author: William J. Brennan, Jr., J. A. D.

text:
    ROY H. TICE AND FRANK H. TICE, PLAINTIFFS-APPELLANTS, v. BOROUGH OF WOODCLIFF LAKE, IN THE COUNTY OF BERGEN, ET AL., DEFENDANTS-RESPONDENTS.
    Superior Court of New Jersey Appellate Division
    Argued January 29, 1951- —
    Decided February 13, 1951.

      Before Judges McGeehan, Jayne and War. J. Brennan, Jr.

      Mr. G. W. C. McCarter argued the cause for plaintiffs-appellants (Messrs. Freeman As Kroner, attorneys).

      Mr. Horace F. Bania argued the cause for defendants-respondents (Messrs. Winne & Banta, attorneys. Mr. Edward G. Evertz, on the brief).
   The opinion of the court was delivered by

William J. Brennan, Jr., J. A. D.

Plaintiffs appeal from the adverse judgment entered against them in the Law Division, Bergen County, in this action in lieu of mandamus to require defendants to issue a building permit to plaintiffs. Plaintiffs proposed to build in the Borough of Woodeliff Lake a swimming pool open to the public, to be 400 feet long and 85 feet wide, with bath houses and a refreshment stand, and to equip adjacent open areas for picnicking and the serving of food and soft drinks. The judgment of the Law Division and the determination of the zoning board of adjustment (that board affirmed the building inspector’s refusal to issue the permit) were both based on the single ground that the project was an “amusement park” prohibited by the zoning ordinance which provided “no amusement park or circus shall be built or used.”

We do not agree that the project contemplated the building of an “amusement park” within the common understanding of what an “amusement park” is. An essential attribute of an “amusement park” is the grouping together in one place of various amusements for pleasurable diversion. See Lone Star Shows, Inc., v. Com’rs. of Sinking Fund of City of Louisville, 294 Ky. 114, 171 S. W. 2d 28 (Ct. of Appeals of Ky. 1943); Carrolo v. Zoning Board of Town of Westerly, 67 R. I. 128, 21 A. 2d 265 (Sup. Ct. R. I. 1941); Drennen v. Mason, 222 Ala. 652, 133 So. 689 (Sup. Ct. Ala. 1931); McCarter v. Beckwith, 247 App. Div. 289, 285 N. Y. S. 151 (1936); cf. Thayer v. City of St. Joseph, 227 Mo. App. 623, 54 S. W. 2d 442 (Kansas Oily Ct. of App. 1932). That attribute is not present here. Actually only one amusement was planned. The facilities for picnicking and refreshment were clearly to be provided, not as amusements of themselves, but as incidents to enhance the attraction of the pool to members of the public enjoying swimming as a pastime. The judgment cannot, therefore, be sustained.

Should this court return the case to the Law Division for further proceedings or, as urged by plaintiffs, with direction to enter judgment in plaintiffs’ favor for the relief sought? The pleadings and pretrial order framed another issue which borough counsel urged at the trial should be decided “preliminarily” before coming to the question of “amusement park,” but that issue was not determined in the trial court. The issue was whether “the plaintiffs have complied with the ordinances of the Borough relating to the issuance of such permit.” The arguments in the briefs on this point are centered largely on the question whether the application and the crude drawings submitted with it comply with the provisions as to form and content detailed in the zoning ordinance and the companion building code.

Plaintiffs urge, on the authority of Reimer v. Dallas, 129 A. 390 (Sup. Ct. 1925, not reported in State Reports), that other reasons for the denial of the permit, even if valid, must be deemed to have been waived because, they contend, the only reason assigned by the borough for the refusal was that the project was an “amusement park” and, that reason being unsound in law, plaintiffs are entitled to relief in this court “ordering the issuance of the building permit applied for.” In the Beimer case, Sir. Justice Katzenbach, sitting alone on an application for a writ of mandamus, held that where a municipality at the time of a refusal to grant a permit for the erection of garages made no objection that the application was not in writing and did not object to the sufficiency of the plans submitted, it could not raise either objection for the first time in opposition to the issuance of the writ “ * * * as it was not a ground for the refusal. In effect it was waived.”

Even if the factual situations were on all fours, which is not altogether free from doubt, we would not be constrained to follow the principle laid down by Reimer v. Dallas. To bar a municipality from raising in the law action other reasons justifying the denial of the permit merely because they were not assigned at the time it was denied would be attended by unfortunate and undesirable consequences. For example, are the plaintiffs to be licensed to erect structures departing from construction standards particularized in the building code ? Such may be the logical effect of the holding in the Reimer case. We cannot subscribe to a principle which tends so easily .to defeat the vital public interest in safety and health which underlie those standards. If the borough officials in fact grounded their action only on the belief the project was an “amusement park,” may we not .reasonably assume that they saw no occasion to give time to a close examination of the application and its supporting papers when in their view the proposed structures and use were in any event prohibited by the zoning ordinance? We fail to see why their omission is to have the consequence of foreclosing the borough to defend the plaintiffs’ action in the Law Division on other substantial grounds merely because the borough officials thought there was no occasion to determine and specify those grounds when the permit was refused. Cf. Labash v. Board of Embalmers, etc., of New Jersey, 8 N. J. Super. 360 (App. Div. 1950), where this court reversed the refusal of an administrative agency to issue a permit as based upon an invalid regulation and remanded for reconsideration of plaintiff’s application in light of other requirements having a bearing on the issuance of a permit; and see Signore v. Rizzolo, 9 N. J. Super. 539 (Law Div. 1950).’

If the issue had not been pleaded and specified in the pretrial order as an issue for determination, but had been advanced for the first time in this court, doubtless a different question, which we need not discuss or decide, would be presented. See Hirschorn v. Castles, 113 N. J. L. 277 (Sup. Ct. 1934). It is plain, however, that the circumstances here require that this action bo returned to the Law Division for trial of ilie issue framed by the parties.

As there must be further proceedings iu the Law Division, we shall state our views of the effect to be given a new or amendatory zoning ordinance called to our attention at the oral argument. We were advised by counsel for the borough that prior to the trial below a new or amendatory ordinance was enacted by the borough prohibiting swimming pools as such in the district where plaintiffs’ premises are located. A valid, applicable and subsisting ordinance precluding plaintiffs’ planned project would be a bar in the Law Division to the relief sought by plaintiffs. The decision determining the cause is controlled by the ordinance in effect at the time of the decision and not by the ordinance which was operative when the permit was sought. Concord Garden Apartments v. Board of Adjustment of the City of Englewood, 1 N. J. Super. 301 (App. Div. 1949). Wo denied the motion of counsel for the borough to supplement the record to put ilie new or amendatory ordinance hi evidence as it was not pleaded or asserted in the pretrial order as a bar to plaintiffs’ claimed relief (although enacted, wo were informed, before the answer ivas filed), and plaintiffs have not had an opportunity to challenge its validity or its application in other respects to the issues presented. The new or amendatory ordinance may, however, be put in issue bv appropriate steps in the Law Division to accomplish an amendment of the borough’s answer (cf. Solomon v. Goldberg, 11 N. J. Super. (A) (App. Die. 1950)) and by the making of a new or amended pretrial order.

Reversed and returned to the Law Division for further proceedings not inconsistent with this opinion.


source: Caselaw Access Project

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

license: Public Domain

text:
    MACHINE PRINTERS BENEFICIAL ASSOCIATION OF THE UNITED STATES, A CORPORATION, PLAINTIFF-APPELLANT, v. MERRILL TEXTILE PRINT WORKS, INC., A CORPORATION OF NEW JERSEY, OR IN THE ALTERNATIVE, MERRILL TEXTILE PRINTERS, INC., DEFENDANT-RESPONDENT.
    Superior Court of New Jersey Appellate Division
    Argued January 8, 1951 —
    Decided February 15, 1951.

      Before Judges Ereund, Proctor and Rogers.

      Mr. Archibald Krieger argued the cause for the plaintiff-appellant (Mr. Isadore B. Miller, attorney).

      Mr. Oscar Berman argued the cause for the defendant-respondent (Messrs. Cole, Morrill <6 Nadell, attorneys).
   The opinion of the court was delivered by

Ereund, S. J. A. D.

The plaintiff appeals from an order staying further proceedings until an arbitration is held under the provisions of an employment contract between the parties. The question is whether the controversy which has arisen is, under the agreement, arbitrable. The facts and the pertinent principles of law are not in dispute. Our concern is the application of the legal principles to the facts.

The defendant operated a textile printing plant in Paterson, New Jersey, until April 28, 1950, when it discontinued its business, terminated the employment of its employees and commenced the liquidation of its plant and other assets. On the premise that the collective bargaining agreement between the plaintiff union and the defendant employer constituted a contract of employment from January 3, 1949, to December 31, 1949, and thereafter for another year, at a stipulated annual salary, this suit was brought on June 22, 1950, on behalf of one of the employees, a journeyman printer, to recover unpaid wages from the time of cessation of employment, and for damages for breach and repudiation of the contract of employment for the balance of the year. The defendant moved for arbitration contending that the termination of employment was a “discharge” and that the contract provided for arbitration in the event of disagreement between the parties relating to discharge or wages not specifically covered by the agreement.

The relevant portions of the contract dated January 11, 1949, are as follows:

As to employment:

“Section III. Salary Guaranty. All members of the ASSOCIATION employed at the beginning of this period are hired on an annual basis and shall receive an annual salary payable in equal weekly installments as set forth in Section I of this agreement and any member employed after January 1 shall be hired on a pro rata basis for the balance of the contract year * * *.
Section XT. In extension of the understanding * * * there shall be no strike, work stoppage, slowdown, interruption or impeding of work for the duration of this agreement. * * *
Section XYTII. This agreement * * * shall be in full force and effect from and after the 3rd day of January, 1949, up to and including the 31st day of December, 1949; and it is further agreed by and between the parties hereto, that unless either of them shall give to the other sixty (60) days’ notice in writing of an intention to terminate this agreement at the end of the term hereof, this agreement shall continue for a further period of one year, and thereafter from year to year unless either of the parties shall give to the other sixty (60) days’ notice in writing of an intention to terminate this agreement at the end of any given year.”

As to arbitration :

“Section IX. Whenever, during the life of this agreement, any question relating to the discharge of a journeyman printer, or to wages and working conditions which are not specifically covered by this agreement, cannot be agreed upon between representatives of the COMPANY and the ASSOCIATION, it is to be submitted for decision to a Board of Arbitration. * * *”

As to discharge:

“Section X. A journeyman printer may be discharged only for just cause; * * * If * * * the ASSOCIATION questions the sufficiency or fairness of the alleged cause of the discharge, the sufficiency or fairness of the cause of the discharge shall be determined in accordance with the procedure specified in Section IX hereof. If it be decided that the alleged cause of discharge is insufficient or unfair, said journeyman printer shall be reinstated in his employment, and shall be paid forthwith his wages in full for the time lost by him from his employment. If the alleged cause of the discharge be found sufficient and fair, said journeyman printer shall be paid two full weeks’ pay. Any journeyman printer discharged under the provisions of this Section must immediately be replaced by another journeyman printer for the remaining period of this contract. * * *”

In an affidavit filed in support of the motion for arbitration, Nathan Perles, secretary of the defendant employer, deposes that “At about the end of April, 1950, the operations of the firm were discontinued and the plant and equipment were put up for sale. * * * Gaetano Guidice was discharged, as stated in paragraph 5 of the first count of the complaint, on April 28, 1950, because the defendant corporation was discontinuing its active business. Offers were made on behalf of the corporation to pay those amounts which I and the other officers of the corporation thought properly due but said offers were refused. * * * This corporation has at all times been ready and willing to submit this dispute to arbitration as provided in said contract. The maximum amount of money that can be due to Gaetano Guidice under said contract is the sum of Two Hundred Fifty ($250.00) Dollars, the equivalent of two weeks pay. * * *” Paragraph 5 of the complaint alleged: “On the 28th day of April, 1950, without valid reason or cause and in violation of the terms and provisions of the employment contract .aforesaid, the defendant corporation notified the member hereinabove mentioned that his services were no longer required. * * *”

No notice of termination on December 31, 1949, having been given by the employer and the parties having continued to perform under the contract until April 28, 1950, the plaintiff contends that employment should have continued for another year from December 31, 1949, on an annual basis, and that the discontinuance of the operations of the defendant prior thereto gave rise to a cause of action for wages and damages. The plaintiff further argues that the termination of employment by reason of the discontinuance of the business was not such a “discharge” as the parties contemplated or intended to submit to arbitration and accordingly that the issue is not arbitrable. The defendant on the other hand takes the position that the discontinuance of the business constituted a “'discharge” and that the controversy as to whether or not it was for cause is arbitrable within the contemplation of the parties, and that if the arbitrators should determine that the cause was sufficient and fair, its liability is limited to two full weeks’ pay.

Although settlement of a controversy by arbitration is favored by the courts, “A submission to arbitration is essentially a contract. * * * The authority of the arbitrators is derived from the mutual assent of the parties to the terms of submission; the parties are bound only to the extent, and in the manner, and under the circumstances pointed out in their agreement, supplemented by the pertinent provisions of the Arbitration Act, and no further. They have a right to stand upon the precise terms of their contract.” Goerke Kirch Co. v. Goerke Kirch Holding Co., 118 N. J. Eq. 1 (E. & A. 1934); United Elec., &c., Local 411, C. I. O. v. National Pneumatic Co., 134 N. J. L. 349 (Sup. Ct. 1946); Gould Storage Battery Corporation v. United Elec., &c., Local 108, 137 N. J. L. 522 (Sup. Ct. 1948).

The scope of the collective bargaining agreement between the parties is for the court to decide. Where the arbitration of disputes over the application or interpretation of a collective bargaining agreement is provided, the court must determine whether a bona fide dispute exists, and this is a question of law. Therefore, whether the parties intended to submit the issue here involved to arbitration calls for decision by the court as to the scope of the collective bargaining agreement. Belding Hemingway Company v. Wholesale and Warehouse Workers’ Union, Local 65, C. I. O., 295 N. Y. 541 (Cf. of Apps. 1946); General Electric Co. v. United Elec., At., 300 N. Y. 262 (Ct. of Apps. 1949); Application of Graphite Metallizing Corporation, 271 App. Div. 839, 66 N. Y. Supp. 2d 53 (Sup. 1946).

In the recent case of Textile Worhers Union of America C. I. O. v. Firestone Plastics Division, The Firestone Tire and Rubber Company, 6 N. J. Super. 235 (App. Div. 1950), Judge Colie said: “The main question before the court is whether or not there is a debatable question which should go to arbitration. * * * However, there is a preliminary question which' requires decision, i. a., what is the function of the court in proceeding to compel arbitration ? Obviously the court is not concerned with the merits of the alleged controversy. Its only concern is to determine whether this is an arbitrable question. The guide for the court to follow has been succintly stated in International Assn. of Machinists v. Cutler-Hammer, Inc., 271 App. Div. 917, 67 N. Y. Supp. 2d 317 (App. Div. 1947); affirmed, 297 N. Y. 519, 74 N. E. 2d 464, (Ct. of Appeals, 1947), to be that 'While the contract provides for arbitration of disputes as to the “meaning, performance, non-performance or application” of its provisions, the mere assertion by a party of a meaning of a provision which is clearly contrary to the plain meaning of the words cannot make an arbitrable issue. It is for the court to determine whether the contract contains a provision for arbitration of the dispute tendered, and in the exercise of that jurisdiction the court must determine whether there is such a dispute. If the meaning of the provision of the contract sought to be arbitrated is beyond dispute, there cannot be anything to arbitrate and the contract cannot be said to provide for arbitration/ ”

The question which the defendant proposed to arbitrate does not concern a grievance between the emplo3rer and an employee, or a group of employees, but involves a dispute as to the extent of the liability of the defendant. The contention of the defendant is gleaned from the affidavit of Nathan Perles that its liability is the sum of $250, the equivalent of two weeks’ pa3r, the sum fixed by Section X of the contract if the alleged cause of the discharge be found sufficient and fair. The plaintiff, however, asserts that the provision for arbitration relates to a discharge for conduct. In the instant case, the discharge was not for any action, conduct, failure or neglect on the part of the employee, but the termination of employment was for a cause which the contract did not specify, contemplate or anticipate, namely, a discontinuance of the business.

A similar question has arisen before the New York courts. In B. F. Curry, Inc., v. Reddeck, 86 N. Y. Supp. 2d 674 (Sup. 1949), the petitioner discontinued a department which resulted in the layoff of employees. The union served notice of intention to proceed to arbitration and the employer sought a stay. As in this case, the problem was whether the dispute wras arbitrable under the collective bargaining agreement. The court held that not every controversy between an employee and an employer is arbitrable, but only those which fall within the scope of the collective bargaining agreement fairly construed, and that the arbitration clause dealing with discharges had no relevancy and could not be invoked.

In Application of Berger, (World Broadcasting System, Inc.), 78 N. Y. Supp. 2d 528, (Sup. 1948), affirmed 81 N. Y. Supp. 2d 195 (App. Div. 1948), the controversy arose out of the discontinuance of a department in the interests of economy, and the consequent termination of employment of those in the department. The union asserted that the termination was a layoff' or discharge within the meaning of the collective bargaining agreement, and, as such, the proper subject of arbitration. The employer argued that the abandonment of a department was in the exercise of its right to determine its basic business policies under a specific provision of the agreement: “The management of World’s operations and the direction of its staff, including the right to * * * layoff Employees * * * to accomplish a reduction in force reasonably required for the efficient operation of World are vested exclusively in World * * *.” The court said, “* * * the limitation on the employer’s right to discharge and to layoff employees was not intended to curtail the employer’s right, in the exercise in good faith of its business judgment to discontinue a department or otherwise make a radical change in the method of its business operations. The purpose of the clauses invoked by the union was rather to prevent unjustified or discriminatory discharges under color of justifiable cause and, in the case of layoffs, to preserve seniority rights in the plant. * * * Eeading the agreement as a whole, nothing is to be found in it which entitles the union to treat as an arbitrable dispute one arising from the exercise 'by the employer in good faith of its right to make a change in the scope or method of operation of its business. * * * In final analysis the petitioner’s position is a challenge of the employer’s right to discontinue the department in the absence of attack on its good faith. The parties have not by the collective agreement committed the power to dispose of such a controversy to an arbitrator. It is settled that unless a dispute is, by the terms or fair implication of a collective agreement,, within the scope of an arbitration clause, there is no right to have the dispute arbitrated.”

In the Curry case, supra, the contract did not contain a specific clause such as was incorporated in the agreement in the Berger case, reserving to the employer the right to lay off employees in the efficient operation of its business. Referring to the Berger case, the court said in the Curry case, “The conclusion there was that the employer had not confided to arbitrators the right to review his business judgment in abandoning a department. True, in that case, the agreement contained a specific clause which gave emphasis to the employer’s freedom in the domain of policy. In my opinion, however, that clause served merely to remove a contrary inference which might have arisen from other clauses. The agreement now before us contains no provision which makes such a saving clause necessary.”

Sere, too, the agreement does not contain a saving clause such as the one in the Berger contract. Moreover, the agreement provides that the members of the Association are “hired on an annual basis and shall receive an annual salary payable in equal weekly installments.” Indeed, Section XV contemplated no work stoppage or interruption of the work for the duration of the agreement. The contract does not contain a stipulation for severance pay. That the parties did not contemplate or anticipate discontinuance of the business is also indicated by Section X which provided that if the arbitrators deem the cause of a journeyman printer’s discharge insufficient or unfair, he is to be reinstated and paid his wages in full for the time lost from his employment. Further, a discharged printer “must immediately be replaced by another journeyman printer for the remaining period of this contract.” Obviously, discontinuance of the operation of the plant renders either reinstatement or replacement impossible.

As the case has been presented to us, we are not called upon to decide whether there is liability on the part of the employer to the employee by reason of the discontinuance of the operation of the business, and, if so, its extent. All we need decide is whether the controversy is arbitrable within the context of the collective bargaining agreement. We conclude that it is not and that the order directing arbitration was erroneous.


author: Ekeund. S. J. A. D.

text:
    NEWARK MILK & CREAM CO., A CORPORATION OF NEW JERSEY, PLAINTIFF-RESPONDENT, v. LOCAL 680 OF THE INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN & HELPERS OF AMERICA, DEFENDANT-APPELLANT.
    Superior Court of New Jersey Appellate Division
    Argued January 22, 1951 —
    Decided February 15, 1951.

      Before Judges Freunt>, Pljootor and Bogers.

      Mr. Thomas L. Parsonnet argued the cause for the defendant-appellant (Messrs. Parsonnet, Weitzman & Oransky, attorneys).

      Mr. Edward J. Gühooly argued the cause for the plaintiff-respondent (Messrs. Gühooly & Yauch, attorneys).
   The opinion of the court was delivered by

Ekeund. S. J. A. D.

The plaintiff employer sought arbitration of the dispute in controversy, under the provisions of the collective bargaining agreement with the defendant union. The union filed an answer admitting the agreement, but denying that the alleged dispute raised an arbitrable issue, and demanded trial by jury pursuant to the provisions of R. S. 2:40-13. At the close of the case before the court and a jury, on motion of the plaintiff the court directed arbitration, and the defendant appeals. The questions are: (1) was the case properly removed from the consideration of the jury, and (2) is the dispute arbitrable?

A collective bargaining agreement was entered into between the parties on December 6, 1949, providing, inter alia, that “Any and all disputes and controversies arising under or in connection with the terms or provisions of this agreement, or in connection with or relating to the application or interpretation of any of the terms or provisions hereof, or in respect to anything not herein expressly provided but germane to the subject matter of this agreement, which the representatives of the Union and the Employer have been unable to adjust, shall be submitted for arbitration to an arbitrator selected from a list of arbitrators to be furnished by the Eederal Mediation and Conciliation Service in each case. * * *”

During the early months of 1950 the plaintiff notified the defendant that it planned to sell one of its milk routes in the City of Hoboken to a person not an employee of the plaintiff. The defendant contended that the plaintiff was prohibited from so doing by reason of section 18 of the contract: “Uo new crafts subject to Union jurisdiction are to be created except with the joint approval of the employer and the union.” The plaintiff thereupon sought to arbitrate the dispute, but the union refused to comply, contending that the issue was not arbitrable, that the sale of the route constituted the creation of a new craft which under the foregoing section required the joint approval of the union and the employer. The pleadings formulated the issues above set forth.

I.

The pertinent statute, B. 8. 2 :40 — 13, is as follows:

“The justice or judge shall hear the parties and if satisfied that the making of the agreement or a failure to comply therewith is not in issue, shall make an order directing the parties to proceed to the arbitration in accordance with the terms of the agreement, but if found to be in issue, an order shall he made directing a summary trial thereof. Where such an issue is raised the party alleged to be in default may, on or before the return day of the notice of application required by section 2:40-12 of this title, demand a jury trial of the issue. If demanded, the justice or judge shall make an order referring the issue to a jury called and impaneled in the manner provided for the trial of actions at law, but, if not so demanded, the issue shall he heard and determined by the justice or judge.
If the finding, at the trial of the issue, either by the court or jury, he that a written provision for arbitration was made and that there is a default in proceeding thereunder, an order shall he made summarily directing the parties to proceed with the arbitration in accordance with the terms thereof; but if the finding be that no agreement in writing providing for an arbitration was made, or that there is no default in proceeding thereon, the proceeding shall be dismissed.”

Stein v. Local 680 of the Mills Drivers, &c., 141 N. J. Eq. 226 (Ch. 1948).

In the instant ease, the malting of the agreement which contained the provision for arbitration and the failure of the defendant to comply with the plaintifPs demand for arbitration were not denied.

Mr. Justice Ackerson, when judge of the Hudson County Circuit Court, had occasion to discuss the question under consideration. In an unreported opinion, portions of which are quoted by Judge Kays in Hudson Wholesale Grocers Co. v. Allied Trades Council, A. F. L., 3 N. J. Super. 327 (Ch. Dir. 1949), Judge Ackerson said, “Only two issues are involved in such a summary proceeding. These are: (1) the making of a valid agreement to arbitrate; and (2) the failure, neglect or refusal to perform the same. Every other issue, whether of fact or law, and whether raised by denial or by defense, is for the arbitrators.” In Lipman v. Haeuser Shedlac Co., 289 N. Y. 76 (Ct. of Apps. 1942), cited by both Judge Ackerson and Judge Kays, it was declared: “While it must ever be borne in mind that a court has no power to grant a motion to compel arbitration unless the subject-matter is comprised within the agreement to arbitrate made by the parties, yet when once an agreement to arbitrate has been made, such an agreement must be considered in the light of the broad language used in the above arbitration statute. * * * The language of the agreement to arbitrate of course, must be sufficiently broad so as to permit of the application of the general principle that all issues subsequent to the making of the contract are not for the court but for the arbitrators. Where, however, as here, the language of the provision providing for arbitration uses not only the phrase fany and all controversies arising out of the contract5 but also “any and all controversies in connection with the contract,5 this language would appear sufficiently broad to express the intention of the parties to include within the exclusive jurisdiction of the arbitrators as a general rule all acts by the parties giving rise to issues in relation to the contract, except the making thereof.55

In the case sub judice, the clause providing for arbitration is broader and more comprehensive than in the Lipman and Hudson Wholesale Grocers cases, supra. The removal of the case from the jury’s consideration was undoubtedly proper.

II.

Is the controversy arbitrable?

The principles of law applicable to this point are stated in the opinion of this court filed simultaneously herewith, in Machine Printers Beneficial Ass’n. v. Merrill Textile Print Works, 12 N. J. Super. 26 (App. Div. 1951). What is said there is pertinent here.

Submission to arbitration is essentially a contract; the parties have a right to stand upon the precise terms thereof; and the scope of the agreement is for the court to determine. Goerke Kirch Co. v. Goerke Kirch Holding Co., 118 N. J. Eq. 1 (E. & A. 1934); United Elec., &c., Local 111, C. I. O., v. National Pneumatic Co., 134 N. J. L. 349 (Sup. Ct. 1946) ; Gould Storage Battery Corp. v. United Elec., &c., Local 108, 137 N. J. L. 522 (Sup. Ct. 1948); Application of Graphite Metallizing Corporation, 271 App. Div. 839, 66 N. Y. Supp. 2d 53 (Sup. 1946); International Ass’n. of Machinists v. Culler-Hammer, Inc., 271 App. Div. 917, 67 N. Y. Supp. 2d 317 (App. Div. 1947) ; affirmed, 297 N. Y. 519, 74 N. E. 2d 464 (Ct. of Apps. 1947); Textile Workers Union of America, C. I. O., v. Firestone Plastics Division, The Firestone Tire and Rubber Company, 6 N. J. Super. 235 (App. Div. 1950).

Here the company was proposing to sell one of its milk routes to a non-employee. The union contends that the sale is not bona fide, but a device to secure delivery of milk by a non-employee in order to avoid the effect of the collective bargaining agreement between the parties, and that the contemplated sale constitutes the creation of a new craft prohibited by section 18, except with the approval of the union. Whether the sale is bona, fide, and, if so, whether it constitutes the creation of a new craft are arbitrable issues within the context of the agreement. Hudson Wholesale Grocers Co. v. Allied Trades Council, supra; Lipman v. Haeuser Shellac Co., supra. If perchance the arbitrators should determine that the sale does in fact create a new craft, the consent of the union to the creation thereof would then be required pursuant to the terms of the contract.

The judgment directing arbitration is affirmed.


author: Peeunti, S. ,7. A. D.

text:
    ANNA BELLE KEMBLE, EXECUTRIX, &c., PLAINTIFF-APPELLANT, v. WILEY METHODIST EPISCOPAL CHURCH, DEFENDANT-RESPONDENT. ALANSON E. MEAD, ETC., PLAINTIFF-APPELLANT, v. WILEY METHODIST EPISCOPAL CHURCH, DEFENDANT-RESPONDENT.
    Superior Court of New Jersey Appellate Division
    Argued February 5, 1951 —
    Decided February 21, 1951.

      Before Judges Preukd, Proctor and Eogers.

      Mr. Warren C. Douglas argued the cause for the plaintiflsappellants (Mr. Waller 8. Keown, attorney).

      2lr. William G. Bischoff argued the cause for the defendant-respondent (2Iessrs. Carroll, Taylor S Bischoff, attorneys; Mr. Waller B. Carroll, of counsel).
   The opinion of the court was delivered by

Peeunti, S. ,7. A. D.

This appeal is from two orders staying the further prosecution of the plaintiffs’ actions until costs due the defendant have been paid.

The two cases, arising out of an accident which occurred on Juno 19, 1935, were consolidated and tried on live separate occasions. The fifth trial resulted in verdicts in favor of the plaintiffs. On appeal by the defendant, the Supreme Court reversed the judgments and directed new trials.

The opinion of the Supreme Court, 4 N. J. 200 (1950), fully sets forth the facts, but is silent as to costs. The mandate on reversal provided that “the judgment * * * is in all tilings reversed, set aside and for nothing holden, with costs; and it is further ordered that this mandate shall issue ten days hereafter, unless an application for rehearing shall have been granted or is pending, or unless otherwise ordered by this Court. * * *” Rule 1:4-ll. The taxed costs allowed to the defendant as the prevailing party amount to $1,791.25. The plaintiffs then moved before the Supreme Court that the taxation of costs be set aside, but this was denied because the motion was not made within ten days after the judgment and before the mandate issued. Rule 1:4-9. The defendant then moved the trial court to stay further proceedings until payment of the taxed costs. The motion was granted and the plaintiffs appeal, arguing that the orders are final judgments.

The defendant contends that the orders are not final judgments, Buie 4:3 — 1, nor' such interlocutory orders as are appealable, Buie 4:2-2. In re Url's Estate, 5 N. J. 507 (1950). The orders under review are not final in the suits; they do not terminate the litigation by a determination of the principal matter in controversy. If the plaintiffs pay the costs, the retrial proceeds. As directed by the orders, failure to pay defers “the further prosecution of the action until the costs due to the defendant are paid. * * *”

Appeals from interlocutory orders or judgments under Buie 4:2-2(b) are discretionary, and “application for leave to take such appeal shall be made by notice of motion together with supporting affidavit * * * which shall be served and filed within' ten days from the order or judgment sought to be appealed.” The orders appealed from were dated September 13, 1950. Notice of appeal was dated October 27, 1950. So that assuming, arguendo, the plaintiffs’ right to appeal, they failed to comply with the provisions of Buie 4:2-2(b). Nevertheless, we have heard the arguments of counsel and notwithstanding the irregularity of the appeal, have carefully considered it.

The appellants argue that the trial court should have exercised its discretion and allowed them to proceed without payment of costs, and that not to do so was prejudicial error. As to the allowance of taxed costs, the trial court, as are we, was bound by the mandate of the Supreme Court, which alone can change its order. Further, it is settled practice that costs be paid before further proceedings are taken. A stay of proceedings was no denial of justice, and its issuance, whether in the discretion of the court or as an imperative legal duty, was not erroneous. Sooy v. McKean, 9 N. J. L. 86 (Sup. Ct. 1826);Ryan v. Public Service Railway Co., 3 N. J. Misc. 492 (Sup. Ct. 1925); Sebolt v. National Bank of New Jersey, 3 N.J. Super. 405 (Ch. Div. 1949).

“When no valid objection can be leveled against a judgment or order brought up, as in this ease, an appeal does not lie, and, consequently, it must be dismissed.” Salmons v. Rugyeri, 103 N. J. L. 596, 600 (E. & A. 1927); Kleinman v. Globe & Rutgers Fire Ins. Co., 111 N. J. L. 374 (E. & A. 1933).

Appeal dismissed.


author: Jayne, J. A. D.

text:
    BERNARD GENTILE, PLAINTIFF-RESPONDENT, v. PUBLIC SERVICE COORDINATED TRANSPORT, DEFENDANT-APPELLANT.
    Superior Court of New Jersey Appellate Division
    Argued January 29, 1951 —
    Decided February 13, 1951.

      Before Judges McGeeiian, Jayne and Wm. J. Beennan, Je.

      Mr. Carl T. Freggens argued the cause for the appellant (Mr. Edward S. Kirty, of counsel).

      Mr. John E. Selser argued the cause for the respondent (Messrs. Selser & Shenier, attorneys); Mr. James A. Mc-Tague, on the brief).
   The opinion of the court was delivered by

Jayne, J. A. D.

The present litigation arose out of the occurrence of a mishap on January 13, 1949, in which a motor bus operated by the defendant collided with the plaintiff, a pedestrian, on River Road, in the Borough of Edgewater, Bergen County, New Jersey. The trial of the action was concluded by a jury verdict in favor of the plaintiff with an award to him of damages in the amount of $20,000. The sequential judgment is transmitted here for review by the defendant-appellant.

An abridged statement of the testimony relating to the circumstances accompanying and surrounding the occurrence of the collision will suffice to exhibit the background of the points debated in this appeal.

In the daylight of a clear afternoon the plaintiff paused at the westerly curb of. River Road with the intention in mind to cross to the easterly side of the highway where he anticipated entering an expected north-bound bus. In making observations to the north he saw a relatively large motor truck parked along the westerly curb a few feet distant from him, but despite its intervening presence he saw the defendant’s bus rapidly approaching from the north. It was then 100 or 150 feet distant from him. He nevertheless proceeded across the highway looking south. He next saw the southbound bus an instant before the collision.

Motions were made on behalf of the defendant for the dismissal of the action at the close of the plaintiff’s affirmative case and for a judgment for the defendant at the conclusion of the introduction of the evidence. Rules 3:41-2, 3 :50. Both motions were denied by the trial judge and the propriety of the latter ruling is now vigorously challenged..

The contention in support of the motion in the trial court, as here, is that the conduct and deportment of the plaintiff is encompassed by the rationale of such cases as the following, in which it was resolved that the pedestrian was guilty of contributory negligence as a matter of law. Fitzhenry v. Consolidated Traction Co., 64 N. J. L. 674 (E. & A. 1900); McCormick v. Hesser, 77 N. J. L. 173 (Sup. Ct. 1908); Hackney v. West Jersey & Seashore R. R. Co., 78 N. J. L. 454 (E. & A. 1909); Conrad v. Green, 94 A. 390 (Sup. Ct. 1915) — not elsewhere reporied; Branigan v. Demarest, 109 N. J. L. 123 (E. & A. 1932); Laskowski v. Mankovich, 10 N. J. Misc. 441 (Sup. Ct. 1932) : Rado v. Zlotnick, 7 N. J. Super. 197 (App. Div. 1950).

In the consideration of motions for the involuntary dismissal of an action, the present analogue of the superseded motion for a nonsuit, or for judgment for the defendant, the modern counterpart of the former motion for a direction of the verdict, it must bo recognized that while the denominations of the motions have been refashioned (Buies 3 :41-2, 3:50), the rules formerly applicable to the determination of such motions continue to survive.

Tiie familiar rules which in such situations immediately capture the attention of our trial judges are:

1. Negligence is never presumed. It, or the circumstantial basis for the inference of it, must be established by competent proof. Oelschlaeger v. Hahne & Co., 2 N. J. 490 (1949); Callahan v. National Lead Co., 4 N. J. 150 (1950).

2. The existence of negligence and contributory negligence are pre-eminently questions of fact for the jury. Fox v. Great Atlantic and Pacific Tea Co., 84 N. J. L. 726 (E. & A. 1913); Branigan v. Demarest, supra; Shappell v. Apex Express, 131 N. J. L. 583 (E. & A. 1944).

3. The court must accept as true all evidence which supports the view of the party against whom the motion is made and must give him the benefit of all inferences which may logically and legitimately be drawn therefrom in his favor. Such continues to be the rule. Scarano v. Lindóle, 121 N. J. L. 549 (E. £ A. 1939); McKinney v. Public Service Interstate Transp. Co., 4 N. J. 229, 243 (1950).

4. To justify a dismissal or judgment for defendant upon such a motion on the ground of the contributory negligence of the plaintiff, the contributory negligence must clearly appear conclusively as a fact or by necessary exclusive inference from the proof. Danskin v. Pennsylvania R. R. Co., 79 N. J. L. 526 (E. & A. 1910); Ackerley v. Pennsylvania R. R. Co., 130 N. J. L. 292 (E. & A. 1943); Willins v. Ludwig, 136 N. J. L. 208 (E. & A. 1947); Spence v. Maier, 137 N. J. L. 284 (Sup. Ct. 1948); affirmed, 1 N. J. 36 (1948); Bacak v. Hogya, 4 N. J. 417 (1950).

5. Where fair-minded men might honestly differ as to the conclusions to be drawn from the facts, whether controverted or uncontroverted, the question at issue should be submitted to the jury. Bennett v. Busch, 75 N. J. L. 240 (Sup. Ct. 1907); Finnegan v. Goerke Co., 106 N. J. L. 59 (E. & A. 1929); Lipschitz v. N. T. and N. J. Produce Corp., 111 N. J. L. 392 (E. & A. 1933); Repasky v. Novich, 113 N. J. L. 126 (E. & A. 1934); Christine v. Mutual Grocery Co., 119 N. J. L. 149 (E. & A. 1937); Schwartz v. Rothman, 1 N. J. 206 (1948); Fischetto Paper Mill Supply v. Quigley Co., 3 N. J. 149 (1949); Antonio v. Edwards, 5 N. J. 48 (1950).

6. Where there are no disputed facts or disputed inferences to be drawn from the uncontroverted facts, it devolves upon the court to declare the judgment which the law imposes. Kaufman v. Pennsylvania R. R. Co., 2 N. J. 318 (1949).

7. The power of the trial judge to grant such a motion is not, however, restricted to an utter absence of all evidence of a contradictory purport. The “mere scintilla” of evidence rule does not obtain in this State. Sivak v. New Brunswick, 122 N. J. L. 197 (E. & A. 1939), and cases therein collated. We note recent statements: “It is well established that a case should be submitted to a jury unless there are no disputed facts or disputed inferences to be drawn from undisputed facts.” Bachman Choc. Mfg. Co. v. Lehigh Wrhse. & Tr. Co., 1 N. J. 239, 243 (1949); Township of Parsippany-Troy Hills v. Bowman, 3 N. J. 97, 103 (1949), see concurring opinion, Id. 107.

8. Where there is no proof of actionable negligence for which the defendant can be lawfully held responsible, the question of the existence of contributory negligence is immaterial. Freschi v. Mason, 108 N. J. L. 272 (E. & A. 1931); Cohen v. Borough of Bradley Beach, 135 N. J. L. 276 (E. & A. 1947).

To observe that nonsuits and' directions of verdicts for defendants in negligence cases have been over the span of years relatively scarce is not astonishing. Negligence in the abstract is a nihility. Both negligence and reasonable care are relative terms. They derive their animation in the law of torts only when they are in articulation with a given body of factual conditions and circumstances. In the vast majority of the cases the aspect of the factual situation is made tremulous by divergent and contradictory evidence. The determination of the facts logically precedes the determination of the alleged negligence, and in all instances where the factual element is encircled by fair and reasonable cpntroversy, the former function is exclusively within the province of the jury.

Moreover we may incidentally remark that in examining the early adjudications relating to individual conduct in the field of negligence, we must realize that the hypothetical person of reasonable vigilance, caution, and prudence is our contemporary and not our forefather. What the reasonably prudent individual would do or refrain from doing in our modern environment of hazards cannot rationally be measured today by the probable behavior of our ancestors in the conditions of the age in which they lived.

It is in the light of the foregoing rules and observations that we have undertaken a circumspect and comprehensive investigation of the transcript of the evidence introduced in the present case.

We discover that in several significant particulars the testimony was so distinctly discordant as to portray the occurrence of the collision in quite dissimilar settings of fact. The following references are illustrative: Did the plaintiff emerge from a point immediately in front of the parked truck or from a point 12 feet south of it? Did he walk or “dash” into the street? Had he progressed to at least the center of the highway before he was struck by the bus ? Was the bus then traveling to the left of the center of the highwajr in the direction in which it was proceeding ? Was the bus driver “speeding,” operating the vehicle at 40 miles an hour, or 10 to 15 miles per hour? Were passengers so crowded in the front of the bus as to obstruct the view of the driver to his right ?

Then there is an acknowledged circumstance which we do not ignore. In the immediate vicinity where the plaintiff undertook to cross, there was conspicuously painted on the surface of the pavement of the street a line and also in letters three feet in height the -word “stop” facing the driver of a south-bound vehicle.

In the state of the evidence existing at the close of the trial, notwithstanding its manifest predominance in favor of the defendant, the trial judge did not in our opinion commit reversible error in the denial of the defendant’s motion.

The appellant also assigns as a ground of appeal that the verdict is manifestly irreconcilable with the obvious preponderance of the evidence. This ground of appeal, we think, is not susceptible of successful refutation. The verdict viewed also in the light of the quantum of damages awarded clearly and convincingly appears to have been the product of mistake, passion, prejudice, or partiality.

The judgment is accordingly reversed and the action remanded to the Bergen County Court for a new trial.


author: Bjuelow, J. A. I).

text:
    JOHN BANGO, PLAINTIFF-APPELLANT, v. CARTERET LIONS CLUB AND ANOTHER, DEFENDANTS-RESPONDENTS.
    Superior Court of New Jersey Appellate Division
    Argued January 22, 1951 —
    Decided February 20, 1951.

      Before Judges Jacobs, Eastwood and Bigelow.

      Mr. Robert G. Gruhin argued the cause for the appellant.

      Mr. John G. StocJcel argued the cause for the respondents.
   The opinion oí the court was delivered by

Bjuelow, J. A. I).

This appeal brings up for review a judgment oí dismissal entered at the conclusion of the plaintiff's case. The plaintiff was a police officer assigned to duty on Pershing Avenue, a public highway in the Borough of Carteret, upon the occasion of a “soap box derby” which was held on that street. A 13-year-old boy, one of the contestants, coasting down the hill upon his home-made vehicle, lost'control of it and ran into plaintiff, severely injuring him. To recover compensation for his injuries, the action was brought.

-V person who induces others to come upon his premises is under a duty to exercise reasonable care for their protection. He is not necessarily relieved of responsibility by the circumstance that the danger is created by an independent contractor. Sebeck v. Plattdeutsche Volkfest Verein, 64 N. J. L. 624; 50 L. R. A. 199 (E. & A. 1900). His duty extends to protection against the acts of third persons if he ought reasonably to have anticipated the occurrence. Exton v. Central R. R. Co., 62 N. J. L. 7 (Sup. Ct. 1898); Miller v. West Jersey & S. R. R. Co., 71 N. J. L. 363 (Sup. Ct. 1904). He may be liable though the place where the accident happened was public property, provided he asserted and maintained control of it. Skelly v. Pleasure Beach Corp., 160 A. 309 (Conn. 1932). The duty runs in favor of one who is not an invitee but who, like the plaintiff in the instant case, attends in the performance of a public duty. Restatement — Torts, § 345. illustration 2 and comment d. Cf. Barnett v. Atlantic City Electric Co., 87 N. J. L. 29 (Sup. Ct. 1915). But in order that the defendants be held liable, it must be shown that they had such degree of control that they could have averted the danger, or such superior knowledge that they should have foreseen and given warning of a danger not apparenl io the plaintiff. For discussion of basis of liability to patron of amusement park, see Frear v. Manchester Traction, etc., Co., 139 A. 86; 61 A. L. R. 1280 (N. H. 1927).

Let us inquire what connection the defendants had with the soap box derby and what authority they exercised. The complaint charges, and the defendants admit, that they “sponsored” the event. The import of the word “sponsor” is rather vague. Typical usage is the statement that Senator A sponsored certain legislation, or the B corporation was sponsor of a certain broadcast. The admission of sponsorship does not carry the implication that defendants had control of Pershing Avenue, or management of the Derby, or are legally responsible for the arrangements. There is little evidence showing what part the defendants played. Boys who desired to enter the contest coxxld obtain entry blanks at the place of business of the individual defendant. A carpenter, who built a ramp that was used in the races, testified that he did the work at the request of a maix who told him that he represented the Lions Club. Another witness testified that the Lions Club advertised the event in the newspapers. The chairman of an unidentified group referred to as the sponsoring committee, was asked, “What barriers did you provide to keep vehicles from leaving the course and running iixto spectators ?” He replied that he turned that over to the chief of police and the fire company. The chief of police sat with the committee when plans for the affair were being made. The chief placed one of his lieutenants in charge aixd he posted the police officers, including the plaintiff. There was no evidence that the defendants controlled the situation.

The plaintiff leans heavily on Macon Telegraph Publishing Co. v. Graden, 53 S. E. 2d 371 (Ga. 1949), where the complaint was sustained agaixxst demurrer. It charged that defendant, through its agent, conducted the soap box derby on a street set aside for defendant’s use by the city authorities., Erom these and other allegations, the court determined that defendant was the occupier of the land, charged with the duty of keeping the premises safe. A somewhat similar ease is Marth v. City of Kingfisher, 98 Pac. 436; 18 L. R. A. (N. S.) 1238 (Okla. 1908). The pleadings and proofs in the action before us do not bring it within the ratioixale of these decisioixs.

But even assuming that the defendants did have authority over the conduct of the races, iix what were they negligent? They fully performed their duty when they persnaded the police and fire depatments to take charge of the arrangements for the safety of all concerned. Cf. Reisman v. Public Service Corp., 82 N. J. L. 464 (E. & A. 1911). No failure on the part of the police and fire departments to take proper precautions was shown.

lYe find no error in the judgment of dismissal. Affirmed.


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

text:
    ROSE HOLLINGS, PLAINTIFF-APPELLANT, v. JOHN HOLLINGS, INDIVIDUALLY AND AS EXECUTOR UNDER THE LAST WILL AND TESTAMENT OF ANNA R. HOLLINGS, DECEASED, DEFENDANT-RESPONDENT.
    Superior Court of New Jersey Appellate Division
    Argued January 29, 1951 —
    Decided February 20, 1951.

      Before Judges Jacobs, Eastwood and Donges.

      Mr. Joseph M. Rotólo argued the cause for the appellant.

      Mr. Henry J. Gamby argued the cause for the respondent.
   The opinion of the court was delivered by

Jacobs, S. J. A. D.

This is an appeal from a judgment entered in the Chancery Division dismissing the plaintiff’s complaint.

On Jufy 1, 1920, the Pennekohls executed to Anna R. Hollings, wife of the defendant John Hollings, their bond and mortgage in the sum of $6,000 payable on July 1, 1925. The defendant paid the consideration for the bond and mortgage, his wife held them for his benefit, and after her death in 1941 naming him as executor and sole beneficiary he assigned the bond and mortgage to himself. On December 29, 1920, the Eennekohls conveyed the mortgaged property to George Hollings and his wife. This conveyance was made subject to the mortgage which was credited against the purchase price and the balance of $4,000 was paid in cash. George Hollings was the son of the defendant and died in 1925; since then his wife, the plaintiff Bose Hollings, has remained in possession of the property. The bond and mortgage have never been paid and no demands for payment were ever made upon the plaintiff or her deceased husband.

In 1949 the plaintiff instituted her action to quid title which, in effect, sought to remove the outstanding ’mortgage held by the defendant on the ground that enforcement of the bond and mortgage had been barred by the pertinent statutory limitations. See R. S. 2 :24-5; R. S. 2 :24-12. In opposition the defendant contended that the plaintiff was morally obligated to pay the mortgage debt which, although it may be unenforceable, was not. extinguished, and that she was not entitled to affirmative relief in equity without first doing equity by payment. Sustaining the defendant’s position, the Chancery Division dismissed the complaint pursuant to its opinion reported in Hollings v. Hollings, 8 N. J. Super. 552 (1950). The plaintiff duly appealed from the judgment and although objection as to its form is voiced by the defendant he has not taken any appeal. See Liberty Tille, A Trust Co. v. Plews, 6 N. J. 28, 45 (1950).

In House v. Carr, 185 N. 7. 453. 78 N. E. 171 (1906) Chief Judge Cullen stated it was settled law “that equity will not set aside as a cloud upon title a lien outlawed by the Statute of Limitations.” See. 2 Pomeroy’s Equity Jurisprudence, p. 74 (5th ed. 1941) ; 164 A. L. R. 1387, 1393. This doctrine has been said to rest upon the view that equity considers that a moral obligation to pay a just debt survives the limitation period; and as recently indicated in Cunningham, v. Davidoff, 187 Md. 134, 46 A. 2d 633 (1946). c. c. 188 Md. 437, 53 A. 2d 777 (1947), it is applicable not only where the mortgagor seeks equity’s aid to remove the cloud but also where the relief is sought by a grantee who is under moral obligation to pay the mortgage debt. See Ephraim v. Nevada & California Land & Live Stock Co., 282 Fed. 610, 612 (9th Cir. 1922); cert. denied, 260 U. S. 748, 67 L. Ed. 494 (1923); Chapman v. Hicks, 41 Cal. App. 158, 182 P. 336 (1919); Keller v. Souther, 26 N. Dak. 358, 144 N. W. 671 (1913) Gerken v. Davidson Grocery Co., 50 Idaho 315, 296 P. 192, 193 (1931).

The appellant contends that the foregoing should not be applied to bar the relief she seeks since the conveyance to her contained no assumption of the mortgage. Friedman. v. Zuckerman, 104 N. J. Eq. 322 (Ch. 1929). However, the Court of Errors and Appeals has stated that where, as here, the amount of the mortgage was credited against the purchase price there is, in equity, an implied assumption of the mortgage (Lang v. North Jersey Agency, Inc., 137 N. J. Eq. 191, 192 (E. & A. 1945); Max v. Beckelman, 115 N. J. Eq. 118, 121 (E. & A. 1934)), and this is at least sufficient to compel recognition, for present purposes, that the appellant is a grantee under moral obligation to pay the mortgage debt. See Chapman v. Hicks, supra; Gerken v. Davidson Grocery Co.,, supra. Although the appellant urges that the defendant’s-conduct in the instant'matter created “an independent and superior equity” in her favor, we find no adequate support in the record for this view. It is true that the defendant and his deceased wife forbore from seeking satisfaction of the mortgage over a long period of time. This, however, must be considered in light of their relationship to the plaintiff, the-admitted non-payment of the mortgage debt, and the absence' of satisfactory evidence suggesting its forgiveness. Ayres v. Ayres, 69 N. J. Eq. 343, 345 (Ch. 1905); affirmed, 69 N. J. Eq. 842 (E. & A. 1906). We consider that the circumstances-presented are in no significant sense distinguishable from the customary situation in which courts throughout the country have applied the prevailing rule that a mortgagor or a grantee-morally obligated to pay the mortgage debt barred by limitations must do equity by teardering its paymeaat before seeking; affiranative equitable relief in an actioai to quiet title.

The judgment is affirmed.


author: Bigelow, J. A..D.

text:
    ELSIE ZIMMERMAN, PLAINTIFF, v. JAMES ZIMMERMAN, DEFENDANT.
    Superior Court of New Jersey Appellate Division
    Argued August 21, 3950 —
    Decided October 2, 1950.

      Before Judges Jacobs, Bigelow and Wm. J. Beennan, Je.

      Mr. James A. Major argued the cause for the State.

      Mr. Warren Dixon, Jr., argued the cause for the appellant.
   The opinion of the court was delivered by

Bigelow, J. A..D.

The appellant, an attorney and counsellor-at-law, was summarily convicted of a contempt which in substance amounted to subornation of perjury in a divorce suit. Concededly there was perjury; but did Elsie Zimmerman, the petitioner, herself concoct it, or did her solicitor, the appellant?

In August, 1948, appellant filed the petition for divorce, alleging desertion. The action, which wras not contested, came on for hearing October 31, 1949, when Mrs. Zimmerman and a witness named Merrick testified. The following day, another witness, Thomas Rady, testified. An order of dismissal was entered November 4. The petition for divorce gave Mrs. Zimmerman’s address as 40 Harding Road, in the Borough of Glen Rock, Bergen County. It alleged that she had been a bona fide resident of New Jersey when the cause of action arose and for more than two years next preceding the commencement of the action. She testified that she had lived at the Colgate place on Blue Mill Road, Morristown, until June, 1948, when she moved to Glen Rock. Merrick testified that he resided on Blue Mill Road at the time of the hearing and had lived there since 1941, except for two years wdien he was in military service; that Mrs. Zimmerman was his nearest neighbor when she lived there. Actually, Mrs. Zimmerman dwelt at Morristown onty until 1943 when she moved to Long Island, where she has lived ever since. She never lived at Glen Rock. Merrick has never lived in New Jersey; he had been acquainted with Mrs. Zimmerman only since she moved to Long Island. Sucli was the fraudulent attempt to bring Mrs. Zimmerman’s suit within the jurisdiction of New Jersey.

In March, 1950, Mrs. Zimmerman, Merrick and Eady were accused of contempt of court consisting of perjury. The first two pleaded guilty, while Eady was tried and convicted. Mrs. Zimmerman then accused her solicitor, the appellant, of inventing the falsehoods which she and Merrick uttered, and the proceeding against appellant was thereupon instituted.

The contempt charge was tried before an advisory master, the same one who heard the divorce case, and thus is presented the first ground urged for reversal, namely, that the advisory master was without jurisdiction.

As Vice-Chancellor Berry pointed out in the Caruba case, 139 N. J. Eq. 404, at 421 (Ch. 1947); affirmed, 140 N. J. Eq. 563 (E. & A. 1947), a master, acting within the scope of the reference to him, is for all practical purpose the court itself. He added that the special master in the suit then under discussion, “could not, of course, have summarily committed the defendant for his confessed perjury, but only because such action was outside the reference which limited his power and there was no general reference under which he could act.” There was, however, a general reference to advisory masters of applications to punish for contempt for disobedience of orders in matrimonial causes and to punish for criminal contempt. Chancery Hule 128(e). By virtue of this rule, which was first promulgated in 1933 and broadened in 1936, advisory masters heard criminal contempt charges which grew out of matrimonial causes and advised the Chancellor what order or decree should be made.

The Constitution adopted by the people in 1947, directed that the advisory masters who had been appointed to hear matrimonial proceedings, shall “continue so to do as Advisory Masters to the Chancery Division of the Superior Court, unless otherwise provided by law.” Art. XI, § 4, par. 6. 'Following this constitutional provision, our present Rule 3 :87 — 4 requires matrimonial actions to be heard by a judge of the Chancery Division or by an advisory master assigned thereto. Counsel for appellant points out that the Constitution and the Rule direct only that the advisory masters hear matrimonial matters and are silent on the subject of contempt. Of course, a criminal contempt prosecution is separate from the cause in which the contempt is committed. The parties may be — and in the present instance are — different. A criminal contempt is a public wrong; it is a misdemeanor. Staley v. So. Jersey Really Co., 83 N. J. Eq. 300 (Sup. Ct. 1914). It may be prosecuted on indictment like other crimes. In re Kerrigan, 33 N. J. L. 344 (Sup. Ct. 1869). When prosecuted in a summary manner in the court against which the contumacious conduct was directed, it was formerly considered that the matter must be entitled as a separate cause. Passaic Athenia Bus Co. v. Consolidated Bus Lines, 100 N. J. Eq. 185 (Ch. 1926); Dorrian v. Davis, 105 N. J. Eq. 147 (Ch. 1929). But the original cause and the criminal one are generally intertwined. Indeed, the contemptuous acts may be such that they may be dealt with either as a criminal or a civil contempt. Beatty v. Wunschel, 122 N. J. Eq. 286 (Ch. 1937). Our present rules provide that a contempt, whether criminal or civil, “shall be prosecuted in the action in which it occurs.” Rule 3 :80 — 2. In our opinion, the prosecution for contempt is a part of the matrimonial cause in which the contempt is committed, within the meaning of Art. XI, § 4, par. 6 of the Constitution and Rule 3:8 7 — 4, although in most other aspects the two are independent actions. The advisory master to whom is assigned a matrimonial cause, has the same jurisdiction and authority in contempt matters that advisoiy masters were accustomed to exercise prior to September 15, 1948, that is, he may conduct the trial and advise the order or judgment that ought to be made in a criminal contempt which occurs in the matrimonial action, except as prohibited by paragraphs (d) and (e) of Rule 3:80 — 2. And the order or judgment so advised becomes the order of the Superior Court when signed by a judge of the court. That was the procedure followed in the present instance.

It is next urged that there was error in the admission of evidence. Mrs. Zimmerman and Merrick each made a state-meat under oath, or affidavit, in the county jail on March 15, 1950. The order to show cause which initiated the contempt proceeding was supported by these affidavits and a copy oí them Avas served on appellant with the show cause order. When the contempt Avas tried, the Zimmerman woman and Merrick testified for the State. In the course of cross-examination, appellant’s counsel asked the prosecutor for the original sworn statements, received the documents, and used them on the cross-examination. At the conclusion of the examination of these witnesses, the State offered the statements in evidence and they were received over the objection of appellant.

The State seeks to sustain the receipt of the statements on the ground that they were produced upon appellant’s demand, and that in the course of the cross-examination parts of the statements were put before the court for the purpose of contradicting these witnesses.

It has been considered to be the rule that if a party call on his adversary for the production of a paper and examine it, he cannot object to its being put in evidence if it be in any way material to the issues. “The reason for this rule is that it would give an unconscionable advantage to a party to enable him to pry into the affairs of his adversary without, at the same time, subjecting him to the risk of making whatever he inspects evidence for both parties.” Ellison v. Cruser, 40 N. J. L. 444 (Sup. Ct. 1878); Decker v. Smith, 88 N. J. L. 630 (E. & A. 1915). Eor cases from other states, see 151 A. L. R., Annotation, at 1006. Eor vigorous criticism of the rule, see Wigmore on Evidence, § 2125. The spirit of our new court rules relating to discovery seems to run counter to the old practice outlined in the cases we have cited, so much so that Are would hesitate to say whether or not those cases state Avliat is still the laAV. The affidavits or statements in question Avhieh A\rero in question and answer form were, as Are haA'e mentioned, the foundation for the proceeding against the appellant. They were papers in the case in the same sense as are the affidavits which form the basis for an order for an interlocutory injunction. A cop3f had been served on appellant at the outset. All he called for was the signed originals. He did not pry into the State’s case. The rule on which counsel for the State first relies is not applicable.

It is also a rule of the law of evidence that when an oral or written statement of a witness is used on cross-examination for the purpose of contradicting the witness, and in this manner parts of the statement are put in evidence, then the remainder of the statement which concerns the same subject and which is explanatory of the part used in the cross-examination, becomes evidential. Wigmore — Evidence, § 2113. The rule which has been followed in New Jersey is probably broader than indicated above, so that all of the statement upon the same subject is admissible, whether or not it is explanatory of the part used in the cross-examination. State v. Cohen, 97 N. J. L. 5 (Sup. Ct. 1921). And when the statement is written, practical considerations generally permit the whole document to be put in. Iverson v. Prudential Ins. Co., 126 N. J. L. 280 (E. & A. 1940). The trial court necessarily has considerable leeway or discretion in a matter of this sort. In the present instance, appellant did not suggest that any particular parts of the statements were not properly admissible, but objected to the statements in loto. We find no error or .impropriety in their admission.

We need hardly add that such statements or ex parte affidavits, are not evidential of any of the happenings mentioned therein. They could properly be used only to enable the court to determine whether taken as a whole they contradicted the testimony of the affiants, given in court in the proceeding against appellant, or otherwise weakened the credibility of such testimony. Afronti v. U. S., 145 F. 2d 3 (1944).

The last reason for reversal presented by appellant is that the evidence does not warrant conviction. And this requires brief consideration of the nature and scope of the appeal.

A conviction of criminal contempt is not reviewable by an appellate tribunal in the absence of statute, except for lack of jurisdiction. Seastream v. N. J. Exhibition Co., 72 N. J. Eq. 377 (E. & A. 1907). The Legislature in 1884 passed an enactment, later embodied in B. 8. 2 :lo — 3 to 6, giving an appeal to a person found guilty of contempt by a law court inferior to the Supreme Court. Section 2 :15 — 3 declared that the conviction should be reviewable “both upon the law and the facts,” while section 2 :15-5 required that “the facts shall be inquired into and ascertained” upon the appeal “by depositions or otherwise as the court shall direct, and the court shall give such judgment in the premises as it shall deem to be lawful and just under all the circumstances of the case, which judgment shall be enforced as the court shall order.” Two years ago the Legislature revised the statute, made it applicable to a summary conviction by the Law or Chancery Division, a County Court or any inferior court. The direction that the facts should be ascertained “by depositions or otherwise as the court shall direct,” was deleted but the other provisions quoted above were retained unchanged. P. L. 1948, c. 333, §§ 1 and 2. The appeal under the 1884 statute was a trial de novo upon evidence presented in the higher court. Attorney General v. Verdon, 90 N. J. L. 494 (E. & A. 1917). Under the present statute, we think the review is still a trial de novo, but the omission of the requirement for an inquiry “by depositions or otherwise,” indicates a legislative intention that the facts shall be determined by a review of the evidence already taken, at least where the accused had a full opportunity to present his side of the case, and a stenographic transcript is available. Our function is not merely to affirm or to reverse and remand for a new trial, but to find the appellant guilty or not guilty, and if we find him guilty, to impose such punishment as the law permits and seems to' us just. This extraordinary review is given doubtless because in the court of first instance the same judicial officer directs the contempt proceeding to be initiated, appoints the prosecutor, tries the facts, imposes the penalty and may also be unconsciously influenced by the circumstance that he presides over the court against which the alleged contempt was aimed.

We start with the presumption that appellant is innocent, and we must acquit him unless a carefuly study of the evidence produces in our minds “an abiding conviction to a moral certainty of the truth of the charge.” In re United Hatters, 110 N. J. Eq. 42 (E. & A. 1931); State v. Linker, 94 N. J. L. 411 (E. & A. 1920).

Each of the witnesses for the State had either pleaded guilty or been convicted of a contempt which was in substance willful perjury. While they were not thereby disqualified from testifying against appellant (State v. Wendel, 96 N. J. L. 495 (E. & A. 1921)), the weight to be given their testimony was seriously impaired. Put against that the obvious interest that appellant had in denying the charge.

When Mrs. Zimmerman, in August, 1948, first called on appellant at his law office, she had no previous acquaintance with him and was not introduced by a third person. She consulted a New Jersey attorney because she was aware that adultery was the only basis for a divorce in New York, while in New Jersey a divorce could be obtained for desertion. She knew that in order to get a divorce, the law required her to be a resident of the state in which she sued. Yet the first time she called upon appellant, she says she frankly told him that she lived in Bellerose, Long Island, and “He said you have to be a resident, but he would take care of it. * * * He’d give me an address.” So he drew the petition for divorce and inserted in it the statement that she resided at 40 Harding Road in the Borough of Glen Rock and County of Bergen. She testified that he “gave me Glen Rock. I don’t know where Glen Rock is to this day.”

Merrick had been acquainted with Mrs. Zimmerman four or five years, and had called on her at her home on Long Island. She asked him to testify in her behalf. “I didn’t have any more idea of what I was going to testify to except that I was going to be a witness. * * * All I knew was Mrs. Zimmerman had required witnesses.” So she took him to appellant’s office where appellant gave him his instructions. But Merrick’s testimony is so incoherent, and the passages in his testimony which inculpate appellant are so at variance with the sworn statement made by him in jail, that very little weight, if any, can be given to his evidence.

Although Kady was a witness for the State, his testimony supported the defense. At least it shows that appellant did not teaeli him what liis evidence in the divorce case should be.

Appellant testified in full denial of tbe charge. On the record before ns, he had a very good reputation before the present accusation was brought against him. He has been a member of the bar since 1918, and has served as recorder and as city attorney of the municipality in which he has resided all his life. What was Ms interest in the matter that such a man should concoct perjury and jeopardize everything that ho must hold dear ? He was paid a retainer of $100 at the outset, another $100 just before the hearing, and expected a final $150 at the completion of the divorce ease. The money seems an inadequate motive. But assuming for the moment that appellant procured the perjured testimony, he must have anticipated, after Ms years at the bar and extensive practice in divorce matters, that there would bo some questioning of Mrs. Zimmerman and Merrick by the court. Vet he gave them no preparation for even the simplest questions. And it taxes our credulity to believe that appellant, the first time ho saw Mrs. Zimmerman, when he knew nothing of her, told her unreservedly that he would participate actively in her fraudulent design. “He’d give me an address.” If appellant is a knave, he is still more a fool.

We realize the weaknesses in appellant’s case, such as the odd fact that during the 15-months’ period Mrs. Zimmerman’s case was ponding, he never communicated with her by mail; the curious tone of the letter he wrote her immediately after the hearing; the puzzle of the color of the ink with which she signed sundry papers. Yet, after a full consideration of these circumstances and of tbe entire case, we do not find that the evidence establishes the guilt of appellant. We will enter judgment of acquittal. No costs.


text:
    HARRIET STAWICKY, PLAINTIFF-RESPONDENT, v. STEPHEN STAWICKY, DEFENDANT-APPELLANT.
    Superior Court of New Jersey Appellate Division
    Argued February 5, 1951 —
    Decided February 26, 1951.

      Before Judges McGeehan, Jayne and Wii. J. Brennan, Jr.

      Mr. Marcus A. Blum argued the cause for plaintiff-respondent (Mr. William, Bruder, attorney; Mr. H. Harding Brown, on the brief).

      Mr. Abe Sander Schwartz argued the cause for defendant-appellant (Mr. Joseph B. Schwartz, attorney).
   The opinion of the court was delivered by

William J. Brennan, Jr., J. A. D.

Plaintiff divorced defendant on grounds of extreme cruelty. The decree nisi entered in the former Court of Chancery included a provision awarding plaintiff custody of the infant child of the marriage with visitation privileges to defendant and also the privilege to have, the child every other week end. Plaintiff married William Miller after the entry of the final decree on October 1, 1945. On April 29, 1948, plaintiff filed a petition in the cause alleging that Miller desired to adopt the child (who was under the age of 14 years) but that defendant refused to consent and praying the court’s consent in lieu thereof. Under ihe adoption statute, R. 8. 9:3, an adoption under such circumstances cannot be granted in the County Court unless written consents of both parents to the adoption, acknowledged or proved in the manner required by law for deeds to real estate, are presented with the complaint for adoption, except that under R. 8. 9:3-4(c) the consent of one parent suffices “if the other is * * * mentally incompetent, or has forsaken parental obligations or been divorced from the father or mother of the child because of his or her adultery or desertion or extreme cruelty; provided, however, that when the consent of one parent is not presented with the petition by reason of divorce, if the court granting the divorce has made an award of Ihe custody of the child, consent of such court to the adoption must be presented with the petition.”

An order to show cause issued and was served on defendant. He did not con lost the petition hut filed an assent to the prayer thereof by an instrument addressed to his attorney and directing the latter “not to contest this application for consent to adoption and to inform the court that I agree and consent io the adoption of my son.” Thereupon without hearing and upon defendant’s filed assent the former Court of Chancery made an order entered July 13, 1948, that Miller and the plaintiff “be given consent of the Court of Chancery to adopt the said Stephen Stawicky, ,Tr.” Subsequently defendant successfully applied to the Middlesex County Court to stay the determination of adoption proceedings in that court pending an application to the Chancery Division for an order “revoking Ihe consent.” The motion was heard in the Chancery Division on affidavits and answering affidavits and was denied by order entered June 20, 1950, 9 N. J. Super. 472 [Ch. Div. 1950). Defendant appeals from the last mentioned order.

Appellant argues that the consent of the former Court of Chancery was irregularly entered notwithstanding his assent thereto because the order of July 13, 1948, was made without a hearing, “* * * that due process of law * * * would have required at least that much because it is a judicial fact to be determined by the judge from extrinsic evidence whether the court’s consent should be given to the adoption” as being “what was best for the child,” that the giving of the consent without such hearing and inquiry was “diametrically opposed to the inherent spirit and fundamental purpose of a court of equity, particularly when the right and custody of a minor child is concerned.” His brief views the consent as having the effect of an order which “conclusively disposed of the rights of the defendant and the child.”

Appellant’s argument misconceives the purpose of the requirement for the Chancery consent and its effect in the adoption proceedings in the County Court and the scope of the inquiry to be made by the Chancery Court upon the application for that consent.

Adoption was unknown to the common law and is purely statutory. Gardner v. Hall, 132 N. J. Eq. 64 (Ch. 1942); affirmed, 133 N. J. Eq. 287 (E. & A. 1943). The only court with statutory jurisdiction to grant an adoption is the County Court of the county wherein the petitioner or the child to be adopted is domiciled. B. S. 9 :3~1. The pri-. mary object of the hearing in the County Court is to ascertain as far as practicable whether the best interests of the child will be promoted by the adoption. B. S. 9 :3-7. There must be presented with the complaint for adoption the required consents without which the County Court cannot make a valid judgment of adoption. B. S. 9:3-4; Luppie v. Winans, 37 N. J. Eq. 245 (Prerog. 1883); reversed on other grounds, Winans v. Luppie, 47 N. J. Eq. 302 (E. & A. 1890). Further, the County Court cannot grant an adoption until a report is returned by an agency appointed by it, either the Depart-merit oí Institutions and Agencies or an orphanage, children’s home or society incorporated under the laws of New Jersey, which report shall state the findings of the agency’s investigation into the truth of the allegations of the complaint and reveal such facts as may be necessary to determine the condition and antecedents of the child and of the adopting parents, in order that it may he ascertained whether the child is a proper subject for adoption, and whether the person or persons desiring to adopt the child and their home are suitable for the proper rearing of the child. This requirement of an agency investigation and report is dispensed with and a written summary of the case prepared by an agency is accepted, only when consent to the adoption is given by the Department of Institutions and Agencies or any agency thereof, or by an orphanage, children’s home or society incorporated in the State, having custody and control of the child at the time of the adoption proceedings. Otherwise, such agency investigation and report are mandatorily required.

The proceeding in the divorce cause to secure the Chancery consent does not supersede the inquiry required to be made by the Comity Court under the statute. Despite the control of the child asserted by the Chancery Court by its custody order, the County Court may act without the Chancery consent when both parents consent to the adoption. The substituted Chancery consent, required when one parent refuses to consent, stands on no better footing in the County Court than that of the parent who has consented. Neither the consent of that court nor any other consent given under the adoption statute in any degree relieves the County Court of its solemn duty under the statute to grant the adoption only if satisfied that the interests of the child will he promoted by the adoption. The Chancery consent does not extinguish the parental right. The divesting of all legal rights and obligations due from him to the child and from the child to him can he consequences only of a judgment of adoption duly entered by the County Court in compliance with the statute. The adoption may be refused despite the Chancery or any other consent given under the statute.

The Chancery consent in this case, however, as an essential to a valid judgment of adoption, plays a role in the severance of the parental right which is the consequence of that judgment. As between a parent and a third person that parental right is of great weight and importance unless overborne by the paramount consideration of the welfare of the child. Cf. Frank v. Gaylord, 119 N. J. Eq. 427 (Ch. 1936). Where, as here, the consent of one parent is not presented with the complaint for adoption by reason of divorce, that parent has a statutory right of preventing the adoption by withholding his consent if there is a subsisting custody order incidental to the judgment of divorce, and that right can be defeated only if the divorce court grants its consent in substitution for his consent. He is therefore entitled to notice of the application when practicable and to a hearing upon the question whether the protection of his parental right justifies that court in withholding its consent. The Chancery Court in making its decision should not be concerned with the question reserved by the statute for determination by the County Court, namely, whether the adoption will promote the interests of the child, but should inquire only whether the parent’s refusal to consent is meritoriously founded or is prompted by mere whim or obstinacy or is based upon specious reasons.

The parent can evidence his willingness not to stand upon his parental right by executing the statutory consent in the County Court. Equally he is free not to assert that right in the Chancery proceeding. He is at liberty to default the hearing in the Chancery Court, refrain from contesting the application, or, as occurred in this case, make a hearing unnecessary by agreeing that the Chancery consent shall be given. Such was the effect of appellant’s written assent to the order entered July 13, 1948, by which the former CouTt of Chancery gave its consent; and, at least in the absence of a showing of a ground or grounds under Rule 3 :60-2 for relief from that order (and we find none in this record), the appellant cannot be heard to complain of the order entered in conformity with that assent. The order was an agreement of the parties under the sanction of the court as to what the court’s decision should be upon a subject within the parties’ control to determine and, in the circumstances, it should not be set aside in the absence oí grounds for relief: under Rule 3 :G0~2. See Fidelity Union Trust Co. v. Union Cemetery Association, 13G N. J. Eq. 15 (Ch. 1944) ; affirmed, 137 N. J. Eq. 155 (E. & A. 1946); cf. Sharff v. Tosti, 108 N. J. Eq. 270 (E. & A. 1931). Accordingly, appellant’s motion for vacation of the order was properly denied.

The consent of the Chancery Court does not attain any greater force in the County Court by reason of appellant’s assent thereto, nor does his assent preclude him from defending the adoption proceedings. lie is at liberty to resist in that cause the cutting of the parental ties on such grounds as may be relevant to that court’s primary inquiry whether the adoption will promote the best interests of the child. Cf. Winans v. Luppie, 47 N. J. Eq. 302 (E. & A. 1890).

The appeal is dismissed.


author: Steix, J. S. C.

text:
    HARRY SCHAFFER, ESTELLE SCHAFFER, ISABEL MUSCATT AND SAMUEL GOLDBERG, AS TRUSTEES UNDER PARAGRAPH SEVENTH (a) OF THE LAST WILL AND TESTAMENT OF CARL MUSCATT, DECEASED, PLAINTIFFS, v. ALICE OLDAK, ESTELLE SCHAFFER, INDIVIDUALLY, ESTELLE SCHAFFER AND NATHAN SCHAFFER, AS TRUSTEES UNDER PARAGRAPH SEVENTH (c) 3 OF THE LAST WILL AND TESTAMENT OF CARL MUSCATT, DECEASED, LEWIS SCHAFFER AND DAVID SCHAFFER, INFANTS, DEFENDANTS.
    Superior Court of New Jersey Chancery Division
    Decided February 19, 1951.

      Mr. Harry Schafer, attorney for plaintiffs.

      Messrs. Bilder, Bilder & Kaufman (Mr. Samuel Kaufman appearing), attorneys for defendant Alice Muszkatblit Oldak.

      Mr. Max Jlehler, attorney for defendants Estelle Schaffer, individually, Estelle Schaffer and Nathan Schaffer, as trustees under paragraph Seventh (c) 3 of the last will and testament of Carl Muscatt, deceased, and Nathan Schaffer, guardian ad HBm of Lewis Schaffer and David Schaffer, infants.
   Steix, J. S. C.

Carl Muscatt died on May 10, 1942, a resident of Eed Bank, Monmouth County, New Jersey, leaving a last will and testament dated April 29, 1942, which was duly probated by the Surrogate of Monmouth County on Mar- 25, 1942, who issued letters testamentary and of trusteeship to plaintiffs.

Paragraph Seventh of decedent’s said last will and testament provided as follows:

“SEVENTH: All of the rest, residue and remainder of my estate, together with the net proceeds of the liquidation of the businesses of The Muscatt Mfg. Co., Inc. and The Lewis-David Corporation, I direct my Executors to pay over, distribute and divide as follows:
(a) The sum of Five Thousand Dollars to my Trastees hereinafter named, or the survivors or survivor of them, in trust, to hold said sum, together with all accumulations of income therefrom, for .the duration of the present war, or during the life of my daughter, Estelle Schaffer, and twenty-one years thereafter, and at the expiration of the present war, or of the foregoing period, whichever shall sooner occur, to pay said sum and all accumulations of income therefrom to my brother, Leon Muszkablit, of Poland, and to his children, Alice Muszkatblit and Roman Muszkatblit, or the survivors or survivor of them, but if all of them be then deceased, to pay the said sum with the accumulations of income therefrom to my daughter, Estelle Schaffer, and my son-in-law, Nathan Schaffer, or the survivor of them, to be held by them, or the survivor of them, for the benefit of my grandchildren under and pursuant to the terms of the trust set up for them in article Seventh, paragraph (c), section (3) hereof.”
“(c) To divide the balance of my estate and of the net proceeds from the liquidation of the businesses of The Muscatt Mfg. Co., Inc. and The Lewis-David Corporation into four equal shares and to pay over and distribute the same as follows:
(3) Two shares to my daughter, Estelle Schaffer, and my son-in-law, Nathan Schaffer, or the survivor of them, to have and to hold the same upon the following trust:
(a) To invest and reinvest the same in United States Government Bonds and to collect the interest therefrom.
(b) To expend the net income therefrom for the maintenance, education and support of my grandchildren, the children of my daughter, Estelle Schaffer, until the youngest shall attain the age of twenty-one years, and upon said grandchild attaining the age of twenty-one years to pay over and divide the principal'of the trust fund to and among my said grandchildren in equal shares.
(c) Should any of my grandchildren die before receiving the share of the principal to which he or she shall be entitled, then his or her share shall be distributed to and among my remaining grandchildren, share and share alike.
(d) Should all of my grandchildren die before receiving the principal of the trust fund, then said Trustees, or the survivor of them, shall pay the balance of the trust fund then remaining to my daughter, Estelle Schaffer.”

Nathan Schaffer and Estelle Schaffer have duly qualified and are acting as trustees of the trust mentioned in Paragraph Seventh (c) 3 aforesaid.

On or about December 9, 1944,, plaintiffs established the trust fund mentioned in paragraph Seventh (a) of the decedent's last will and testament aforesaid by the purchase of $5,000 par value United States Treasury Bonds, series 1971/66, bearing interest at the rate of &y2 per cent payable on March 15 and September 15 of each year, and plaintiffs have collected interest to and including September 15, 1950, amounting to $717.53, and there is also due to the trust interest thereon from September 15, 1950.

Estelle Schaffer has two children, Lewis Schaffer and David Schaffer, who are 16 and J3 years of age respectively.

On August 14, 1945, the President of the United States declared an armistice with Japan and further declared that all hostilities had terminated.

On or about March 13, 1950, the Magistrate’s Court of Warsaw, Poland, entered its decision declaring that Roman Muszkatblit had died prior to May 9, 1946.

On or about May 5, 1950, the Magistrate’s Court of Warsaw, Poland, entered its decision declaring that Leon Muszkatblit had died prior to May 9, 1946.

The only survivor, therefore, of Leon Muszkatblit, Alice Muszkatblit and Roman Muszkatblit is Alice Muszkatblit, who, by virtue of her marriage, is now known as Alice Oldak.

Alice Oldak is a citizen of Israel and resides at 25 Lillien Street, Tel-Aviv, Israel.

Alice Oldak contends that according to the true tenor and meaning of decedent’s will it was his intention that the words “for the duration of the present war” and “at the expiration of the present war” mean the cessation of hostilities and not a declaration of peace by the signing of a formal treaty of peace and, consequently, that according to the true intent and meaning of the decedent’s will she is presently entitled to the entire trust fund established by paragraph Seventh (a) of decedent’s will together with all accumulations of income therefrom and she has demanded that plaintiffs forthwith turn over to her said trust fund with the accumulations of income.

Plaintiffs being uncertain as to whether they should comply with her demand bring this suit requesting instruction of the court with respect to the true tenor and meaning of the provisions of paragraph Seventh (a) of decedent’s will and for judgment approving plaintiffs’ administration of the aforesaid trust and the allowance of commissions and counsel fees.

The testator, when speaking of the duration of the war or of its expiration, contemplated the cessation of hostilities and not what is generally a much later event — the signing of a formal treaty of peace. In this connection an important circumstance is present in the case. At the time the will was made the testator’s brother and the latter’s two children (the intended beneficiaries of the $5,000 trust here involved) were either residents of Poland or refugees therefrom. Poland was then under the heel of the Nazi conqueror and during the period of occupation the fate of those who remained and those who hoped to return depended upon the •outcome of the conflict. A final Hitler victory might well have meant further extermination; an Allied victory hope and restoration. The testator naturally wanted that the bounty given by his will reach his beneficiaries and find its way into their living hands and not as loot in the hands of the invader. The end of the fighting was the event he was mindful of, for that event would long in advance of any formal treaty of peace drive the invader from the country and restore a state of civil law and order under which property and the enjoyment thereof would be secure. The testator, was not thinking in terms of diplomatic procedure which calls for a formal peace treaty. The latter event might be postponed for many years following the actual fighting, as has turned out to be the historical fact in relation. to World War II. Einal treaties have not yet been concluded and, if the hopes and pikers of the democratic world should be disappointed, World War III may ensue while technically World War II remains formally unclosed. Only the patience and forbearance of the' free nations have thus far preserved the peace of the world. The almost universal use of the phrase “preserve the peace” is indicative of the popular concept of the time when a war ends. In common parlance a war ends when the shooting stops. The law is settled here and in other jurisdictions that it will be presumed that words used in a will are used in their usual and popular meaning, unless it is clear from the context that a narrow or technical meaning is intended. Supp v. Second National Bank & Trust Co., 98 N. J. Eq. 242, 130 A. 549. (Ch. 1925); Woodruff v. White, 78 N. J. Eq. 410 (Ch. 1911); affirmed, 79 N. J. Eq. 225 (E. & A. 1911); Stout v. Cook, 77 N. J. Eq. 153 (Ch. 1910); Hol comb v. Lake, 24 N. J. L. 686 (Sup. Ct. 1855). In Darnall v. Day, 37 N. V. 2d 277 (Sup. Ct. Iowa 1949), the court held that only in matters which concern the public is the existence of war determined politically, but otherwise in matters involving purely private rights and relations. There a lessor undertook io make certain physical improvements one year after the end of the war. The court held that that meant one year after hostilities ceased and said:

‘‘There is little doubt the parties here intended the words ‘after the war has ended’ to mean after hostilities have ceased. War, in the practical and realistic sense in which it is commonly used, refers to the period of hostilities and not to a technical state of war which may exist after the fighting has ended. * * * The parties did not contract in terms of diplomatic parlance.”

In other eases involving leases courts similarly construed plirases such as “duration of the war” and “end of the war.” See Lincoln v. Harvey, 3 91 S. W. 2d 764 (Ct. Civ. App. Texas 1945), and Di Lello v. Curozza, 188 N. Y. Misc. 819, 70 N. Y. S. 2d 256 (Sup. Ct. App. Term 1947).

The holding of Vice-Chancellor Bigelow in Glantz v. Willow Supply Co., 139 N. J. Eq. 523 (Ch. 1947), is helpful by way of comparison. There a trade restrictive covenant was to endure for a period of three years after an armistice would be declared between the United States and its enemies. In a suit to enforce that covenant, the defendant contended that, there had been no armistice since both Germany and Japan surrendered, and that wliat occurred was a surrender, not an armislice. The court held that the circumstance that in a technical sense there had been no armistice was quite immaterial and that what the parties contemplated by the use of the word “armistice” was the end of “military operations.” Thus the court gave to the word its popular connotation and not that of its technical sense. In Scott v. Commissioner of Civil Service, 272 Mass. 237, 172 N. E. 218 (Sup. Ct. Mass. 1930). the court said: “When the armistice was signed it was generally recognized that the war had come to an end,” and quoted President Wilson as saying to Congress on November 11, 1918: “The war thus comes to an end; for, having accepted these terms of armistice, it will be impossible for the German command to renew it.” The court then added: “It is common knowledge that upon the signing of the armistice the war was actually at an end, and was so regarded by everyone. It cannot rightly bo held that it was still in existence after November 11, 1918.”

The case of Feil v. Senisi, 7 N. J. Super. 517 (Law Div. 1960), is clearly distinguishable. There the defendant pleaded the statute of limitations. The plaintiff countered by proof that the defendant was in active military service when the cause of action accrued and that the action was timely because the period of such military service could not under the applicable statute be included in the computation of the period limited for suit. The court held that the defendant’s military service was “in time of war,” although active hostilities had ceased. It held that a “state of war” still existed between the United States and the former Axis countries which could be ended only by “some formal termination, probably by treaties •of peace.” While that case involved private rights, nonetheless it called for a definition of a statutory phrase used in connection with military service, itself a matter which directly touched the public interest. The distinction that I draw in the instant case is that the words here construed are considered differently when used in private documents, such as agreements or wills, than when used in public documents, such as statutes, treaties and the like.

Eor the reasons stated, it is held that Alice Oldak, the last survivor of the three beneficiaries named in the trust under consideration, is entitled to receive the corpus of the trust, together with all accumulated increment thereon.