text:
    SARA WOLFE, TRADING AS WOLFE’S LOAN OFFICE, PLAINTIFF-APPELLANT, v. THE MAYOR AND ALDERMEN OF JERSEY CITY, AND LUKE BURKE, PROPERTY CLERK OF JERSEY CITY, DEFENDANTS-RESPONDENTS.
    Submitted December 6, 1924
    Decided February 19, 1925.
    Replevin — Property Left at a Pawn Broker’s Sh,op Upon Which No Loan Had Yet Been Made, and Turned Over to Police for the Purpose of Finding Real Owner — Real Owner Not Yet Found — Police Still Investigating — No Time Limit Fixed for Its Return — Whether Defendants’ Right of Possession Might Have Been Terminated by a Demand of Plaintiff Before Purpose of Possession Had Been Consummated Not Before Court ás no Such Demand Appears to Have Been Made.
    On appeal from the First District Court of Jersey City.
    Before Justices Teen chard, Minturn and Lloyd.
    For tlie appellant, Herman Lipschitz.

    For tlie respondents, Thomas J. Brogan.

   Per Curiam.

The state of the case as settled by the trial judge discloses that this action was brought to recover possession of a diamond ring, a little over one karat in weight, in a, gold setting. The plaintiff came into* possession of the ring February 3d, 1924, under the following circumstances: A woman giving her name as Mary Kelly, of Newark avenue, Jersey City, called at the place of business of the plaintiff and produced to the clerk in charge thereof the diamond ring in question, and requested a loan upon the pledge of it of $15. The clerk examined the ring and said he would loan $35 upon it, to which the woman replied that that would be satisfactory. He then made an entry in his books, and wrote out a ticket.' Before giving the money to the woman he went to tlie telephone near by and called police headquarters. The woman a.t once ran out of the store leaving the ring upon the counter. Detectives from police headquarters called at the plaintiff’s place of business within a short time, heard the clerk’s story, and took tlie ring, giving to the plaintiff a receipt therefor, in order that the true owner of the ring might be found. No money was paid by the plaintiff on account of the pledge. The police authorities endeavored to find the owner of the ring by inserting news articles in the local papers, and otherwise, but have been unsuccessful. Tlie ring was turned over-to Mr. Burke, the property custodian, and is now in his custody. The police are still endeavoring to find the owner of tlie ring, and are still having inquiries from people claiming to be .the owner. Judgment was rendered in favor of the 'defendants by the trial judge sitting without a puy-

We are now asked to reverse this judgment because — (1) the “judgment is contrary to law;” (2) “there was im evidence upon which the trial judge could predicate a judgment in favor of the defendant;” (3) “on the evidence judgment should have been rendered in favor of the plaintiff.”

But tlie record presents no support for such reasons for reversal. Oil the contrary, it justifies and requires, we think, tlie judgment rendered.

The position of the plaintiff is set out in her brief as follows: “The plaintiff delivered the ring to the defendant for one defin-ate and specific purpose. ■* * * The purpose'for which it was delivered was to ascertain, if possible, the true owner of the ring. * * * The possession of the defendants was a qualified one — a limited one. It was qualified and limited to exerting their efforts in behalf of locating the true owner.”

Eor present purposes we accept the plaintiff’s version. Thereby it ajipears that the plaintiff voluntarily delivered the ring to the defendants for the purpose of finding the true owner. There is nothing to indicate that any time limit was interposed as to 'such possession for the purpose of such investigation,'nor, indeed, that any condition whatsoever was imposed as to 'the re-delivery of the ring. It, therefore, appears that the possession of the defendants was lawful in its inception, and the state of the case shows that the lawful purpose for which defendants, held possession has not been completed, and that clef end ants retain possession for that purpose, and no other purpose or claim of right is asserted. Whether under the peculiar circumstances of this case the right of possession of the defendants might have been terminated by a demand made by the plaintiff for the return of the ring to her before the purpose of the delivery was completed, so as. to enable the plaintiff to successfully maintain her action for replevin, need not now be determined, since there is no evidence whatsoever that such demand, or any demand whatever, was made at any time.

Out conclusion is that the judgment below was. amply justified in the situation disclosed by the record, and the judgment will be affirmed, with costs.


source: Caselaw Access Project

author: Per C ceta 3i.

license: Public Domain

text:
    FRED M. VAN HOUTON v. WILLIAM B. GIZANG.
    Argued October term, 1924
    Decided February 19, 1925.
    Sale of Goods — Motor Vehicles — 'Sale Consummated, Vehicle Delivered and Partial Payment Made — (Upon Request, Bill of Sale was Refused — Transaction Obviously Within Act of 1919, and Defendant Not In Pari Delicto.
    Before Justices Trencitard, Mtntitrn and Lloyd.
    For the plaintiff-appellant, Robert Doherty.

    For the defendant-appellee, David II. Sterner.

   Per C ceta 3i.

This action ivas tried in the Second District Court of Jersey City, and was brought to recover $400, the balance of the purchase price of an automobile. The defendant counter-claimed, among other items, for the return of $100, paid on account of purchase price, and for $139.75, admitted to he due for a bill of goods furnished plaintiff. Judgment was given, for defendant on the specified items of counterclaim, and for the return of the deposit of $239.75. The facts are, that the plaintiff, desiring tó sell his automobile, had his chauffeur take defendant for a demonstration ride. The defendant, satisfied with the car, directed the chauffeur to drive it to defendant’s garage, where it was left. Defendant then returned to plaintiff, and closed the bargain at $500. The defendant gave, in payment, $25 cash, a check for $75, dated ahead, but later honored, and two undated checks for $200 each, the dates to be inserted later. A week later the defendant requested a bill of sale for the car, and plaintiff replied that he had no bill of sale, hut sent his vendor’s receipt. The defendant, after again requesting the bill of sale without result, offered to return the car, but plaintiff refused the tender, and brought action for the unpaid purchase-money.

The first contention is that the transaction was not within contemplation of the act of 1919. We think that, obviously, it was comprehended within the terms of that act. The operation of the act of 1919 is thoroughly reviewed in an opinion by Mr. Justice Katzenbach, for the Court of Errors and Appeals, in General Motors Corp. v. Smith (January, 1925), 3 N.J. Adv. R. 204.

The next point is that the court erroneously interpreted the act, to require the bill of sale to accompany the delivery of the car. The intent of the legislature, by this act, was to secure the owners of automobiles against theft or robbery, by requiring the title papers to accompany the sale of the machine. Stein v. Scarpa, 96 N. J. L. 86; also 118 Atl. Rep. 695.

The next point is that the defendant was not entitled to the bill of sale until payment of the purchase price. The acts of the parties, and circumstances attending the sale, clearly indicated an intent to change the possession of the car, and effect a transfer of title and sale, and the court so found, in which finding we concur. In Arotzky v. Kropintzky, 1 N. J. Adv. R. 501, this court observed, concerning a similar claim: "It is suggested that the transaction was not a completed sale, but only a ‘contract for a sale/ but as there was a delivery of the property * * * we fail to see the force of the suggestion.”

It is finally urged that one in pari delicto is not entitled to any judicial relief. Manifestly, the one in pari delicto was not the vendee. So far as we can observe his was a Iona fide transaction. The case, so far as the question of the lona fides of the parties is concerned, is not unlike that of Stein v. Scarpa, 96 N. J. L. 86, where the act of 1919 is analyzed by this court in a situation of fact substantially similar to that presented by the ease at bar.

The judgment will be affirmed.


author: Pee Ctjbiam.

text:
    STATE v. WILLIAM MALLEY.
    Decided February 19, 1925.
    Crimes — Statutory Rape — Case on Review Under 136th Section of Criminal Procedure Act, and Specifications Must be Stated in a Way to Make Precise Points Relied Upon Intelligible— This was Not Done and Plaintiff Can Take Nothing By Reason Thereof.
    On error to the Moiris Quarter Sessions.
    Before GKtkmeee, Chief Justice, and Justices Pakkef and Katzeubagh.
    For the plaintiff in error, Elmer W. Romine.

    For the state, James H. Bolitho, prosecutor of the pleas.
   Pee Ctjbiam.

The plaintiff in error was convicted on an indictment charging him with assaulting and carnally abusing a girl under the age of sixteen, in violation of the statute declaring such act to be criminal, even if committed with the consent of the girl.

The first ground upon which we are asked to set aside this conviction is that the verdict of guilty was against the weight of the evidence. Our examination of the proofs returned "with the writ satisfies us that this contention is not justified by the fact.

The other grounds upon which we-are asked to reverse the judgment under review are directed at alleged erroneous rulings with relation to the admission or rejection of testimony. These alleged errors are supposed to be covered by general reasons set out in the assignments of error and causes for reversal. The case comes up for review under section 136 of the Criminal Procedure act, and counsel has, apparently, assumed that such general reasons are sufficient to bring before this court the questions argued in his brief. But, as was said by the Court of Errors and Appeals, in State v. Herron, 77 N. J. L. 525, “the statutory provision under which this review is had requires that in all cases where the plaintiff in error shall elect to take up the entire record with his writ of error he must specify the causes in the record relied upon for relief for reversal, and the specifications must be stated in such a way as to make the precise points relied upon intelligible. Where the objection is to the admission or rejection of evidence, the specifications must point out the precise evidence which was erroneously admitted and the, precise offer which was erroneously rejected. If this is not done, it becomes incumbent upon counsel for the state and upon the court, to examine the whole record, which may be very voluminous, and the object of the act is not achieved. Unless the causes assigned are as precise as we have indicated, they are too general to avail the plaintiff in error.” The present assignments of error and causes for reversal come within the condemnation of the case cited, and the plaintiff in error can take nothing by reason of them.

The judgment under review will be affirmed.


author: Per Curiam.

text:
    MARTHA LAMBERT ET AL. v. TRENTON AND MERCER COUNTY TRACTION CORPORATION.
    Decided February 19, 1925.
    Negligence — Trolley Accident. — Child Five Years Old Injured While Crossing Street — Judge’s Charge Erroneous, in That It Charged a Principle of Law Which Had no Bearing Upon the Issues Involved In Instant Case as a Rule Which Should Govern.
    On appeal from the Mercer County Court of Common Pleas.
    Before Gummere, Chief Justice, and Justices Parker and Katzenbach.
    For the appellant, Kaizenbach & Hunt.

    Por the respondents, Marlin P. Berlin

   Per Curiam.

This action was brought by Martha Lambert, a child five .years old, and her father, to recover compensation for serious injuries sustained by the child through being 'run over by a trolley car of the defendant company while crossing Clinton avenue, in the city of Trenton. The uncontradicted proofs showed that she and her young brother were crossing from the east side to’ the west side of the street, and that while passing in front of the defendant company’s trolley car she was knocked down and run over by it. The trial resulted in a verdict in favor of the plaintiffs., and from the judgment thereon the defendant company has appealed.

In dealing with tins appeal, we find it necessary to consider only one of the several grounds upon which we are asked to reverse the judgment under review, namely, the following instruction of the court to the jury: “A pedestrian crossing a street is under no legal duty to anticipate any action by the chauffeur of a motor truck that would imperil her safety, and, having an equal right in the street, is not bound to look behind her, without a warning that it was intending to. pass -her on the left-hand side of the street. . That is the law, and the' same principles would apply in this case.” This intraction was delivered in compliance with a request submitted by counsel of the plaintiff. That it had no relevance'to'the case which the jury was called upon-to determine is apparent. 'That its tendency was to confuse the jury as to the real issue which the. case presented, is. equally apparent. That the verdict of the jury may have resulted, to some extent, from their attempt to give effect in their finding to this erroneous instruction, we think, is equally clear, for it was their duty to- be governed in their finding by the legal rales which the court instructed them were applicable to the case they were to consider. Where an erroneous principle of law is laid down by a trial court, a verdict, which may have been the result of the erroneous instruction, cannot he supported, and this, we think, is equally true where a principle of law which has no hearing upon the issues involved in a litigation is stated by the trial court to the jury as a rale which should govern them in their consideration of the cause.

For the reasons stated the judgment under review will 'be reversed.


text:
    NUNZIO CARINE, BY HIS NEXT FRIEND, PLAINTIFF-APPELLEE, v. SIMON YOIN, DEFENDANT-APPELLANT.
    Submitted December 6, 1924
    Decided February 19, 1925.
    Malicious Prosecution — Defendant Mistakenly Identified Plaintiff as the One Who Had Robbed His Store, Causing His Arrest — Allegation That He Had Acted Without Malice, Without Merit — Alleged Defects in Complaint Not Sufficient to Justify Reversal.
    On appeal from the District Court of the city of Elizabeth.
    Before Justices Trenchabjd, Minturn and Lloyd.
    For the appellant, William B. Wilson.

    For the appellee, David 8. Form,an.

   Per Curiam.

This is a case of malicious prosecution. The defendant kept a store and was robbed of $60 on the night of February 23d, 1924. An officer accosted the plaintiff on the street, took him to defendant’s store, where he was identified by defendant as one of the two who had robbed him. In consequence, the plaintiff was taken to police headquarters. No written complaint was made at the time, but. on the following day, plaintiff being in custody, defendant swore out a complaint, and on the following day- a hearing was given, and plaintiff was discharged. Before swearing to the complaint the defendant was apprised by a reporter friend of the plaintiff, and otherwise, that plaintiff could not have been the man who robbed him.

Judgment was given in the malicious prosecution case by the judge, sitting without a jury, for the plaintiff, in the sum of $150. Defendant appeals, and contends that the complaint in the District Court was insufficient, in that it failed to allege malice, and also that there was not sufficient proof of malice, in fact.

We think bo.th contentions are without merit.' Defendant, admittedly, was acting on knowledge which was personal to himself and not on that acquired from others. AVhen he caused'the plaintiffs commitment he claimed only that he used his own senses for identification. That he was, at least, mistaken in-the individual,-is clear from the evidence, and the finding below. Whether, under the circumstances; he knowingly, and without probable cause, • had the plaintiff arrested, as the judge found, we think was a question of fact for the trial court. If without probable cause, the consequent finding of malice was, of course, entirely justified.

As to the complaint, though inartistieally drawn, we think the judgment should not be reversed for this reason: It set out the alleged malicious conduct of the defendant, and the parties understood the case to be one of malicious prosecution.

The judgment will be affirmed, with costs.


author: Buchamax, Y. O.

text:
    Isaac Titus, petitioner, v. Ida Titus, defendant.
    [Decided February 13th, 1925.]
    Divorce — Adultery—Claim That Husband Had Not Lived With Wife During Time of Conception of Child — Defense That Charges are Not Proven Sustained — Desertion on Part of Husband Shown.
    On final hearing.

      Mr. J. Milton Pregar, for the petitioner.

      Mr. Douglas M. Mieles, for the defendant.
   Buchamax, Y. O.

Petitioner seeks divorce, alleging adultery. The proof is by testimony to the effect that he never lived with nor had intercourse with his wife after marriage, and that she had a child about a year and a half after the marriage.

Defendant objects that petitioner is not a competent witness to testify, to non-access, citing Palmer v. Palmer, 79 N. J. Eq. 496.

However, even if it be assumed that petitioner is competent in this behalf, he has not sustained the burden of proof nor overcome the strong presumption in favor of the legitimacy of the child. His testimony that he had never been with his wife, or at her home, since the marriage, was contradicted by a nnmber of witnesses, at least two of whom were not discredited nor shown to have any interest in the outcome of the case. His two brothers testified that he lived with them and had spent every night with them since the marriage, except for six weeks shortly after the marriage, is not sufficient, for they admit he did not come in at night till eleven or twelve o’clock, and, moreover, their credibility is impaired by petitioner’s own admissions, that there were two other short periods when he was away from their house.

Moreover, petitioner, by his own showing, has himself been guilty of desertion — willful, obstinate and continuous, for over two years. He says he never lived with her and never supported her, and her letters to him, introduced by him, to contradict her testimony, show that it was against her consent. • It is upon his own allegations and proofs in this very behalf that his proof of alleged adultery is substantially rested. This, in itself, is sufficient to disentitle him to decree.

The petition will be dismissed.


text:
    EDWARD MICHEL, RELATOR, v. VILLAGE OF SOUTH ORANGE ET AL., DEFENDANTS.
    Submitted November 6, 1924
    Decided February 26, 1925.
    Zoning — Large Apartment-house — Permit Refused on Ground of Inadequate Fire Protection, Location so Near Street as to Constitute'a Menace to Public Safety, and in Violation to Zoning Ordinance- — Alternative Writ Allowed to Permit Pleadings to Property Present These Matters on Appeal.
    On rule to show cause why mandamus should not issue.
    Before Justices Kalis ch, Black and Campbell.
    For the relator, Howe & Davis.

    For the defendants, Biker & Biker.

   Per Curiam.

•This matter is before the court upon a rule to sho-w cause why an alternative or peremptory writ o-f mandamus should not issue requiring the building inspector of South Orange to issue to relator a permit to erect a three-story brick apartment-liouse, forty feet in heighth, for twenty-seven families, at the corner of South Orange avenue and Turreli avenue, in South Orange.

Proper application was made for such permit on July 29th, 1924. The plans and specifications comply with the building code of South Orange, and have been approved by the tenement-house commission of this state.

The permit was refused because the zoning ordinance of South Orange would require the proposed building to set back forty feet from the property line on South Orange avenue and fifteen feet from the property line on Turreli avenue, and the proposed location of the building in question did not meet this requirement. This requirement of the ordinance is sought to ho justified upon the ground that South Orange and Turrell avenues are heavi-ly traveled highways, and the erection of the proposed structure at the property lines of the avenues-would seriously affect the public safety.

Another ground of refusal is that the fire-fighting • facilities of the village are not sufficient to properly cope with a fire in such -a building as that proposed.

And a still further ground of refusal is that the proposed building is designed to be erected in a district restricted by the zoning ordinance against apartment-houses.

This matter is like the case of Ingersoll v. South Omnge, decided by this court and reported in 2 N. J. Mis. B. 882, in so far as the question of fire protection is concerned® and has the added feature of the building set back requirements.

In the Ingersoll case, in allowing an alternative writ this court said: “The introduction of this provision [fire protection] presenting a situation of-public necessity upon which it is argued the inherent police power of the municipality for the general welfare may be invoked, as a superadded power to the legislative zoning concession, injects into the case a new municipal feature, which up to this period has not received the consideration of the appellate court.”

As has been already stated, the case now before us has the added requirements for setting back the building from the street line as a measure necessary fo'r the safety of public travel.

For these reasons we conclude that an alternative writ of mandamus be allowed, for the purpose that the pleadings may be so framed as to properly present these matters upon appeal.

Let such a rule be entered.


author: Pee Curiam.

text:
    JOHANNES HOKKE ET AL., PROSECUTORS, v. COUNTY OF PASSAIC AND GEORGE W. BROOKS, RESPONDENTS.
    Submitted November 6, 1924
    Decided February 26, 1925.
    County Improvements — Highway—Contract Illegal Because Survey was Not Made, Plans and Specifications Had Not Been Prepared, and Material to be Used Had Not Been Designated —Procedure to be Employed is Set Out in County Act— Proceedings Not In Conformity Therewith and Set Aside.
    On certiorari.

    Before Justices Kalisch, Black and Campbell.
    Eor the prosecutors, J. Emil Walscheid.

    Eor the respondent county of Passaic, Ered W. Van Blarcom.

    Eor the respondent George W. Brooks, William B. Gourley and William II. Yovng.

   Pee Curiam.

This'writ brings before us, for review, the proceedings of the board of chosen freeholders of the county of Passaic, for the improvement of Seventeenth-avenue, a county road, in the city of Paterson, and also the award of the contract for such work to the respondent George W. Brooks.

Three reasons are urged against th.e proceedings and award: Numbers one and two being directed to alleged irregularities in the bidding and award, and number three being directed to tile alleged irregularity and illegality of the proceedings of the board of chosen freeholders in providing for the making of the improvement.

Point 1 is: The award of contract is illegal because the proposal upon which it is based was not accompanied by a certificate by-a surety company, or a certificate signed by an individual or individuals -which the bidder proposed to furnish as surety, stating that such surety company, individual or individuals, would provide the bidder with a bond in the sum required by the specifications and in the form required by law and the said specifications, and because the bid .of the defendant Brooks was not based upon the standards by which the proposals of the various bidders were to be tested by the board of chosen freeholders.

Point 2 is: The award of contract is illegal because the defendant Brooks fraudulently induced the board of chosen freeholders io make the award by fraudulently certifying to said board, with the proposal made by him, that he owned and controlled all the necessary equipment required by the plans and specifications for the making of the improvement.

Whether the matters referred to by these reasons are mere unimportant technical informalities in nowise interfering with or destroying competitive bidding or whether they did interfere with or destroy such bidding we need not pass upon because the third point or reason goes to a matter which requires a disposition of the cause adverse to respondents.

■ That reason is: The award of contract is illegal because the board of chosen freeholders did not cause a survey of Seventeenth avenue to be made, did not cause plans and specifications of the work to be done on the same to be prepared, did not designate the kind of material to be used in the improvement to be made or adopt plans and specifications therefor.

The legislative authority and method of procedure is to be found in an act entitled, "An act concerning counties." Pamph. L. 1918, p. 567, ch. 185.

Section 1121 (at p. 594) provides: "Before any board of chosen freeholders shall commence the improvement or repair of any road, the said board shall cause a survey of said road to be made, and plans and specifications of the work to be done on the same shall be prepared. This section shall not apply where ordinal or minor repairs are to be made."

Section 1122: “The hoard of chosen freeholders of any eonntv contemplating the improvement of a road shall designate the kind of material to be used, adopt plans and specifications therefor, advertise for proposals for doing the work of making snch improvement under the plans and specifications adopted and with the material so designated.”

The board of chosen freeholders of the county of Passaic never took any formal action in accordance with the requirements of the foregoing sections of- the statute other than to award the contract to respondent Brooks. All the steps leading np to and including the receipt of the bids were taken by the county engineer by and through informal action, direction and authority of the road committee, which committee consisted of seven members, being the entire membership of the board of freeholders.

The powers and duties of this committee are fixed and laid down by the by-laws of the board, as follows:

“Section 7. Committee on Eoads: The committee on roads shall attend to all work on the county roads and see that all repairs on the same are done according to contract or otherwise, and shall attend to all repairs and alterations necessary on the same, and shall approve all bills or claims for road work and materials, and shall report to the hoard from time to time the condition of the several roads. All improvements of public or county roads shall be done under the direction of the committee, and shall be done under the charge of the road supervisor or such other person or persons as may be appointed by the hoard for such purpose; and he, as well as the committee, shall certify all bills for materials furnished or labor performed under contract or otherwise, as the case may be, on such public or county roads.”

The informality and lack of action on the part of the board of freeholders is not denied, but the respondents contend that the prosecutor, Union Building and Construction Company, is estopped from urging it because it has received and entered into many contracts for a period of sixteen years past, where this identical practice was pursued, and had it been the successful bidder in the present instance it would have accepted the award of the contract and would not have questioned the procedure complained of.

We are unable to agree therewith. Furthermore, Johannes Hokke and wife, co-prosecutors, are taxpayers of the county of Passaic, and while the bona fides of their participation in the proceeding is questioned by respondents, yet the motive actuating them does not preclude them from contesting the legality of the proceedings.

It may be an attack, more or less technical in its nature, yet it goes to a matter of fundamental law and public policy.

The entire right and authority to undertake the improvement in question is derived solely through and by the statute above referred to.

By such statute the legislature has fixed and designated the board of freeholders as the body in which the authority is reposed. Such body must, and no other can, therefore, act in the premises, and that such action must be formal and at properly constituted meetings of such body requires no citation of authority to support.

The proceedings in question, lacking the necessary and proper action by the board of freeholders, are therefore illegal and must be set aside, and as the award of and the contract in question are based thereon they also must be set aside.

■ Both the proceedings aird the contract are therefore set aside, with costs.


text:
    JOHN CARDILLO, PROSECUTOR, v. MAYOR AND COUNCIL OF THE BOROUGH OF BOUND BROOK, RESPONDENTS.
    Submitted November 6, 1924
    Decided February 26, 1925.
    Municipal Improvements — Streets—Numerous Objections to Passage of Ordinance, Including Protests of Taxpayers — Question of Requisite Number of Protestantsi — Question of Proper Advertising — Section of Statute Under Which Action was Proposed Referred to Local Improvements While the Contemplated Improvements Were General- — Ordinance Set Aside.
    On certiorari.

    Before Justices Kalisch, Black and Campbell.
    For the respondent, Frank L. Cleary.

    For the prosecutor, William F. Vosseller.

   Per Curiam.

This writ brings up for review the proceedings relating to the adoption and passage of an ordinance of the borough of Bound Brook entitled “Ordinance No. 227, providing for the grading, paving, curbing and draining of Hamilton street from the northerly side of Main street to- the southerfy side of Union avenue, in the borough of Bound Brook, New Jersey, and providing for the issuance of temporary bonds to provide funds for said purpose.”

The ordinance was introduced and passed on first reading, June 17th, 1924.

A notice giving the number and title of the ordinance; that it had been introduced at a regular meeting held June 17th, 1924; that the borough council intended to- consider the same at a regular meeting to- be held on July 1st, 1924, at eight o-’clock p. m., in the American Hose House o-n East Second street, when and where all persons interested could attend and have an opportunity to be heard, and that any person objecting thereto .could then present their objections in writing or person, was given by the borough clerk, under date of June 17th, 1924, and seems to have been advertised in two newspapers.

At the meeting of July 1st, 1924, the clerk reported that a petition had been filed containing two* hundred and fifty-four names, setting forth that the signers were property owners in the borough, and that they protested against the passage of the ordinance in the particular part wherein it provided for the payment of the work by general taxation.

At the meeting in question one of the objectors called attention to his previously having filed a petition containing eigthy-four names, objecting to the ordinance. At this meeting the ordinance was passed on its second and final reading, and seems to have been immediately approved by the mayor.

Another petition protesting against the ordinance containing the signatures of sixty-four' residents and property owners was filed July 10th, 1924, and this fact was reported by the borough clerk at a meeting held July 15th.

The borough clerk testifies that he made no attempt to determine whether or not the petition, of July 1st, containing two hundred and fifty names* contained the signatures of person owning ten per cent, of the amount of tire assessed valuation of the borough as appeared by the last assessment roll, and that he did not file a certificate as to the sufficiency or insufficiency of this protest. That the protesting petition of July 10th did'not alone contain the signatures of the requisite number in value of. taxpayers* and that he made a certificate to that effect, and that he does not know whether or not the two petitions of July 1st and July 10th contained the names of the requisite number of protestante.

Four reasons for setting aside the ordinance are filed and urged, namely:

1. Because there were filed with the borough clerk protests, in writing, against the making of such improvements and the incurring of such indebtedness, signed by taxpayers representing ten per centum in amount of the assessed valuation of such municipality, whose names appear on the last preceding roll thereof.

2. Because, between the introduction of said ordinance and its final passage, protests were filed with the borough clerk, signed by taxpayers representing ten per- centum in amount of the assessed valuation of such municipality, whose names appear upon the last preceding roll thereof.

3. Because upon the filing of the protests aforesaid it became the duty of the mayor and council of the borough of Bound Brook not to proceed with said work until a proposition for the ratification thereof should be adopted at an election to be held for that purpose, being the majority of the qualified voters of such municipality voting on such proposition.

4. Because the clerk failed to file a certificate as to the sufficiency or insufficiency of the filing of the protest signed by the taxpayers.

5. Because the ordinance and its passage is in other respects illegal and void.

It is impossible for us to pass upon the questions raised by reasons 1, 2, 3 and 4, because there is nothing before us showing that the protests of July 1st, standing alone, on with that of July 10th, contained the signatures of the owners of the necessary assessed property value to> make such protest legally effective.

The fifth reason, however, if it is sufficient, raises a question calling for a decision by us.

That ground for setting aside the ordinance is because it was not published in a newspaper circulating in the municipality at least two days prior to its final passage.

The reason is a general One. The rule seems to be that no error complained of will be considered by the court unless particularly raised "by a specific objection, unless it be an error apparent on the face of the proceedings. Griffith v. West; 10 N. J. L. 352; Rutherford v. McGinnis, 72 Id. 444.

We think the question attempted to- be raised under this reason is sufficiently apparent on the face of the proceedings to require consideration by us, as nowhere in the return or in the depositions is there the least intimation that there was any advertisement of the ordinance other than the notice of June 17th, fixing July 1st as the time for hearing objections thereto-.

The amendment to- the Home Buie act, “An act to amend an act entitled ‘An act concerning municipalities/ approved March 27th, 1917," approved March 1st, 1918 (Pamph. L. 1918, p. 478, ch. 163, § 1, art. 10), provides: “No ordinance shall be finally passed unless it has been read in substantially its final form at a meeting held at least a week prior to its final passage, and shall have been published in a newspaper circulating in the municipality at least two daj^s prior to its final passage-; provided, such publication shall no-t be necessary in case notice of intention has been published under the provisions of section 9 of article 30 of this act. Such publication shall contain a notice stating the time and place, when and where the governing body will consider the final passage thereof. Before any ordinance shall take effect, such ordinance, or its title, shall be published at least once in a newspaper circulating in such municipality. It. shall not be necessary to publish an ordinance otherwise than as required by this act."

Section 9, article 20 (Pamph. L. 1918, p. 478), referred to in the proviso- contained in the foregoing section 1, article 10, is as follows:

“After the introduction of any ordinance authorizing any local improvement, public notice shall be given to- all persons whose lands may be affected thereby, or who may be interested therein, of the intention of the governing body to consider the undertaking of such improvement. Such notice shall state the time and place, when and where such governing body shall consider the said ordinance, and shall briefly describe the proposed improvement. Such notice shall be published at least once in a newspaper circulating in the municipality at least ten days prior to the date so fixed. At the time and place so specified in such notice, or at any time and place to which the meeting shall have been adjourned, all persons whose lands may be affected by such improvements, or who- may be interested therein, shall be given an opportunity to be heard concerning such improvement. * * * Where the notice is published as. required by this section, the. publication of the ordinance before its final passage shall he unnecessary.”

It will be noted that this section relates only to “any ordinance authorizing any local improvement.”

Section 1, article 20 (Pamph. L. 1917, p. 319), defines a local improvement as follows:

“A local improvement is one the costs of which, or any portion thereof, may be -assessed upon lands in the vicinity thereof benefited thereby;”

The ordinance in question did not provide for a local improvement. All of its terms and provisions, are to. the contrary, and it provides for an improvement, the cost of which is to he borne by and at general public expense. In fact, that was the ground of protest made through fhe written petitions, and verbally expressed by objectors to the governing body.

The provisions of section 1, article- 10 of Pamph. L. 1918, p. 478, ch. 163, supra, not having been complied with, the ordinance in question is set aside, with costs.


author: Pee 'Cuktam.

text:
    CORNELIA C. HILL ET AL., PROSECUTORS, v. THE BOROUGH OF BELMAR, RESPONDENTS.
    Argued October 7, 1924
    Decided February 26, 1925.
    Municipal Improvements — Swimming Pool — Ordinance Provided for Its Erection on Land Dedicated to be Held by Municipality Free, Open and Unincumbered by Buildings — Proposed Use Adverse to Dedication — Proposed Expenditure Would be Outside Debt Limit — Abutting Owners, Deriving Their Title Through Common Grantor, Entitled to Enforce Restriction — Certiorari a Proper Proceeding in Such Case.
    On certiorari.

    Before Justices Kalisch, Black and Campbell.
    Por the prosecutors, Harry R. Gooper.

    Por the respondent, Joseph Silverstein.

   Pee 'Cuktam.

The writ of certiorari brings before us for review an ordinance entitled, "An ordinance providing for the construction of .a swimming pool in the borough of Belmar, and appropriating the money necessary for the work.

Prosecutors have filed nine specific and one general reason why the ordinance should be set aside. These are argued under six points or grounds.

The first, second and fourth may be considered together. They are :

1. The borough of Belmar has no right to spend public moneys for improving property to which it has no title.

2. Such title as the borough of Belmar has to the premises in question is held as trustee for the public, the trust being that the property' shall remain forever free, open and unencumbered of any buildings whatsoever.

4. The borough is estopped from improving the property as contemplated.

The ordinance, by both its preamble and first section, fixes the location of the proposed swimming pool.

The preamble being as follows: “Whereas, in the judgment of the mayor and council, it is deemed desirable, for the purpose of furnishing appropriate recreation and entertainment for the property owners and visitors in the borough of Belmar, to construct a swimming pool on the west side of Ocean avenue, between Fifth and Sixth avenues, in the borough of Belmar.”

Section 1 is as follows: “That there shall be constructed a swimming pool on the west side of Ocean avenue, between Fifth and Sixth avenues, in the borough of Belmar.”

The Ocean Beach Association, in 1873, became the owner of a tract of land, including the tract described in the ordinance as the location of the proposed pool. The property was laid out in lots and streets and avenues, and a map thereof filed in the county clerk’s office. Silver lake, as it then existed, was connected with the ocean by a small stream. In 1882 the directors of the Ocean Beach Association passed a resolution “that the finish at the east end of the lake be a square, three hundred feet on Ocean avenue by two hundred feet west, and that it be so finished at the earliest convenience, and so entitled on our map.”

In 1883 a new map was made and filed, showing the property in question, at the head of Silver lake, laid out in a square. Practically all the conveyances in Belmar were made with reference .to one or the other of these maps. In making sales of lots it was represented that this “square” would remain open.

Subsequent to 1883 the Ocean Beach Association divided this “square” into lots or plots, and conveyed one lot to each of its stockholders. Some of them erected buildings thereon.

In 1905 the borough of Belmar instituted three ejectment suits in the Supreme Court against three of the persons to whom lots in the “square” had been conveyed. Judgment jn each suit was entered in favor of the borough upon relicia.

Belmar v. Barnett, 77 N. J. L. 559, in the Court of Errors and Appeals, arose out of an action of ejectment respecting a parcel of land embraced within the premises with which we are now concerned. Therein, in reciting the facts, Mr. Justice Bergen, writing the opinion of the court, said: “There was evidence at what ap]iears to have been the first public sale made in 1875 or 1876, the auctioneer, by direction of the president of the association, who was present, announced to the prospective purchasers that the square of land lying between the lake and the ocean would never be sold, but kept and used as a public park, so that the owner of the lots on each side of the lake would always have an unobstructed view of the ocean, and there was also other testimony from which it might be properly inferred that this square or block of land was dedicated by the owners for public use as a park.”

In the same case the court further says: “Assuming, as we must, that a jury might 'find that the Ocean Beach Association had dedicated land, to which the locus in quo is a part, to public use as a park for the benefit of all the lot owners, all that remained to be determined was whether the plaintiff was entitled to possession of the land when the action was commenced.”

The result of these suits and the testimony before us show conclusively that there was a dedication of the tract in question as and for a public park, and that the purchaser of lots purchased upon such representation, and that the plot would be'kept open, insuring an unobstructed view of the ocean.

Under such circumstances the right of possession vests in the municipality, which holds a sort of secondary title in trust for the purposes of the dedication, while the bare legal title remains in the dedicator in trust for the use expressly or impliedly declared in the dedication. Fessler v. Town of Union, 67 N. J. Eq. 14; Jersey City v. Morris Canal, 12 Id. 547; Bayonne v. Ford, 43 N. J. L. 296; Methodist Church v. Hoboken, 19 N. J. Eq. 355; Price v. Plainfield, 40 N. J. L. 608.

We are of the opinion that the use to which it .is proposed to put this land is a use other and adverse to the purposes of the dedication. A park or public square cannot be said to be the same as a public swimming pool. Much testimony was devoted by respondent in the attempt to show that the construction of the proposed pool and its appurtenances' would not materially obstruct a view of the ocean nor exclude the public, but the fact remains that such use is not reconcilable with the use of a park or public square.

We conclude, therefore, that such proposed use is unauthorized and ultra vires, and for that reason the ordinance must be set aside.

We might well rest here, but there are urged other matters of some importance which we think should be settled.

The third point raised and urged by the prosecutors is: The expenditure of an amount estimated from $84,000 to $100,000 for the purpose of erecting a swimming pool will exceed the debt limit.

We think an indebtedness for this purpose is excluded from the debt limit of the borough under Pamph,. L. 1920, p. 235, ch. 108.

The fifth and sixth points are:

5. The prosecutors, being abutting owners of land bounding on the public park sought to be improved, suffer a peculiar injury.

6. The prosecutors in this case each derive their title through a common grantor, and are therefore entitled to enforce the restriction.

Respondent contends that these reasons may not be properly urged in proceedings in certiorari.

But in Ocean City Land Co. v. Ocean City, 73 N. J. L. 493; affirmed, 75 Id. 942, it was held, “an ordinance of a municipality * * * relative to the vacation of land dedicated or devoted to public use which contains terms that can only be made effective by infringing upon private rights, will be set aside.”

While in language, the ordinance before us does not purport to vacate the park, yet its effect, as before pointed out, is to devote the tract to such a radically different use from that for which it was dedicated, that it, in fact, amounts to a vacation of the tract as a park or public square.

The ordinance is set aside, with costs.


text:
    DESLAURIERS COLUMN MOULD COMPANY, PROSECUTOR, v. WILLIAM JACKSON, RESPONDENT.
    Argued October 9, 1924
    Decided February 26, 1925.
    Workmen’s Compensation — Jurisdiction—Petition Not Filed Within One Year as Required by Statute — Objection to Writ as Improvidently Issued Because No Judgment Had Yet ■ Been Entered by Compensation Bureau, Without Merit.
    On certiorari.

    Before Justices Kalisch, Black and Cambbell.
    For the prosecutor, Frank G. Turner.

    For the respondent, Elizabeth Blume.

   Per Curiam.

This writ brings up for review proceedings before the workmen’s compensation bureau.

The respondent was injured October 25th, 1922, and pursuant to an agreement between him and the prosecutor, his employer, he was paid $168, the last payment being in February’, 1923. On June 13th, 1924, the present petition for compensation was filed, and the cause coming on to be heard by the compensation bureau, prosecutor moved for a dismissal of the petition on the ground of lack of jurisdiction .inasmuch as the right of recovery of compensation was barred by the statute. This application being denied by the deupty commissioners, this writ was sued out.

Respondent urges that the writ was improvidently issued inasmuch as there is no judgment entered in the proceeding before the bureau. This, we think, is of no moment, because the question presented is one of jurisdiction.

Paragraph h of section 23 (Pamph. L. 1919, p. 201, ch. 93), provides: “In case of personal injury’ or death, all claims for compensations on account thereof shall be forever barred unless a petition is filed in duplicate with the secretary of the workmen’s compensation bureau * * *

within one year after the date on which the accident occurred, or in case an agreement of compensation has been made between such employer and such claimant, then within one year after the failure of the employer to make payment pursuant to the terms of such agreement ; or in case part of the compensation has been paid by such employer, then within one year after the last payment of compensation.”

The petition was not filed ydthin one year from any of the periods fixed hv the foregoing section.

The respondent urges that the application may be made at any time under paragraph f of section 21, chapter 93 (Pamph. L. 1919, supra), which is as follows:

"An agreement or award of compensation may be modified at any time by a subsequent agreement, or reviewed upon the application of either party on the ground that the incapacity of the injured employe has subsequently increased or diminished.”

We think this contention is not well founded, but, on the contrary, section 21, paragraph f, must he read with section 23, paragraph li.

Such was the holding in Lusczy v. Seaboard Byproducts Co., in the Court of Errors and Appeals (No. 91, October term, 1921), decided January 19th, 3925, and not yet officially reported.

We conclude, therefore, that the workmen’s compensation bureau was without jurisdiction, and the finding of the deputy commissioner to the contrary is set aside and reversed.


author: Pee Cueiam.

text:
    KOLB COAL COMPANY, PLAINTIFF, v. FRANCIS H. McCAULEY, DEFENDANT.
    Argued October 9, 1924
    Decided February 26, 1925.
    Contracts' — Action on Note — Counter-claim—Judgment for Defendant. on Both Note and Counter-claim Clearly Against Weight of Evidence — Venire De Novo Issued.

      On rule to■ show cause.

      9

    Before Justices Kalisch, Black and Campbell.
    Pot the rule, Jolm M. Enright and Shelton Pitney.

      Contra, John Milton.

   Pee Cueiam.

The action was brought seeking recovery upon a demand note of $15,000, and interest, dated April 24th, 1922, made by the defendant to the plaintiff.

Defendant answered denying liability upon the note, and asserting that it was without consideration and given solely for the accommodation of the plaintiff. The defendant also counter-claimed for certain alleged services to> the plaintiff in and about the rebate, &c., of the federal income taxes of the plaintiff for the years 1917, 1918, 1919 and 1920.

The trial of the issue at Circuit resulted in a verdict against the plaintiff upon its cause of action upon the note; and. also against the plaintiff and in favor of the defendant upon the counter-claim in the sum of $15,291.78, upon which judgment has been entered.

Under the rule to show cause nine reasons for setting aside the judgment were filed; three of them are relied upon and argued.

It is necessary, however, for us to pass upon the question only as to whether the verdict in favor of the defendant and against the plaintiff upon plaintiff’s cause of action, namely, the note of $15,000, and the verdict against the plaintiff and in favor of the defendant upon his counter-claim are against the weight of the evidence.

In doing so we deem it entirely unnecessary to state the details of the transactions involved in the controversy, it-being entirely sufficient, in our judgment, to say that an examination of the proofe brings ns to the irresistible conclusion that the verdict upon both branches of the controversy is against the clear weight of the evidence, thus requiring the judgment and the verdict upon which it is based to be set aside, and that a venire de novo issue.

Such an order may therefore be taken and entered.


author: Pirn Curiam.

text:
    JOHN ANDRUS, PLAINTIFF, v. JOHN FOMFARA, DEFENDANT.
    Decided February 26, 1925.
    Negligence — Personal Injury — Evidence—Physical Examination of Plaintiff — Statute Authorizing Such Examination Does Not Contemplate Examination of Cells of a Growth, a Procedure Amounting to an Operation, Nor Yet to the Making of an X-ray Photograph.
    On application for physical examination of plaintiff.
    .Before Justices Kalisch and Katzenbacti.
    For the motion, Frank G. Turner.

      Contra, Warren Dixon.

   Pirn Curiam.

There were two motions argued in this case. One was to amend the complaint which was granted on the day of argument. The other motion was made on behalf of the defendant, and was for the allowance of an order to physically examine the plaintiff before trial.

The plaintiff contends that by reason of the defendant’s negligence he was injured, and that a growth on the outside ■of his bod]', near the hip, is a.result of said injury, and is a malignant and cancerous growth. The defendant desires not only to have the plaintiff examined by surgeons, but to have the order of examination provide that 'the surgeons may make an excision of some of the cells of the alleged cancerous growth, sufficient in number to examine the same under a microscope, claiming that this is the best test to determine whether the growth is of a cancerous nature or not. If the court is not willing to direct that the plaintiff submit himself to an excision of a portion of the growth, then it is requested that the court direct that X-ray plates of the growth may be taken. If the court is unwilling to grant either of these requests, then the court is asked to make an order for an examination by surgeons, without excision and without the making of X-ray plates.

This application is made under section .19 of the Evidence act. This section was originally passed in 1896, and re-passed in 1900. Pamph. L. 1900, p. 367. The act reads as follows: “On or before the trial of any action brought to recover damages for injury to the person, the court before whom such action is pending may from time to time, on the application of any party therein, order and direct an examination of the person injured as to the injury complained of by a competent physician or physicians, surgeon or surgeons, in order to qualify the person or persons making such examination to testify in the said cause to the -nature, extent and probable duration of the injury complained of; and the court may, in such order, direct and determine the time and place of such .examination, provided this section shall not be construed to prevent any other person, or physician from being called and examined as a witness as heretofore.”

This act' has been held to be constitutional, and not an infringement of the constitutional right of a party in a civil suit to be confronted by the witness. McGovern v. Hope, 63 N. J. L. 76.

It will be observed that the statute gives to the court only the power to direct and order an examination of the person injured. The request of the defendant is more than an examination. It amounts to a request for an operation. In our opinion the statute is not broad enough to give the court power to oblige a plaintiff to- submit to an excision of cells from a growth in order to furnish testimony for the defendant, as to the nature of the plaintiff’s ailment. No case is cited on the brief for the defendant which goes to this length. In City of Kingfisher v. Alitzer (Okla.), 74 Pac. Rep. 107, it was held that the court could not order the plaintiff, in an action for personal injuries, to submit to a surgical examination either before or during trial. Tn Louisville Railroad Co. v. Hartlege, 74 S. W. Rep. 742, it was held that an unmarried woman was not obliged to submit to a physical examination of her person, demanded by the defendant, which would result in suffering, pain and a destruction of the hymen. It has been held in compensation cases in this state that an employe is not obliged to submit to an operation even though physicians entertain the opinion that the operation would lessen the effect of the injury of the employe.

Wre are also of the opinion that we should not direct that X-ray photographs of the plaintiff be taken for the defendant. X-ray photographs sometimes result in the subject being seriously burned. In the case of Boelter v. Ross Lumber Co., 79 N. W. Rep. 243, the plaintiff had submitted to an examination by the X-ray process and had been burned. The court refused to compel a second examination by such a process, and this was held not to be an abuse of the discretion of the corrrt. In our opinion the only examination which this court should permit an order is an examination without excision or the right to take X-ray photographs.

An order for such an examination may be presented to this court if counsel cannot agree upon the conditions upon which the examination should be made.


author: Pee Cuela m.

text:
    FRANK B. EATON AND LILLIAN EATON, RELATORS, v. VILLAGE OF SOUTH ORANGE ET AL., DEFENDANTS.
    Submitted November 6, 1924
    Decided February 26, 1925.
    Zoning — Apartment-house—Location and Size Such as to Constitute Possible Menace to Safety — Alternative Writ to Permit Framing of Pleadings for Presentation of Matters on Appeal Allowed.
    On rule to show cause why a mandamus should not issue.
    Before Justices Kalisoh, Black and Campbell.
    Por the relators, Howe & Davis.

    Eor the defendants, Rilcer & Rilcer.

   Pee Cuela m.

This matter is before the court upon a rule to' show cause why an alternative or peremptory writ of mandamus should not issue requiring the building inspector of South Orange to issue to relators a permit to erect a four-story brick apartment-house to accommodate thirty-six (36) families, at the comer of South Orange avenue and Prospect street.

The matters presented upon this rule to show c^use are identical with those prosecuted in Michel v. South Orange, No. 247, of this term, with the exception that in that case the proposed building was three stories in height, designed to house twenty-seven (27) families, while here the height is four stories and the capacity thirty-six (36) families. Eor the reasons stated in the Michel case an alternative writ of mandamus will be allowed for the purpose that the pleadings may be so framed as to present the matters involved upon appeal.

Let such rule be entered.


author: Pek Cum am.

text:
    THE STATE, EX REL. HARRY MAX, RELATOR, v. JOHN SAUL, BUILDING INSPECTOR OF THE CITY OF JERSEY CITY, DEFENDANT.
    Submitted November 6, 1924
    Decided February 26, 1925.
    Zoning — Erection of Garage in Jersey City Restricted Area— Prohibition in Ordinance Within Police Power Conserving Health, Safety and General Welfare.
    On rule to show cause for mandamus.

    Before Justices Kalisch, Black and Campbell.

      For the relator, BenjamAn Bowden- and Benjamin J. Bar-ling.

    Eor the defendant, Thomas J. Brogan.

   Pek Cum am.

Relator is the owner of lands on the corner of the boulevard and Claremont avenue, in Jersey City, being a. tract forty-seven (47) feet wide in front and rear and one hundred and ten (110) feet deep.

On June 5th, 1924, he filed with respondent a written application for a permit to erect a one-story brick garage, nineteen feet square, on the rear of his plot. The permit was refused on June 17th, 1924, upon the ground that the permit sought was for the erection of a building, which would be in violation of section 2, paragraph 7, of an ordinance regulating and restricting trades and industries, generally known as the "zoning ordinance” of Jersey City, said section and paragraph providing that no garage shall be erected within ten (10) feet of any private dwelling.

Relator’s proposed garage, if erected, would be distant five feet from an apartment-house on adjoining property.

Belator contends that the ordinance in question cannot be justified as a police regulation, as it does not affect the health, safety and general welfare of the community, and, therefore, is unconstitutional, depriving him of his property without due process of law, and further, that it cannot be justified as a police regulation, because it is arbitrary in its application, in that it affects only residential districts and prohibits the erecton of a garage within ten feet of a dwelling, but makes no provision against erecting a dwelling-house within ten feet of a garage.

The situation is not like unto that existing in Ignaciunas v. Risley, 1 N. J. Adv. R. 1023, or Hayes v. Blank, 2 N. J. Mis, R. 959.

On the contrary, we are of the opinion that the prohibition in question under the ordinance is quite within the police power of the city in conserving the health, safety and general welfare of the community.

The writ of mandamus is denied and the rule to show cause is dismissed, with costs.


text:
    VERA A. LAWRIE, PLAINTIFF-RESPONDENT, v. ATLANTIC CITY RAILROAD COMPANY, DEFENDANT-PROSECUTOR.
    Submitted November 6, 1924
    Decided February 26, 1925.
    Workmen’s Compensation — Employment on Shifting Engine Engaged in Shifting Cars and Reassembling Them for Use in Carrying Interstate Commerce, but Which Actually Operated Only Within the State — When Train Arrived and Discharged Its Commerce It Lost Its Interstate Character — Injury Caused While Engaged in Intrastate Commerce.
    On certiorari.

    Before Justices Kalisch, Black and Campbell.
    Eor the prosecutor, Thompson & Hanstein.

    Eor the respondent, Francis J. McCarthy and Carleton B. Well.

   Pee Curiam.

Morgan D. Lawrie, the husband of respondent, was in the employ of the prosecutor as a brakeman on a shifting engine in the yards of the prosecutor at Atlantic City, on August 1st, 1920, and while so employed was struck by a train of respondent and killed. At the time, respondent’s decedent was engaged in switching, breaking up and reassembling a train of ears that had made a trip from Camden to Atlantic CRy, arriving at the latter place at ten-eighteen a. m.

Prosecutor’s railroad extends from Atlantic City to Camden, entirely within the State of New Jersey. Erom the terminal at Camden, passengers are carried by ferry to Philadelphia. Tickets are sold and passengers carried by means of ferry and railroad from Philadelphia, and other points outside of the State of New Jersey to Atlantic City. Passengers are also carried from Camden to Atlantic City by the same trains.

After the operation in which the respondent’s decident was engaged had been completed, the train so made np would have been moved into the passenger station to make its outbound trip, scheduled to commence at two-thirty p. m.

Respondent filed her petition for compensation under the Workmen’s Compensation act of.this state.

It is conceded that at the time of the happening, the prosecutor was engaged in interstate commerce, the train which collided with decedent being so engaged in transporting passengers and baggage. The question before the deputy commissioner, sitting and hearing the cause for the compensation bureau, and before the Court of Common Pleas, upon appeal, and likewise here, is, Was respondent’s decedent, at the time of the happening resulting in his death, engaged in intrastate commerce?

Both the deputy commissioner and the Court of Common Pleas held that he was, and we are of the same opinion, basing our conclusion upon the authorities cited 'and relied upon by the deputy commissioner, namely: Philadelphia, and Reading Railroad Co. v. Hancock, 353 U. S. 284; Moran v. Central Railroad, 245 Id. 629; Boyle v. Pennsylvania, Railroad, 228 Fed. Rep. 266; Illinois Central Railroad v. Behrens, 233 U. S. 473; Lehigh Valley Railroad Co. v. Barlow, 244 Id. 183; Minneapolis, and St. Louis Railroad v. Winters, 242 Id. 353; Pennsylvania Railroad v. Knox, 218 Fed. Rep. 748; Thomp. Emp. Liab. Act (3d ed.), § 22, p. 52.

What gave the train upon which decedent was working its interstate character at the time of its arrival at Atlantic City was not the cars and coaches, but the character of the trips of the passengers and baggage. When the train arrived at Atlantic City, its destination, and discharged its passengers and baggage, the cars lost their character as instrumentalities engaged in interstate commerce, and did not again resume such character or use unless or until they later actually became used in transporting passengers and baggage in an interstate journey.

The judgments below are affirmed, with costs.


author: Donges, J.

text:
    Ocean County Circuit Court.
    J. Wilbert Snyder, contestant, v. Thomas Callahan, incumbent.
    [Submitted December 30th, 1924.
    Decided January 5th, 1925.]
    Elections — Legal Residence — Intent of Voter as Well as Fact of Residence to Control — Residence May Be Acquired and Forthwith Abandoned — Personal Registration in Another State and Affidavit of Residence There, Establishes Residence for Time Being — Though Immediately Abandoned for a Residence in This State, Right to Vote Will Not Accrue Until the Constitutional Limitation of One Year Has Expired — Married Woman May Acquire Voting Residence Apart From That of Her Husband With Whom She Lives.

      Mr. John A. Biggins, for the contestant.

      Mr. Lewis Starr, for the incumbent.
   Donges, J.

An election was held at Surf City, Ocean county, at which contestant and incumbent were candidates for the office of assessor, and Joseph C. Eckert and Walter J. Donahue were candidates for the office of collector and treasurer. Callahan and Donahue each received twenty-one votes and Snyder and Eckert each received twenty votes. Snyder and Eckert started contests alleging that Mary A. Donahue and Mae Y. Donahue, who admittedly cast votes at said election for Callahan and Donahue, were not qualified voters of Surf City, and that their votes were illegal.

The facts are relatively few and are practically nncoutrovorted. Mrs. Mary A. Donahue is the widow of William IT. Donahue, lately mayor of Surf City, at which place she resided during part of the year with her husband “for thirty-one years, off and on.” It is admitted by Mrs. Donahue that in September, 1924, she personally registered as a qualified voter in the forty-ninth election district of the Forty-second ward of the city of Philadelphia, in the State of Pennsylvania. The record of registration shows that she gave answers under oath to- certain questions propounded, as follows:

“Present residence, street and number.” “233 Ashdale.”
“Householder, lodger, lessee or owner.” “Owner.”
“Length of residence in the city.” “Fifty-eight.”
“In the district.” “Four months.”
“Place of residence at time of last registration.” “New Jersey.”
“Street and number.” “Surf City.”
‘Year.” “1923.”
"Signed, Maet A. Donahue.”

It appears that Mrs. Donahue knew that she had been registered in Surf City in 1923, because she swore to it as above indicated. She testified before me as follows (page 20) :

“Q. As a matter of fact, you had been registered in New Jersey ever since women were allowed to vote? A. I have, yes.
“Q. And had you voted in Surf City? A. I have voted twice in Surf City.
“Q. What years? I think it was 1920 and 1921, but I haven’t voted since, and, quite naturally, I thought my name had automatically been taken off the list.
“Q. Is that the reason you went down? A. That is the reason I registered in Pennsylvania, because I thought I would have to go back to New Jersey, and I wasn’t just in a-position to go then.”

Again, on page 19, she testified:

“Q. When you signed your name to the registry book, did you know that you had been registered in New Jersey for this year, 1924? A. No, that is the reason I registered in Pennsylvania.
“04 Why did you register in Pennsylvania? A. Well, I wanted— it was presidential year and I thought I shouldn’t lose my. vote, and it was too late to register in Surf City, so I thought, well, I will just go over here to my nearest place and vote in Pennsylvania this year.”

Undoubtedly, Mrs. Donahue had acquired a domicile and voting residence in Surf City. Philadelphia was her domicile of origin. The question is, Did she by her conduct evidence an intention to change her domicile ? I think she did. She knew that she could vote only where shei had her legal residence. The fact that personal registration was' not required in Surf City may or may not have been known to her. It seems to me to be immaterial whether she knew her name would be put on the list without personal registration. What she knew was that she could vote only from her legal residence, and when she presented herself to the district board in Philadelphia she declared that her place of residence in 1923 was New Jersey, but that her present residence was 233 Ashdale street, in the city of Philadelphia., where she had resided for four months.

In Guggenheim v. Long Branch, 80 N. J. Law 246, Mr. Justice Minturn, speaking for the supreme court, said:

“That residence is a question of lona /lele intention upon the part of the citizen, and where doubt exists as t.o> its proper situs, the animo revertendi of the claimant is decisive in, establishing it, was determined by this court as early as 1840 in the case of Cadwalader v. Howell, 3 Harr. 138. That adjudication is also, authority for the proposition that a residence in law, once obtained, continues without intermission until a new one is. gained.” * * *

In, Watkinson v. Watkinson, the court of errors and appeals, speaking by Judge Yroom, in treating of the question of domicile as a basis for jurisdiction under our Divorce act, quotes with approval the language of Mr. Justice Depue in Harrell v. Hearrell, that “to the factum of residence must be added the animus manendi, and that place is the domicile of a person in which he has voluntarily fixed his habitation, not for a mere temporary or special purpose, but with a present intention of making it his, home, unless or until something which is uncertain or unexpected shall happen to induce him to adopt some other permanent home,” and, continuing, the court say's: “The doctrine laid down by the courts of the United States is that a domicile having been once acquired continues until a new one is actually acquired animo et fado." 10 Am. & Eng. Encyd. L. 15. And while, in determining the animus manendi, the declarations of the claimant are material and important, yet, as was said by Vice-Chancellor Van Fleet in Firth v. Firth, “the best and most trustworthy evidence of it is to be found as a general rule in his acts rather than in his declarations.”

Vice-Chancellor Reed, in Valentine v. Valentine, 61 N. J. Eq. 400, in discussing whether the domicile of Valentine was in Camden, New Jersey, or New Orleans, Louisiana, said:

“If, however, he, for an instant, while having a residence, in fact, in the city of New Orleans, had also an animus manendi, his-domicile was there, until he changed it. * * *

“The -general rule in respect to the acquisition of a new domicile is, that after a-person has abandoned his domicile of origin, or his acquired domicile, his domicile will be considered to be in that place in which he has voluntarily fixed his habitation, not for a special or temporary purpose, but with a present intention of making it his home, unless, or until, something which is uncertain or unexpected should happen to induce him to adopt some other permanent home.” The above sets forth the well-settled rules to be applied to the facts in this case.

The test is whether Mrs. Donahue* while having an actual residence in Philadelphia, had a!so> an animus manendi— that is, a present settled intention to remain in the chosen locality for an indefinite time. As was said by Vice-Chancellor Reed, if having residence, the animus manendi existed, only for an instant, domicile was established. It is probable that, after the death of her husband in 1922, Mrs. Donahue had quite as much interest in Philadelphia, except for an occasional candidacy of some member of her family in Surf City. She did not vote after 1921 until 1924. She wanted to vote somewhere in 1924 and chose Philadelphia, and gave her home in that city as her residence. That act fixed her domicile and voting residence in that city. She could change it the next day, and, when she found she was registered in New Jersey, may have honestly intended to re-establish her domicile in Surf City, and, indeed, may, in fact, have done SO'. But it does not follow that she would he qualified to vote in Surf City that year. I cannot agree with counsel for the incumbent that it necessarily follows that a person must be entitled 'to vote somewhere. The constitution requires that a person, otherwise qualified, must reside in this state for one year and in the county for five months, to entitle him to vote.

I am of the opinion that Mrs. Mary A. Donahue, by her expression of intention, evidenced by personally registering as a legal voter in Philadelphia, surrendered her domicile in Surf City and acquired it in Philadelphia. Assuming that, as a matter of expediency, she changed her intention the next day, and declared and bona fiie intended to have her domicile in Surf City, she was not qualified to vote there until the statutory period for residence had elapsed. Obviously, this ■time had not elapsed.

I conclude, therefore, that Mrs. Mary A. Donahue was not a qualified voter in Surf City in November, 1924.

Much that has been said of Mrs. Mary A. Donahue’s case applies to Mrs. May Y. Donahue. She is the wife of the incumbent, J. Walter Donahue. She personally registered in Philadelphia in September, 1924. She had never been registered and never voted in Surf City.

She had been married two years, living at Brooklyn, New York, at the time of her marriage. Her husband had homes in Philadelphia, Pennsylvania, and Surf City, New Jersey, maintaining his voting residence at Surf City.

When sworn and asked questions by the Philadelphia registration board, Mrs. Donahue said she lived at 263 Lindley avenue, Philadelphia, where she had resided for two years, and that her last residence was in Brooklyn. Admittedly, she had no domicile in Surf City unless she acquired it by the fact of marriage to J. Walter Donahue, who lived most of the year in Philadelphia, but who had a. voting residence in Surf City.

It is undoubtedly true that, by operation of law, the domicile of the husband is, for many purposes, that of the wife, and that his domicile fixes her domicile for purposes connected with the marriage relation and the duties of husband and wife. Where a husband maintains several places of abode, to which his wife follows him in the performance of her marital duties, she may choose for herself where she will establish her voting residence.

Mrs. Donahue gave Brooklyn as her residence prior to her residence in Philadelphia. She, apparently, never regarded herself as a resident of Surf City. She spent little time there, and when she registered she announced herself as a resident of Philadelphia. I am of opinion that she could do so, and that she had no residence in Surf City when she personally registered in Philadelphia in September, 1924. If, by marriage, her domicile for all purposes was that of her husband, then by voluntarily making Philadelphia her voting residence, she lost her voting residence in Surf City. If, thereafter, she chose to follow her husband and establish-a voting residence where he had one, the required period of residence must elapse before she was a qualified voter there. 9 Rul. Cas. L. 1035; Dorsey v. Brigham, 177 Ill. 250; 52 N. E. Rep. 303; 42 L. R. A. 809, 812.

I conclude that, at the date of the election here involved. Mrs. May Y. Donahue had not been a resident of the State of New Jersey for one year, nor a resident of Ocean county for five months next before the election.

It is apparent that the desire toi vote in Surf City was an afterthought on the part of both of the ladies concerned, dictated by reasons of expediency. It is equally evident that in September they intended to vote as legal residents of Philadelphia. Domicile and voting residence being so much a matter of intention, when there is clear and unmistakable evidence of such intention, it cannot be disregarded. In this case it seems to me there can be no doubt the intention of both of these ladies to claim a voting residence in Philadelphia, and, having done so, whether under a misapprehension of tlieir right to vote in New Jersey or not, they cannot, by changing their minds, obliterate the status thus acquired.

It follows that the votes of Mrs. Mary A. Donahue and Mrs. May V. Donahue ought not to be counted for the incumbent. If these votes had not counted, the contestant had the greater number of votes, and should have been declared elected as assessor.


text:
    Ocean County Circuit Court.
    Joseph C. Eckert, contestant, v. J. Walter Donahue, incumbent.
    [Submitted December 30th, 1924.
    Decided January 5th, 1925.]

      Mr. John A. Biggins, for the contestant.

      Mr. Lewis Starr, for the incumbent.
   Donges, J.

This case was heard and submitted with that of Snyder, contestant, and Callahan, incumbent. The facts apply to both cases.

Having decided in that case that Mrs. Mary A. Donahue and Mrs. May V. Donahue were not qualified voters of Surf City at the election held November, 1924, and that their votes should not have been counted for incumbent, Callahan, the same conclusion prevails in this case, and the votes should not be counted for incumbent, Donahue, from which it follows that contestant ivas elected to the office of collector and treasurer.


author: Acicerson, J.

text:
    Hudson County Circuit Court.
    Kassel Poultry Company, Inc., a corporation, plaintiff, v. Sheldon Produce Company, a corporation, defendant.
    Attachment — Counter-claim Alleging No Cause for Making Affidavit or Writ, Alleging Malicious Institution of Suit — Plaintiff Resists Counter-claim as Disclosing No Cause of Action —'Defendant Argues That Merits of Claim and Counterclaim May be Tried Together — Cause of Action May Exist Along With Malice Against Defendant Proof of Which Might Prejudice Jury Against Plaintiff's Cause — Determination of Claim Must Be Had Before Malicious Prosecution Can Be Shown.
   Acicerson, J.

This action was begun by an attachment, and the complaint is based upon a debt which is alleg’ed to he due from the defendant to the plaintiff. The defendant has filed an answer setting up a counter-claim against the plaintiff, in which the defendant alleges that the plaintiff had no reasonable or probable cause to make the affidavit, nor to cause the said writ of attachment, which initiated the plaintiff’s suit, to be issued. There is, of course, no' allegation in the counterclaim that the proceedings thus alleged to- have been maliciously instituted have been terminated in favor of the defendant, for the reason already stated, that the affidavit and writ of attachment are the same which preceded the filing of the complaint in this very cause.

Plaintiff now moves to strike out the counter-claim upon the ground that it does not disclose a cause of action, for the reason that it does not allege a prior termination of said attachment proceedings, and that any damages caused by an attachment action cannot be set up by way of counter-claim by the defendant in the same action in which the attachment was issued.

At the argument it was conceded that in an action for the malicious prosecution of a criminal complaint an allegation of prior termination is necessary,' but the defendant insists that a different rule prevails where the medium of the malicious prosecution is a civil suit, and especially one begun by attachment. This question does not seem to have been directly passed upon in the State of New Jersey, but a careful examination of the reports of other states indicates that, according to the weight of authority, an action will not lie for a malicious attachment until a termination of the attachment suit in favor of the defendant therein. £6 Cyc. 56, and cases cited.

The defendant argued, however, that inasmuch as the Practice act of our state provides that “the defendant may counter-claim, or set-off any cause of action,” that there can be no objection to allowing the same jury which passes upon the questions involved in the attachment suit from also deciding, if they find that the plaintiff therein cannot prevail, whether the proceedings were maliciously instituted by the plaintiff therein, for it is claimed that in such an event the jury, under proper instructions from the court, would have to decide the attachment suit first, which would be a practical termination of such proceeding, before they could pass upon the question of a malicious prosecution thereof, and that litigation would thereby be lessened and much time and expense saved.

The fallacy with this argument is, that a counter-claim is based upon-the same principles as a complaint in an independent suit, and that all of the elements necessary to make up a legal complaint must likewise be alleged in a counterclaim, and inasmuch as the great weight of authority supports the proposition that an action will not lie for the malicious prosecution of an attachment until a termination of the attachment suit in favor of the defendant therein, therefore, at the time of the filing of the counter-claim in the case sub judice, there was no cause of action upon which to base the counter-claim, which must necessarily speak as of the time of the filing thereof.

Furthermore, to permit such a counter-claim to be filed, would raise issues which would unduly prejudice the proper determination of the attachment suit, because the questions of want of probable cause and malice necessarily raised by such a counter-claim would permit the introduction of evidence, which would otherwise he entirely i rrelevaait in the main attachment suit, for it is perfectly evident that in the ordinary attachment suit it would be entirely immaterial how much malice1 the plaintiff may have had against the defendant therein, so long as he had probable cause for instituting the proceedings, and, if evidence of malice were introduced in support of the counter-claim for malicious1 prosecution, it might tend to prejudice the minds of the jury against the plaintiff in the altachment suit, regardless of the question of probable cause in instituting such proceedings.

For the reasons last mention, I should feel disposed to strike out the counter-claim in the case sub judice, regardless of whether or not the allegation of prior termination of the attachment proceedings was a necessary element therein, under the authority given to the court by the Practice act, wherein it is provided that in cases, of a counter-claim, “in the discretion of the court, separate trials may be ordered, or, if the counter-claim cannot be conveniently disposed of in the pending action, the court may strike it out.” P. L. 1912 p. 379 ch. 231 § 12.

The counter-claim, will therefore be stricken' out, first, upon the ground that it does not set forth a. legal cause of action in failing to allege the prior termination of the attachment proceedings in favor of the defendant. Veysey v. Bernard, 95 P. 1096; 49 Wash. 571; Sonsee, v. Jones & Green, 248 S. W. Rep. 289; Gunnis v. Cluff, 111 Pa. 512; 4 Atl. Rep. 920; Donnegan v. Armour, 3 Ohio C. C. 432; 2 O. O. D. 244; Kramer v. Thomson-Houston Electric, Light Co. of Boston, 95 N. C. 277; Jeffreys v. Hancock, 57 Cal. 646; Carver v. Shelly, 17 Kan. 472.

And, also;, for the reason that the issue attempted to be raised by the counter-claim is one which cannot conveniently be disposed of in the main action, and an order may be presented ■ accordingly.


author: Buchanan, Y. C.

text:
    William E. Tuttle, Jr., Commissioner of Banking and Insurance of the State of New Jersey, complainant, v. State Mutual Liability Insurance Company, defendant.
    [Decided October 28th, 1924.]
    Accounting- — Receiver’s Intermediate Account; — Objections Filed, and Reference to Masters Made — Account Open to Criticism Because Accountant Has Charged Himself Only With Money and Physical Assets; Because He Should Include Inventory, Which Should Include Intangible Assets and Choses in Action; Because He Should Give Details of Sales of Bonds and Coupons — Vouchers Should Accompany Account — Separate Account of Fund Formerly in Insurance Commissioner’s Hands — Receiver Must File Report as well as Account —Other Criticisms Made.
    On order to show cause for confirmation of receiver’s intermediate account, &c.

      Mr. William New com, for the receiver.

      Mr. George F. Seymour, Jr., Mr. Charles A. Cogan, Mr. Charles A. Woodruff, Messrs. Grosken & Moriariy, Mr. E. M. Carroll, 'pro se, for divers creditors and policy holders objecting.
   Buchanan, Y. C.

The receiver of the defendant company has filed an intermediate account, on which an order was made upon the creditors and policyholders to show cause why the “report” of the receiver should not be approved, his “accounts” allowed, partial allowances for compensation made to receiver and counsel, and distribution of the balance made. This order to show cause was served in the usual way, together with a notice by the receiver that he would ask an allowance of $5,000 for himself and $5,000 for his counsel. On the return day counsel appeared for a number of objecting respondents, and an order was made for continuance and the filing of written objections in the interim. A number of such objections were filed.

The account is one which should, in any event, go to a special master for audit and report under rule 252. It covers such a period and amounts of such size, and has so many items as to require a more comprehensive examination than can be given by'the court on an order to show cause, and the numerous parties interested, whose interests are severally small, are entitled to more than a pro forma examination, irrespective of the appearance of counsel and special objection in their behalf. Moreover, the order to show cause (copies of which were sent to the creditors and policy holders), improvidently recites that the receiver has presented an audit of his accounts. On this, perhaps, the creditors have relied; in fact, no audit was presented or has been made, nor can such audit be made by the court or anyone else; no vouchers have been presented for any items. The account is further clearly open to objection in at least some of the particulars pressed by the objecting respondents.

Such a reference will therefore be made. The special master can scrutinize and audit the account and examine the receiver and such other persons as he deems proper, on notice to the counsel of the objecting creditors.

Mention may be here made of some of the points in which the account, as it now stands, is open to> criticism, argument* having been had on the return day as to some of them.

The account is designated in the receiver’s verification as an account only of “all moneys” that have come to his hand; in the accompanying petition it is termed an account of all moneys, rights, credits and effects “that have come into his hands and possession.” Section 56 of the Insurance act makes applicable the provisions of the Corporation act as to receiver’s duties. Under section 74 of the Corporation act it would seem clear that the receiver should charge himself, not only with all moneys and physical assets which actually came into his possession, but also all assets of any kind that have come into his control. See, also-, chancery rule 251.

The receiver has never filed any inventory in this cause, and this is the first and only account he has filed, although he has been over three years in office. The present account is a mere cash account, except for the item of Liberty bonds. If an inventory had been filed, the account could use it as a basis, but, in the absence- of such inventory, this- account should include such inventory, and should include not only the physical assets but ehoses in action, and other intangible assets as well. Section 74 of' the Corporation act specifically mentions “debts due” to tile corporation.

It seem's clear, from what transpired at the argument, that there are a number- of such items, including amounts due from policy holders for unpaid premiums (the so-called “premium notes”); the amounts due for unpaid assessments by the receiver; the amount due from the New Jersey Indemnity Company, or the New Jersey Indemnity Exchange; the amount in the hands of the special receiver in New Jersey Indemnity Co. v. State Mutual Liability Insurance Co., claimed by the receiver of the state mutual company, and other items of this kind. The receiver should charge himself with such items, and give the face value as well as the estimated value. (The order for assessment against the policy holders, of course, did not operate to discharge policy holders from liability for non-payment of primary premiums.) It is also charged that there is a claim against the department of banking and insurance for the loss of interest during the year 1920.

The account does not give the details of the sales of bonds and coupons — what coupons were sold, their dates of maturity and dates of sale. In the, absence of such details it is impossible to determine whether proper sale prices were obtained. There should also be a specification of what coupons the receiver received with the bonds.

There should, of course, be a full compliance with chancery rule 251.

In addition to the vouchering and proof of the fact of expenditures, there should be inquiry by the master as to the propriety and reasonableness where his judgment so prompts. Such, for instance, would be indicated as to the items of office rent, payment of salaries to assistants, and telephone service. The receivership has, of course, been complicated — there were voluminous records of the defunct company, much investigation and correspondence was necessary, and there has been considerable litigation. Expenditure along the lines mentioned was undoubtedly required, but it is the duty of the court to the creditors to satisfy itself that such expenditures, so far as they are to be charged against the funds which would otherwise go to the creditors, have not exceeded the needs or reasonable proprieties of the case as to amount and duration of continuance. Some storage was required for the company’s records, but has it been necessary to have a $50 per month office for all this time, or maintenance assistants and separate telephone service ? Furthermore, it may be questioned whether some of these expenditures are not of a nature for which it is contemplated that compensation is made in and by the allowance of fee to the receiver, rather than as specific disbursements, and whether amounts paid for serving notices will be duplicated in the taxed costs. See Steelman v. Moore Bros. Glass Co., 93 N. J. Eq. 533 (at p. 536). -1 do not mean to limit the special master to the items specified, I simply mention those as to which argument has been had and which have occurred to me on inspection of the account.

Another thing which occurs to me is that inasmuch as certain creditors claim lien or preference as to the fund or securities formerly held by the banking and insurance commissioner under P. L. 1920 ch. 213, and especially in view of the conclusions heretofore filed in this cause (not reported) as to the validity, or probable validity, of such preferred claims, there should be a separate accounting in this account as to such fund — that is to say, a segregation of* the particular items of charge and discharge applicable to that fund.

There is appended to the account a list of claims allowed and disallowed by the receiver. This, of course, is no part of his account and has nothing directly to do with it. It is a matter as to which he should file a report. The order to show cause recites that he has filed a report, but I find no report but this list, and the document is endorsed only as an “account.”

The receiver should, of course, file such a report, but it should be more ample than is made by this list — especially in view of the fact that some distribution was contemplated. I am inclined to think that it would be much better practice for the account and the report to be separated, and separately endorsed and filed.

Considering this list as a report, and as a report upon which a determination as to distribution is asked, it classifies the claims as “allowed by the receiver,” “disallowed by the receiver” and “contingent.” What “contingent” means does not appear.

It may mean that these claims have been allowed by the receiver as contingent claims. Certainly, if any claims have been allowed as contingent claims, they should be so reported by the receiver. In such ease it should also be reported as to the nature and circumstances of the contingencies.

It may mean that these claims may develop or be allowed on certain contingencies, as, for instance, if issue or suit be pending in a law court, under section 77 of the Corporation act, or P. L. 1921 ch. 225. If so, the circumstances and particulars should be stated.

Moreover, it should appear whether or not the receiver has notified the claimants of his determination, under section 76 of the Corporation act, and, if so, on what dates. Indeed, it is the practice, the reason for which is evident, to take orders limiting appeals and barring appeals. Cf. Dick. Supp. 39, 40. Such orders should be taken by the receiver in the present ease.

Again, concededly, certain of the creditors claim lien or right of priority of payment, either as to the total assets or a particular portion thereof- These should be separately set out- in the report, with a succinct statement of the nature or facts of the several classes of such preference claims, the respective determinations of the receiver in regard to the claims of preference, his reasons, and whether or not such claimants have been notified of such determination, and, if so; how and when.

An order will be made referring the account to a special master, as hereinbefore indicated, and directing him to report on a day certain; also directing the receiver to file a new and separate report conforming to the requirements set forth in these conclusions, such report to be filed and presented to me on a day certain, say about two weeks hence. It is obvious that no order as to allowances or distribution can be made at present. Let the order provide for the continuation of the hearing on the present order to show cause, so far as it coácerns the receiver’s report as to claims filed and his actions thereon, to a day certain, say a week subsequent to the date for the filing of such new report, and for the continuance of the hearing as to all other phases of the present order to show cause to a day certain, say two weeks subsequent to the date for the filing of 'the special master’s report; let the order also provide that it be served by the receiver on the several solicitors who appeared at this hearing. On the filing of the new receiver’s report an order limiting appeals may be had.

Certain of the objections filed by Edward M. Carroll, appearing pro se, are, in fact, objections to certain of the. receiver’s determinations or allowances of claims. They amount, essentially, to appeals from the receiver’s decisions, under section 78 of the Corporation act, although some of them simply state that “more information is desired.” If Mr. Carroll desires to press these objections as appeals, he may present the matter to the court on the date to which this hearing is continued so- far as concerns the receiver’s report as to claims, and obtain an order that such objections be deemed to be appeals, and providing for the hearing and determination thereof. The expense of such appeals must, of course, be borne, in the first instance, by the appellant.

Since the foregoing was written the receiver has filed a “supplemental report to- intermediate account/’ under leave granted at the hearing. This supplies some, but by no means all, of the deficiencies mentioned. It will be referred to the special master with the original account and report.


author: BuCHAiTAiSr, Y. O.

text:
    Rose Lucca, petitioner, v. Frank Lucca, defendant.
    [Decided March 3d, 1925.]
    Divorce1 — Desertion Alleged on Both Sides — Evidence Does Not Disclose Statutory Obstinacy on Either Side — Petition and Counter-claim Both Dismissed.
    On final hearing.

      Mr. Ferdinand D. Masucci, for the petitioner.

      Mr. Thomas G. Tuso, for the defendant.
   BuCHAiTAiSr, Y. O.

The wife and husband each allege desertion by the other, commencing May 6th or 8th, 1922, as ground for divorce. Both must fail, under the evidence. The pair were living with the wife’s parents. On May 6th the husband left; the wife remained; they continued separated, and the wife filed petition June 25th, 1924.

The wife admits requests by the husband, in person and by mail, that she should come to live with him in a home of their own, and that she refused unless he would provide a home in a big city and in a municipality other than 'that in which the husband’s parents resided. There is, of course, no legal justification for her imposition of such a condition.

• On the other hand, the wife’s replies to the husband were such as to afford reasonable ground for belief that she would, or might return to him, if he established a home in a different town from that where his parents lived. It appears that about five months after the separation the husband did move to another place, but he made no further effort or request to the wife.

Neither party shows the statutory requisite of obstinacy, and petition and counter-claim must both be dismissed. No costs.