text:
    FREDERICK E. COLLAWN, PETITIONER-DEFENDANT, v. 25 NORTH HARRISON STREET CORPORATION ET AL., RESPONDENT-PROSECUTOR.
    Submitted May 13, 1932
    Decided January 17, 1933.
    Before Justices Trenchakd, Case and Bkogan.
    For the petitioner-defendant, Slceffington & Wallcer.

    For the respondent-prosecutor, Harley, Cox & Walburg (Arthur F. Mead, of counsel).
   Per Curiam.

The respondent below is the prosecutor of this writ of certiorari, directed at-the findings of fact and the determination by the workmen’s compensation bureau, allowing compensation to Frederick E. Collawn, employe, against 25 North Harrison Street Corporation, employer, and the record discloses the following facts:

The petitioner, Frederick E. Collawn, had been in the employ of the prosecutor of this writ as janitor in East Orange, New Jersey, the property in question being No. 25 North Harrison street. He suffered injuries that arose out of and in the course of his employment and was allowed compensation therefor by the deputy commissioner of the workmen’s compensation bureau.

The real and in fact the only question in this case is who was the employer of the petitioner at the time that he suffered the injury. The petition was filed against the corporation known as 25 North Harrison Street Corporation as well as against Alexander Isserman, individually; Alexander Isserman & Sons, IJ. S. Agency and IT. S. Mortgage and Title Guaranty Company of New Jersey, as respondents. The fact that the accident arose out of and in the course of employment and that each of the respondents had due notice or knowledge of the injury are undisputed. The petitioner prevailed against the respondent, 25 North Harrison Street Corporation, and the petition was dismissed as to Alexander Isserman, individually; Alexander Isserman & Sons, IT. S. Agency and IT. S. Mortgage and Title Guaranty Company of New Jersey.

The reasons filed in support of the writ of certiorari reduce themselves to the single question mentioned above — who was-the employer?

The facts on that point are as follows: For sometime prior to the injury of the petitioner he had been employed by the corporation in question as the janitor of this property owned by it.

The property was encumbered by a first mortgage owned by the IT. S. Mortgage and Title Guaranty Company of New Jersey in the sum of $375,000. Foreclosure of this mortgage was under way, a writ of execution issued on July 11th, 1930, and the property sold thereunder on September 2d, 1930, the mortgagee being the purchaser, deed being delivered on October 4th, 1930. The petitioner was injured on October 6th, 1930. Later, and on December 24th, 1930, the real property in question was conveyed to the William and Harrison Corporation, which was done pursuant to an agreement made April 8th, 1930, between the H. S. Mortgage and Title Guaranty Company of New Jersey and A. Isserman, which agreement we find in the record. Furthermore, the agreement is endorsed by the corporation, 25 North Harrison Street Corporation, as follows: “We hereby agree to the foregoing contract.”

A reading of the agreement referred to discloses the situation. One of the pertinent articles of the agreement provided as follows:

“Article 16. It is understood and agreed that in the event the party of the first part [H. S. Mortgage and Title Guaranty Company of New Jersey] is unable to complete its foreclosure and deliver title to the corporation to be formed by the party of the second part [A. Isserman], on or before the first day of July, 1930, then the-party of the first part will on the said first day of July, 1930, turn over possession to the 25 North Harrison Street Corporation, the present record owner of said premises, the party of the second part agreeing, however, to manage the said premises for said corporation so that the income of the premises will be used for the maintenance of the building, and for the making of repairs and improvements hereinbefore mentioned. When title is taken by the company to be formed, as above set forth, possession of said premises is then to be turned over to said company.”

The plain inference therefore is that Mr. Isserman was the agent for his company, 25 North Harrison Street Corporation, all during this period and until, as later developed, the property was turned over to another corporation formed by him, which conveyance was not made until December 24th, 1930. The real party in interest was plainly the 25 North Harrison Street Corporation and Mr. Isserman was the agent only of that company.

There was an abundance of evidence at the hearing below that the relation of employer and employe existed between the prosecutor of this writ and the petitioner below. There was testimony that possession of the building in question was delivered to the prosecutor of this writ in July, 1930, and its management and control turned over to Mr. Isserman, acting for and on behalf of the corporation, 25 North Harrison Street Corporation, which corporation, apparently, Mr. Isserman owned.

Mr. Perselay, an officer of both the U. S. Agency and the U. S. Mortgage and Title Guaranty Company, testified the property was being managed for the 25 North Harrison Street Corporation and that that company had possession of the premises up to December 24th, 1930, and that the management, collection of rents and payment of expenditures were all done for the account of that corporation; that neither the U. S. Agency nor the U. S. Mortgage and Title Guaranty Company ever had possession of the premises and that Mr. Isserman did have possession, under the agreement, for the said 25 North Harrison Street Corporation. The conclusion reached by the tribunal below that the relationship of master and servant existed between Collawn and the Harrison Street Corporation was justified from the evidence and that finding is binding on this court.

The record is barren of evidence to show that the relationship of employer and employe was discontinued until some months after the accident in question. Under these circumstances, it follows that it was proper for the deputy commissioner to find that the corporation, the prosecutor of this writ, was the employer within the meaning of the Workmen’s Compensation act and that the petitioner sustained the burden of proving the existence of that relationship and that it had not been terminated at the time of the accident. “The relation of master and servant exists whenever the employer retains the right to direct the manner in which the business shall be done, as well as the result to be accomplished, or, in other words, not only what shall be done but how it shall be done.” 29 Cyc. 966. Here Mr. Isserman employed the petitioner and when he did so he was acting for the prosecutor herein. Otmer v. Perry, 94 N. J. L. 73; 108 Atl. Rep. 369; Rongo v. Waddington & Sons, 87 N. J. L. 395; 94 Atl. Rep. 408.

The finding below, therefore, will be affirmed, with costs.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    NEW JERSEY MANUFACTURERS’ CASUALTY INSURANCE COMPANY, PROSECUTOR, v. CECIL J. LOVE, PETITIONER-DEFENDANT.
    Argued October 5, 1932
    Decided January 17, 1933.
    Before Justices Parker and Lloyd.
    For the prosecutor, Kellogg <& Chance.

    For the defendant, David Boslcem and John A. Laird.

   Per Curiam.

The determinative question in this case is whether, after the insurance company had given notice of the cancellation of the policy for non-payment of premium to be effective December 7th, 1928, that notice was invalidated by demand for and acceptance of the “minimum premium” thereon, which by the terms of the policy was payable in advance, and for non-payment whereof notice of cancellation had been given; and whether the policy was consequently in force on the date when the disability of petitioner below arose, viz., either late in March, 1929, or June 24th, 1929. The Court of Common Pleas held that the forfeiture was waived, and the insurance company prosecutes this writ to review that decision.

The policy in question is of that class in which, on account of fluctuation in number of employes and sums paid in wages, the amount of premium cannot be ascertained until the end of the policy period, at wdiieh time an audit is had and a balance struck between the correct premium and the advance premium collected at the outset. Under the present policy the “total annual remuneration” under item one was estimated at $1,500, and the rate was fixed at $1.30, thus calling for an advance payment on that item of $19.50. The other items are to us unintelligible, but the net result is that the advance premium is fixed in the policy at the “minimum” of $25. The policy was to run from July 25th, 1928, to July 28th, 1929, and the minimum premium was payable in advance. It was not paid. As has been stated, the cancellation was to be effective December 7th. The letter of cancellation, November 27th, contains this sentence: “You can still keep your insurance in force by sending us your check in full for the amount showing on the enclosed statement.” This, however, is not controlling. The case turns on an application of conditions A and B of the policy to the facts in the case.

Condition A provides in part: “At the end of the Policy Period the actual amount of the remuneration earned by the employes during such Period, shall be exhibited to the Company, as provided in Condition C hereof, and the earned premium adjusted in accordance therewith at the rates and under the conditions herein specified. If the earned premium, thus computed, is greater than the advance premium paid, this Employer shall immediately pay the additional amount to the Company, if less, the Company shall return to this Employer that unearned portion, but in any event the Company shall retain the Minimum Premium stated in said Declarations. All premiums provided by this Policy, or by any endorsement hereon, shall be fully earned whether any such Workmen’s Compensation Law, or any part of such, is now or shall hereafter be declared invalid or unconstitutional.”

Condition B provides, in part:

“This Policy may be canceled at any time by either of the parties upon written notice to the other party stating when, not less than ten days thereafter, cancellation shall be effective. The effective date of such cancellation shall then be the end of the Policy Period. * * * The remuneration ■of employes for the Policy Period stated in said Declaration ■shall be computed upon the basis of the actual remuneration to the date of cancellation determined as herein provided. If such cancellation is at the Company’s request, the earned premium shall be adjusted pro rata, as provided in Condition A. If such cancellation is at this Employer’s request, the ■earned premium shall be computed and adjusted at short rates in accordance with the table printed hereon, but such short rate premium shall not be less than the Minimum Premium stated in said Declarations.”

What the company did was to declare a cancellation “at the Company’s request” and at the same time demand the minimum premium, which it collected later, viz., on May 1st, 1929, and it claims that it was entitled to that minimum premium for the period up to cancellation by virtue of the last clause quoted above. But that clause relates only to a ■cancellation subject to short rates, i. e., on request of the assured. A cancellation at the company’s request is handled in the same manner as in Condition A, viz., by an audit and balancing of accounts for the period run. The company apparently made no suggestion of any such audit. What it did was to cancel the policy itself, and then demand the minimum as if the assured had done the cancelling. Conceivably the amount really due on such a cancellation would have been much less than $25. That amount was all that it was then ■entitled to on the policy as a live policy; and we agree with the court below that the legal effect of demanding and collecting the $25 instead of having the audit provided by the policy in such case, was to invalidate the cancellation and restore the policy as a live policy, effective at the time the -disability arose.

The judgment will accordingly be affirmed.


text:
    THE STATE OF NEW JERSEY, DEFENDANT IN ERROR, v. SAMUEL R. LUSTBERG, DAVID GOLDIS AND SELIG BAKER, PLAINTIFFS IN ERROR.
    Argued October 18, 1932
    Decided January 17, 1933.
    Before Gummere, Chief Justice, and Justice Bodine and Donges.
    For the plaintiffs in error, Ward •& McGinnis' and Weinberger & Weinberger.

    For the defendant in error, Nathaniel Kent.

   Per Curiam.

The plaintiffs in error were convicted in the Passaic County Court of Quarter Sessions upon an indictment charging conspiracy.

The state alleged that on January 9th, 1932, the defendant Lustberg, who is a physician, agreed with Frank Stamato and John Wozniak to pretend that an automobile owned by Anthony Stamato and driven by Dominick Duva struck and injured Wozniak and David Goldis; that Lustberg, Wozniak and Prank Stamato drove to the scene of the pretended accident; that Prank Stamato disclosed the scheme to Anthony Stamato, who joined the conspiracy; that thereafter Duva, Goldis and the defendant Selig Baker joined the conspiracy, each of the defendants agreeing to perform his part in carrying out the conspiracy; that Lustberg, to give color to the alleged accident, inflicted injuries to Wozniak; that Duva reported to the Lodi police that he had been involved in an accident; Duva and Prank Stamato reported to the agent of the insurance company covering Anthony Stamato’s automobile that it had been involved in an accident; that Lustberg engaged counsel to represent the alleged injured parties, and that the alleged injured parties were examined by a physician for the iusurance company.

The state alleged that no accident occurred by collision of Wozniak and Goldis and Stamato’s automobile; that they sustained no injuries in such an accident; that the parties all knew of the falsity of the claims; and that the parties conspired to press false claims of the persons pretended to be injured for the purpose of defrauding the insurance company.

The defendant Lustberg writes down one hundred and fifty assignments of error, and the defendants Goldis and Baker write down one hundred and twelve assignments of error. It was stipulated that the assignments of error filed by Lust-berg should also be considered as specifications of causes for reversal.

The appeals were argued together, and so far as the points raised apply to the appeals of the three plaintiffs in error they are to be considered on behalf of each of them.

On behalf of Lustberg, a petition was filed in the Quarter Sessions praying that court to send the record to the District Court of the United States for the District of New Jersey.

The judge of the state court held, after due examination (Bilecki v. Erie Railroad Co., 101 N. J. L. 17; 127 Atl. Rep. 328), that the petition was not properly filed and that it did not set out grounds for the removal of the record to the District Court of the United States, and declined to order the removal.

We think there was no error in so ruling. Ex parte Wells, 17 Fed. Cas. 386; Kentucky v. Powers, 201 U. S. 1.

On behalf of the defendant Lustberg, motion was made to quash the indictment on the ground that it was defective and insufficient in law.

The indictment was found under section 37 of the Crimes act (2 Comp. Stat., p. 1757), which, inter alia, provides:

“Any two or more persons who shall combine, unite, confederate, conspire or bind themselves by oath, covenant, agreement or other alliance to commit any crime, * * * or falsely to move and maintain any suit, or to cheat and defraud any person of any property by any means which are in themselves criminal, or to cheat and defraud any person of any property by any means which, if executed, would amount to a cheat, or to obtain money by false pretenses, * * * shall, on conviction, be deemed guilty of a conspiracy,” &c.

The offense charged in this case is not one of those that is indictable under the statute on making the agreement, but is one that requires an overt act to make the conspiracy an indictable offense.

In State v. Hemmindinger, 100 N. J. L. 234; affirmed, 101 Id. 417; 126 All. Rep. 544; affirmed, 128 Id. 922, Mr. Justice Kalisch said: “The legal principles governing the crime of conspiracy are too familiar to need citation of authorities for their support. It is well settled that the unlawful agreement is the gist of the conspiracy. The unlawful agreement, however, does not become the basis of an indictable offense till one of the parties to such agreement takes a step in furtherance of the execution of it. It is, therefore, essential, when there is a charge of conspiracy which requires an overt act to bo done in execution of it, in order to make the conspiracy indictable, that such overt act should be set out in the indictment. It is not necessary to constitute the offense that it should appear that the object of the conspiracy was attained — a step taken in that direction by one of the parties to the agreement is sufficient. An indictable conspiracy is, in its nature, an attempt to commit an offense."

The indictment charges that the defendant Lustberg, with others, conspired to assert the happening of an accident, which never occurred, the injury thereby of two persons, the giving of notice to the insurance company, the employment of attorneys to begin suit therefor, the infliction of injuries to bolster the claim, the examination of the pretended injured parties by the representative of the insurance company, the knowledge of the spuriousness of the claims — all for the purpose of fraudulently obtaining money from the insurance company. Before the fruition of the fraudulent scheme, one of the conspirators informed the authorities and made success impossible. Many overt acts were charged in the indictment, and established by testimony at the trial.

The fact that several offenses may be alleged to have been committed in furtherance of the conspiracy does not render it duplicitous and bad.

We conclude that the defendant Lustberg was fully and definitely informed of the nature and character of the offense charged, and that the indictment was sufficient.

For the defendants Golis and Baker it is argued that the indictment was not sufficient to charge them with conspiracy.

The record fails to disclose that any motion was made on behalf of these defendants to quash the indictment, or other objection made to the sufficiency of the indictment, before the jury was sworn, as required by the statute. Criminal Procedure act (2 Comp. Stat., p. 1834). A motion was made on behalf of the defendant Lustberg to quash the indictment, but none was made on behalf of Goldis and Baker. The ground now urged on their behalf was not brought to the court's attention on the motion of Lustberg. “The failure to make an objection- to an indictment before the jury is sworn, as provided in this section, is a bar against any attack upon the indictment in a court of review. Shuster v. State, 62 N. J. L. 521; 41 Atl. Rep. 701; State v. Sharkey, 73 N. J. L. 491; 63 Atl. Rep. 866; State v. Sing Lee, 94 N. J. L. 266; 110 Atl. Rep. 113.” State v. Cohen, 108 N. J. L. 216; 157 Atl. Rep. 437.

It is next urged that the trial judge committed error in admitting into evidence papers containing statements made by defendants to the police authorities. These statements or confessions were those of the defendants Frank Stamato, Anthony Stamato, Dominic Duva, David Goldis, Selig Baker and Samuel Lustberg, all of whom were interrogated by the police, in the presence of some other defendants in each instance, Lustberg being present at all times. These statements were taken stenographically by Mildred R. Duffy and transcribed by her. The accuracy of the transcription was admitted, as appears from the record as follows:

“Q. Is the typewritten transcript a true and correct transcript of your shorthand notes? Mr. Ward — We admit anything turned out by Miss Duffy is correct. Mr. Masterson— I offer the statements in evidence. Mr. Ward — The transcription may be a correct transcription of what she took down- Mr. Masterson — You don’t object upon the ground that they are not true and correct- Mr. Ward — I know any work Miss Duffy does will be truly and correctly done.”

The objection was that they were not signed statements, that they were not confessions, and that they were made by co-conspirators and not evidential unless all persons charged with the offense were present. Two of the defendants signed statements.

The trial court expressly instructed the jury that statements were binding only on the defendants making them and on such other defendants as were present when the statements were made.

We think there was no error prejudicial to the defendants in admitting the statements in evidence. State v. Gregory, 93 N. J. L. 205; 107 Atl. Rep. 459. In State v. Donato, 106 N. J. L. 397; 148 Atl. Rep. 776, it was said: “Confessions are admissions, made at any time by a person accused of crime, stating or suggesting the inference that he committed or participated in the commission of that crime. * * * It is said in 2 Whart. Cr. Ev. 1329, that ‘it is not necessary to the admissibility of a written confession * * * that it should be signed by the accused’ - (citing State v. Haworth, 24 Utah 398; State v. Eaton, 3 Harr. 554; State v. Johnson, 5 Id. 507).”

In the instant case, the accuracy of the statements is admitted. It is not claimed that they were not voluntarily made. The statements being conceded to be trustworthy and not contradicted, there was no prejudicial error in their admission.

Assignments of error Nos. 63 to 74, inclusive, 150 and 17, 18, 19 and 20, relate to the court’s sustaining objections to questions asked by counsel for defendants. The first group relate to questions asked Detective Cluney, who had been examined and cross-examined touching the making of the statements, before the statements were admitted in evidence, and was subsequently called to identify some of the defendants. Upon being recalled after the statements were in evidence, counsel propounded a series of questions not in line with his further examination. The court did not permit the examination. We think there was no error in so ruling. The court stated that the cross-examination was not upon the subject of the witness’ examination and that the cross-examination upon his previous direct examination had been concluded. No request for further cross-examination upon his prior direct examination was made.

Assignments of error Nos. 17 to 20 relate to questions propounded to Wozniak about his whereabouts during the week prior to the trial, and whether he had procured a lawyer. The materiality of the questions does not appear and they were properly overruled.

Assignment of error No. 150 brings up the ruling of the court sustaining an objection to a leading question to one of the defendant’s witnesses on his direct examination. We see no impropriety in this ruling. Counsel urge that the purpose was to show the bias of the witness and to discredit other state’s witnesses. The witness was called on behalf of the defendants, and how the question of the witness’ bias was material does not appear. Nor does it appear how an answer to the question would affect the credibility of other witnesses.

The next point raises the propriety of questions propounded to the witnesses Seaback and Wesley touching the giving of notice to the representatives of the insurance company of the pretended accident. We see no harmful error in the rulings. Likewise there was no harmful error in the examination of the witness Peschel.

It is urged before us that the court should have directed an acquittal because the evidence did not sustain the indictment, and it is also urged that the verdict is against the weight of the evidence.

We have carefully examined the testimony and are of opinion that the court properly refused to take the case from the jury by directing an acquittal, and, also, that the evidence fully justified the jury in finding the defendants guilty.

Other errors as grounds for reversal are directed at the refusal of the trial court to grant a motion for mistrial of the case, and to the refusal of the court to permit cross-examination of two defendants who withdrew their pleas of not guilty and pleaded non vult in the course of the trial, and who were not offered as witneses, and to the refusal of the court to permit cross-examination of counsel for the two defendants who pleaded non vult, and to the refusal to strike out the statements of said defendants previously admitted. We consider such rulings proper and free from legal error.

We think we have disposed of all of the assignments of error and specifications of causes for reversal assigned or specified, and argued by the defendants.

The convictions under review will be affirmed.


author: Mathews, J.

text:
    First Judicial District Court or Burlington County.
    FIDELITY AND CASUALTY COMPANY, PLAINTIFF, v. HILL CONSTRUCTION COMPANY, DEFENDANT.
    Decided January 14, 1933.
   Mathews, J.

This is a suit brought for premiums alleged to be due to the plaintiff from the defendant on two policies of workmen’s compensation insurance taken out by the defendant with the plaintiff.

Because it was anticipated that there would be a large amount of detailed accounting testimony in the case the matter was referred to Henry Bosenfeld, Jr., Esq., as referee. After the testimony was taken it developed that the main, and in fact the only controversy between the parties was rather a question of law than one of fact. A report of the findings of the referee has been filed. There is little or no serious dispute as to the facts. From the report of the referee and the statement of counsel the facts are briefly as follows:

The insurance policies issued by plaintiff are in accordance with the standard form of compensation policy issued in this state. In the policies and under the heading “Classification of Operations” under heading B appear the following words:

“Concrete Construction — Bridges or Culverts — where floor is more than ten feet above ground or span exceeds twenty feet — including piers or abutments — excluding excavation, pile driving or all yvork in tunnels, subways or caissons — including employes engaged in making, setting up, or taking down forms, scaffolds, false work or concrete distributing apparatus.”

While the report of the referee is in words which do not import a specific finding of fact as to this particular point, I think, from the argument of counsel, there is no doubt about it and it can be assumed for the present purpose, that the amount of premiums sued for covered the payroll of employes who were engaged by the defendant actually in excavation or pile driving or some work included in the terms following the words “excluding” in the classification above quoted.

The referee finds as a fact that the rates applied were strictly according to the manual of the New Jersey insurance board.

There is in the case no question of the proper rate to be applied and the fact that the plaintiff, if it is entitled to recover at all, would be entitled to recover on the rate according to pile driving work, is not involved.

The contention of the defendant is that the clause above quoted construed in connection with the other terms of the policy shows a contract between the parties whereby the plaintiff did not insure the defendant against injuries to any employes of the defendant who were employed in the excluded character of work and therefore plaintiff is not entitled to recover premiums for those employes, based on defendant’s payroll.

I further do not think it important to the issue that it is a fact that the plaintiff’s agent received the information from which it made up its charges from an employe of the defendant who stated that the entire payroll was for work other than that embodied in the excluded items.

The sole question at issue is whether or not the plaintiff by its policies of insurance actually insured employes of the defendant engaged in the excluded operations or any of them because if it did so, and Avas thereby liable under the policy for injuries sustained by defendant’s employes while so engaged, it is certainly entitled to receive premiums based on the payroll of such employes. If it did not, it is equally clearly not entitled to premiums for assuming a risk that it really did not assume under the contracts or policies.

Fundamentally, the contracts or policies must be construed from the language contained therein. Plaintiff contends that because the law requires the contract to cover certain things the contract must necessarily cover them. Defendant says that since the law prohibits the collection of premiums on policies which violate the law in this respect there is a recognition that such contracts may so violate the law and therefore recognizes the fact that there may be such contracts, and that the contracts in question are in that class.

The question of whether a contract is given pursuant to a statute, and if it is, the construction of such contract in the light of the statute, is an interesting one. The court, as counsel in another case, has had occasion to look into the question somewhat quite recently. So far as this particular case is concerned there can be no question that the contract was made pursuant to the workmen’s compensation statute of this state. Paragraph (1) under section 1 (a) says:

“To pay promptly to any person entitled thereto under the Workmen’s Compensation law, and in the manner therein provided, the entire amount of any sum due and all installments thereof as they become due.”

A rider attached to the policy refers specifically to the act. A reading of the entire provisions of the contracts can leave no other sensible impression than that they were made pursuant to and in contemplation of the statute.

There is therefore settled in this case this primary question, which I have found from the reading of a number of cases has been very confusing to the courts. To my mind there is a vast difference between a contract which specifically mentions a statute, or states that the contract is given pursuant thereto and (or) the general terms of which leave the reader in no doubt that the contract had the statute in contemplation, and a contract which nowhere mentions a statute, whose provisions have no connection therewith but on the contrary .are either in entire disaccord therewith or omit some salient features which the statute provides they must contain. One is a contract made between parties with the statute or the necessary terms thereof embodied by implication, if the provisions of the statute are mandatory, and therefore it is no -violation of the contract between the individuals for the court to construe the contract in the light of the terms of the •statute. The other is a contract made between parties which either has absolutely no connection with the statute whatsoever or, although mentioning it, is in terms diametrically opposed to the words or provisions of the statute. To say that either of this last class of contracts is executed pursuant to a statute and to proceed to so construe it either by putting in terms which the parties by the wording of their contract never intended or deliberately throwing out specific terms of the contract and substituting statutory language therefor is to clearly make a contract for the parties instead of construing the contract which they have made.

It is fundamental, of course, that where two constructions can reasonably be placed upon the terms of a contract that which will give it legality and validity is to be preferred over that which will make it invalid.

Having determined that the contracts in question were made pursuant to our Workmen’s Compensation act, let us -then turn to the provisions of that act and interpret the policies in question in the light of those provisions:

The very first provision of the act is as follows:

“Section 1. When personal injury is caused to an employe by accident arising out of and in the course of his employment, of which the actual or lawful imputed negligence of the employer is the natural and proximate cause, he shall receive compensation, &c.”

Section 7 contains the provision with regard to the injuries arising out of the employment without regard to the negligence, unless there be a specific agreement otherwise between the parties. Admittedly in this case no such agreement was made and the defendant would have been liable for compensation in case of accident to the employe without regard to its own negligence.

In 1917 the legislature of the State of New Jersey passed an act entitled as follows:

“An act concerning the compulsory insurance of compensation payments arising under section 2 of the act entitled 'An act prescribing the liability of an employer to make compensation for injuries received by an employe in the course of employment, establishing an elective schedule of compensation, and regulating procedure for the determination of liability and compensation thereunder/ approved April fourth, one thousand nine hundred and eleven.”

This act, with amendments not seriously important to the question involved, was in effect at the time the contracts in question were made. I think that it is not unreasonable to assume that, while this particular act is not specifically mentioned in the policies, but the act mentioned being specifically set out in the title to the act of 1917 and its amendments and supplements subsequent, the parties contracted in view of and pursuant to this last named act, inasmuch as there are no specific provisions in the contracts opposed to or violative of the terms of this latter act and a reasonable construction of the terms of the contracts are consonant with the provisions of this last named act.

Section 4 of this act says in part as follows:

“Every employer not operating under section 3 [which section is not applicable to defendant] of this act as hereinbefore set forth shall insure and keep insured his liability, &c.”

Section 14 provides in part:

“No policy of insurance against liability arising under this act shall contain any limitations of the liability of the insurer to an amount less than that payable by the insured on account of the risk insured against under this act * * * but a policy may be issued to an employer insuring him against his liability under this act upon any particular business, plant, or employment carried on by him, provided that all other businesses, plans, or employments carried on by the same employer are insured or exempted as provided for in this act.”

Item 5 of the contracts say:

“This employer [the defendant] is conducting no other business operation at this or any other location not herein disclosed — except as herein stated. No exceptions.”

Now, to give the contracts the construction contended for by defendant I would have to assume that defendant violated the provisions of the act of 1917, because its very contention is that it did not contract for coverage of employes engaged in pile driving with the plaintiff and did not have insurance elsewhere covering such employes. Unless the clear wording of the contracts make such construction necessary, it will not be given.

What do the words “his liability” in section 4 above quoted mean? Without going into any long discussion upon the subject it seems clear that it is the liability of the employer for all employes who come under the provisions of the Workmen’s Compensation act. Defendant would have been just as liable thereunder for an injury to an employe engaged in pile driving as for one engaged in an employment admittedly covered in specific terms by the policies.

Finally, are there any provisions in the policies themselves which prohibit us from construing them to cover injuries to employes engaged in the excluded occupations under the classifications, or are the classifications to be construed to be primarily designations of classes for the purpose of fixing the rates ?

Defendant calls attention to the following provisions of the contracts:

“This agreement shall apply to such injuries so sustained by reason of the business operations described in said declarations, &c.”

“The premium is based upon the entire remuneration earned during the policy period by all employes of this employer engaged in the business operations described in said declarations, &c.”

“The foregoing enumeration and description of employes include all persons employed in the service of this employer in connection with the business operations above described, &c.”

And contends that from these provisions it is clear that the contracts were not intended to apply to any other operations than those described in the declarations or classification. This would be perfectly sound if the contract was not made pursuant by its own terms with the statute known as the Workmen’s Compensation act and, by my own opinion, in conjunction with the act of 1917. But when considered with the provisions of these two statutes it is at once seen that the phraseology used must be construed with item 5 of the •contracts, whereby it is disclosed that both parties contracted in contemplation of the fact that the defendant was not engaged and did not intend to engage in any operations not mentioned in the schedule without complying with the provisions of the law. I cannot assume, even though the defendant itself urges me to do so, that the defendant intended to violate the law in this respect.

In passing it might be remarked that there may be argued to be one serious objection, at least, to such construction of these contracts as I have placed on them, i. e., that if defendant’s employes or one of them had been injured while engaged in one of the excluded operations under section B •of the classification the plaintiff should have the right to evade liability under the policy by showing that it did not insure ■such employes under the specific provisions of the policy and that the defendant had misrepresented the activities in which it was engaged. I am not persuaded that our courts would .■allow the plaintiff to so escape liability when it knowingly entered into the contracts with specific reference to the compensation act and reasonable inferential reference to the act ■of 1917. Such acts are remedial; the plaintiff is protected, if this decision be right, in the collection of its premium on the rates properly chargeable for such employments and section 9 of the act of 1917 says:

“Every contract of insurance covering the liability of an employer for compensation to injured employes or their dependents, under the provisions of section two of the said Workmen’s Compensation act, hereafter written by a stock company or a mutual association shall provide, or be construed to provide, that it is made for the benefit of the several employes of the insured employer and their dependents, and that such contracts may be enforced by any of such employes or their dependents suing thereon in his or their names as though distinctly made party thereto.”

While I am not at all in sympathy with the lengths to which some courts have recently gone to “liberalize” and “humanize” the law for the protection of the innocent, the careless and the ignorant against the strict, well settled and sound principles of law, and thereby destroy one of their greatest values — certainty—still it seems to me to be quite in harmony with the well-recognized rules of construction of such contracts as these under like circumstances to hold that both the plaintiff and defendant in this case clearly intended and comprehended in these policies the one to insure and the other to be insured against loss from injuries to any employe arising out of any employment in which the defendant might engage during the period of the policy and covering which he did not have other insurance in accordance with the statute, and that the classifications enumerated were not for the purpose of limiting the liability of the plaintiff but for generally fixing the class of employment in which the defendant was engaged or in which it at the time thought it would engage, for convenience in fixing the rates of'premium as a tentative basis; in other words, that such classifications and the other provisions of the contract are not to be construed in any sense as specific agreements to limit liability in deliberate violation of the act of 1917. The necessary result of this decision, of course, is that the plaintiff would be liable for injuries suffered by employes of defendant while engaged in other lines of operation, because that is the only basis on which the former would be entitled to the premiums sued for. If, by chance, the Court of Errors and Appeals should take a similar view and establish it as the law of this state, this particular plaintiff, at least, could hardly complain. It is the necessary result of its own contention, which I have found to be correct.

As previously intimated the referee will be allowed the sum of $25, and in view of the novelty of the question presented, neither counsel citing authorities precisely in point, I will order that each side pay one-half of the referee’s fees.

Wo date on which the premium was due having been found, interest will be allowed from the institution of suit.

Judgment will therefore be entered against the defendant and in favor of the plaintiff for $476.51 together with interest from April 15th, 1932, or $21.44, or a total of $497.95.


author: Case, J.

text:
    THE MORRIS PLAN COMPANY OF NEW YORK, A BANKING CORPORATION OF THE STATE OF NEW YORK, PLAINTIFF, v. EMIL C. LORBER AND ADOLPH MEYER, DEFENDANTS.
    Decided January 21, 1933.
    For the plaintiff-respondent, Louis Ogust.

    For the defendants-proseeutors, Alex Eber and Jacob Rainer.

   Case, J.

On November 25th, 1932, defendants were personally served with summons and complaint in an action on contract. The complaint was endorsed in accordance with the rule requiring the filing of an affidavit of merits. Four days thereafter defendants made demand upon plaintiff for a bill of particulars. On December 14th, 1932, no affidavit of merits having been filed, judgment for the plaintiff was entered by default against both defendants. Defendants now seek to have the judgment vacated as improvidently entered. No defense, meritorious or otherwise, is interposed. The defendants rely upon the proposition that the demand for a bill of particulars stopped the running of the time within which the affidavit of merits should be filed and that, inasmuch as no bill of particulars was furnished in response to the demand, the judgment by default was improperly entered.

Supreme Court rule 77 (Practice act, 1912, rule 56) provides that “in actions on contract plaintiff may enter judgment unless the defendant or his agent or attorney shall, within ten days after personal service of complaint, file an affidavit of merits, stating that the affiant believes that the defendant has a just and legal defense to the action on the merits of the case * * *,” provided the complaint be endorsed with notice thereof. Defendants seek to extend and to have the benefit of the practice relating to a pleading, namely, that a defendant has the same time to plead after receiving the bill of particulars that he had at the time of demanding the same. Anonymous, 16 N. J. L. 346; Dixon v. Swenson, 101 Id. 22, 24; 127 Atl. Rep. 591. But the affidavit of merits is not a pleading and performs none of the functions of a pleading. Pleadings are to raise and make certain the issues upon which the controversy is to be waged. As Blackstone puts it (3 Bl. Com. 293), they are "the mutual altercations between the plaintiff and the defendant.” Widening the classification of pleadings to include demurrers and motions or other procedures that take the place of demurrers the affidavit of merits is still outside the pale. It is not even directed towards a pleading. It is not required to contain, and in actual practice does not ordinarily contain, a specification of defenses or an allegation of the facts.

Citation of the decisions of other states is not particularly helpful because of the difference in the requirements of the respective statutes or rules; but the Supreme Court of Pennsylvania held that an "affidavit of defense” in the Pennsylvania practice is no part of, and has an entirely different function from, the pleadings, and that its sole use is to prevent a summary judgment by default under the statute (Muir v. Preferred Accident Insurance Company of New York, 53 Atl. Rep. 158), and the Supreme Judicial Court of Massachusetts, in Indiana Flooring Co. v. Rudnick, 127 N. E. Rep. 428, held that the "affidavit of defense” constituted no part of the pleadings.

The New Jersey rule is a development from Pamph. L. 1889, ch. 210, and section 97 of the 1903 Practice act. Pamph. L. 1903, ch. 247, as amended by Pamph. L. 1906, ch. 306; 3 Comp. Stat., p. 4080, § 97. In Van Dyke v. Oliphant (1890), 13 N. J. L. J. 92, Mr. Justice Garrison said that the effect of the provision is two-fold; first, that it deprives the defendant of the right to plead unless he has, within the ten-day period, filed his affidavit of merits and, second, that it authorizes the entry of judgment at the end of the ten days unless the defendant shall have filed such an affidavit; and Mr. Justice Dixon, in Laufman & Co. v. Hope Manufacturing Co., 54 N. J. L. 70; 23 Atl. Rep. 305, clearly assumes that the defendant, in appropriate instances, must file his affidavit of merits within the ten-day period or be subject to the entry of judgment against him.

The plain purpose of an affidavit of merits, as required by our rule, is to prevent the defendant from delaying judgment by recourse to pleadings or proceedings incidental thereto unless the situation is such that he, or his agent or attorney may truthfully swear to a belief in the existence of a just and legal defense to the action on the merits, and unless an affidavit of that content be speedly filed. It is to prevent pettifogging delay. Eesort to a demand for a bill of particulars as a means of procuring delay in the taking of judgment in an action to which there is no meritorious defense is quite as opposite to the spirit and the letter of the rule as would be the filing of an answer for that purpose. Plaintiff’s judgment was properly entered.

The rule to show cause is dismissed, with costs, against the prosecutors.


text:
    PETER PADULA, PLAINTIFF-RESPONDENT, v. PUBLIC SERVICE CO-ORDINATED TRANSPORT, A CORPORATION, DEFENDANT-APPELLANT.
    Submitted May 13, 1932
    Decided January 17, 1933.

      Before Justices Trenchard, Case and Brogan.
    Eor the plaintiff-respondent, Ralph A. Viliam.

    Eor the defendant-appellant, Henry H. Fryling.

   Per Curiam.

This is an appeal from the District Court of the Second Judicial District of the County of Essex wherein the court found a verdict of $100 in favor of the plaintiff and against the defendant. The cause of action arose out of these facts.

The plaintiff had parked his car on Broad street, south of Market street, in the city of Newark, sometime between 9:30 and 10 o’clock in the morning. Traffic was heavy. He parked in a place where there was a limitation as to the time he might park and after being there some minutes he resolved to change to another parking place. On starting to move his car out of the spot where he was parked, he testified that he put his arm out of the window of the car, apparently to signal the operator of any vehicle coming from the rear. He further says that he looked back and had a clear vision of from seventy-five to one hundred feet, and that he was in the act of turning out when a bus of the defendant corporation came along “at full speed” and struck his car on the left front, damaging it. Erom judgment in favor of plaintiff, the defendant below appeals.

The appellant sets up three determinations and directions of the trial court with which it is dissatisfied in point of law. Eirst, that the court refused to nonsuit on the ground that there was no negligence on the part of the defendant. Secondly, that the court at the close of the whole ease refused to give judgment for the defendant on the ground that there was no evidence of negligence on the part of the defendant and that there was contributory negligence on the part of the plaintiff, and, third, that there was no evidence of liability to justify the judgment.

The defendant’s motion for nonsuit was denied and no exception was taken thereto. There was some evidence of negligence on the part of the defendant and of course a non-suit cannot be granted under these circumstances because motion for nonsuit admits the truth of the evidence offered by the plaintiff and every legitimate inference that may be drawn therefrom. Goodyear Tire and Rubber Co. v. Gallagher, 108 N. J. L. 543; 158 Atl. Rep. 428.

The appellant’s motion for a direction of verdict at the end of the entire case was predicated upon the alleged contributory negligence on the part of the plaintiff and no negligence on the part of the defendant. As to direction of verdict on the ground of contributory negligence, the rule is that such verdict will not be directed unless the facts are undisputed and the inferences to be drawn therefrom such that fair-minded men ought not to disagree about them. Podolsky v. Sautter, 102 N. J. L. 598; 133 Atl. Rep. 199. The facts in this case were not so clear and undisputed as to meet the requirements of this rule and the direction of verdict on the ground of contributory negligence of the plaintiff was properly denied. The question therefore of the defendant’s negligence and the contributory negligence of the plaintiff, manifestly became fact issues determined below, which this court will not review. This being so, it follows that there is no merit in the third specification and determination advanced here for reversal.

The judgment under review will be affirmed, with costs.


text:
    MICHAEL ASCHBERGER, TRADING AS CLIFTON MARBLE WORKS, PLAINTIFF-RESPONDENT, v. GAETANO M. BELFATTO, DEFENDANT-APPELLANT.
    Submitted May 13 1932
    Decided January 17, 1933.
    Before Justices Trenchard, Case and Brogan.
    For the plaintiff-respondent, Elmer Friedbauer. '

    For the defendant-appellant, Philip Oaudiosi.

   Per Curiam.

The appeal before us brings up a judgment of the First Judicial District of the County of Essex and the record discloses that the plaintiff below sued to recover the sum of $254 for labor and materials supplied to the defendant which chiefly consisted in installing marble work in the floor and vestibule of the defendant’s home in Newark, New Jersey. The casé was tried before the court and jury and the jury returned a verdict for the full amount.

The contract between the parties was for extra marble work in addition to certain other work that was covered by a written contract and which doesn’t enter into consideration here. There was evidence that an agreement was made between the parties hereto for the performance of the work in question and the prices agreed upon; that the defendant selected the color and type of marble that was to go into the building, from samples submitted by the plaintiff; that about seventy-five per cent, of the marble was Italian in quality and the balance was Tennessee marble, and that the domestic marble was put into the building at the defendant’s request; that the work was done to the entire satisfaction of the defendant. This extra work was not paid for. The defendant contradicted this testimony, admitting, however, that he ordered the work but denied that he had agreed to any particular price, claiming the price was too high and that he never agreed to any Tennessee marble being put into the work which was done for him by the plaintiff. He admitted, however, that he daily supervised the work and had selected the type of marble. There was other testimony on behalf of the defendant that Italian marble was more costly than Tennessee marble.

The defendant moved for a nonsuit at the end of the plaintiff’s case and for a direction of verdict at the end of the whole ease. Just how he expected to prevail on either motion is certainly not clear. The case was wholly a fact case and upon being presented to the jury a verdict was rendered in favor of the plaintiff and against the defendant.

The defendant sets up twelve specifications of determinations on this appeal with which he is dissatisfied as a matter of law. He doesn’t argue them, however, his whole contention being rather confined to a discussion of the facts. Grounds for reversal that are not argued are of course deemed to have been abandoned. Sargeant Brothers v. Brancati, 107 N. J. 84; 151 Atl. Rep. 843.

The facts in the case were submitted to and determined by the jury in the District Court and from that finding there is no appeal. "Only the determination or direction of the District Court in point of law or upon the admission or rejection of evidence was open in the Supreme Court.” Oppicci v. Erie, 93 N. J. L. 394; 108 Atl. Rep. 759; Moncher v. Fuches, 8 N. J. Mis. R. 172; 149 Atl. Rep. 356. One point more, however, is made by the appellant which needs mention here. He alleges that the state of demand for the plaintiff’s case asks for $229 damages while the verdict of the jury was for $254. On appeal, we are governed by the state of the case as settled by the court and it recites that the action was brought to recover $254. The record discloses no objection to have been made to this recital by the appellant, which settles the matter so far as this court is concerned.

The judgment will be affirmed, with costs.


text:
    JOSEPHINE Y. BREESE AND JOHN MAHER, PROSECUTORS, v. FRANK H. HUTCHINS, WILLIAM L. MATHER, JOHN P. DULLARD, JOSEPH B. HOTTEL AND T. A. KARNO, MEMBERS, AND THE ZONING BOARD OF ADJUSTMENT OF THE CITY OF TRENTON, RESPONDENTS.
    Submitted May 13, 1932
    Decided January 17, 1933.
    Before Justices Trenchard, Case and Brogan.
    Por the prosecutors, Albert 8. Woodruff.

    Por the respondents, Charles E. Bird, Ellis L. Pierson, Scammell, Knight & Reese and Katzeribach, Gildea & Rudner.

   Per Curiam.

In the ease before us, a rule to show cause was allowed why a writ of certiorari should not issue to review the action of the respondent, board of adjustment of the city of Trenton, revoking two building permits issued by the building department of that city to the prosecutors herein. Josephine T. Breóse (who may be called the owner of the property in question though in fact she is a life tenant) is a prosecutor and is joined in that capacity by John Maher, a contractor, who, it is alleged, was to have done the contemplated work of building the proposed structure called for by the permits in question.

The property is situated on the southeast corner of Calhoun and State streets in the city of Trenton. On or about December 10th, 1931, two permits were granted for the building of business structures on this location. The petitioners allege, but in the proofs taken under the rule do not offer any testimony to show that between the date of the granting of these permits and February 3d, 1932, obligations were incurred to erect the buildings planned. The testimony further shows that the block in question is a residential street and that no permits to build business structures have been granted in this particular area since the adoption of the zoning ordinance.

On January 14th, 1932, appeals were taken to the board of adjustment by neighboring property owners, some of whom, it appears, have their homes in the neighborhood, protesting against the permits granted by the building department, and on January 20th, 1932, the board of adjustment, after a hearing, sustained the appeal and revoked the permits. On February 4th, 1932, the prosecutors obtained an order to show cause why a writ of certiorari should not be allowed to review the action of the board of adjustment in revoking the permits in question, which rule to show cause is now before us.

A zoning ordinance was adopted by the governing body of the city of Trenton on July 8th, 1927. In accordance with the statute governing matters of this kind the ordinance was advertised, detailing the zones and the various uses that were proposed to be adopted by the ordinance in the different zones. There was advertised at the same time a use-district map, called Exhibit R-l, in the state of the case, which accompanied said advertised ordinance and was an integral part thereof.

The board of adjustment, in revoking permits that had been granted by the building inspector, relied upon the map, R-l, which was filed in the office of that board and which was the map that had been published along with the ordinance and prior to the adoption of the ordinance on July 8th, 1927. This use-map, as it may be called, detailed the area in which the property of the petitioner is located as usable for residential purposes. It appears that the map upon which the building inspector relied and which was on file in his office, and which is called P-1, differed from the map, B.-1, which was published, and apparently permitted the use which petitioners desired and for which the building inspector issued permits in question.

It is obvious of course that the purpose of the statute, in directing that a proposed ordinance of this character and the map visualizing the proposed uses be advertised, is to apprise those that will be affected thereby, namely, property owners and citizens of the municipality, of the manner in which it is proposed to regulate the building and character of structures in the several areas into which the municipality is divided. It is- equally plain, therefore, that since the map which was on file in the office of the adjustment board, or K-l, as it is called, is the map that was published and no protest was made at the public hearing before its adoption, at least as far as the location in question is concerned, it was, therefore, satisfactory to those affected thereby. Those who now protest the action of the building inspector in issuing the permits did not of course object because, apparently, they were satisfied with the area in question being classified as a residential zone. The present petitioner, too, not having protested at that time, as far as the present record discloses, must be considered to have been satisfied with the proposed restricted use of the area to residential purposes only. It does not appear that any permits for business property have been allowed in this area since the adoption of the ordinance in question and we must assume that it is for that very reason that the discrepancy between the map on file in the building-department and that filed with the adjustment board office has never been questioned or indeed discovered until this time.

The prosecutors raise the point that the zoning board erred in its finding oí fact in the revocation of these permits. This of course is a fact issue and the testimony offered in support of the prosecutors’ position is not very persuasive. One witness testified, in an endeavor to justify the map which was in the office of the building inspector (P-1), that he believed that map to be the same as the one adopted by the governing body at the time the ordinance was passed. On the other hand, the respondents point out that the property in the area in question constituted the best residential section of the city of Trenton; that the present members of the board of adjustment were members of the zoning commission which prepared the ordinance in question; that the minutes of the city commission indicate the ordinance was adopted as published and that the map published in connection with it was JExhibil R-l, which carried with it this legend, “map, designating the zones accompanying ordinance entitled ‘An ordinance, &c.,’ and forming part thereof, * *

There is testimony from Mr. English, a former member of the advisory zoning commission, that the business area was extended to include the property in question, and, contrary-wise, there is the testimony of Mr. Howell that the map known as R-l was the map submitted to the city commission. Then there is the testimony of the building inspector which would indicate that the map originally submitted by the advisory zoning commission to the governing body was not the map upon which the petitioners now rely.

Under the second point, the petitioners argue that the board of adjustment was without jurisdiction to revoke the permits which had been granted by the building department and rely upon the case of Losick v. Binda, 102 N. J. L. 157; 130 Atl. Rep. 537. Since the decision of that case, however, the constitution of this state has been amended, in 1927, to permit the legislature to pass general laws under which the municipalities may adopt ordinances on the question of zoning. The legislature did pass such character of statute in 1928, in the matter of zoning. Under these legislative enactments (Cf. Cum. Supp. Comp. Stat. 1925-1930, p. 1244), among other things, power is conferred upon the board of adjustment to review, hear and decide appeals from determinations made by any administrative official in the enforcement of the zoning ordinance. Provision likewise was made that zoning ordinances theretofore adopted are validated as though they had been readopted after the constitutional amendment and under the enabling statute. Cf. Jannarone v. Board of Adjustment of the Town of Nutley, 9 N. J. Mis. R. 210; 153 Atl. Rep. 256.

The petitioners make the further point that if the use-map, or P-1, was actually adopted and it is in dissonance with the ordinance, and the use-district inap, R-l, then in fact no zoning ordinance has ever been validly adopted by the governing body of the city of Trenton. On this point, it will suffice to say that the testimony in the case justifies the other conclusion that map R-l unquestionably was published and accompanied the ordinance in question and was adopted by the governing body of the city of Trenton.

Petitioners urge as a fourth point that the permits cannot be revoked because of the doctrine laid down by the Court of Errors and Appeals in the case of Freeman v. Hague, 106 N. J. L. 137; 147 Atl. Rep. 553. There it was held that a permit mistakenly issued for the erection of a garage could not be revoked for the reason that the owner of the permit had substantially changed her position because of her possession of the permit. The facts between that case and the instant one are very far apart. There the work of erecting the garage was under way, excavations had been made and debts contracted; in fact, the contractor had performed services and labors which entitled him to some several hundreds of dollars of compensation. There is no convincing proof in this case that the petitioners have changed their position in any way because of the granting of these permits. There are general recitals in the petition to the effect that the petitioner had changed her position before these permits were applied for and had made arrangements for work to he done, stores to be rented and the like, when the new business structures were completed and that some negotiations were made after permits issued. There is no attempt made by the prosecutors to show by oral testimony taken under the rule that because of the action of the building inspector monetary losses were incurred.

There is no merit in the other points raised that the revocation was unreasonable and discretionary or that the petitioners’ rights under the constitution were violated. No court, on the facts as presented, could come to any other conclusion than that the map, R-l, which we conclude is the map that was published with the ordinance, was the map that was adopted by the governing body at the time the zoning ordinance was finally passed in 1927.

The application for the writ therefore will be denied and the rule to show cause discharged, with costs.


author: Pee Cueiam.

text:
    JOHN HONEOSZYN, PLAINTIFF-PROSECUTOR, v. LOTTIE GARBOWSKI AND DISTRICT COURT OF PASSAIC, DEFENDANT.
    Argued January 17, 1933
    Decided January 31, 1933.
    Before Justices Parker, Lloyd and Hehee.
    For the prosecutor, J. Bernard Saltzman.

    For the defendant, Casimir A. Silslci.

   Pee Cueiam.

The suit was in a District Court, and the court opened the judgment for a new trial on an application made more than thirty days after judgment was entered, and not based on newly discovered evidence. Comp. Stat., p. 1959, § 17. See Schubert v. District Court of Bergen County, 10 N. J. Mis. R. 414; 159 Atl. Rep. 615. The answer to this apparent illegality is that the application for new trial was delayed beyond the thirty days by fraudulent misrepresentation by the plaintiff’s attorney, whereby defendant’s attorney was misled. Geithner v. Paechiana, 8 N. J. Mis. R. 384; 150 Atl. Rep. 240. This is contradicted; but the matter is before us on ex parte affidavits and the facts may as well be fully developed before a commissioner. A writ will be allowed, with leave to both sides to take depositions and submit any documentary evidence that is relied on.


text:
    SAVINA ZIZZA, PETITIONER-DEFENDANT, v. W. H. COMPTON SHEAR COMPANY, RESPONDENT-PROSECUTOR IN CERTIORARI.
    Argued January 17, 1933
    Decided January 31, 1933.
    Before Justices Parker, Lloyd and Heiier.
    Por the prosecutor, Richard TP. Balcer and Edwin J. O'Brien.

    For the defendant-petitioner, Samuel Press and Harry J. Goas.

   Per Curiam.

Our consideration of this case leads to concurrence in the result reached by Judge Hartshorne, and for the reasons expressed in his opinion, ubi supra.

The judgment will therefore be affirmed, with costs.


author: Hartshorne, J.

text:
    Essex County Court of Common Pleas.
    FRED BOYKO, PETITIONER-APPELLANT, v. FEDERATED METALS CORPORATION, RESPONDENT-APPELLEE.
    Decided December 16, 1932.
    Eor the petitioner-appellant, David Roslcein.

    Eor the respondent-appellee, Edwin J. O’Brien.

   Hartshorne, J.

This appeal hinges upon the important and constantly recurring question as to the binding effect of a compromise settlement between employer and employe stated to be a “complete and final disposition” of the matter and thereafter approved by the bureau and entered as a formal award. The workmen’s compensation bureau has twice ruled such an approved agreement to be a final and complete' bar even to a consideration of subsequently increased or diminished disability under section 21-f of the act (as amended by Pamph. L. 1931, ch. 279, p. 704, ¶ 2; Williams v. Yellow Taxi Cab, 7 N. J. Mis. R. 205; Mandy v. Federal Shipbuilding Co., 10 Id. 944; 161 Atl. Rep. 837), in the latter of which cases the settlement agreement expressly provided that it was “in full and final settlement * * * and could not be opened or reviewed by either party on account of any subsequent increased or decreased disability.”

These rulings apparently involve a misconception of the legislative intent as revealed by the acts involved. We turn to a consideration of such acts in the above regard.

The prime intent of the legislature is that the parties shall receive what they are entitled to on the merits. In section 20-b of the Substantive act of 1911 as amended, it is provided:

“No agreement between the parties for a sum other than that which may be determined to be due by the commissioner, deputy commissioner or referee, or the judge of the Court of Common Pleas upon appeal shall operate as a bar to the determination of a controversy upon its merits, or to the award of a different sum, if it shall be determined by the said commissioner, deputy commissioner, referee or judge that the amount agreed upon is less or more than the injured employe or his dependents are properly entitled to receive.” Pamph. L. 1921, ch. 230, p. 737, ¶ 2. Furthermore, it is provided by section 4 of the Procedural act of 1918 as amended, “such agreement [between employer and employe] shall not bind the employer or injured employe, or the dependents of a deceased employe unless approved by the bureau.” Pamph. L. 1918, ch. 149, § 4. Hence, no matter what the parties may agree to, no matter how final and conclusive their agreement may be in terms, it will have no binding effect at all without the approval of the bureau.

The question then becomes — what is the effect of the approval of the bureau ? It requires no argument to demonstrate that the bureau, being purely a statutory body, can exercise only such powers, by approval or otherwise, as the statute gives it. The binding effect of its approval must therefore be determined in the light of the legislative intention considered as a whole. Similarly, the formal judgment of the bureau after a hearing is binding upon the parties, but this binding effect is subject to the remainder of the statute, which permits either its modification, its reopening or an appeal therefrom, by sections 10 and 11 of the Procedural act of 1918 (as amended by Pamph. L. 1921, ch. 229, 3, 4,— at p. 732). Accordingly, the binding effect of the bureau’s approval of the agreements in question, whether or not they are stated in terms by the parties to be final and conclusive, must be read in the light of the general legislative intent, particularly as expressed in section 20-b, supra. When thus considered, it is apparent that a compromise settlement between the parties, if approved by the bureau purely as a matter of form, binds the parties and is enforceable by and against them, unless and until it is determined on the timely application of either party by a consideration of the controversy on its merits that “the amount agreed upon is less or more than the injured employe or his dependents are properly entitled to receive,” whereupon the merits must control on the questions both of liability and amount of compensation. By the same token, if the approval of the compromise settlement is given after a consideration of the merits, then it becomes the basis for a final judgment which is res ad judicata between the parties, subject only to the provisions of sections, 10 and 11, supra. This construction gives rational effect to these two sections of the act, which it would otherwise be difficult to reconcile. BTor is this construction of the act at all contrary to the intent of section 23-e of the Substantive act. Pamph. L. 1913, ch. 174, p. 312, ¶ 8; Pamph. L. 1919, ch. 93, p. 212, ¶ 9. The argument to the contrary, based on such section, is ineffective to control the clear intent of the above sections. It rests entirely upon an inference of legislative intent, deemd to arise from what the legislature did not say, rather than from what it did say, an inference which is inadmissible, due to the fact that the legislature was there considering a totally unrelated subject-matter, namely, an agreement between the parties not to be bound by the Compensation act at all.

In fine, the criterion is — was the bureau’s approval based on the merits ? If it was, then its award is final in exactly the same way as if it was based upon a formal and complete hearing of all the witnesses. If it was not, then it is binding only until a timely application is made and heard to consider it on the merits. It cannot bind thereafter, regardless of whether the respondent admitted liability or not in the first place, and whether or not the parties stated their agreement was to be “a final closeout.” If they, or the bureau, did what the public policy of the statute forbade them to do, their agreement and the bureau’s approval are voidable, if not void.

Again, even if the approval by the bureau were on the merits, such approval, as in the case of a formal award, can be res adjudicada, and binding only on the issues which were lawfully before it for decision. It cannot bind as to an issue which the statute says the bureau cannot then decide. When a compensation petition is first filed, the issue between the parties, as to the incapacity of the injured employe as it may subsequently increase or diminish, has been expressly excluded from the consideration of the bureau and the court at that time by section 21-f of the Substantive act, supra. Here the words of the court in Feldman v. Braunstein, 87 N. J. L. 20; 93 Atl. Rep. 679, become apt, though another point was there in issue, that * * * the court can act only •on the facts before it, not upon the uncertain possibilities of the future. The proper course was to deal with the case exactly as it stood at the time * * Such change in incapacity may thus be called to the attention of the bureau thereafter by the timely application of either party, even though a previous compromise settlement has been duly approved by the bureau on the merits and embodied in the form of a final award. Similarly, where an award has been made of permanent disability for the four hundred weeks’ period, even though such award purports to cover a period beyond the statutory four hundred weeks, a new application may be filed as to the disability extending beyond such four hundred weeks, since the disability for the four hundred weeks’ period was the sole issue which the statute placed before the court in the first instance. Sizza v. W. H. Compton Shear Co., 10 N. J. Mis. R. 1168; 163 Atl. Rep. 143.

The above is in no way contrary to Herbert v. Newark Hardware and Supply Co., 107 N. J. L. 24; 151 Atl. Rep. 502. In such case petitioner sought to avoid the judgment of the bureau, not because it had not been considered on the merits, nor because it involved the issue of a subsequent change in incapacity, but simply because the petitioner desired to try an old issue over again on another basis, which the act, considered in the light of the common law, does not permit.

Iii the ease at-bar, petitioner seeks in the alternative, to reopen his original case on the merits on the ground that the approval of the bureau was improvidently given, or to recover the amount of an increased disability arising subsequent to the entry of such previous award. We assume that the approval of the bureau was given on the merits, since medical evidence was taken as to the extent of petitioner’s disability in the presence of both counsel. Accordingly, this case is parallel to those of Thomas v. Liondale Bleach, &c., Works, 10 N. J. Mis. R. 255; 159 Atl. Rep. 313, and Palm Construction Co. v. Bahr, 10 N. J. Mis. R. 756; 160 Atl. Rep. 886, except for the facts that in the ease at bar respondent did not admit liability in the first instance, and in those cases the parties did not state that the agreement was to be a “complete and final disposition.” But, as we have already seen, the words of the parties are ineffective without the approval of the bureau, and the approval of the bureau is a nullity if it goes beyond, and counter to, the legislative intent.

The record below, on which alone this court can proceed, shows simply a dismissal of the petition for increased disability, without an opportunity to present the facts thereon, because of the supposed finality of the compromise agreement between the parties as approved by the bureau. The order of the bureau dismissing such petition is accordingly reversed, leaving such petition pending before the bureau for hearing thereon in accordance with this opinion.


text:
    FRANK GREENHALGH, PROSECUTOR, v. JAMES D. McCABE, RECORDER, ETC., DEFENDANT.
    Argued January 17, 1933
    Decided February 14, 1933.
    Before Justices Paekeb, Lloyd and Hehee.
    For the prosecutor, Joseph F. S. Fitzpatrick.

    For the defendant, Nicholas 8. Schloeder.

   Per Curiam.

The writ brings up “a certain decision rendered October 10th, 1932, by” (respondent as recorder) “denying the motion of Frank Greenhalgh * * * made in a special appearance before said recorder, to dismiss a complaint for lack of said recorder’s jurisdiction to hear same,” specifying the statutory authority under which said complaint was made.

No judgment was entered. The challenge to jurisdiction was made in limine; and in such case certiorari lies only where either the statutory tribunal has no jurisdiction at all over the subject-matter, or has not legally acquired jurisdiction of the ease. Mowery v. Camden, 49 N. J. L. 106; 6 Atl. Rep. 438; Palese v. Lane, 95 Atl. Rep. 126; Croasdale v. Court of Quarter Sessions, 88 N. J. L. 506; 97 Atl. Rep. 285; 89 N. J. L. 711; 99 Atl. Rep. 1070; Public Service Railway Co. v. Camden, 95 N. J. L. 190; 112 Atl. Rep. 421; Katz v. Eldredge, 97 N. J. L. 123 (at p. 140); 117 Atl. Rep. 841.

There is no doubt of the jurisdiction of the recorder over the subject-matter. The prosecutor was arrested on sight by a traffic officer for driving an automobile while intoxicated, at twó-fifty a. m., on September 23d, 1932. A complaint was drawn at once and sworn to by the officer, and warrant issued thereon. The claim is made that no warrant was issued, and that this is shown by the fact that there is no entry to that effect in the recorder’s docket as returned; but the return shows the warrant itself, dated September 23d, 1932, and the stenographic transcript included by prosecutor in the state of the^ease shows that on October 10th, to which date the matter had been adjourned after prosecutor had been released on bail, his counsel moved a dismissal for lack of a warrant, whereupon the recorder produced that document. True, the return printed thereon had the blanks unfilled, and had not been signed by the officer; but it is perfectly clear that the prosecutor had been arrested by the officer for an offense committed in the presence of the latter, had been brought at once before the recorder, a complaint had been sworn to and filed, and warrant issued thereon. The man was actually in court when released on bail to return on a later date, which seems to have been October 10th. There was no challenge on September 23d to the lack of a return of the warrant.

What manifestly took place was that prosecutor requested an adjournment, pending which he gave bail. Thereby he submitted himself to the jurisdiction of the court. State v. Baker, 102 N. J. L. 349, 351; 133 Atl. Rep. 785. See 4 C. J. 1331. The objection of non-return of the warrant came over two weeks afterward, when it was too late to raise it. As to the failure to enter anything about the warrant in the docket, it is probably immaterial in view of what has just been said, but in any event the appearance of the warrant itself as a part of the return disposes of any omission of it in the docket as merely a clerical oversight.

The prosecutor was generally in court by voluntary appearance, and cannot complain of irregularity in the matter of the warrant. Latimer v. Wilson, 4 N. J. Mis. R. 265; 132 Atl. Rep. 325.

There are five points in the brief but they all amount to the' one proposition that the recorder had no jurisdiction for lack of warrant and return. We think that he had, and the writ is therefore dismissed, with costs, and the cause remanded for trial.


text:
    INTERSTATE OIL COMPANY, RELATOR, v. CITY OF ORANGE ET AL., RESPONDENTS.
    Argued January 18, 1933
    Decided February 14, 1933.
    Before Justices Pabicee, Lloyd and Hedee.
    For the relator, William llerda Smith.

    For the respondents, Edward R. McGlynn.

   Per Curiam.

The relator, claiming to be a corporation of this state, although the regularity of its incorporation was questioned at the taking of depositions herein, applied as lessee of lands on the southerly corner of Lincoln avenue and Jackson street in Orange, for a permit to erect and install a gasoline station thereon. When the building inspector was first approached in an informal way, by a representative of the relator, the only prerequisite to erection of the station was an ordinary building permit. The testimony shows that an ordinance to regulate the installation of gasoline stations was in conteníplation; that the city counsel had been directed in August or September to proceed with the preparation of such an ordinance; that he completed it late in October, and that it was adopted on November 15th. In the meantime, on October 6th, a certificate of incorporation of the relator had been prepared and recorded in the county clerk’s office, although up to January 3d, 1933, it had not been lodged with the secretary of state. On the same day, October 6th, a lease from the owners of the land to the relator had been signed, though the corporation as yet had no seal to affix thereto. The written application for permit bears date on the 7th. At that time, according to the witness Palmieri, the building inspector stated that there was no legal objection to the issuance of the permit, except perhaps that the application was not made by the “owner” as required by the building ordinance. Later, on or about the 11th, the inspector told Palmieri he had reconsidered the matter because of the proximity of the proposed station to a large public school on the opposite corner, serving some one thousand four hundred children, and wished a few days to think it over. The ordinance was passed November 15th, relator having apparently done nothing in the meantime to enforce any legal right it may have had. The ordinance forbids a gasoline station within three hundred feet of various buildings, including a public school. The permit having then been finally refused, prosecutor on December 17th obtained this rule to show cause. We are now asked to make it absolute, in the face of an ordinance clearly within the general police power as regards the public safety, in embryo at the time the relator corporation was organized, and passed a month before this application was made. A gasoline station is not merely a fire risk, and within the police power in that regard (see Neumann v. Hoboken, 82 N. J. L. 275; 82 Atl. Rep. 511), but it is judicially recognized as a danger to pedestrians entitled to use the sidewalks, when so arranged, as is generally the ease, as to require cars to cross the sidewalk when entering and leaving. Hall v. Jersey City, 6 N. J. Mis. R. 558; 142 Atl. Rep. 344; Ninth Street Improvement Co. v. Ocean City, 90 N. J. L. 107, 109; 100 Atl. Rep. 568. When this writ was applied for, the ordinance was an accomplished fact, and if it does not indeed bar the action of this court, it would be an abuse of our power to disregard it. Koplin v. South Orange, 6 N. J. Mis. R. 489; 142 Atl. Rep. 235; affirmed, 105 N. J. L. 493; 144 Atl. Rep. 920. In the case of A. G. Construction Co. v. Scott, 104 N. J. L. 596; 141 Atl. Rep. 760, mandamus proceedings had been begun before the constitutional amendment permitting zoning had been adopted. This case is not in that class, and for the very obvious reason that the police power exists here as a matter of common law, and had been exercised before the first court move was made.

There are other points raised, but they need not be considered, as the case is controlled by what has been said above.

The rule to show cause will be discharged, with costs.


author: Brown, C. C. J.

text:
    Hudson County Circuit Court.
    ESSEX SASH AND DOOR COMPANY, A NEW JERSEY CORPORATION, SAM KATCHEN, TRADING AS HILL IRON WORKS, PLAINTIFFS, v. JOHN J. MURPHY, RECEIVER OF GARFIELD APARTMENTS, INCORPORATED, A NEW JERSEY CORPORATION, DEFENDANT.
    Decided January 28, 1933.
    For the plaintiff Essex Sash and Door Company, Edward E. Turhel.

    For the Garfield Apartments, John J. Murphy, pro se.

   Brown, C. C. J.

The defendant moves to discharge a mechanics’ lien on a lot of land belonging to the Garfield Apartments, Incorporated. A statement of facts agreed upon by the parties discloses that on the 16th day of December, 1927, the Garfield Apartments, Incorporated, was the oivner of lands situate in the town of Kearny, known as 194-202 Davis avenue. On April 16th, 1928, said company became the owner of a lot of land twenty-five by one hundred feet on the southerly side of the first mentioned property and contiguous thereto. This company erected an apartment house on the first described property; materials were supplied and delivered by the Essex Sash and Door Company, for the construction of the apartment house, the last delivery being made on August 17th, 1928. On October 29th, 1928, the Garfield Apartments, Incorporated, by a decree of the Court of Chancery, was declared insolvent and John J. Murphy was appointed receiver. Thereafter an order was entered in the same court permitting the plaintiff to file his lien claim and proceed to judgment. In pursuance of the order of the Court of Chancery the plaintiff filed its lien and instituted proceedings thereon in this court to recover the sum of $10,838.12.

The question presented for decision is whether the tract of land, twenty-five by one hundred feet, purchased by the Garfield Apartments, Incorporated, on the 16th day of April, 1928, is subject to the lien of the plaintiff. It was agreed in the statement of facts that the apartment house was actually constructed on the lot of land designated as 194-202 Davis avenue and that the lot of land subsequently purchased on April 16th, 1928, was purchased for the purpose of “having a driveway on the south side of the said apartment house which they could not have without this additional lot, in order to bring in coal directly without having same to be carried into the building. It was considered necessary by the Public Service Electric and Gas Company to place its service pipes along the outside south wall of the apartment house beneath the surface of the ground in order not to spoil a front apartment and said service pipes are located on part of the said tract on which the plaintiff claims it is entitled to a lien claim, and which matter is at issue. To have control of these premises in order to keep the apartment building in better condition. Subsequently and more recently, due to a change in the heating system from coal to oil, the use of the driveway for the purpose of delivering coal, has been discontinued.” There is presented then the situation of an owner constructing an apartment house on a lot of land and during the course of construction found it necessary to purchase an adjoining lot of land for the better use and enjoyment of the building and after the purchase of the additional land the plaintiff furnished materials for which they claim a lien on not only the land on which the apartment house is constructed but also the lot contiguous thereto.

Section 1 of the Mechanics Lien act (Revision of 1896, page 198; 3 Comp. Stat., p. 3291, also amended by Pamph. L. 1930, p. 972), provides:

“Every building hereafter erected or built within this state shall be liable for the payment of any debt contracted and owing to any person for labor performed and materials furnished for the erection and construction thereof, which debt shall be a lien on such building, and on the land whereon it stands, including the lot or curtilage whereon the same is erected. * * *”

Section 21 of the same act-provides:

“When the curtilage or lot on which the building is erected shall not be surrounded by an enclosure separating it from adjoining lands of the same owner, then the lot on which the building lien shall extend, shall be such tract as in the place of its location is usually known and designated as a building lot, and bounded by the lines laid down for its boundaries on any map made for the sale of it or on file in any public office to lay out in lots the tract including it and in cases where no such map exists, such lot may be designated by the claimant in the lien claim, but in no case shall the same exceed half an acre,- or include any building not used and occupied with, or intended to be used and occupied with, the buildings for this cost of which the lien is claimed.”

The curtilage in the instant case includes not only the land upon which the building was actually constructed but also the adjacent land acquired during the course of construction, the latter having been acquired for the better enjoyment and use of the apartment house. Riverside Apartment Corp. v. Capitol Construction Co., 107 N. J. Eq. 405; 152 Atl. Rep. 763; Federal Trust Co. v. Giugius, 76 N. J. Eq. 495; 74 Atl. Rep. 652.

The estate that is subject to a lien under the statute is that which the owner has in the land at the time when the provisions of the statute are attempted to be enforced against him and not merely that which he had when the contract for the erection of the building was entered into by him. Stewart Contracting Co. v. Trenton, &c., Railroad Co., 71 N. J. L. 568; 60 Atl. Rep. 405; Loizeaux Lumber Co. v. Steinberg, 102 N. J. L. 15; 131 Atl. Rep. 131. The same reasoning may be applied to the extent Of the land that is subject to the lien. The plaintiff was, therefore, entitled to file his lien against all of the land occupied by the building as well as the lot adjacent thereto purchased by the owner for the better use of the building. 26 Lawyers’ Rep. Ann. (N. S.) 836.

The motion to discharge the lien will be denied.


author: Thompson, J.

text:
    Union County Court of Common Pleas.
    JOHN MARINO, ALPHONSO AVONA, AGIDIO IAFOLLA, HARRY D’ANGELO AND JOSEPH MONTELIONE, PLAINTIFFS, v. SHIFF REALTY COMPANY, A CORPORATION OF NEW JERSEY, LOUIS SHIFF AND RALPH SHIFF, TRADING AS SHIFF BROTHERS, DEFENDANTS.
    Decided February 17, 1933.
    For the plaintiffs, Salvador Diana.

    For the defendants, Kunzman ■& Kunzman.

   Thompson, J.

In this action there are five plaintiffs, some of whom are claimed to be non-residents. Defendant has demanded security for costs in the case of the nonresidents under the statute (sections 204 and 205 of the Practice act, Pamph. L. 1903, pp. 590, 591). Plaintiffs move to strike the demand, citing decisions of our New Jersey courts to the effect that the practice is not to require security for costs against non-resident plaintiffs when joined with one or more resident plaintiffs. The cases cited are: 3 N. J. D. 447, Anonymous; Den v. Boqua, 10 Id. 192; Jones v. Knauss, 33 N. J. Eq. 188, and Whitney v. Merchants National Bank of Newark, 40 N. J. L. 481. The last case is not germane to the point in question. The case of Jones v. Krauss enunciates the equity practice only. The other two cases were before the passage of the statute on the subject. Security for costs in case of non-resident plaintiff was provided by a .statute adopted in 1874, amended in 1890 and continued in 1903 as section 204 of the Practice act. Since these statutes have been operative there appear to be no decisions of the courts on the point, except an opinion by Judge Brown, of the Hudson Circuit Court, in the case of Kearney v. Baptist, reported in 10 N. J. Mis. R. 431; 159 Atl. Rep. 405, wherein Judge Brown held that the non-resident plaintiffs should furnish security for costs. I shall follow this decision in deciding the motion before me. The statute seems clear in its terms. It provides that “if the plaintiff resides out of this state he shall, if required at any time before notice of trial, give bond to the defendant in $100, with sufficient sureties resident in this state, with conditions to prosecute his action with effect and to pay costs if he discontinue, be nonsuited or a judgment pass against him; which bond shall be filed in the clerk’s office o£ the court in which such action is pending; or in lieu of such bond the plaintiff may deposit the sum named with the clerk as security to the defendant for costs.”

Since this is the legislative pronouncement of the rule, enacted in three different instances in practically the same language, save with the privilege of depositing cash in lieu of bond, as set forth in the Practice act, the court should give as complete effect to the rule as the intent of the statute contemplates. Manifestly, it is a remedial statute for the benefit of defendants to insure the payment of their costs by an unsuccessful non-resident plaintiff. It is not for the court to assume that where there is a resident plaintiff joined with one or more non-resident the defendant will be able to collect his costs from the resident plaintiff. At the beginning of a suit at law there is no certainty as to what will be the situation at the conclusion of the litigation concerning the relation of the defendant to any particular one of the plaintiffs either as to liability or financial responsibility. The non-resident plaintiffs may be the only ones ultimately held to be liable; or, the resident plaintiff, even if liable, may not be financially responsible on a judgment for costs. The purpose of the statute would seem to be to assure the defendant of the collection of his costs, if he be successful, from anyone who brought a suit against him, and he should be left free to collect those costs from whom he may among all who sued him. The court should not limit the chances of collection because one or more of the plaintiffs is a resident of the state. There is always the possibility that the nonresident plaintiff may be the only resource for costs in the end. That being so, the protection of the statute is important.

The motion to strike the demand for security for costs will be denied, and the action stayed in so far as the non-resident plaintiffs are concerned until the security is furnished.


text:
    LOUIS LERNER, RELATOR, v. ROBERT J. McDERMOTT ET AL., RESPONDENTS.
    Submitted October 14, 1932
    Decided February 25, 1933.
    Before Justices Bodine and Donges.
    For the relator, Heller •& Boss.

    For the respondents, Jack Altshuler.

   Per Curiam.

This case is before this court upon a return to an alternative writ of mandamus. Relator seeks to compel the judge and clerk of the First District Court of Paterson to call a jury for the determination of a case in which he is defendant.

It appears that one Smillie brought an action against the relator in said court. Neither party demanded a trial by jury so the court sat as trier of the facts and law. Judgment was given for the plaintiff. Upon defendant’s appeal, this court reversed and ordered a new trial. Defendant then demanded a jury, filing his notice and deposit. Upon plaintiff’s motion to strike out the demand, the court refused to order a jury summoned. Belator seeks to compel this by mandamus.

It is contended that mandamus will no,t lie. While it is true that the action of the District Court judge could be reviewed in this particular upon appeal, yet it appears that the act sought to be compelled is purely ministerial, provided relator is entitled to .have it done, and it is proper to be accomplished by the writ of mandamus.

The question of whether or not a party to a District Court action may demand a jury upon a retrial when none was had upon the first trial is a novel one since the act was amended to read as at present. In Kearns v. Simpson, 83 N. J. L. 221; 83 Atl. Rep. 774, the Supreme Court held a jury could not be demanded at the second trial. At the time of that decision the act required that a jury be demanded one day before the return day of the summons, and an examination of the opinion reveals that the ground of the decision was that a demand made after the first trial was necessarily after one day before the return day and therefore out of time. It was held in that case that the parties had no rights in the second trial not enjoyed at the first trial, and that unless a party was entitled to a jury for the first trial, he was not entitled to it for the second trial. The act now provides that the demand must be made “two days before the time fixed for the trial.” Respondents say this means the original trial and relator says it refers to any trial of the cause.

We conclude that when the relator failed to demand a jury two days before the first trial, he waived trial by jury not merely for the first trial, but for all steps taken in the litigation up to final judgment, including subsequent trials, if any. To hold otherwise would give a party a chance to speculate, first with the judge, and having lost there and obtained a new trial for legal error (as must have been the case) then to have a chance to get a different result from a jury on the factual phase of the ease. Such speculation should not be permitted.

The writ will be dismissed, with costs.