text:
    GENERAL MOTORS ACCEPTANCE CORPORATION, A BODY CORPORATE, PLAINTIFF-RESPONDENT, v. WILBUR BURGER, DEFENDANT-APPELLANT.
    Submitted October term, 1936
    Decided May 28, 1937.
    Before Justices Teenchabd, Bodine and Heher.
    Bor the appellant, Harold Simandl.

    Bor the respondent, Chivian & Chivian (Herman Chivian, Louis Chivian and Albert M. Neiss, of counsel).
   Per Curiam.

This is a replevin suit. On April 4th, 1935, the Hetzer Chevrolet Company, whose place of business was in the borough of Brooklyn, in the State of New York, sold an automobile under a conditional sales agreement. The vendee was therein stated to bo “Thomas Corbett,” a resident of Brooklyn. Delivery of the vehicle, in accordance with the agreement, was made the following day. Bor a valuable consideration, the vendor assigned the instrument to plaintiff. Concededly, defendant, in good faith and for value, purchased the automobile from the Big Bear Used Car Company, Incorporated, a licensed dealer of used automobiles, who purchased the car from one Garland.

On April 16th, 1935, the contract was filed in the register’s office of the county of Kings, in the State of New York; and the plaintiff, having received subsequent to the assignment information that the vehicle had been removed to the city of Newark, in this state, and sold to someone residing there, caused the contract to be filed in the register’s office of the county of Essex, in this state, on April 24th, 1935.

Upon the taking of the car from his possession, pursuant to the mandate of the writ, defendant filed a claim of property and tendered the statutory bond, whereupon the vehicle was returned to him.

There were cross-motions for a directed verdict. The District Court judge, conceiving that defendant had not “introduced any evidence which would require submission to the jury except the issue of value,” awarded judgment to plaintiff for $325, the sum which defendant, “without prejudice,” conceded was “the value of the car for the purpose of damages.” Defendant maintains that the evidence presented a factual issue in respect of the right of possession of the vehicle, and that there were also erroneous evidentiary rulings to his substantial injury. We do not think so.

The evidence offered was not pertinent to the issue. Evidently, the purpose was to show a conspiracy to defraud the vendor, in which its agent participated. There was evidence that, at least so far as the sale was concerned, the named vendee, Corbett, was non-existent, and that defendant’s witness, Ciancimino, who was convicted of larceny in a court of criminal jurisdiction in the State of New York as the result of his participation in the transaction, signed the name of Corbett to the agreement.

The case is governed by the principle enunciated in General Equipment Co. v. Zein, 10 N. J. Mis. R. 443; 159 Atl. Rep. 400; affirmed, 110 N. J. L. 23; 164 Atl. Rep. 20. Under the doctrine oí that case, the Conditional Sales act is not applicable. Title to the chattel did not pass out of plaintiff’s assignor; and plaintiff succeeded to the rights of its assignor therein.

Moreover, we are of opinion that, assuming the title passed under the conditional sales contract, such rights as defendant had were subject to the reservation of title contained in the agreement. General Motors Acceptance Corp. v. Schwartz, 118 N. J. L. 25; 190 Atl. Rep. 625.

Judgment affirmed, with costs.


source: Caselaw Access Project

author: Wolber, C. C. J.

license: Public Domain

text:
    New Jersey Supreme Court, Passaic County.
    Passaic County Circuit Court.
    BEL-ROSE SILK COMPANY, INCORPORATED, A CORPORATION OF NEW JERSEY, PLAINTIFF, v. THOMAS D. TOY, WILLIAM D. GROTHMAN AND GEORGE GRECKE, CO-PARTNERS, DOING BUSINESS UNDER THE FIRM NAME AND STYLE OF THOMAS D. TOY & COMPANY, DEFENDANTS. MAUDE M. WALSH, ADMINISTRATRIX WITH THE WILL ANNEXED OF HARRY A. WALSH, DECEASED, PLAINTIFF, v. BEL-ROSE SILK COMPANY, INCORPORATED, A CORPORATION OF NEW JERSEY, DEFENDANT.
    Decided April 29, 1937.
    For the plaintiff, Ward & McGinnis.

    For the defendants, Evans, Smith & Evans.

      For the plaintiff, Archibald Kreiger.

    For the defendant, Ward & McGinnis.

   Wolber, C. C. J.

This is an application made on behalf of Bel-Rose Silk Company, Incorporated, plaintiff in the Supreme Court cause and defendant in the Circuit Court cause, to have the two cases tried together, on the grounds that the issues in both cases and the evidence in support thereof are and will be of necessity substantially the same, the causes of action both arising out of the same transaction, or series of transactions, and that all of the parties in any way connected or associated with the first case are similarly associated and connected with the second case.

The first case is a suit commenced by Bel-Rose Silk Company, Incorporated, against Thomas D. Toy & Company to recover damages totaling approximately $37,500 for breach of warranty arising out of an agreement with the defendant partnership for the sale and delivery of cotton yarns of a certain type and quality and similar to a sample submitted. That action is based upon the theory that Harry A. Walsh, now deceased, was the agent of the defendant partnership, carried on negotiations for them and ultimately consummated the transaction whereby the cotton yarn was sold and delivered by the defendant partnership to the plaintiff corporation.

In the Circuit Court suit, Maude M. Walsh, widow of said Harry A. Walsh, as administratrix cum testamento annexo of Harry A. Walsh, deceased, sues the Bel-Rose Silk Company, Incorporated, on a book account for approximately $4,000, alleging that her late husband was not the agent, but first bought the yarn in question from Thomas D. Toy & Company, and then as principal sold it to Bel-Rose Silk Company, Incorporated, and Walsh, not having been paid in full for the cotton yarn, his wife, as administratrix cum testamento annexo, now sues Bel-Rose Silk Company, Incorporated, for the balance of the purchase price of the yarn.

The Supreme Court suit was commenced on January 30th, 1936, and the Circuit Court suit was commenced on June 17th, 1936.

The application presents an opportunity for a discussion of the confusion which has arisen in the cases by the use of the words, “consolidation of actions,” when it was sought to have actions tried together. Mr. Justice Scudder in Lee v. Township of Kearny (Supreme Court, 1880), 42 N. J. L. 543, had this to say, where a plaintiff brought thirteen separate actions against the township on thirteen improvement certificates for a like amount, which were all due when the suits were commenced. Defendant before pleading obtained a rule to consolidate the thirteen suits; then filed one plea of the general issue; issue was joined, the case was tried before a jury and resulted in a verdict for the plaintiff for the aggregate amount of the thirteen certificates and interest. This verdict was divided into thirteen separate amounts, apportioned to each suit, posteas drawn and signed, costs taxed, and judgments entered in all:

“This was a clear case for the interposition of the court, to consolidate unnecessary actions, before issue joined, under the Practice act. Rev. 867, § 121. After the rule to consolidate had been granted, there was no authority to proceed in any other form, and the case was tried as if there had been an actual consolidation in the declaration, with one plea, and a single issue. The objects of the rule in securing a single trial, and preventing the accumulation of costs in thirteen suits, would be frustrated, if this falsification of the records was permitted to stand. So long as the rule to consolidate remained, the plaintiff was bound to conform the action to its requirement.

“The error has doubtless arisen by a misapplication of what was called the consolidation rule in the courts of England, introduced in the time of Lord Mansfield, for the stay of proceedings in actions against several writers on the same policy of insurance. 1 Tidds Prac. 614; 1 Abb. Law Die. 268.

“The two methods of procedure are stated and distinguished in 3 Chit. Gen. Prac. 642, § 27, the one to consolidate several actions or demands into one, where the same plaintiff has several claims against the same defendant, all complete at the same time, or at least before he has issued any writ; the other where several actions have been brought on separate causes of action, accruing at different times, and the court, on terms, pronounced a rule suspending the trial of more than one action. The learned author says that the term 'consolidation rule is, though improperly, used as applicable to both cases. The consolidation rule suspending the proceedings in several actions on the same policy, bond, &c., against several separate defendants, until one action has been tried, is distinct from those last above mentioned, and is also improperly called a consolidation rule; it is more appropriately styled a stay of proceedings until one action has been dried.”

Mr. Justice Seudder, on page 545, further said:

‘“In this court, in the case of Den v. Kimble (Supreme Court, 1827, Ewing, C. J.), 9 N. J. L. 335, this subject is examined, and the two modes in which the effects of consolidation are attained, are stated to be — the one where the actions are actually consolidated, and the other, which may be called a quasi consolidation, where one action is tried and the rest are to abide the event.

“The latter is usually adopted by consent; the former is ordered by the court, to prevent oppression and the accumulation of costs.”

Mr. Justice Black in Metropolitan Casualty Insurance Co. v. Lehigh Valley Railroad (Court of Errors and Appeals, 1919), 94 N. J. L. 236; 109 Atl. Rep. 743, which involved an order of consolidation made by the trial judge in connection with twelve cases against the same defendant by twelve different plaintiffs, referred to the old common law authorities, but said (at p. 238) : “What the common law is, however, needs no discussion.” He referred to the case of Defiance Fruit Co. v. Fox (Court of Errors and Appeals, 1908, Pitney, C.), 76 N. J. L. 482; 70 Atl. Rep. 460, where our Court of Errors and Appeals sustained an order consolidating two suits for trespass to lands lying in different counties, which were really based upon one cause of action, and predicated his views sustaining the order of consolidation upon the liberal rule contained in paragraph 1 of the Practice act of 1912 and the provisions of paragraphs 4 and 6 of that act. Gum. Supp. Comp. Stat. 1911-1924, §§ 163-277, 280, 282.

Our 1903 Practice act by section 164, page 581 (3 Comp. Stat., p. 4104), provides that if several actions between the same parties involving same or similar matters of controversy, or cross-actions between the same parties with respect to the same transaction, are triable in the same manner and may be conveniently tried together, are pending in the same court, the judge may, on application of either party, order that such actions be consolidated for the purpose of trial. It will be noted that this provision is limited to actions between the same parties in the same court, and could not therefore apply to the instant situation, where one action is in the Supreme Court and the other in the Circuit Court. The parties here are not the same in each action, although Bel-Eose is plaintiff in one and defendant in the other.

It is undoubtedly true that the Practice act (1912) liberalized the practice of our courts of law, and sections 4 to 12, inclusive, of the 1912 Practice act (Cum. Supp. Comp. Stat. 1911-1924, §§ 163-280 to 288) and Supreme Court rules 16 to 18, inclusive, promulgated in pursuance thereof should be examined for the purpose of testing out plaintiff’s right to have the actions tried together. Eule 18 of the Supreme Court expressly provides that persons may be joined as defendants against whom the right to relief is alleged to exist in the alternative, although a right to relief against one may be inconsistent with a right to relief against the other.

Assuming that the plaintiff has shown that the issues in controversy in both actions involve the same transaction and would therefore require duplication of the same proof at the trial of both suits, I cannot disregard the fact that no matter how much I would feel that the two suits should be tried together, there is presented the more serious question of my power as Circuit Court judge, either under the statute or acting as Supreme Court commissioner under the rules, to issue an order for the trial of a Supreme Court issue and a Circuit Court issue together.

In McConnell v. Alpha Portland Cement Co. (Court of Errors and Appeals, 1907, Port, J.), 74 N. J. L. 727; 67 Atl. Rep. 346, where a judgment was entered in the Supreme Court upon the order of a Circuit Court judge, it was held that there is no power in a Circuit Court judge to make an order for the entry of a judgment in the Supreme Court.

In Hubbard v. Montross Metal Shingle Co. (Supreme Court, 1909, Minturn, J.), 79 N. J. L. 208; 74 Atl. Rep. 254, where the Circuit Court judge granted plaintiff’s motion to strike out frivolous pleas, and the trial then proceeded to judgment against the defendants, it was held that the powers of the Circuit Court judge were limited to the trial of the “issues joined in the Supreme Court, which may be referred to him by the justice of the Supreme Court holding the Cir.cuit, and in relation to the trial of such issues the same judge shall have the power to amend,” &c. Pamph. L. 1906, p. 209.

In Dayton v. Boettner (Court of Errors and Appeals, 1911, Trenchard, J.), 82 N. J. L. 421; 81 Atl. Rep. 726, it was held that the power to strike out a pleading in an action in the Supreme Court is lodged solely in that court, or in a justice thereof, and is not possessed by a Circuit Court judge to whom the cause has been referred for trial pursuant to chapter 118 of Pamph. L. 1906, p. 209; 2 Comp. Stat., p. 1712.

It is interesting to see how our courts further liberalized the practice of law subsequent to the adoption of the 1912 Practice act. In the case of Koppelon v. W. M. Ritter Flooring Corp. (Court of Errors and Appeals, 1921, Trenchard, J.), 97 N. J. L. 200, the action was a Supreme Court issue and had been referred by a Supreme Court justice to the Circuit Court judge for trial. At the trial the judge struck out the “second separate defense” upon the ground that it did not constitute a defense to the cause of action stated in the complaint, that point having been made in the plaintiff’s answering pleading. Defendant contended that the Circuit Court judge liad no power to strike out the defense, and the Court of Errors and Appeals held that he had, although it was true that prior to the enactment of the Practice act of 1912, he had no such power. It held that the legislature, by rule 26 of the Practice act of 1912 (now rule Ho. 40 of the Supreme Court), authorized the procedure followed by the court and counsel in that case.

In Milberg v. Keuthe (Court of Errors and Appeals, 1923, Trenchard, J.), 98 N. J. L. 779; 121 Atl. Rep. 713, where a Circuit Court judge as Supreme Court Commissioner struck out the answer in an action of ejectment, it was held that a Supreme Court commissioner had no power to make an order for summary judgment in an action in the Supreme Court, and relied upon rule Ho. 84 of the Supreme Court that no summary judgment shall be entered except by virtue of an order of the court or a justice at chambers.

At the time of this decision, Supreme Court rule Ho. 94 provided that a Supreme Court commissioner might make the same order as the Supreme Court with respect to objections to pleadings (other than those provided for in rules 40 and 56), amendments thereof, and leave for additional pleadings. Of course, rule 94 has since been enlarged (amended January, 1934) to cover objections to pleadings, amendments thereof, striking out of pleadings, and leave for additional pleadings.

In Hawthorne v. Williams (Supreme Court, 1937, per curiam), 15 N. J. Mis. R. 330; 191 Atl. Rep. 287, it was held that a Circuit Court judge was without jurisdiction to deny a motion to quash a writ of attachment issued in a Supreme Court action.

Plaintiffs application, assuming I had the power as a Circuit Court judge, under the statute or the Supreme Court rules, to order the trial of both suits together, would call upon me to determine whether they should be tried as Supreme Court issues or as Circuit Court issues. I am unable to find any power in me as a Circuit Court judge to issue any order providing for the trial together of a Supreme Court suit and a Circuit Court suit, notwithstanding there may be sound, reasons for doing so in order speedily and finally to determine legal controversies according to the substantive rights of the parties. I have no power to transfer the Circuit Court suit to the Supreme Court, nor have I the power to transfer the Supreme Court suit to the Circuit Court, nor can I stay the trial of the Supreme Court suit until the Circuit Court suit has been disposed of. The power resides elsewhere.

Plaintiff’s application will therefore be denied, without costs.


author: Smith, Joseph L., C. C. J.

text:
    SAMUEL R. LADEN, INCORPORATED, A CORPORATION OF NEW JERSEY, PLAINTIFF, v. LIDGERWOOD ESTATES, INCORPORATED, A CORPORATION OF NEW JERSEY, DEFENDANT.
    Decided June 11, 1937.
    Por the motion, Lum, Tamblyn & Fairlie.

      Contra, Hannoch Lasser.

   Smith, Joseph L., C. C. J.

This comes on a motion to strike the plaintiff’s complaint, on the ground that the same is sham and frivolous. The complaint is based upon alleged commissions earned by the plaintiff for negotiating a sale of property for and on behalf of the defendant.

The complaint is in two counts; the first, alleging a contract between the defendant, the vendor, and the plaintiff, the agent, to procure a purchaser for the premises in question, the complaint averring that, for these services, “the defendant agreed to pay to the plaintiff a commission of $1,000, at the time of the delivery of the deed and the closing of the title.” It is further alleged therein that the plaintiff procured a purchaser for the premises, and that a contract was entered into between the vendor and the purchaser; that the purchaser was ready, willing and able to enter into the said contract and purchase the property for the sum agreed upon, to wit: $20,500; that by the terms of this contract between the vendor and the vendee, the vendor, the defendant herein, agreed as follows:

Paragraph 11. “The vendor recognizes Samuel E. Laden, Inc., as the authorized broker who negotiated this sale and agrees to pay said Samuel E. Laden a commission of $1,000 at the time of delivery of the deed and the closing of title.”

The second count is based upon an agreement between the vendor and the vendee for the benefit of the plaintiff, based upon the same paragraph 11 above quoted.

Before referring to the authorities on the question of construction, we may consider another point raised by the defense, which is: that the failure to close title was due to the unjustifiable refusal of the purchaser, procured by the plaintiff, to accept the deed; that, therefore, the plaintiff had failed to procure a purchaser, ready, willing and able to take title. According to the affidavits submitted upon the motion, it appears that the purchaser refused to close title because the title search disclosed a mortgage open of record, dated January 7th, 1876, and recorded March 29th, 1878. Tt appears, however, that no payments had ever been made upon this mortgage, and proof of this fact, by way of affidavits, was submitted by the defendant vendor to the purchaser ; if the mortgage in question was the only reason for not closing title — and the affidavits disclose no other reason — then the purchaser’s refusal to close title was not justifiable in law.

The identical question was decided in Bondy v. Percival (Supreme Court), 99 N. J. L. 309; 123 Atl. Rep. 873, where mortgages, open of record, having had no payments made on account for over sixty years, were held to constitute no encumbrance upon the vendor’s title. Chief Justice Gummere, speaking for the court, said (at p. 312) :

“When the bar of the statute is complete the estate of the mortgagor is freed from any imperfection created by the mortgage.”

Assuming, therefore, that closing of title failed by default of the purchaser, does that fact preclude the broker from recovering his commission if the words in question, relative to delivery of the deed and closing of title, are reasonably construed, not as creating a contingency or condition precedent, but as designating the time of payment P

In practically every case decided between broker and principal, where language similar to that used in the case sub judice has been construed to mean a designation of the time of payment and not a contingency, we find that closing of title failed by fault of the principal.

That was the situation in Klipper v. Schlossberg, 96 N. J. L. 397; 115 Atl. Rep. 345; Taylor & Rose, Inc., v. Buonincontri, 101 N. J. L. 278; 128 Atl. Rep. 603; Ludwig v. Aberbach, 4 N. J. Mis. R. 169; 132 Atl. Rep. 241; Mahlenbrock v. Stonehell Realty Co., 104 N. J. L. 176; 138 Atl. Rep. 875; Lehrhoff v. Schwartshy, 2 N. J. Mis. R. 353; 125 Atl. Rep. 496; Fieldman v. Thomas, 10 N. J. Mis. R. 48; 157 Atl. Rep. 554; Kram v. Losito, 105 N. J. L. 588; 147 Atl. Rep. 465.

However, if a reasonable construction of the terms involved indicates a designation of the time of payment, rather than a condition precedent or a contingency, we can no longer be influenced by the question as to through whose fault title failed to close, there being no contention that there was any lack of good faith, either in the agreement to purchase, or in the refusal to close title.

Thus, in Tucker v. Mahaffey et al., 6 N. J. Mis. R. 17; 139 Ail. Rep. 806, the court says (at p. 20) :

“Next, it is said that another question of fact was whether the failure to make final settlement grew out of any fault of the defendants. This seems to be completely answered in the discussion above, that it was immaterial whose fault it was that final settlement did not take place, since the payment of commission was not made contingent upon a final settlement taking place.”

It appears, therefore, that the construction of the terms involved in the case is the sole question to be determined.

There are several decisions of our courts which have construed these words, and words of similar import, as merely designating a time and not constituting conditions precedent. The defendant, however, makes this distinction, namely: that, in these cases, which will be discussed hereafter, the phrase relative to the payment and the time of payment is separated from the rest of the sentence acknowledging the debt or promising the payment, by a comma, a semi-colon, or some similar punctuation mark; the point being made by the defendant, that in this manner the thought as expressed in the sentence, concerning the promise to pay, or the acknowledgment of the debt, is complete, without taking into consideration the time or the occasion of payment, and that in the case sub judice such punctuation marks being omitted, the promise to pay and the occasion of the payment form one continuous and inseparable thought.

It seems to the court that to make paragraph 11 clear, we should also take into consideration paragraph 10 of the contract, which reads as follows:

“Said deed shall be delivered and said sum of Seventeen thousand five hundred dollars ($17,500) paid at the offices of hum, Tamblyn & Fairlie, 14th Floor, 605 Broad Street, Newark, N. J., sixty (60) days from the date of this agreement, at 11 o’clock in the forenoon or at such earlier time as may be mutually agreed upon.”

In the light of paragraph 10, it appears clear that the phrase, “at the time of the delivery of the deed and the closing of title” as used in paragraph 11, refers to a definite date, as given in paragraph 10, to wit: “Sixty (60) days from the date of the agreement at 11 o’clock in the forenoon, or at such earlier time as may mutually be agreed upon.” If paragraph 11 had read: “* * * to pay the said Samuel R. Laden, Inc., a commission of $1,000, sixty days from the date of this agreement, at 11 o’clock in the forenoon, or at such earlier time as may be mutually agreed upon,” there could be no serious question that there would be nothing more than a designation of time for payment and not a condition precedent. The phrase, therefore, “at the time of the delivery of the deed and the closing of title,” definitely referring to a time given and expressed in the contract, cannot reasonably be construed to mean other than a designation of time.

It is also to be noted that the agreement to be construed is not one of a promise by the defendant to pay upon a certain occasion or happening of an event; it is an acknowledgment of an accomplished fact, of a consideration already given for the promise to pay; it is, therefore, an acknowledgment of a debt by reason of the agreed services having been performed.

The defendant relies upon the ease of Hinds v. Henry, 36 N. J. L. 328; in that case the vendor agreed to pay the broker anything over and above the sum of $12,000 which he, the broker, might succeed in obtaining; and, a sale having been made, at an advance of $3,000 over the limit, the vendor agreed to pay the said $3,000. •

“The first half thereof [say $1,500] at the time that the purchasers of the property hereinbefore mentioned shall pay over the first half of the purchase money, and the balance at the expiration of one year from the date of the deed for said property, without interest.”

This was construed as indicating a contingency. It will be noted that the broker’s commission depended not upon negotiating the sale, but upon “obtaining” a sum in excess of $12,000. The payment of the commission was to be made in proportion with the payment of the purchase price; i. e., one-half the' commission to be paid at the time that the purchaser pays one-half the purchase price; the words used are: “at the time that the purchaser * * * pay over the first half * * The phrase, “at the time that” means, not at the hour of, but upon the occasion or in the event of, the payment of the purchase price. The use of the adverb “that,” indicates a meaning of contingency. Thus, the payment of the commission was made dependent upon payment of the purchase price.

The case of Hinds v. Henry, supra, therefore, does not control the situation in the case sub judice.

As for the case of Morse v. Conley, 83 N. J. L. 416, also cited by the defendant, there the agreement was to pay a commission “for services rendered in the matter of the consummation of the sale at the time of the consummation of the same.” The court, from a reading of the entire contract, concluded that the parties contemplated the passing of title before payment of the commission; the “consummation” never having taken place, no commission was due. The case is not applicable.

Neither is the case of Leschziner v. Bauman, 83 N. J. L. 743, applicable, for in that case, not only title failed to pass, but, in addition, plaintiff never made the sale.

An agreement for exchange was substituted, which agreement failed because the buyer’s property, to be given in exchange, was faulty in title.

The case of Taylor & Rose, Inc., v. Buonincontri, supra, is controlling. There, the agreement was evidenced by a memo as follows:

“In consideration of your having negotiated the purchase of No. 38 Arlington Avenue, Newark, N. J., for me, I hereby agree to pay Taylor & Eose, Inc., a commission of three hundred dollars ($300) for their services. This payment to be made in cash at the time of passing of title to the above referred property.”

Mr. Justice Minturn, construing the agreement, said (at p. 379) :

“The contract sub judice is based as a consideration not upon the passing of the title, but ‘in consideration of your having negotiated in purchase’ of the property. Such was the effect of our decision in Dickinson v. Walters, 100 N. J. L. 62. The subsequent language of the contract ‘at the time of passing title’ to the property must be construed to indicate the time when the commission will be payable, and not serve as a barrier to the payment of the commissions under any and all circumstance.”

In the instant case, there is stronger reason for holding that the expression “at the time of delivery of the deed and the closing of title” refers to a point in the calendar and not to an event, because the same agreement, as previously noted, designates the date for closing.

In Kram v. Losito, supra, Mr. Justice Lloyd, speaking for the Court of Errors and Appeals, and construing a similar agreement, said (at p. 589) :

“Through the efforts of respondent the appellants and the purchasers, Green and Eriedlander, were induced to enter into a binding agreement for the sale of property involved. In that agreement respondent’s commission is made payable when the balance of the initial payment of the purchase price is made. The contract recognizes that the broker has earned his commission by bringing the parties together and in inducing the making of a formal contract for which the defendant owes him the commission, but for convenience the commission is payable when a portion of the purchase money is to be paid — at the time of settlement. The agreement itself called for settlement December 1st, 1926. It was not carried out because of the seller’s default in complying with the terms of the agreement of sale, but this could not defeat the broker’s right to the compensation agreed on. The time having arrived when the commission should have been paid, the respondent’s right of action accrued, the learned trial judge properly found in his favor and the judgment entered on this finding is affirmed.”

To the same effect are Mahlenbrock v. Stonehell, supra, and Tucker v. Mahaffey, supra.

The general rule is that agreements such as involved in this case are to be construed as designating the time of payment and not a contingency unless the contrary intent is made clear.

Thus, in Dickinson v. Walters, 100 N. J. L. 62; 125 Atl. Rep. 235, the court said (at p. 65) :

“In order to absolve a party from the payment of commissions, it must clearly appear by the contract with his broker that the payment of commissions was made contingent upon the actual transfer of title.”

And in Ludwig v. Aberbach, supra, it is said (at p. 171) :

“If it was intended that no commission was to be paid unless an actual sale was consummated by the delivery of a deed it should have been explicitly so stated in the contract.”

To the same effect, see Lehrhoff v. Schwarisky, supra.

For the reasons given above, the motion to strike the complaint will be denied.


author: Per Curiam.

text:
    MERCHANTS AND MANUFACTURERS FIRE INSURANCE COMPANY ET AL., PROSECUTORS, v. THE ESSEX COUNTY BOARD OF TAXATION AND THE CITY OF NEWARK, DEFENDANTS.
    Argued May 5, 1937
    Decided June 1, 1937.
    Before Justices Lloyd, Case and Donges.
    For the prosecutors, Lum, Tamblyn & Fairlie, Child, Bilcer, Marsh & Shipman and Sandmeyer & Meisner.

    For the defendants, Frank A. Boettner.

   Per Curiam.

The writs in these five cases bring up for review an order of the Essex county board of taxation dismissing petitions of prosecutors seeking to have the county board relieve prosecutors of certain assessments for taxes made by the city of FTewark for the year 1937. The petitions were fled under section 507 of the General Tax act, and sought to have the county board remove certain assessments against personal property of petitioners appearing on the taz lists and duplicates filed by the city of Newark with said board, pursuant to section 501 of said act. Pamph. L. 1918, p. 862; Gum. Supp. Gomp. Stat. 1911-1924, p. 3494, § 208-66d(501).

The question presented is whether or not the prosecutors may have the propriety of the assessments determined in the manner indicated. We conclude that they may not. The clear purpose of sections 501 to 501, inclusive (Cum. Supp. Comp. Stat. 1911-1924, pp. 3494, §§ 208-66d(501), (501)), is to have the county board review the assessment lists and duplicates of the various taxing districts in the county, and “after investigation, to revise, correct and equalize the assessed value of all property in the respective taxing districts.”

Prosecutors rely upon Township of Middletown et ad. v. Ivins et al., 102 N. J. L. 36; 130 Atl. Pep. 648, as authority for their application. A careful reading of the opinion in that case makes it apparent that this court held that action under section 501, supra, is not to determine the propriety of an assessment at the instance of the property owner, but to determine whether the total of assessments of taxable property in a taxing district shall bear such relation to the value of property therein 'and to the value of property in other districts in the county, that such property “shall bear its full, equal and just share of taxes,” in the manner provided by law. The court said:

“The assessment as originally made by the assessor does not become the assessment upon which the taxes are finally paid until after the county board of taxation has, under section 501, revised, corrected, equalized values, and increased or decreased the assessed value of any property not truly valued, and added property which has been omitted or overlooked, and, in general, until it has done all things necessary for the taxation of all property equally and at its true value.”

After the county board has done these things, and certified same to the collectors of the various taxing districts, the tax lists become a public record. The court further said:

“The effect of these provisions is to make the action of the county board in increasing valuations an administrative act and not a judicial one * * * and if the individual taxpayer is aggrieved he has a right of appeal.”

In Town of Union v. Hudson County Board of Taxation, 77 N J. L. 178; 71 Atl. Rep. 46, it was said that “unless the county board of taxation violate some legal principle in making the assessment, its action is not reviewable by certiorari on the application of a taxing district or of an individual, because, in performing that duty, they are merely aiding the assessors in arriving at the true value of the respective properties in the taxing district, and a mistake in valuation is only an error of judgment which each taxpayer may have corrected” by appeal.

It is apparent that a taxpayer may not require the county board to review his assessment under section 507, as was here attempted, but that, after revision and certification of the lists as provided by the statute, an individual taxpayer, feeling himself aggrieved, may prosecute his appeal in the manner provided by the statute.

The order brought up with each writ will be affirmed, with costs.


author: Lloyd, J.

text:
    MARY G. WHELAN, RESPONDENT, v. THE FIRST MECHANICS NATIONAL BANK OF TRENTON, APPELLANT.
    Argued May 4, 1937
    Decided June 3, 1937.
    Before Justices Lloyd, Case and Donges.
    For the respondent, Howard K. Shaw.

    For the appellant, Scammell, Knight & Reese.

   Lloyd, J.

The plaintiff’s action was to recover the sum of $500 deposited in the defendant bank in the name of Harry A. Walsh, trustee; it being claimed that the moneys so deposited by Walsh were the property of the plaintiff. The defendant’s claim was that the moneys were not the property of the plaintiff, but belonged to H. Clifford Whelan, husband of the plaintiff, and that as such had been appropriated by the defendant in liquidation of Whelan’s indebtedness to the bank.

The court, sitting without a jury, gave judgment for the plaintiff and defendant appeals, setting out fourteen determinations with which it is dissatisfied, and under them contending that the plaintiff was without right to maintain the action, that the court was without jurisdiction to entertain it, and that the ultimate determination in favor of the plaintiff was error.

From the agreed state of the case it appears that H. Clifford Whelan, husband of the plaintiff, on June 18th, 1936, came to the bank and there turned over to Walsh $500 of his bonus money “with the request that Walsh take care of the money for his [Whelan’s] wife.” He further testified that he was preparing to go on a sea voyage, working on a ship, and wanted to leave the money behind for his “wife and kids.”

It further appeared that Whelan was indebted to the bank in a sum exceeding the deposit and that the $500 was applied in liquidation of this indebtedness, and the indebtedness pleaded as a set-off against plaintiff’s claim.

It is first contended by appellant that the money was originally the property of the husband and that the evidence was not sufficient to establish a gift from him through a trustee to his wife. That a gift inter vivos may be extracted from the proofs we think is fairly clear. The donor, husband and father of children, was expecting to be absent from his home and was leaving a sum of money in the custody of his friend for his wife to be used by her for the family needs. There was the donative purpose and the urgent reason therefor. There was the actual delivery of the money for the intended purpose and its deposit by Walsh in his name as trustee, and certainly the donor stripped himself of all control of the subject-matter of the gift. East Rutherford Savings, Loan and Building Association v. McKenzie, 87 N. J. Eq. 375; 100 Atl. Rep. 931.

Nor are the contentions that the plaintiff was without right of action and the court without jurisdiction more substantial. The trust, if such it might be called, was without active duties attached. The beneficial interest was in the plaintiff and when defendant failed to so treat it and misappropriated the moneys to its own use, we think she could maintain the action in her own name, and if so the court properly entertained the action.

Besides the only defense pleaded was that the moneys were not the property of the plaintiff.

While the foregoing contentions have been dealt with it is to be noted that none of the objections here raised were presented in the court below, and might well be disregarded. Walter v. Keuthe, 98 N. J. L. 823; 121 Atl. Rep. 624. Sor is chapter 62 of the laws of 1916, page 109 {Cum. Supp. Comp. Stat. 1911-1924, p. 2818, § 163-301), helpful to the appellant. While that act permits review of trials by the judge alone (as here) without the grounds of objection being specifically submitted to the court, this does not permit one to stand by and allow the trial to proceed without objection of any kind or calling to the court’s attention the points which it subsequently intends to raise on appeal.

The judgment is affirmed, with costs.


text:
    HOME LOAN COMPANY, PLAINTIFF-APPELLANT, v. MARY A. SCANLON, DEFENDANT-RESPONDENT.
    Argned May 4, 1937
    Decided June 1, 1937.

      Before Justices Lloyd, Case and Donges.
    For the plaintiff-appellant, James A. McTague and Edward DeSevo.

    For the defendant-respondent, John F. Gough.

   Per Curiam.

Appellant was non-suited in the District Court in a suit on a note, signed by defendant and held by plaintiff therein.

At the trial, motion for nonsuit was made and granted upon the ground that the provisions of chapter 351 of the laws of 1938, page 497 (Supp. Comp. Stat. 1935-1930, § 35-17), barred the claim, because it was said that the plaintiff, a small loan company, had permitted defendant to become indebted fox loans for more than $300. The apparent ground for such action was the fact that plaintiff in its original state of demand had set out a note for $300, dated February 35th, 1939, and then, by consent, amended the state of demand by setting up a note for $300 dated November 19th, 1938. Despite the explicit testimony on behalf of plaintiff that there was no note dated February 35th, 1939, and the testimony of defendant, called by the plaintiff, that she received the proceeds of the note of November 19th, 1938, and the explanation that the allegation of date in the original state of demand was an error, the trial judge granted the motion for nonsuit. In so doing, we think the learned trial judge fell into error, which calls for a reversal of the judgment.

At the close of plaintiff’s proofs, there was no evidence to sustain the allegation that more than one note was in existence at any given time, and that the statute had been violated. The proofs indicated a debt due from defendant to plaintiff as claimed by it. This was sufficient to sustain plaintiff’s demand, and called for any defense that was to be offered.

The judgment under review is reversed. Costs will abide the outcome of the suit.


text:
    THE STATE, EX REL. CLAUDIA LEA PHELPS, AS EXECUTRIX, ETC., ET AL., RELATORS, v. THE BOROUGH OF FORT LEE, IN THE COUNTY OF BERGEN, A MUNICIPAL CORPORATION, ET AL., DEFENDANTS.
    Decided June 22, 1937.
    Before Justices Bodine and Hehek.
    Bor the petitioner, Warren Dixon, Jr., pro se.

    Bor the respondent, Gross & Gross.

   Per Curiam.

Mr. Warren Dixon, Jr., representing John Kenlon and Lester C. Burdett, trustees, the holders of certain defaulted note obligations of the borough of Bort Lee, intervened in the above cause and successfully conducted litigation in this court, afterward affirmed by the Court of Errors and Appeals, whereby his clients became presently entitled to the sum of $126,000, which sum of money has been segregated and kept under the order of this court in certain designated depositories. After the cause had been determined in this court and after the appeal had been argued in the Court of Errors and Appeals, the trustees, Kenlon and Burdett, resigned and in their place and stead, Mr. Daniel T. O’Regan was appointed trustee by the Court of Chancery.

Mr. Dixon seeks to have impressed upon the fund in the control of this court a lien pursuant to Pamph. Ij. 1914, ch. 201, p. 410; Cum. Supp. Comp. Stai. 1911-1924, p. 1805, § 116-76. Clearly, Mr. Dixon is entitled to the lien and this court, by virtue of the statute, is authorized to determine the amount thereof.

“The statute of 1914 creates a new remedy for the enforcement of an old right. The new remedy is the lien given by the statute upon the client’s cause of action, suit, claim or counter-claim, and any verdict, report, decision, decree, award, judgment or final order and the proceeds thereof.” Levy v. Public Service Railway Co., 91 N. J. L. 183; 103 Atl. Rep. 171.

Mr. Justice Garrison also said in the Levy ease: “The determination is necessarily based upon the nature, extent and value of such services, all of which are jury questions, especially when they arise between parties between whom the relation of attorney and client does not exist.”

In this case, the determination of the extent of the lien is between attorney and client and not between the attorney and a third party who had settled the cause of action with the client. In the Court of Chancery, the extent of the lien would be determined by that court without a jury in accordance with the usual practice there pertaining. Cicalese v. Fortunato, 92 N. J. Eq. 329; 112 Atl. Rep. 508. The practice to be followed in determining the extent of the attorney’s lien in an action at law was indicated by Mr. Justice Parker, for the Court of Errors and Appeals, in Artale v. Columbia Insurance Co., 109 N. J. L. 463; 162 Atl. Rep. 585.

It is suggested, however, that the amount of compensation to be recovered by an attorney is a fact question and this court may in a mandamus proceeding determine the facts. However, the usual practice, where there is a fact issue in mandamus, is to refer the matter to the Circuit for trial before a jury. Section 9 of the Practice act of 1903 (Pamph. L., p. 538), is as follows: “Ho solicitor or attorney shall commence or maintain any action for the recovery of any fees, charges or disbursements, in equity or at law, against his client or his legal representative, until he shall have delivered to such client or his representative or left for him at his usual place of abode a copy of the taxed bill of such fees, charges and disbursements.”

The above provision of law seems indicative of the legislative purpose to leave the attorney, who seeks compensation for his services, in the position of all others who seek recovery on a quantum meruit. The attorney has one advantage, and that is the security of the lien upon the verdict, decision, decree, award, judgment or final order in his client’s favor.

Mr. Dixon, having presented his petition to the court naming the parties interested in the recovery and claiming a lien, has set the judicial machinery in motion (Artale v. Columbia Insurance Co., supra), and the issue may be framed so that the questions may be determined in accordance with the practice laid down in that case.


author: Lawrence, C. C. J.

text:
    Morris County Circuit Court.
    PASSAIC BERGEN LUMBER COMPANY, INCORPORATED, A CORPORATION OF NEW JERSEY, PLAINTIFF, v. RICHARD O. BROWN, BUILDER, AND KENNETH R. STOVER, OWNER, DEFENDANTS.
    Decided June 21, 1937.
    For the motion, Harry Dvorken.

    Opposed, King & Yogi (Harold A. Price).

   Lawrence, C. C. J.

Plaintiff moves to strike the answer filed in this suit by defendant Kenneth R. Stover on the ground that it is sham. It in substance denies the right of plaintiff to proceed against him and his land under the Mechanics’ Lien act, since the building contracts involved with the accompanying specifications were filed in the county clerk’s office, in pursuance of section 2 of the act as amended. Pamph. L. 1930, ch. 212, p. 972; Supp. Comp. Stat. 1925-1930, p. 949, § 126-1, subdiv. (2). It is accordingly asserted that plaintiff who supplied lumber and other building materials thereafter to defendant Brown, who in turn had contracts for certain branches of the work, is not entitled to a lien.

The circumstance giving rise to the present motion appears to be that Mr. Stover in 1936 undertook the erection of a dwelling on land owned by him in Madison. Instead of entering into a general contract with a builder, the various branches of the construction were awarded by him directly to individuals and concerns by separate contract, with the result that, through his attorney, he caused to be filed in the county clerk’s office on August 3d, of that year, seven of such contracts as a unit, together with one set of general specifications covering the necessary labor and materials required to complete the building, as prepared by his architect. Each contract in terms referred to the specifications. The filing clerk, for the purpose of the office record and apparently following a practice prevailing, fastened to each contract an “official back,” on which he endorsed the names of the parties, the date of the contract, the date of filing and other data required to be kept by provisions of the Mechanics’ Lien act. In this way the separate contracts were officially numbered from 1041 to 1047, inclusive. Evidently not realizing that the several contracts covered but a single building, which indicated that they should be filed together, and without the knowledge of defendant Stover, ot his attorney, the clerk enclosed the set of general specifications within the back or folder he had numbered 1041 containing the contract which related to the electrical work only.

Defendant Brown had two of the contracts, one for the carpenter and mason work and the other for the plumbing and sheet metal work. As stated, certain lumber and other materials were purchased by him of plaintiff and used in the construction of the building. An indebtedness having been incurred and not paid, as a set of the specifications did not appear with either of these contracts and failing to discover or ignoring the set within the folder containing the contract numbered officially 1041, plaintiff filed the mechanics’ lien, on which the present suit is based, for the debt owing to it from Brown, alleging that the contracts had not been filed with the accompanying specifications as required by section 2 of the act, supra.

This section provides that whenever any building shall be erected by contract in writing, signed by the record owner of the estate or interest in the land which is to be charged with a lien under the act, the building and the land whereon it stands, to the extent of the estate or interest so charged, shall be liable to the contractor alone for the work done or materials furnished in pursuance of the contract; provided, the contract, or a duplicate thereof, together with the specifications accompanying it, or a copy or copies thereof, be filed in the office of the clerk of the county in which the building is situate before the work is done or the materials are furnished.

On the argument of the motion to strike the answer, because of the manner in which the contracts and the set of specifications had been filed in the county clerk's office, counsel for plaintiff urged that strict observance of the proviso of the second section of the act is essential and, while admitting that the statute does not in terms so require, cited the case of Mezzaluna v. Jersey Mortgage and Title Guaranty Co., 109 N. J. L. 340; 163 Atl. Rep. 743, as implying that the specifications must be “attached” to each contract when filed and that a failure to do so, even though they be otherwise filed, subjects the building and land to lien.

While the text of the opinion in that case does contain the factual statement, taken from the decision of the trial judge in the court below, that the building contract there involved did not have attached to it at the time of its filing the specifications referred to in the agreement, the court on appeal pointed out that the contract needed specifications to make it complete and those specifications had not been filed. The case is not, for that reason, regarded as an authority supporting the view that the statute does require in fact that the contract with the specifications attached must be filed to avoid liens.

The question here raised is, therefore, whether when the contracts with one set of the general specifications were delivered to the county clerk for filing, the owner was required to see that they were fastened together with the specifications as one document, as it were, and so officially marked; or whether his legal duty was performed when the contracts with the set of specifications were sent to the clerk’s office with instruction to file them, as apparently was done, as indicated in the affidavits submitted on the argument of the present motion? Also, as a corollary, whether the owner was charged with knowledge that the filing clerk in the office would “officially back” each contract, give it a separate number, and enclose the set of specifications covering the entire construction within one of them as he did?

Although a strict construction of provisions of the Mechanics’ Lieu act is the recognized rule, it is to be suggested that there should be a reasonable interpretation of the requirements, and it is not perceived how plaintiff or anyone else would have been misled or fail to discover the general specifications accompanying the contracts as filed, which together comprehended the proposed construction as a whole. In examining the file in the county clerk’s office, plaintiff, or its representative, would have found the separate contracts, numbered seriatim, relating to the branches of the building operation and with No. 1041 the set of general specifications to which all of the contracts referred. If not discovered, however, inquiry of the clerk in charge would undoubtedly have disclosed that the specifications had been filed.

The method of marking and filing adopted by the clerk may perhaps have been irregular, still there is nothing to indicate that the owner was under a duty to determine the manner or charged with knowledge as to how it had actually been done. On the other hand, it would seem that when he caused the contracts and the set of general specifications to be delivered to the county clerk’s office with the instruction to file, ho had a right to assume that it would be done in accordance with the statutory provision, which the clerk was required officially to observe, and that his (the owner’s) obligation ended there. The conclusion is that it should be so held and that the motion to strike the answer should be denied.

It was stipulated on the argument of the motion that if the court should find that the contracts of defendant Brown had been filed with the accompanying specifications within the purview of the statute, the ruling should he regarded as dispositive of the suit and as though defendant Stover had moved to strike the complaint and to discharge the lien claim. A rule may accordingly be submitted denying the motion to strike the answer, striking the complaint and directing the discharge of such claim.


text:
    LEHIGH VALLEY HARBOR TERMINAL RAILWAY CORPORATION, APPLICANT, v. THE STATE BOARD OF TAX APPEALS AND THE CITY OF JERSEY CITY, DEFENDANTS. LEHIGH VALLEY RAILROAD COMPANY OF NEW JERSEY, APPLICANT, v. THE STATE BOARD OF TAX APPEALS AND THE CITY OF JERSEY CITY. DEFENDANTS. NATIONAL STORAGE COMPANY, APPLICANT, v. THE STATE BOARD OF TAX APPEALS AND THE CITY OF JERSEY CITY, DEFENDANTS. UNITED REAL ESTATE COMPANY, APPLICANT, v. THE STATE BOARD OF TAX APPEALS AND THE CITY OF BAYONNE, DEFENDANTS. UNITED REAL ESTATE COMPANY, APPLICANT, v. THE STATE BOARD OF TAX APPEALS AND THE CITY OF JERSEY CITY DEFENDANTS.
    Argued May 5, 1937
    Decided June 23, 1937.
    Before Justices Lloyd, Case and Donges.
    For the appellants, Lum, Tamblyn Ac Fairlie.

    For the city of Jersey City, James A. Hamill.

    For the city of Bayonne, Alfred Brenner.

   Per Curiam.

The applications for writs of certiorari in the above cases are allowed, conditioned upon the payment, where such payment has not already been made, of fifty per cent, of the taxes assessed.


author: Per Curiam..

text:
    VALENCIA REALTY COMPANY, RESPONDENT, v. FRANK H. SEELY, APPELLANT.
    Submitted May 14, 1937
    Decided June 23, 1937.
    Before Justices Lloyd, Case and Donges.
    For the appellant, Isadore Rabinowitz.

    For the respondent, Nathan Robins.

   Per Curiam..

The plaintiff brought suit on a writing reading as follows:

• “March 14, 1936.
Received of Frank H. Seely the sum of One Hundred ($100.00) Dollars on account of rent for premises situated at 163 Dundee Avenue, Paterson, FT. J. Balance due Two Hundred Sixty ($260.00) Dollars to be paid within sixty days. Rent of Thirty ($30.00) Dollars per month to be paid each and every month, commencing April 1, 1936. Ejectment proceedings to be discontinued.
Accepted
Frank H. Seely,
Valencia Realty Co.,
By Peter Fleuchaus,
President.”

It obtained judgment in the sum of $363.05. The defendant appeals and specifies as causes for reversal the denial of the appellant’s motions for nonsuit, for the direction of a verdict in his favor, and that there was error in entering judgment for the plaintiff in the sum named on the ground that it exceeded the amount demanded in the summons.

We think the appeal is without merit. The writing sued on clearly imported an indebtedness from the defendant to the plaintiff. The defendant, together with his wife, it would appear from the proofs, were the owners of premises 163 Dundee avenue, Paterson. Against this property there was a mortgage of which the plaintiff became the owner by assignment. The plaintiff instituted an action for the possession of the property (on what basis does not appear) and obtained judgment on December 23d, 1935. This is the action to which the agreement sued on refers. It was in .this situation that the agreement was executed and from which agreement it is inferable that the plaintiff and defendant assumed the relation of landlord and tenant, and under which it is stipulated that the balance due is $260. The remaining $90 of the claim was for the continued occupancy of the premises for the succeeding three months.

In this situation the two grounds urged for the nonsuit are untenable. The first is that the agreement was without consideration. This is obviously untrue. Assuming the relation of landlord and tenant to exist, the tenant was occupying the premises and this afforded ample consideration for the promise to pay the rent then due and which might later become due.

The second ground that the ejectment proceedings had not been discontinued is equally without merit. The discontinuance of the ejectment is not a condition precedent to the demand for the payment of the money. The agreement is a recognition of an indebtedness then owing and a promise to pay it within sixty days. Such payment was not made contingent upon the discontinuance of the ejectment proceeding but we think was collateral thereto. Besides it appears that a warrant for the satisfaction of the judgment was duly filed and this was in effect compliance with the agreement.

Respecting the amount of the judgment, it is contended that because the summons demanded the payment of $350, the excess of $13.50 was illegal and rendered the whole judgment void, citing in support of the contention the case of Rips v. Levitan, 3 N. J. Mis. R. 1166; 130 Atl. Rep. 882, which we think is inapplicable. In that case the summons demanded the sum of $300. The defendant did not appear and it was held the judgment was void because of the excess. Here the defendant appeared and responded to the complaint which demanded the sum of $350 with interest. In the cited case the defendant had only to respond to the amount stated in the summons. He could absent himself from the court as he did and the limit of authority would obviously be the amount of which he was apprised in the summons. Here the defendant responded not only to the summons but to the complaint which adequately informed him that not only would he be called upon to pay the principal sum but the interest that might be due.

The judgment is affirmed.


text:
    ROSE GLICKFELD, PLAINTIFF-RESPONDENT, v. SYLVIA A. VENOKUR, TRADING AS SAVEN MANUFACTURING COMPANY, DEFENDANT-APPELLANT.
    Submitted May term, 1937
    Decided June 25, 1937.
    Before Justices Lloyd, Case and Donges.

      For the plaintiff-respondent, Moe A. Litwin and David M. Litwin.

    For the defendant-appellant, Fast & Fast (Louis A. Fast).

   Per Curiam.

Plaintiff was the assignee of the vendor under a conditional sale contract whereby certain machinery was sold to Mayfair Dress Company, Incorporated. Plaintiff sued in replevin, setting up her title under the conditional sale contract, and was awarded judgment of possession by the judge of the District Court sitting without a jury.

The defendant, who had bought at foreclosure sale under a subsequent chattel mortgage, appeals and sets up, first, that the plaintiff took nothing by her assignment and, second, that if the plaintiff seeks enforcement of lien her claim rests upon subrogation and is not recoverable herein.

There was testimony in the District Court to the effect that at the time the conditional sale contract was assigned to her by Consolidated Sewing Machine and Supply Company, the vendor thereunder, there was the sum of $250 due thereon from the vendee; that plaintiff paid that amount as the consideration for the assignment of the contract from the vendor to her; that no part of that sum was ever paid to plaintiff by defendant or other person claiming as vendee under the sale contract or as purchaser of any of the rights of the vendee thereunder; that when the chattels were sold at the chattel mortgage sale, the conditions of the sale contained the provision that the sale was subject to the rights and title of Bose Glickfeld as assignee of the Consolidated Sewing Machine and Supply Company under the conditional sale contract; that before the present suit was instituted demand for possession was made upon the defendant. The findings of fact by the trial judge in effect sustained the testimony adduced by the plaintiff in these respects.

It is settled that upon appeal from the District Court that tribunal’s judgment should be sustained if there be any evidence to support it. Breithart v. Lunch, 98 N. J. L. 556; 120 Atl. Rep. 11; Portley v. Hudson and Manhattan Railroad Co., 111 N. J. L. 204; 168 Atl. Rep. 184; affirmed, 113 N. J. L. 13; 172 Atl. Rep. 384. We find adequate evidence to support the finding of the District Court.

Ex parte suggestion is made that motion in diminution of the record is pending; but the case was submitted in accordance with the rules and no motion or arrangement for motion has been made.

The judgment below is affirmed, with costs.


text:
    ROSE GLICKFELD, PLAINTIFF-RESPONDENT, v. SYLVIA A. VENOKUR, TRADING AS SAVEN MANUFACTURING COMPANY, DEFENDANT-APPELLANT.
    Submitted May term, 1937
    Decided June 25, 1937.
    Before Justices Lloyd, Case and Donges.
    For the plaintiff-respondent, Moe A. Litwin and David M. Litwin.

    For the defendant-appellant, Fast «£ Fast (Louis A. Fast).

   Per Curiam.

The suit grows out of a conditional sales contract between United States Hoffman Machinery Corporation as vendor and Mayfair Dress Company, Incorporated, as vendee. Possession oí the goods appears to have come lawfully to the defendant as successor to the interest of the vendee under the conditional sales contract. That seems to have been assumed as a fact at the trial and is consistent with the findings below. There was a default in the payments due under the contract and as an outcome the vendor undertook to sell and did, through the offices of a constable, go through the motions of a sale with the purpose of foreclosing any interest of the vendee or of the vendee’s assignee under the contract. Plaintiff herein bought at that sale and thereupon brought this suit in replevin to obtain possession of the goods.

The defendant asserted, at the trial, that the provisions of the Uniform Conditional Sales act, chapter 210, Pamph. L. 1919 (2 Cum. Supp. Comp. 8tat., p. 3129, § 182-87), had not been complied with and that there was, therefore, no valid sale. The District Court judge in awarding the decision to the plaintiff made no finding of fact or, except inferentially, of law on this issue.

More than fifty per centum of the contract price had been paid before the constable’s sale. The conditional vendor never retook or repossessed itself of the goods, which before, at the time of and subsequent to the constable’s sale were, and still are, in the possession of the defendant. The suit is not the effort of the conditional vendor or its assignee of the conditional sale contract to obtain possession. It is the effort of a purchaser at a so-called foreclosure sale to obtain possession of the goods which, delivered by the vendor to the vendee, were never recovered by the vendor and which the vendor had no authority to sell by the method pursued. The appropriate procedure is to be found in sections 16, 17, 18, 19 and 20 of the Conditional Sales act, supra. We conclude that a retaking of the articles by the vendor was necessary under the statute before he could resell upon a default and that the plaintiff has, therefore, failed to establish her right to the possession.

The judgment below is reversed, with costs. The record will be remitted to the District Court with instructions to enter judgment for the defendant.


author: Perskie, J.

text:
    THE TRUSTEES OF THE PRESBYTERY OF WEST JERSEY, A RELIGIOUS CORPORATION OF THE STATE OF NEW JERSEY, AFFILIATED WITH THE PRESBYTERIAN CHURCH IN THE UNITED STATES OF AMERICA, PLAINTIFF-RESPONDENT, v. THE WEST PRESBYTERIAN CHURCH OF BRIDGETON, AN UNINCORPORATED ORGANIZATION, CONSISTING OF SEVEN OR MORE PERSONS, AFFILIATED WITH THE PRESBYTERIAN CHURCH OF AMERICA, AND CLIFFORD S. SMITH, DEFENDANTS; THE WEST PRESBYTERIAN CHURCH OF BRIDGETON, A RELIGIOUS CORPORATION OF THE STATE OF NEW JERSEY, AND THE TRUSTEES OF THE SAID THE WEST PRESBYTERIAN CHURCH OF BRIDGETON, A RELIGIOUS CORPORATION OF THE STATE OF NEW JERSEY, PETITIONERS-PROSECUTORS.
    Submitted May term, 1937
    Decided June 24, 1937.
    Before Justices Bodine, Heher and Perskie.
    Por the prosecutors, Francis A. Stanger, Jr.

    Por the respondent, Alexander L. Rogers and Leroy W. Loder.

   The opinion of the court was delivered by

Perskie, J.

The narrow question presented in this ease is whether the prosecutors should be granted leave to intervene as parties defendant in an ejectment suit.

On October 12th, 1936, the trustees of the Presbytery of West Jersey (hereinafter calied the Presbytery), a religious corporation of the State of New Jersey, affiliated with the Presbyterian Church in the United States of America, instituted an action in ejectment in the Cumberland County Circuit Court against The West Presbyterian Church of Bridge-ton, an unincorporated organization consisting of seven or more persons, affiliated with The Presbyterian Church of America, and Clifford S. Smith, the minister of the congregation, demanding possession of certain lands and premises .known as the church and manse and other buildings connected therewith, situate in the city of Bridgeton, New Jersey. The West Presbyterian Church of Bridgeton was formerly affiliated with the Presbyterian Church in the United States of America hut is now affiliated with a schismatic group thereof known as The Presbyterian Church of America. In due season application was made on behalf of The West Presbyterian Church of Bridgeton and the trustees of the said The West Presbyterian Church of Bridgeton (hereinafter called the prosecutor Church), a religious corporation of the State of New Jersey, which corporation alleges that it has owned the lands and premises in question continuously for over fifty-one years, for an order to join them as additional parties defendant. The application was denied.

The prosecutor Church was incorporated November 3d, 1869, and was a part of The Presbyterian Church in the United States of America. On June 15th, 1936, as a result of a schism in the Presbyterian Church in the United States of America, the prosecutor Church adopted a resolution at a congregational meeting declaring that it was no longer part of such Presbyterian Church in the United States of America, and that it was no longer under the authority of the Presbytery of West Jersey.

On June 16th, 1936, Clifford S. Smith was deposed as a minister of the Presbyterian Church in the United States of America by the Presbytery.

On September 29th, 1936, the prosecutor Church was dissolved by the Presbytery in accordance with the Porm of Government, we are told, of the Presbyterian Church in the United States of America. The judgment of the Presbytery was entered on that day. The effect of the dissolution (so the Presbytery contends) was to render the prosecutor Church extinct and vest its property, real and personal, in the Presbytery.

The prosecutor Church and its minister, Clifford S. Smith, still occupy the property involved and both have become affiliated with The Presbyterian Church of America.

The Presbytery, contending that the prosecutor Church is extinct, did not name it as a party defendant to the ejectment suit. Prosecutor Church, claiming legal ownership and actual possession of the property in question, seeks to intervene by virtue of section 17 of the Ejectment act. 2 Comp. 8tat., p. 2057. This section provides as follows:

“That the landlord of a tenant in possession or other proper person may by leave of the court or a judge, be admitted to appear and defend the action, in all eases where the same would have been allowed heretofore; provided, the application therefor be made in twenty days after the return day of the summons, or within such further time as may be granted by the court or a judge, and five days’ notice of such application, and of the taking of affidavits to be used thereon, be given to the plaintiff; and the landlord or other person admitted under this section, to defend, in respect of property whereof he is in possession only by the tenant, shall state, in his plea, that he defends as landlord, and shall be at liberty to set up such defense as a landlord has heretofore been allowed to set up, and no other.” (Italics ours.)

We are not now called upon to decide the merits involved in the ejectment action. The sole question decided is whether the prosecutor Church should be permitted to intervene as parties defendant. To determine that question we revert to the statute. Does prosecutor Church fall within the category of “other proper person” as set forth in the quoted section of the act? We think so. These words include those persons whose interest “is connected to and consistent with the possession of the occupier, Fairclaim v. Shamtille, 3 Burr. 1294;”

those persons whose title may be “divested or disturbed by any claim to such adverse possession.” Den v. Shupe, 13 N. J. L. 66. An examination of the testimony taken on the rule discloses, in our opinion, a sufficient connection between prosecutors and the involved property to bring them within the intendment of section 17, supra. It is undisputed that record title is in the prosecutor Church. The latter is still in active control of the property. Then, there is the added circumstance that Clifford S. Smith, named by the Presbytery as an occupier of the premises, is undoubtedly connected with the prosecutor Church. The facts thus exhibited lead us to the conclusion that prosecutors are entitled to the right to appear and defend the ejectment suit on the merits. The holding in the case of The Trustees of the Presbytery of Jersey City v. The Trustees of the First Presbyterian Church of Weehawken, 80 N. J. L. 572; 78 Atl. Rep. 207, urged to the contrary, is distinguishable on the facts and without present application. That case involved an action in ejectment to recover property on the theory of vesture upon dissolution of a subordinate member of the Presbytery but in that case the record title holder was joined as a party defendant. Thus, at least for the purpose of suit, the existence of the record title holder was recognized even though dissolved for other purposes. The question of extinction and consequent vesture of the property, moreover, goes to the merits of the ejectment suit and prosecutors are entitled to be heard thereon.

In view of the practice herein adopted, attention of counsel is called to the procedure to be followed from this point. Cf. Ford Motor Co. v. Fernandez, 114 N. J. L. 202; 176 Atl. Rep. 152; Hefter v. Bradway, 115 N. J. L. 81, 85; 178 Atl. Rep. 199.

Leave is hereby given to counsel to frame a proper record and on the record so framed, the writ of certiorari will be granted. Costs to abide the final disposition of the cause.


author: John C. Wegner. Referee.

text:
    New Jersey Department of Labor, Workmen’s Compensation Bureau.
    ARCHIE BROWER, PETITIONER, v. FRANKLIN TOWNSHIP AND FRANKLIN TOWNSHIP FIRE DEPARTMENT NO. 1, RESPONDENT.
    Decided June 10, 1937.
    For the petitioner, Theodore Strong & Sons.

    For the respondent, Clarkson A. Cranmer.

   A petition having been filed pursuant to an “Act prescribing the liability of an employer to make compensation for injuries received by an employe in the course of employment, establishing a schedule of compensation and regulating the procedure for the determination of liability and compensation thereunder, “approved April 4th, 1911, together with the several supplements and amendments and pursuant to the provisions of chapter 149, and the several amendments thereof; and an order having been made fixing the date and place for hearing thereof, the matter came on to be heard before me at the compensation bureau hearing room at the court house,, New Brunswick, New Jersey, in the presence of counsel for the petitioner and the respondent.

In the case sub judice, under date of April 1st, 1937, I held that petitioner came within the purview of the Workmen’s Compensation act and had met with an accident arising out of and in the course of his employment.

Defendant under date of April 21st, 1937, interposed their defense which consisted of testimony from township clerk and chairman of township committee. This testimony was merely to bring out the fact that there was no contract between the township of Franklin and Franklin Township Fire Department No. 1, but further testimony disclosed that the township had previously contributed annually a sum to the aforesaid company and an amount has been budgeted this year.

In the brief of the respondent’s attorney he states “the existence of such a company is not subject to municipal recognition or limitation.” Such companies can, therefore, in any municipality spring into being at will.

Section 174, 2 Comp. Slal. 1910, p. 2370, provides for the incorporation of volunteer fire companies as does chapter 73, Pamph. L. 1929 (Supp. Comp. Slal. 1925-1930, p. 54, § 13-1 a(1)), lmt before such incorporation takes place certain proceedings must be followed. Section 297, 2 Comp. Slat. 1910, p. 2427, under captioned “formation of fire companies — application—form and contents — approval and granting of application by township committee — purchase of apparatus and building” provides as follows:

Written application shall be presented to township committee in form of a petition duly verified.

Township committee shall consider and if for best interest of township approve application by resolution.

If this procedure was not followed the company would be in the nature of a dé fardo corporation recognized ,bv the township in view of their allowing them to operate and by an annual contribution.

The legislature provided by an amendment to the act that volunteer firemen come within its provisions. Chapter 355, laws of 1931. N. J. Slat. Annual 1931, § **236-37.

The petitioner coming within this provision is entitled to compensation.

>!< % >!<

It is, therefore, on this 10th day of June, 1937, adjudged, determined and ordered that judgment be entered in favor of the petitioner and against the respondent as above outlined.

John C. Wegner. Referee.


author: Barbour, S. C. C.

text:
    HELENE BUNTEN, PLAINTIFF, v. WILLIAM R. BUNTEN AND ANNA BUNTEN, DEFENDANTS.
    Decided June 10, 1937.
    For the plaintiff, Julius Kass.

    For the defendant, Huyler E. Romond.

   Barbour, S. C. C.

This action is brought to determine the constitutionality of an act of the legislature entitled, “An act declaring and carrying into effect the public policy of the State of New Jersey with respect to causes of action for alienation of affection, criminal conversation, seduction, and breach of contract to marry, actions thereon, contracts with respect thereto and acts and proceedings in connection therewith.” Pamph. L. 1935, ch. 379; N. J. SiaL. Annual 1935, § 163-411.

The plaintiff by the first count of her complaint alleges that the defendant Anna Bunten alienated the affections of Henry Bunten, husband of the plaintiff; by the second count that the defendant William B. Bunten alienated the affections of plaintiff’s said husband; and by the third count both defendants alienated the affections of plaintiff’s said husband and she has a “complaint for alienation of affection” against the defendants, “but is prevented from determining her rights and status in the premises by virtue of the aforementioned, statute,” and contends that such statute is unconstitutional in so far as it “deprives her of her property and rights without due process of law, and deprives her of the right to retain an attorney to prosecute an action for alienation of affections” as by reference to the complaint will more fully appear.

The complaint prays that the “court may make an order directing all the parties named herein as defendants, and the attorney-general of the state, to answer “the complaint and to appear before the court and present their answer and arguments on such day as the court shall determine, and upon such notice as this court shall order.”

The complaint was served, together with a summons, upon the defendants, William E. Bunten and Anna Bunten but no notice appears to have been given to the attorney-general.

Having first come before the court on a motion by counsel for the defendants, William E. Bunten and Anna Bunten, to strike the complaint, counsel subsequently entered into a stipulation in writing that the issues raised by the pleadings be determined “as if answer and reply had been filed as of the time of argument of motion on the 4th day of December, 1936.”

I am, therefore, refraining from determining whether or not the action may lie under the Declaratory Judgment act but will pass directly to the question of the constitutionality of chapter 279, Pampfi. L. 1935, supra, in so far as it pertains to the plaintiff and her alleged cause of action.

Assuming, but not determining, that at common law the plaintiff would have had a cause of action for the alleged alienation of the affections of her husband, I hold it to be within the province of the legislature to abolish such an action.

In determining the intent of the legislature we are aided by the preamble to the act, which reads as follows:

“Whereas, the remedies herein provided for by law for the enforcement of actions based upon alleged alienation of affections, criminal conversation, seduction and breach of contract to marry have been subjected to grave abuses, causing extreme annoyance, embarrassment, humiliation and pecuniary damage to many persons wholly innocent and free of any wrongdoing, who were merely the victims of circumstances, and such remedies having been exercised by unscrupulous persons for their unjust enrichment and such remedies having furnished vehicles for the commission or attempted commission of crimes and in many cases having resulted in the perpetration of frauds, it is hereby declared as the public policy of the State of New Jersey that the best interest of the people of the state will be served by the abolition of such remedies. Consequently, in the public interest, the necessity for the enactment of this article is hereby declared as a matter of legislative determination: therefore, Be it enacted * *

The purpose was clearly to prevent wrongs arising from an abuse of remedies therein referred to and including “actions based upon alleged alienation of affection.” By the very nature of such an action the wrong cannot be prevented if the action ma3 be instituted in the first instance, even though it be successfully defended. Even the threat of such an action does irreparable damage.

The press considers the institution of such an action as news which, in its endeavor to fulfill it’s duty to the reading public, must not be suppressed but must be published without regard to consequences in so far as the person charged is concerned. Unfortunately some publishers consider that their duty is not properly performed unless such “news” appears in bold face type, under a “scare” headline, accompanied with photographs. The press, however, is not alone at fault because “Dame Rumor” carried by the swift wings of “scandal-mongers” does an even more efficient job, and the “juicy morsel” is rolled around on the tongues of all who know or know of the individual accused.

His character, of course, is not affected, but his reputation is riddled and he becomes a person towards whom the finger of scorn is pointed by men, women and children alike. The higher his previous standing in the community, state, or nation the greater the joy in relating the scandal and, of course, the greater the harm.

When the action is later abandoned because the person accused is not willing to submit to blackmail or when upon trial the action is successfully defended the “news value” has diminished, to say the least, and not one-half of those who heard and remembered the news of the bringing of the action ever hear of the outcome, and the smirch on the reputation remains.

To avoid this the mere threat of bringing action was in recent years used improperly more and more frequently, developing into a “racket.”

It is impossible to save the remedy for the honest, well meaning, truly injured spouse without leaving the door wide open for the “racketeer.” Therefore, the spouse having a bona fide complaint must, as a member of society, conform to a law designed for the protection of society.

“If man were to live in a state of nature, unconnected with other individuals, there would be no occasion for any other laws than the law of nature, and the law of God * * *. But man was formed for society * * BlacksLone 44. “The only true and natural foundation of society are the wants and the fears of individuals.” Id. 48. “Every man, when he enters society, gives up a part of his natural liberty, as the price of so valuable a purchase; and, in consideration of receiving the advantages of mutual commerce, obliges himself to conform to those laws, which the community has thought proper to establish.” Id. 126.

With the growth of society the need for new laws increases. With the growth of society evil minds turn rights info vehicles of wrong and where the wrong has grown to such proportions as to outweigh the good, and it is impossible to prevent it otherwise, then it becomes necessary to call upon the good member of society to forego some of those rights previously enjoyed, so that other good members of society, greater in number, may be relieved of the fear and harm resulting from the wrong. So with actions for alienation of affections. More homes are broken up, more marriages smashed upon the rocks of suspicion as the result of unjustified demands and threats of alienation actions than are those violated by an actual invader. To avoid this many people were submitting to blackmail each year.

New Jersey in 1935 was one of the states which endeavored by legislation to correct this evil. To permit even the threat of suit, much less the institution of suit, would not correct it, because rarely ever does a blackmailer actually take the witness stand against the accused.

Mr. Justice Heher, speaking for the Court of Errors and Appeals, in Levine v. State, 110 N. J. L. 470; 166 Atl. Rep. 300, while referring to the Disorderly Person act, said: “The manifest purpose of this legislation is to check evil in its beginning and thus to insure the public safety. The statute is not arbitrary or unreasonable. It provides for the apprehension and punishment of a class that menace the security of persons and property.”

This language was quoted by the Supreme Court (per curiam) in State v. Bell, 15 N. J. Mis. R. 109 (at p. 111) ; 188 Atl. Rep. 737, with reference to the “Gangster act.”

“This language likewise aptly fits the statute now under consideration, the ‘Heart Balm act.’

“The legislature, in dealing with the subject of marriage, has plenary power, as marriage differs from ordinary common law contracts, and is subject to control and regulation by the • state * * *. An action to recover damages for breach of promise to marry is based upon an agreement preliminary to marriage and an action to recover damages for alienation of affections and criminal conversation is founded upon the marriage relation itself. Each has to do with the marriage status and each is subject to regulation and control by the state.” Hanfgarn v. Mark (Court of Appeals, N. Y., April 27, 1937).

In that case the Court of Appeals of New York upheld the constitutionality of the New York “Heart-Balm” act of 1935, reversing the Appellate Division, and I quote further from it, feeling that the reasoning aptly fits the New Jersey statute under consideration:

“It has been expressly decided by the United States Supreme Court that marriage is not a contract within the meaning of the federal constitution which prohibits the state from impairing the obligation of contract. U. S. Const., art I, § 6; Mayard v. Hill, 125 U. S. 190.

“Marriage has been frequently referred to as a contract in judicial opinion, by text-writers and in statutes. Nevertheless, it is not a common law contract as generally understood. It has some of the attributes of such a contract, but contains many elements foreign to a common law contract. It may be lawfully entered into by parties under twenty-one years of age. It cannot be dissolved by consent of the parties. After marriage, the state imposes duties and obligations upon the parties entirely outside of the marriage agreement. The relation entered into by the parties is regulated by the state.

“ Tt partakes more of the character of an institution regulated and controlled by public authority, upon principles of public policy, for the benefit of the community!’ Wade v. Kalbfleisch, 58 N. Y. 282, 284.

“Not being a common law contract, the relation may be regulated, controlled and modified and rights growing out of the relationship may be modified or abolished by the legislature without violating the provisions of the federal or state constitution which forbid the taking of life, liberty, or property without due process of law. N. Y. Const., art. I, VI; U. S. Const., Fifth Amendment.”

In my opinion the enactment of this statute was clearly within the power of the legislature. It was required by the growth of society to check evil in its beginning. Assuming, but not determining, that a cause of action existed at common law there is no reason why we should suffer an evil to continue to grow which presumably came into existence since our state was established and our constitution adopted.

Mr. Justice Heher, speaking for the Court of Errors and Appeals of this state, in Fine v. Okzewski, 112 N. J. L. 429 (at p. 4-38); 17 Atl. Rep. 825, said:

“Changing conditions necessarily impose a greater demand upon the reserve element of sovereignty called the police power, for such reasonable supervision and regulation as may be essentia] for the common welfare. Acceptance of restrictions upon the so-called natural rights of every individual, necessary to insure - observance by the individual citizen of the duty to use his property and exercise his rights and privileges with due regard to the personal and property rights and privileges of others, is the first and most imperative obligation entering into what we call the social compact. Without it there can be no such thing as organized society or civilized government. Des Moines v. Manhattan Oil Co., 193 Iowa 1096; 184 N. W. Rep. 823; 23 A. L. R. 1322.”

Never were the words, “this is a good bill and ought to pass” more properly spoken by a-member of the legislature than in the case of this measure. It was a good bill, is a splendid law and I hold it to be constitutional.

I, therefore, declare that the plaintiff has not a right of action for- the alienation of the affections of her said husband and that it would be unlawful for her or any other person in her behalf, as a party, attorney, agent or otherwise, to “file or serve, cause to be filed or served or threaten to file or serve, or threaten to.cause to be filed or served, any process or pleading, in any court of the state, setting forth or seeking to recover a sum of money upon” her alleged cause of action, such cause of action having been abolished by the act -under consideration.

Judgment may be entered accordingly.


author: Brogan, Chief Justice.

text:
    GIMBEL BROTHERS, INCORPORATED, PROSECUTOR, v. MARY CORCORAN, DEFENDANT.
    Decided June 30, 1937.

      Argued before single justice under the statute.
    Por the prosecutor, Milberg & Milberg.

    Por the defendant, William H. Kennedy (Abraham Chazin, of counsel).
   Brogan, Chief Justice.

The prosecutor of this writ has a judgment, obtained by default in the Second Judicial District of the county of Hudson on June 12th, 1934. The judgment represents the then plaintiff’s claim for goods sold and delivered. The merchandise, according to the state of demand, was sold to James Corcoran and Mae Corcoran, his wife, defendants in the District Court action. A second count in the state of demand alleges that the third defendant, Mary Corcoran, guaranteed this account. Judgment was entered against all three defendants on the strength of an affidavit made by one Worden E. Winne, an officer or employe in charge of the accounts of the plaintiff corporation. Execution was returned unsatisfied and the District Court judge allowed an installment execution against the wages of Mary Corcoran, surety for the debtors.

On October 5th, 1936, Mary Corcoran attempted, on rule to show cause, to have the judgment opened. This, after argument, was denied. On March 3d, 1937, another rule was allowed by the judge of the District Court, requiring the corporate plaintiff, prosecutor of this writ, to show cause why the judgment against Mary Corcoran, and the execution, should not be set aside. Upon the return of the rule, the court set aside the judgment against Mary Corcoran and stayed all proceedings under the execution. Upon application for the writ, it was urged that the court below erred in allowing a new trial because under the provisions of section 17 of the District Court act (2 Comp. Stat., p. 1959) the court may not grant a new trial unless application therefore is made within thirty days after judgment, except where the said application is based upon newly discovered evidence. The application here was not based on newly discovered evidence and manifestly it was made considerably after the expiration of the thirty days limitation.

Now that the return to the writ is before me, a quite different situation appears. Upon examination of the return, no proof whatever is perceived which could justify a judgment against Mary Corcoran, The affidavit of Mr. Winne, upon which judgment against all three defendants was entered, merely recites that he is acquainted with the account between the plaintiff and defendants; that a copy of the entries is annexed, and that the amount for which judgment is sought is due and owing. An inspection of the copy of the book account annexed discloses the debtor to be Patríele J. Corcoran. The name of the alleged surety, Mary Corcoran, does not appear at all. There is no proof 'whatever as to her liability for the debt; consequently, the judgment as to Mary Corcoran is void.

The prosecutor argues three points, the first of which is that the District Court lacked power to vacate the judgment after the expiration of thirty days, unless upon newly discovered evidence, relying on the seventeenth section of the District Court act, supra. This argument seems to me to be without substance. In the absence of proof of liability a judgment should not have been entered against Mary Corcoran. It was a void judgment and might be vacated any time. McLaughlin v. Cross, 68 N. J. L. 591, 601; 53 Atl. Rep. 703. Under the proof as it appears in the return, this judgment is just as invalid as though the court lacked jurisdiction of the person.

The second point made is that the District Court was without jurisdiction because a first rule to show cause, designed to accomplish the same purpose, was discharged and the prosecutor contends that the matter is therefore res judicata. This reason, too, seems to be unsound. This proceeding, in my view, is not an application for a new trial because there never has been a trial. While judgment may be entered where parties do not appear to defend, nevertheless it must be on proof. Here there was none making Mary Corcoran liable for the defendant. There is no substance, therefore, to the point that because a previous application to open or vacate the judgment was denied that the matter is at rest forever. It is the duty of the court to annul an invalid judgment. Its power to do so resides in its inherent jurisdiction and control over its judgments. Wardell v. Warshafsky, 10 N. J. Mis. R. 519; 159 Atl. Rep. 694.

It is next argued that this defendant should now be estopped from challenging the validity of the judgment. This judgment creditor cannot be heard to urge the doctrine of estoppel under the circumstances of this case. Laches or estoppel are never invoked in support of an invalid proceeding or a void judgment. There has been no change in the position of the parties unfavorable to the judgment creditor.

The writ will be dismissed, with costs.


text:
    JENNIE P. STEWART, EXECUTRIX OF THE ESTATE OF ELIZABETH P. WHITE, DECEASED, PLAINTIFF, v. FRANK WHITE, DEFENDANT.
    Decided July 9, 1937.
    For the plaintiff, Francis Tanner.

    For the defendant, Howard Ewart.

   Lawrence, C. C. J.

This suit was submitted to the court, without a jury, by consent, at the Ocean Circuit. The facts are not disputed. The question involved is whether the personal representative of the estate of a deceased wife can recover of her former husband unpaid installments of permanent alimony provided for in the final decree of the Court of Chancery of this state granting a divorce to the wife, that is to say, installments remaining due at the time of the death of the latter. The answer, it appears, must be in the affirmative, and that they may be reduced to judgment in a court of law.

Briefly stated, the facts are that on November 28th, 1927, the Chancery Court issued a decree msi, ordering, adjudging and decreeing that defendant, Frank White, and Elizabeth P. White (the decedent) be divorced from the bonds of matrimony. On February 29th, 1928, the court by final decree made the decree nisi absolute and in the usual form declared the marriage between the parties dissolved. In the decree defendant was directed to pay Mrs. White $30 each week as permanent alimony. In pursuance thereof, he paid the required amount from time to time until February 15th, 1930, when he left the state and remained out of the jurisdiction until Her death, which occurred on March 4th, 1936. He had failed to keep up the payments while out of the state and at the time of her death he was delinquent to the amount of $9,424. Mrs. White in her will appointed plaintiff as the executrix of her estate. On the probate of the instrument in the surrogate’s office, the executrix qualified and letters testamentary were issued to her. The present suit is brought to obtain judgment for the sum due and remaining unpaid at the time of Mrs. White’s death. It is conceded that the obligation of defendant to pay in future ceased when she died.

Defendant’s answer set up three separate defenses: first, that the subject-matter of the present suit is res judicata, in that a final decree covering the subject-matter was entered in the Court of Chancery, and since the matters in issue were finally adjudicated in that court, the personal representative of deceased’s estate has no legal standing here to relitigate them. This, of course, is not the purpose of the suit, as .plaintiff relies on the record in the Chancery Court and the final decree in particular as the source of defendant’s duty to pay, the action here resting on his admitted failure in that respect. That such a suit may be brought in a court of law is now unquestioned. Second, that the alimony decreed in favor of plaintiff’s testator was a right purely personal to the wife and the right to recover any arrears terminated and ended upon her death. This appears, however, not to be so, as to accrued alimony to which decedent, in her lifetime, had a vested right and as to which a right of action survives to the personal representative of her estate after her death. Third, that the right to recover in the present suit alimony that accrued prior to July 6th, 1930, is barred by the statute of limitations. This defense was abandoned at the trial, as it appeared that defendant had remained out of the state during the period and could not, therefore, avail himself of the benefit of the statute.

Tn VanBushirk v. Mulock, 18 N. J. L. 184, it was held that at common law an action of debt would not lie on a decree of a court of equity for the payment of money, but the case was criticised in Mutual Fire Insurance Co. v. Newton, 50 N. J. L. 571; 14 Atl. Rep. 756, and in Bullock v. Bullock, 52 N. J. Eq. 561, 567; 30 Atl. Rep. 676, it was said that, “if, by the direction to pay alimony an indebtedness arises from time to time as such payments become due, an action at law would lie thereon and .the decree would furnish conclusive evidence of such indebtedness,” apparently in the event that the marriage relation previously existing between the parties had been dissolved by the decree, as it was in the present case. So in Bullock v. Bullock, 57 N. J. L. 508; 31 Atl. Rep. 1024, it was held that an action at law may be maintained in this state upon a decree for alimony made in New York if the New York court had jurisdiction of the subject-matter and of the person of the defendant. In passing, it may be observed that in Rooney v. Rooney, 102 N. J. L. 551; 133 Atl. Rep. 752, a judgment in the Supreme Court was set aside because the alimony for which it had been entered had not been provided for in the final decree as here; while in Hatch v. Hatch, 15 N. J. Mis. R. 461; 192 Atl. Rep. 241, authorities will be found cited for the doctrine that the right to installments of alimony and maintenance under permanent, order becomes vested as such installments accrue and subsequent order of modification cannot operate retroactively to disturb such vested right.

Since the right to unpaid installments of alimony provided for in a final decree of divorce becomes vested, it seems logical to hold that the right survives the death of the wife and lodge's in her estate, subject to suit through the personal representative. It was so held- in VanNess v. Ransom, 215 N. Y. 557; 109 N. E. Rep. 593, annotated in L. R. A. 1916B, 852, which, see, with footnotes. The ruling there was that an action by a woman to recover unpaid installments of alimony under a decree of divorce is not abated by her death, but the personal representative may be substituted in her place and prosecute the action to termination. The case carries the texN(at p. 855) : “Even when the award is in the nature of periodical allowances for support, so that it terminates upon the .death of the wife, the husband may still be liable for payments in arrears at the time of the wife’s death, especially if the wife has contracted debts for her support. The liability for arrears after the death of the wife may be affected by the nature of the divorce and this may also affect the right to specific property awarded as alimony.” The question will also be found discussed in Wilson v. Hinman, 182 N. 7. 408; 75 N. E. Rep. 236, as annotated in 3 L. R. A. (N. S.) 232; reference being made to footnote Y in particular.

On the facts here involved, it sufficiently appears that defendant has no defense to the present action. It follows that plaintiff executrix is entitled to judgment against him for the sum of $9,424, with interest from March 4, 1936, with costs to be taxed.