domiciled in the City of Bridgeton, State of New Jersey, United States of Am,erica.” (Italics mine.)

There was attached to said certified copy of said decree of divorce the certificate of the consul of the United States of America, at Nogales, Sonora, Mexico, that the person who certified said copy of said decree was, at the time of the signing thereof, the secretary of the civil branch of the court of first instance of the judicial district of Nogales, Sonora, Mexico, and said certificate also recited the summary of a decision of the supreme court of Mexico, as follows:

“The authority competent to try a divorce case is the Judge having jurisdiction where the husband and wife are domiciled; and according to Art. 27 of the Civil Code of the Federal District, in order to acquire domicile it is not sufficient to live at a certain place but necessary that the residence be habitual.” * * * No. 2336, 1929, 2nd Section. (Italics mine.)

I find from the testimony, answer, and final decree, that neither the petitioner nor the defendant were ever residents of or domiciled in Mexico, but that they were domiciled in Bridgeton, New Jersey, when said application for said Mexican divorce was made, and have been so domiciled continuously for the past eighteen years. I also find that the defendant’s purpose in going to Mexico, where he remained less than one week, was for the sole and express purpose of obtaining a divorce, and that he never intended to become a citizen of Mexico or domicile at any state therein. Under the authority of Reik v. Reik, 109 N. J. Eq. 615; 158 Atl. Rep. 519; affirmed, 112 N. J. Eq. 234; 163 Atl. Rep. 907, and the facts in this cause, the divorce granted by the Mexican court must be declared invalid in this state, and I will advise a decree annulling and setting aside said decree. I will also advise a decree of divorce to the petitioner on the grounds of adultery as alleged in her petition, and I award the custody of the said two children to the petitioner.

The Mexican decree ordered that the defendant pay to the petitioner the sum of one hundred and fifty dollars ($150) monthly for the support and education of said two children, and he has been voluntarily paying forty dollars ($40) per week for such purpose. In view of the facts and financial circumstances to the parties to the suit, I will also advise a decree that the defendant pay to the petitioner the sum of fifty dollars ($50) weekly for the support and maintenance of the petitioner and her said two children, and that he pay to the solicitor of the petitioner a counsel fee of $200, which shall include all expenses of the petitioner, except the taxed costs of this suit which shall also be paid by the defendant.


author: _ Case, J.

text:
    SELIG HOFFMAN, PROSECUTOR, v. THE MAYOR AND BOROUGH COUNCIL OF THE BOROUGH OF SOUTH RIVER, RESPONDENTS.
    Submitted August 7th, 1935
    Decided August 14th, 1935.
    Heard by Justice Case, sitting alone, pursuant to the statute.
    For the prosecutor, David T. Wilentz.

    For the respondents, George L. Burton.

   _ Case, J.

The matter comes before me on petition for a writ of certiorari to review an ordinance of the borough of South River. There are no proofs but there is a stipulation that the disposition of the application shall be a final disposition as though a writ had issued and that the “matter be disposed of upon the basis of the ordinance.” By this, I understand, the alleged invalidity of the ordinance is made to depend solely upon such matters as appear wnthin the enactment itself.

The ordinance applies to any market with four or more leased concessions. It imposes an annual license fee of $200 for each concession except as otherwise provided. With respect to markets conducted solely for the sale of food products, cut flowers, potted plants, plants, shrubs, trees and seeds the annual license fee is fixed at $150 except that where the market is conducted solely for the sale of such articles when raised, grown or produced by the persons operating the concession, the annual license fee is sot at $1; and the attack is upon this distinction in favor of the seller who is also the producer.

The ordinance is, by its terms, a revenue producing measure.

Prosecutor contends that the factor which determines what the amount of the fee shall be is the individuality of the seller and that this method of determination is capricious and unreasonable, and, therefore, unlawful. There is nothing before me to show that the fee of $150 considered absolutely and not by way of comparison, is either unreasonable or prohibitive. In Levin v. Asbury Park, 9 N. J. Mis. R. 515; 154 Atl. Rep. 742, a very much larger fee was sustained, with the remark that a license fee up to the point of being prohibitive may reasonably be regarded as a revenue producer. The instant ease is made to hinge upon a distinction between those who sell only that which they produce and those who sell without that limitation. In the light of our decisions I cannot say that that distinction is unlawful. Let us assume that seller-grown produce had been made fully exempt. The case would then, as it seems to me, come within the purview of Kolb v. Boonton, 64 N. J. L. 163; 44 Atl. Rep. 873, wherein it was held that an ordinance which imposed a license fee upon hawkers and peddlers was not invalid because it exempted from its provisions farmers who brought the produce of their farms into town and disposed of it there. Tn Van Der Vliet v. Newark, 112 N. J. L. 39; 169 Atl. Rep. 668, the Supreme Court held that an ordinance directed towards “a farmer’s market” was not, because it singled out that particular line from the general class of business, discriminatory. A municipality may, in the imposition of license fees, make reasonable distinctions. Giant Tiger Corp. v. Board of Commissioners of Trenton, 11 N. J. Mis. R. 797; 168 Atl. Rep. 309; affirmed, 113 N. J. L. 34; 172 Atl. Rep. 565. There is a presumption that a duly adopted ordinance is reasonable. The burden is upon him who attacks the ordinance to prove otherwise. Wagman v. Trenton, 102 N. J. L. 492; 134 Atl. Rep. 115.

The writ will be denied, with costs.