text:
    THE CITY OF TRENTON, DEFENDANT, v. TRENTON MASONIC TEMPLE ASSOCIATION, PROSECUTOR.
    Argued October 8, 1930
    October 17, 1930.
    Before Justices Campbell and Bodine.
    Eor the defendant, Charles B. Bird.

    Eor the prosecutor, Aaron V. Dawes and William Abbotts, Jr.

   Pee Cueiam.

The writ brings up for review a judgment of the state board o‘f taxes and assessments reviewing an order of the Mercer county board of taxation which restores an assessment of taxes levied by the city of Trenton upon the lands and buildings of the Trenton Masonic Temple Association in that city.

The association was incorporated in 1921 as an association not for pecuniary profit. Pamph. L. 1898, p. 422. The charter provides that the association may: “Acquire all the assets and assume all the liabilities of Trenton Masonic Temple Association * * * purchase a site and erect, maintain and operate a Masonic temple in the city of Trenton, New Jersey, for the use and accommodation of the several Masonic bodies hereinafter mentioned and any other Masonic body hereinafter admitted, as well as the. members therefor, for fraternal and charitable purposes; take and hold * * * by lease, gift, purchase, grant, devise or bequest, any property, real or personal, within or without the State of New Jersey, sell, convey, mortgage or otherwise dispose of the same; borrow money; make and issue promissory notes, bills of exchange, bonds, debentures, obligations and evidences of indebtedness and secure the same by mortgage, pledge or otherwise; do all and everything necessary, suitable, convenient, or proper for the accomplishment of any of said purposes or incidental thereto.”

It appears from the agreed state of facts that the incorporators of the association are several Masonic lodges, who sought to provide suitable accommodations for Masonic purposes in Trenton. The purchase of the land and the erection of the building was financed by the individual members of the fraternity donating various sums for their respective lives and receiving in return a mortuary bond by virtue of which the Masonic Temple Association agrees to pay the principal amount contributed upon the death of the contributor, provided that at such time there is sufficient money in the mortuary fund to pay the same.

The individual member associations, from time to time, contribute various sums which are set aside for the eventual payment of such mortuary bonds upon the decease of the contributing member. This fund is held in trust, separate and apart from the other 'funds contributed, and is used only for the purpose of paying off the mortuary bonds when due. Such contributions not being sufficient to pay the entire costs of the building, a mortgage was negotiated and the interest thereon is paid by the corporation and the amount thereof is included in the various proportionate amounts paid by the various member associations toward the upkeep of the building.

The building and land whereon the same is erected is actually and exclusivelj' used in the work of twelve Masonic organizations, but the grand secretary of the grand lodge also maintains in the building an office for the transaction of his Masonic duties. The grand lodge contributes a sum calculated to be the proportionate cost of the heat, light, cleaning service, &c., of the rooms occupied by the grand secretary. No part of the building is rented out at any time, arid no profit of any kind is made from the building or the lands on which it stands.

The association claims exemption under Pamph. L. 1927, p. 791, exempting “all buildings actually and exclusively used in the work of associations and corporations organized exclusively for the moral and mental improvement of men, women and children, or for religious, charitable or hospital purposes, or for one or more of such purposes * * * provided, further, that the foregoing exemptions shall apply only where the association, corporation or institution claiming the exemption owns the property in question and is incorporated or organized under the laws of this state and authorized to carry out the purposes on account of which such exemption is claimed.”

Mr. Chief Justice Gummere said in Sisters of Charity v. Cory, 73 N. J. L. 699, 706: “The true rule of construction upon this subject is accurately stated in 12 Am. & Eng. Encycl. L. (2d ed.), 302, as follows: ‘A grant of exemption from taxation, being in the nature of a renunciation of sovereignty (or, as some j'urists have expressed it, being in derogation of the sovereign authority and of common right), must invariably be construed most strictly against the grantee, and can never be permitted to extend, either in scope or duration, beyond what the terms of the concession clearly require.’ It has bqen declared and applied, not only by the United States Supreme Court, but by the courts of almost every state in the union, as will appear by a reference to the footnote in the American and English Encyclopedia of Law, which contains a citation of the decisions. We ourselves had declared this to be the true rule of construction prior to the promulgation of the decision in the Chatham case. Nevin v. Krollman, Collector, 9 Vr. 574; State Board v. Morris and Essex Railroad Co., 20 Id. 193; State Board v. Paterson, &c., Railroad Co., 21 Id. 446. The fact that the property involved in the present litigation is owned by a charitable organization and is devoted to charitable uses, affords no ground for excluding it from the operation of this rule.”

The exemption created by the statute is of all buildings actually and exclusively used in the work of associations organized exclusively for the moral and mental improvement of men, women and children. The temple in Trenton is used exclusively by a number of organizations falling within the statutory category. If any one of the Masonic organizations owned and occupied the whole building the exemption would occur.

The title to the temple is held by a corporation organized by various Masonic lodges. No profits accrue to the landowner—the lodges contributing merely the proportionate share of the expense of operation. The corporation is a convenient legal entity in which to vest title to the building. But the corporation was not organized exclusively for the moral and mental improvement of men, women and children.. It was organized for the purpose of affording accommodation for several Masonic lodges. The exemption of the statute is of all buildings actually and exclusively used in the work of corporations organized exclusively for a specific purpose. If the association seeks an exemption it must strictly comply with the legislative grant. The legislature has made the test of exemption not only the use of the building but the organization of the corporate owner—both must fall within the classification.

The judgment of the state board will be affirmed.


source: Caselaw Access Project

author: Case, J.

license: Public Domain

text:
    Union County Circuit Court.
    CECILE VAN DE VELDE, BY HER NEXT FRIEND, CLEMENT VAN DE VELDE, AND CLEMENT VAN DE VELDE, PLAINTIFFS, v. ACHILLES COLLE, DEFENDANT.
    Eor the plaintiffs, Mantel & Kaplon.

    Eor the defendant, Michael G. Alenich.

   Case, J.

This is an action in tort instituted by capias ad respondendum. The order to hold the bail was made by a Supreme Court commissioner based on an affidavit of the plaintiff, Cecile Van De Velde. The defendant moves to set aside the order for bail and to quash the writ of capias and to discharge the bail, and sets up as reasons that (1) the affidavit is fatally defective because entitled in the cause and (2) the Supreme Court commissioner’s order to hold to bail is insufficient.

The affidavit, upon which the order to hold to bail issued, is entitled: “Union County Circuit Court. Cecile Van De Velde, by her' next friend, Clement Van De Velde, and Clement Van De Velde, plaintiffs, v. Achilles Colie, defendant. Action' at law (about to be instituted). Affidavit to obtain capias.” Under the principle enunciated in Stuerwald v. Furman, 133 Atl. Rep. 187, and earlier cases, the entitling of such an affidavit in a cause, when no such cause was pending, is fatal to its validity. Plaintiff submits that the parenthetical insertion “about to be instituted” after the designation “action at law,” saves the instrument from this fault and that the title may be disregarded as surplusage. I am inclined to think that the practice followed in this case runs counter to a rather well established principle, but I come to my conclusion on the grounds hereinafter mentioned.

The exercise of the judicial discretion vested in the commissioner and the forming of his decision must appear upon the face of the order. Hill v. Hunt, 20 N. J. L. 476. The order of the Supreme Court commissioner recites that the commissioner has read the affidavit of Cecile Van De Velde and, having duly considered the same, does “adjudge and decide that, by said affidavit, it is sufficiently proved before me that the defendant committed an assault and battery upon the plaintiff, Cecile Van De Velde, and also seduced plaintiff, Cecile Van De Velde, and promised to marry her, which acts were committed a number of times commencing with August 28th, 1928, * * *.” The essential proof upon which an order may be made for the issue of a capias ad respondendum in an action at tort is found in 3 Comp. Stat., p. 4068, § 56. The proof of assault and battery is not included therein. The insufficiency of simple assault and battery as a ground for an order to hold to bail has been judicially determined. Jacobs v. Costanza, 136 Atl. Rep. 807. Even though the affidavit should contain proof of an outrageous assault and battery, it is essential, as indicated above, that the commissioner shall make his finding with respect thereto.

The finding of seduction is not sustained by the proofs. Miss Van De Velde specifies two occasions, one on Augus-I 28th, 1928, and one at a subsequent unnamed date, when Colle attacked her and by violence-and against her consent had sexual intercourse with her; that thereafter Miss Van De Velde became ill and went to Saranac Lake to recover her health, and that while she was there Colle wrote her on several occasions promising to marry her and that after her return he again, promised to marry her. It is clear, however, that the acts of sexual intercourse were by force and that the promises or solicitations were made subsequent to the acts complained of. The generally accepted definition of seduction is that it is the act of a man in enticing a woman to have unlawful intercourse with him by means of persuasion, solicitation, promises, bribes or other means without the employment of force. 35 Gyc. 1294. Nor is it made manifest how Miss Van De Velde could herself bring an action for seduction inasmuch as the gravamen of that action by whomsoever prosecuted is predicated upon the relationship of master and servant. Tittlebmm v. Boehmeke, 81 N. J. L. 697.

The remaining finding by the commissioner, namely, that Colie promised to marry Miss Van De Velde, forms no basis for' the order to hold .to bail. The proofs do not bring the case within that line of rulings that find fraud in a seduction effected by means of an unkept promise to marry. Perry v. Orr, 35 N. J. L. 295.

The order to hold to bail must be set aside and the writ quashed and the bail discharged.


author: Backes, Y. 0.

text:
    Louis C. Jacobson, complainant, v. Peter Gasko et al., defendants.
    [Decided October 10th, 1930.]

      Messrs. Kanier & Kanier, for the complainant.

      Mr. Thomas L. Hanson, for the defendants.
   Backes, Y. 0.

The bill is to recover the deficiency of a mortgage debt, after sale of the mortgaged premises in foreclosure. The Kaczer Eealty Company, Incorporated, acquired the title to the mortgaged premises from one Franklach in 1928, and in the deed assumed the payment of the mortgage, as had all intermediate owners in the claim of title from the mortgagor. All were parties, including the mortgagor, to the foreclosure suit and are parties to this suit. The Kaczer Eealty Company, Incorporated, was the last to assume the mortgage debt and held the title at the time of foreclosure. To escape liability on its assumption of the mortgage debt it sets up by way of “separate defenses” that its grantor Franklach fraudulently represented that the mortgaged premises were encumbered by liens not exceeding $16,000; that the debt of the assumed mortgage did not exceed $3,430.35, and that no foreclosure suits were pending.

The motion to strike the answer must prevail. The answering defendant seeks affirmative relief, either to rescind the transaction or to reform the deed for fraud, which can be had only by counter-claim. Green v. Stone, 54 N. J. Eq. 387; Kuehnen v. Parker, 56 N. J. Eq. 286.

Whether the defendant can have rescission after foreclosure, see Green v. Stone, supra.

Whether the defendant can have any relief on counterclaim for the fraud, if it be charged in the manner in which it is set up in the answer, will have to be determined on a motion to plead out of time.


author: Pee Cueiam.

text:
    FABIO MATAZZO, PROSECUTOR, v. BOARD OF COMMISSIONERS OF THE CITY OF CAMDEN, NEW JERSEY, AND EUGENE F. VERGA, DEFENDANTS.
    Argued October 7, 1930
    Decided October 20, 1930.
    Before Justices Campbell and Bodine.
    For the prosecutor, Robert J. Tait Paul and Adolph Stern.

    For the board of commissioners, Harold W. Bennett.

      Bug ene F. Verga, pro se.

   Pee Cueiam.

The case comes before us upon an agreed state of facts. The prosecutor, Fabio Matazzo, is a contractor in the city of Camden, New Jersey. Prior to August 13th, 1930, the city .advertised for proposals for three classes of paving. Mr. Matazzo presented his bids at the time and place called for in the advertisements, and was the low bidder. He was required to furnish with each bid a certified check for substantially ten per cent, of the amount thereof. One of his bids was for the sum of $37,952. Another was for the sum of $3,960. A ■certified check for $3,800 was clipped under the bid for $3,960 and a certified check for $400 was clipped under the bid for $37,952. The bids were all opened at the same time and the mistake was immediately noticed and rectified.

The city commission found that there was not strict conformance with the advertisement for proposals, and awarded, the contracts to the next highest bidder.

We think there was substantial compliance with the conditions imposed by the municipality. Hornung v. West New York; 82 N. J. L. 266. Matazzo had made a mere clerical mistake. The proper checks for all the bids were submitted in time. The only thing short of complete performance was-the circumstance that the certified checks were sealed in the-wrong envelopes. The clerical mistake was apparent as soon as the bids were opened. The city was in just as advantageous position to enforce compliance with the bids as though, the certified checks had been sealed in their proper envelopes. The vouchers clearly demonstrated the contracts to which, the checks were allotted.

Counsel agreed that we should consider the case as though the writ had issued, and the result is that the resolution awarding the contract to the next highest bidder, and all proceedings thereunder taken, will be set aside.


author: Backes, Y. C.

text:
    Kearny Plumbing Supply Company, complainant, v. Carl F. Gland et al., defendants.
    [Decided October 21st, 1930.]

      Messrs. Corn ■& Silverman, for the complainant.

      Mr. William W. Wimmer, for the defendants.
   Backes, Y. C.

The complainant was an existing creditor of Gland when the latter conveyed to his wife, through an intermediary, the lands involved in this suit. The complainant’s debt has been reduced to judgment and by its amended bill (relief on the original bill was denied, 105 N. J. Eq. 728) prays that the conveyances be set aside, charging that they were •executed without a fair consideration; that Gland was thereby rendered insolvent, and that at the time of their delivery he was engaged in the plumbing business for which the property remaining in his hands, after the conveyances, was an unreasonably small capital.

The conveyances were voluntary, without consideration. Gland had a small plumbing shop. Its content, according to the complainant, was worth about $200 when he conveyed the lands to his wife. Within the month in which the conveyances were made his debt to the complainant, for merchandise, grew from $3,251.67 to $5,104.61. Within the same period, according to the defendant, his assets, aside from the real estate, diminished from $11,889.74 to $9,133.42, while his liabilities increased from $8,021.67 to $10,074.61, so that on the last day of the month his liabilities exceeded his assets by $941.19 if the real estate be not included. The assets, as Gland estimates, then consisted of merchandise $3,000 and bills receivable $6,000. Whether the bills are collectible is not disclosed, but that he exaggerated the values of his assets and minimized the total of his debts is plain.

The testimony warrants a finding that the conveyances were intentionally fraudulent to cheat the complainant. The conveyances unquestionably rendered the debtor insolvent, and it is patent that the property remaining in his hands was an unreasonably small capital within the meaning of section 5 of the Fraudulent Conveyance act. Cum. Supp. Comp. Stat., p. 648. The conveyances will be set aside.


author: Lstgeesoll, Y. C.

text:
    Eugene Gallaher, complainant, v. Charles C. Vanaman, executor of the estate of Ezekiel Eldridge, deceased, defendant.
    [Decided November 3d, 1930.]

      Mr. Dominio J. Novaría, for the complainant.

      Mr. J. Roy Oliver, for the defendant.
   Lstgeesoll, Y. C.

The complainant contends that one Emma Gallaher Eldridge, the mother of the complainant, agreed with her husband, Ezekiel Eldridge, to devise to him a life estate in certain real estate owned by her, and also agreed to bequeath by her last will and testament all of her personal property, upon his agreement that by his last will and testament he would bequeath to her two sons all of his personal property, in equal shares.

That the said Emma Gallaher Eldridge departed this life testate, on January 29th, 1926, leaving her last will and testament, by virtue of which the said Ezekiel Eldridge became possessed of said life estate in said real estate and personal property, to the extent of approximately $2,900.

That the said Ezekiel Eldridge departed this life on or about December 27th, 1928, testate. In and by the terms of his will, the complainant and complainant’s brother, Walter Gallaher, were not mentioned as beneficiaries in any capacity.

That the said Ezekiel Eldridge’s estate approximated about $4,000, and prays that a decree be entered against the executor, compelling and directing him to specifically perform the agreement alleged to have been entered into between Emma Gallaher Eldridge and the said Ezekiel Eldridge, for the benefit of the complainant.

This case is to be distinguished from the case of Walter Gallaher against the same defendants, in which I sustained an alleged agreement between the said Emma Gallaher Eldridge and the said Walter Gallaher. That case, however, is not dispositive of the case sub judice, and the complainant has not carried that burden of proof necessary to sustain his contention.

I will advise a decree dismissing the bill.


author: Ingersoll, Y. C.

text:
    Dorothy Simkins Pedrick, petitioner, v. Leonard F. Pedrick, defendant.
    [Decided November 5th, 1930.]

      Messrs. Bourgeois é Coulomb, for the petitioner.

      Mr. Emerson L. Richards, for the defendant.
   Ingersoll, Y. C.

The petition is based upon desertion. The defense is that the defendant was compelled to leave his home because “petitioner is possessed of an ungovernable temper and an insane jealousy which causes her to accuse defendant with having committed adultery with every woman with whom he and his wife were mutually acquainted, and to accuse him of illicit relations with almost all other women with whom he may have come in contact in his business, and as a result of such accusations has made life utterly miserable for defendant and also as a result of such -unjustifiable jealousy petitioner has worked herself, on many occasions, to such a rage as to violently assault defendant, and other times to create such scenes that would utterly unnerve defendant so that he was unable to conduct his business,” and that by reason thereof that such conduct and the physical violence offered him by his wife was rapidly undermining his health and he was compelled to leave his home against his will.

Excluding for the moment her charges of adultery, her ungovernable temper, her outbursts of passion and jealousy and the physical treatment bestowed upon him, and her perseverance in tantalizing him are not crimes but are infirmities and defects which, in consideration of law, a husband undertakes to put up with when he takes his wife for better or worse.

Sir William Scott, in Evans v. Evans, 1 Hagg. Cons. 35, Jf.0, referring to cruelty, said:

“What merely wounds the mental feelings is in few cases to be admitted where they are not accompanied with bodily injury, either actual or menaced. Mere austerity of temper, petulance of manners, rudeness of language, a want of civil attention and accommodation, even occasional sallies of passion, if they do not threaten bodily harm, do not amount to legal cruelty; they are high moral offenses in the marriage state undoubtedly, not innocent surely in any state of life, but still they are not that cruelty against which the law can relieve. Under such misconduct of either of the parties, for it may exist on the one side as well as on the other, the suffering party must bear in some degree the consequences of an injudicious connection; must subdue by decent resistance or by prudent conciliation; and, if this cannot be done, both must suffer in silence. And if it be complained that by this inactivity of the courts much injustice may be suffered, and much misery produced, the answer is that courts of justice do not pretend to furnish cures for all the miseries of human life. They redress or punish gross violations of duty, but they go no farther; they cannot make men virtuous; and as the happiness of the world depends upon its virtue, there may be much unhappiness in it which human laws cannot undertake to remove.”

In morals it may be different. A man cannot desert his wife because she is extravagant or lazy, or swears, or uses coarse language, or is sickly, fretful, or of violent temper, or because she wreaks her temper or showers her coarse or profane language upon him, and thus makes his life uncomfortable. Incompatibility of temper, as yet, has not, in New Jersey, been made by law a ground for divorce or for desertion. Boyce v. Boyce, 23 N. J. Eq. 337 (at p. 849). The decree in this case was unanimously affirmed and the opinion of the chancellor adopted by the court of errors and appeals. 24 N. J. Eq. 588.

Is the fact that this wife continuously, without cause, accused her husband of infidelity such extreme cruelty as would entitle him to a divorce upon that ground or result in constructive desertion upon his leaving? Had the proof been satisfactory and convincing that Pedrick’s health had been seriously impaired by reason of the charges or from the notoriety arising by reason thereof, this might have been extreme cruelty. Stover v. Stover, 94 N. J. Eq. 703; 19 C. J. 51. The conduct of the wife was not sufficient to excuse the husband for his desertion of her.

Youmans v. Youmans, 3 N. J. Mis. R. 576, was a case where the wife accused the husband of undue intimacy with a married woman, and where she was guilty of such a course of conduct towards him as amounted to extreme cruelty, injuring his health, rendering it unsafe for him to remain there, and does not aid us in the determination of the present question.

Incompatibility of temper and the ordinary misunderstandings, which are more or less characteristic of the marriage relations, in many cases, have not been made grounds for divorce in this state, and those who are married must bear the real or fancied burdens they have assumed, unless the conduct of one entitles the other, that other being without fault, to a severance of the relation for one or other of the statutory causes. Sachse v. Sachse, 107 N. J. Eq. 41.

A decree nisi will be advised.


author: Pee Cubiam.

text:
    JOEL GADDIS, PROSECUTOR, v. JOHN A. FRECH, JUDGE OF COURT OF COMMON PLEAS OF SOMERSET COUNTY, RESPONDENT.
    Argued October 7, 1930
    Decided October 17, 1930.
    Before Justices Campbell and Bodine.
    For the prosecutor, John W. Lyness and Winfield 8. Angel-man.

    For the respondent, Francis L. Bergen.

   Pee Cubiam.

Joel Gaddis was convicted in the recorder’s court of the offense of driving an automobile while intoxicated, pursuant to Pamph. L. 1921, ch. 208, p. 665, § 14, 3.

An appeal taken to the Somerset Common Pleas Court was dismissed because the prosecutor of the pleas had not been notified of the time fixed for the hearing within the time fixed in Pamph. L. 1921, ch. 208, § 28, as amended by Pamph. L. 1926, ch. 151, § 6.

The case comes before us on certiorari and on motion to dismiss the writ.

The appeal was perfected October 10th, 1929. The appellant on October 28th, 1929, had a day fixed for the hearing and gave notice thereof to the prosecutor of the pleas. This came too late. The statute, so far as pertinent, provides: “* * * and the trial on appeal must be noticed for a hearing by the said defendant for a day not more than thirty days after he has completed his appeal * * * by serving the prosecutor of the pleas'of the county, wherein the alleged violation was committed, not more than ten days after completing his appeal, a five days’ written notice thereof.” The legislative purpose is apparent. The order of dismissal for want of prosecution was properly entered.

The writ will be dismissed.


author: Per Curiam.

text:
    JOSE MARIA VIERA, PROSECUTOR, v. JOSE MARQUES, DEFENDANT.
    Argued October 8, 1930
    Decided October 17, 1930.
    Before Justices Campbell and Bodine.
    Eor the prosecutor, Apostolakis & MandeTbaum.

    Eor the defendant, Joseph N. Braff.

   Per Curiam.

Jose Marques had judgment in the Orange District Court for $450.16 on a promissory note dated August 10th, 1929, made by Francisco P. Salles and Maria G. Salles. Execution wás levied and Jose Maria Yiera filed a claim of property. The court directed a verdict against the claimant.

In January of 1930, Salles attempted to sell his business to the prosecutor. He went into possession, took over the lease ■on January 15th, and thereafter conducted the business. The bill of sale, however, was not delivered until April 22d, 1930, after Marques had brought suit on the note, because Viera prior to that time had not had enough money to complete the purchase.

The bill of sale contains no inventory of the goods and vendor’s affidavit states that he has no creditors. Marques, the holder of the note, had been a former partner 'and had taken the note for his interest in the merchandise sold to Salles. Viera admits that as early as February and long before he made settlement for the goods he knew of the note and also knew that it had not been paid.

We concur in the view of the trial court that there was no sale until the delivery of the bill of sale.

The sale of all the stock and merchandise of a retail business is obviously a sale in bulk. The purchaser at such sale, knowing of a merchandise creditor to whom a note had been given, cannot rely upon an affidavit of his vendor which he knows to be false.

The principal argument before us and in the prosecutor’s brief is addressed to an attack upon the manner in which the levy was made under the District Court execution. The record shows that the execution was returned May 9th, 1930, and that the inventory of the goods seized was not filed until June 30th, 1930, and never was annexed to the execution as provided by the act. However, the claim of property filed, upon which the trial took place, admits a due and legal seizure of the goods. The claim filed states: “I claim as my ■own property * * * that which you have seized and taken into your possession by virtue of the writ of execution * * Such a claim is an admission of the validity of the seizure, so that it was not open to the District Court to ■consider the question now urged.

The District Court quite properly, on the evidence adduced, directed a verdict in favor of the defendant, and on the proofs submitted there was no issue for the jury.

The writ will be dismissed, with costs.


text:
    IN THE MATTER OF THE TRANSFER INHERITANCE TAX IN THE ESTATE OF GEORGE J. GOULD, DECEASED.
    Argued October 8, 1930
    Decided October 17, 1930.
    Before Justices Campbell and Bodine.
    Eor the prosecutor, McCarter & English.

    Eor the state, William A. Stevens.

   Per Curiam.

The writ brings up for review a decree of Vice-Ordinary Baches sustaining a tax levied on the transfer of property by the last will and testament of George J. Gould, deceased, a. former resident of Lakewood, New Jersey.

On March 21st, 1923, decedent transferred $1,000,000 in United States liberty bonds to his wife. He died May 16th,. 1923, and the vice-ordinary held that the bonds were property assessable.

Pamph. L. 1922, p. 294, provides, so far as pertinent as-follows: “When the transfer is of property made by a resident * * * in contemplation of the death of the grantor * * * every transfer * * * made within two years prior to the death of the grantor * * * of a material part of his estate * * * without an adequate valuable consideration, shall, in the absence of proof to the contrary, be deemed to have been made in contemplation of death within the meaning of this section."

The transfer was of about one-sixth of the net estate— certainly a material part thereof. It was made within two-months of death by a man who knew he was in the last stages of arterior sclerosis. The transfer is said to have been for an adequate valuable consideration. There was no attempt whatever to show any consideration for the transfer at the time the same was made. The death of Mr. Gould precipitated many suits. Some of his ten children assailed this transfer. In a family settlement, it was confirmed and it is said that the consideration for the settlement affords consideration for the transfer.

Vice-Ordinary Buchanan said of the statute in question (In re Kraft’s Estate, 143 Atl. Rep. 765, 766): “The broad purpose of the legislation is to tax successions, at death. Originally the statutory tax was imposed only upon testate and intestate successions. When it was found that the object of the act could be, and was being, defeated by transfers prior to death but in the nature of testamentary dispositions, the statute was amended so as to tax such transfers also. This was the purpose of the first sentence of the paragraph of the statute quoted above.

“ * * * The transfer in the instant case being concededly made in contemplation of death, the burden of proof was on the executors to bring the ease within the implied exception to the statute, or to prove that some additional exception is to be implied and bring the case within that.

“ * * * Obviously, then, it is only when the adequate valuable consideration, of substantially equal value to the property transferred is received by the transferer, that the transfer in contemplation of death is not taxable.”

The third paragraph of the will creates a trust fund of $4,000,000 with income to the widow for life with power to appoint to their children. At the time of Mr. Gould’s death, a suit was pending against him growing out of mismanagement of his father’s estate. This was compromised and a part of the compromise, $1,525,000, was deducted from the widow’s trust and distributed among the first wife’s seven children. A trust fund of $300,000 was also set up for the second wife’s three children. Vice-Ordinary Baekes said: “Their contention that the state is not entitled to a transfer tax because the payment of $1,525,000 out of the widow’s trust reduced by that sum the inheritable property of Mr. Gould upon the theory that it was made in discharge of an obligation of his estate is not admissible. * * * The thing taxable was the transfer by the will of the $4,000,000 trust fund for the widow and her children. The seven took $1,525,000 of the widow’s trust not by the will of their father, but contrary to it, by transfer from the widow and her children. That transfer was not taxable. That she and they chose to bargain with the seven to surrender a portion of their trust to induce them to subject their inheritance under their father’s will to the burden of the $5,442,392.55 due the Jay Gould estate, and to reimburse them for the consequent depreciation of their shares of that inheritance is wholly irrelevant to the power to levy a tax upon the transfer of property by death. * * * At all events the state is not interested, and it was the privilege of the comptroller to take no notice of the manipulation of the property by the beneficiaries as between themselves.”

Obviously, the transfer of the $4,000,000 trust fund was under the will of the testator and taxable. Settlement agreement between private parties cannot affect the rights of the state to collect its taxes.

The assessment, as corrected by decree of the vice-ordinary, is affirmed and the writ is dismissed.


author: Pee Ctjeiam.

text:
    DANIEL DAVID CARLTON, PETITIONER-PROSECUTOR, v. CELLULOID COMPANY, RESPONDENT-DEFENDANT.
    Argued October 8, 1930
    Decided October 17, 1930.

      Before Justices Campbell and Bodine.
    For the prosecutor, David Roslcein and Heine £ Laird.

    For the defendant, J. Glenn Anderson.

   Pee Ctjeiam.

Daniel D. Carlton was awarded compensation under the Workmen’s Compensation law. The commissioner found, and there was evidence to support his findings, that on three separate occasions, Carlton was injured by accidents arising out of and in the course of his employment.

The Essex Common Pleas Court on appeal reversed the commissioner’s findings, saying in part: “The court rules that inasmuch as the petitioner-appellee knew the character of his employment and was employed with regular and unvarying duties over a period of time, there was an assumption of risk on the part of the petitioner-appellee.”

The prosecutor, Carlton, seeks a review. The defendant has not favored us with brief of argument. An examination of the record shows that Carlton, who worked alone on the night shift in the retort room of the defendant’s factory, attempted on January 20th, 1928, to fix a line running to the sewer. The line appeared to be clogged. In doing this work, the line broke and fumes of hydrochloric acid gas escaping knocked him against the wall. An immediate report was made to the foreman, who corroborates as to the existence of the leak. Carlton went home, and adduced medical testimony in support of his contention that he was injured by the gas fumes. On February 11th, 1928, there appeared to be an insufficient flow of water around the hydrochloric acid line, and Carlton in attempting to remedy the condition was again overcome by fumes which escaped because of the bursting of a pipe. Again the foreman corroborates as to the material facts. On February 20th, 1928, part of the apparatus in the retort room was not working properly and Carlton was again injured by escaping gas while adjusting a valve. The medical testimony supports Carlton’s contentions that the escaping gas was the cause of the injuries of which he complains.

We have no hesitancy in saying that the commissioner’s findings of facts are supported by the testimony.

We are at a loss to understand what the Court of Common Pleas meant by concluding that the employe was barred by assuming the risks inherent or incident to his employment. The Workmen’s Compensation act abolished this defense. Our conclusion is that the law and facts support the findings of the commissioner and do not support the findings of the Court of Common Pleas.

The judgment of the Court of Common Pleas of Essex county is therefore reversed.


text:
    HENRY J. MELOSH ET AL., PROSECUTORS, v. THE MAYOR, ETC., OF JERSEY CITY ET AL., DEFENDANTS.
    Argued October 9,
    October 20, 1930.
    Before Justices Campbell and Bodine.
    Eor the prosecutors, Melosh, Morten & Melosh.

    For the defendants, Irwin Rubenstein.

   Pee Cueiam.

The applicants for the writ are owners of property on Gifford avenue, Jersey City. They seek to review the action of the city commission in awarding a building permit for an apartment house’to be erected on Gifford avenue in that city. The questions presented have been so recently ruled against the contention of the applicants in Adams v. Jersey City, No. 97, February term, 1930, Court of Errors and Appeals, to-day decided that the writ must be denied.


author: Pee Curiam.

text:
    STATE OF NEW JERSEY, RESPONDENT, v. ELI NEWMARK, PROSECUTOR.
    Argued October 9, 1930
    Decided November 15, 1930.
    Before Gummebe, Chief Justice, and Justices Trenchard and Lloyd.
    Eor the prosecutor, Jayne & McCloskey.

    Eor the state, Robert H. McCarter, special assistant attorney-general.
   Pee Curiam.

On July 25th, 1930, Mr. Justice Bodine, presiding in the Oyer and Terminer Court of Ocean county, in open court discharged the April term grand jury. Thereafter the grand jury was called back by the court, and on August 9th, 1930, in open court such justice revoked the previous order of discharge and reinstated the grand jury “for the balance of the April, 1930, term, and ordered them to discharge the duties of the same to the full extent of their power.”

During such April term the grand jury found and returned thirteen indictments against Newmark, and we have here rules to show cause (all of the same title) why certiorari should not issue to bring up such indictments for the evident purpose of moving to quash.

Three of these indictments were presented on June 14th,. 1930; three of them on June 21st, 1930; one on August 19th, 1930; one on August 30th, 1930, and the remainder on September 8th, 1930.

As to the indictments found subsequent to July 25th, 1930 (Nos. 256, 257, 258, 259, 260, 261 and 262), the illegality alleged is that they were found after the grand jury was discharged.

We express no opinion upon the point made by the state that,, because of the fact that the defendant is a fugitive from justice, he should not be heard to make the application, but we proceed to consider the alleged illegality of the indictments found after the discharge of the grand jury and their reinstatement by Justice Bodine.

We think it quite clear that the indictments are not illegal as contended.

The cases are unanimous in holding that the court has the essential and inherent power to recall a grand jury during the term, and if an order has been entered in the minutes discharging that body, to set aside such order at any time during the term, when, as here, the order of discharge was made by reason of mistake or misinformation and before the grand jury had finished its labors and while it was still engaged in the discharge thereof.

The numerous cases are collected and analyzed in the notes to cases in 17 Ann. Cas., p. 656, and Ann. Gas. 1916, p. 207. Such we infer from the matters laid before us. was the situation here. Section 10 of Pamph. L. 1913, p. 832, does not deprive the court of such power in the circumstances of the present case.

The remainder of the indictments (Nos. 250, 251, 252, 253, 254 and 255) were found and returned prior to July 25th, 1930, the date of the discharge of the grand jury. We think that they are legal in form and substance and are not subject to the criticisms directed against them.

The indictment in No. 250 charged that defendant did have a slot machine on premises of George H. Alsheimer on May 21st, 1929, and thereafter continuously for a number of days, to wit, one week, &c.

The indictment is based upon the supplement to the Crimes act of 1898, and is chapter 140 of the laws of 1907, incorporated as section 65a of the Crimes act as found in Comp. Stai., p. 1766. It reads:

“Any person or corporation who shall have or keep in his or its place of business, or other premises, any slot machine or device in the nature of a slot machine, which may be used for the purpose of playing for money or other valuable thing, shall be guilty of a misdemeanor.”

This is a purely statutory offense, and the indictment charges the offense in the language of the statute.

It is claimed, however, that the act does not apply to a situation where the defendant is alleged to have the slot machine on the premises of a third person. We think it does. To suppose that the individual in whose hotel or store the slot machine is placed is the only person intended by this law to be reached, and that the owner who brings the machine thereto, and shares in its receipts should escape, is not permissible.

The indictment in No. 251 charges that on or about May 9th, 1930, the defendant did solicit one Mae White to commit the crime of keeping a disorderly house, &c.

The criticism is that this indictment does not allege that the act of soliciting was committed in the county of Ocean, and within the jurisdiction of the court. We think that it does in unmistakable language.

The indictment in No. 252 charges violations of section 57 of the Crimes act.

The allegation of the first count is that the defendant “on the 3d of June, 1929, and on each and every day thereafter down to the loth day of March, 1930, * * * unlawfully did give, sell and dispose of certain tickets in a lottery made up in this state,” &c.

The second count charges that on and between the same dates, the defendant “did receive money from a large number of persons to the grand inquest unknown, in consideration of which he unlawfully promised and agreed to pay them a certain sum of money upon the event of their drawing certain numbers in a certain lottery then set up and open in this state,” &c.

The third count charges the defendant with having; "on the 3d of June, 1929, and on each and every day thereafter, down to the 15th day of March, 1930,” received money from a large number of persons to the grand inquest unknown, in consideration of which he unlawfully promised and agreed to pay them a certain sum of money if any ticket in any lottery shall prove fortunate, &c.

The criticism is that each sale was a separate offense and should properly be the subject-matter of a separate count. But if this be so it is no ground for quashing the indictment, for under the doctrine of State v. Lamb, 81 N. J. L. 234, an amendment may be made striking out all allegations that follow the specific date mentioned.

' The indictment in No. 253 is like that in No. 250 and what we there said applies to this.

• The indictment in No. 254 charges that the defendant "did give, sell and dispose of lottery tickets” on “the 3d of June, 1929, and on each and every day thereafter, down to the 15th of March, 1930,” &c.

The criticism of this is the same as to the indictment in No. 252, and the answer made to that also applies here.

The indictment in No. 255 charges defendant with having on his own premises slot machines on June 3d, 1929, and oh each and every day thereafter, down to March 15th, 1930, &c.

The criticism directed against this indictment we have already herein above considered and found to be without merit . The writs of certiorari applied for will be denied and the several rules to show cause will be discharged.


text:
    SUSAN M. SPECHT ET AL., PETITIONERS, v. THE CITY OF EAST ORANGE ET AL., DEFENDANTS.
    Decided November 13, 1930.
    Before Justices Trenchard, Lloyd and Case. ‘
    For the petitioners, Grosso, Brundage & Anderson.

   Per Curiam.

This matter was heard and disposed of at the January-term, 1930.

Attorneys for the petitioners have presented an application stating various reasons why a reargument of the cause should .be granted. The reasons are not, in our opinion, adequate, and the application is denied.


text:
    STATE OF NEW JERSEY, RESPONDENT, v. JOHN A. G. GRANT, PROSECUTOR.
    Argued October 9, 1930
    Decided November 15, 1930.
    Before Gummere, Chief Justice, and Justices Teen-chard and Lloyd.

      For the prosecutor, Howard Ewart (Thomas G. Haight, of counsel).
    For the state, Robert H. McCarter, special assistant attorney-general.
   Per Curiam.

This is a rule to show cause why a certiorari should not issue to bring up to this court for review an indictment for embezzlement found by the grand jury for the April term, 1930, against the defendant, Grant, on the 19th of August, 1930, after the reinstatement of the grand jury, which occurred on the 9th of August, and before the expiration of the April term.

The record shows that the defendant appeared, and pleaded not guilty, reserving a right to withdraw the same and move to quash. A motion to quash was made and denied. The defendant also filed a special plea setting up the alleged illegality of the indictment, owing to the facts and circumstances surrounding the discharge of the grand jury on July 25th, 1930, and its reinstatement on August 9th, 1930. This was overruled. It thus appears that this case is in much the same posture as the case of State v. Miller, decided at this term of this court, and for the reasons therein expressed the writ of certiorari applied for will be denied, and the rule to show cause discharged.


text:
    STATE OF NEW JERSEY, RESPONDENT, v. ALEXANDER J. MILLER, PROSECUTOR.
    Argued October 9, 1930
    Decided November 15, 1930.

      Before Gummebe, Chief Justice, and Justices Trenchard and Lloyd.
    For the prosecutor, Harry E. Newman (Thomas G. Haight, of counsel).
    For the state, Robert H. McCarter, special assistant attorney-general.
   Per Curiam.

These are rules to show cause why certiorari should not issue to bring into this court indictments found by the grand jury of Ocean county at the April term, 1930, of the Court of Oyer and Terminer, for the indicated purpose of reviewing the action of the trial court in respect thereto.

There are five indictments against the same defendant, the first (No. 284) charging that on October 14th, 1928, the defendant, Miller, while being a county investigator and detective of Ocean county and holding an office of trust and profit under the authority of the state, did embezzle and fraudulently convert to his own use, $125 committed to his keeping, with intent to defraud the State of New Jersey, &c. This, as well as the other four indictments against the defendant, was found after the reinstatement of the grand jury, but before the expiration of the April term, like some of the indictments considered in State v. Newmark, of the present term of this court. On September 3d, 1930, the defendant withdrew his plea of not guilty and moved to quash the indictment upon the alleged ground that it failed to state the name of the owner of the property alleged to have been embezzled, or that the name of the owner was unknown. This motion was denied. On September 4th he filed a plea, like the others in these Miller cases, relying upon the alleged illegality of the indictment because of the previous discharge and reinstatement of the grand jury, which contention we have held in State v. Newmark is without merit. That plea was overruled on September 9th, 1930, and of course rightly. Meanwhile the defendant, on September 6th, 1930, filed what he calls a supplemental plea, setting up that he was not an officer of the State of New Jersey as alleged in the indictment. This presented the anomalous situation of a defendant at the same time by one plea attacking the indictment because the grand jury that found it was not a legal body and by another plea raising the question as to the sufficiency of the indictment by taking issue upon an allegation therein as to his having been an officer of the state. So far as the case shows the judge did nothing and made no order with respect to this latter plea. He evidently considered the two pleas inconsistent. This court should not undertake to review his inaction by certiorari. If the court below had overruled the plea, which he did not, then there would have been a judgment of respondeat ouster, which there was not, and the case could have proceeded to trial and a review could have followed if desired on writ of error if conviction ensued.

Neither should the action of the court below in refusing the motion to quash the indictment, induce this court in this proceeding to award the writ now applied for. The defendant should go to trial, and if convicted, review by writ of error, if he desires to do so, the judgment, including the question of the sufficiency of the indictment.

The indictment in No. 282 alleges that on October 14th, 1928, while holding an office of trust and profit under the authority of this state, the defendant did embezzle $125 with intent to defraud the county of Ocean, &c.

The indictment in No. 285 charges that the defendant on December 2d, 1928, being a special officer for the protection, arrest, indictment and conviction of offenders, and charged with the duty of exercising all proper, reasonable and effective means for preserving public peace, suppressing disorderly houses, and enforcing the laws, was guilty of malfeasance in that particular, &c.

The indictment in No. 286 charges the defendant with having, while being the servant or agent of James Mercer Davis, prosecutor of the pleas of Ocean county, and as such being entrusted with the care and custody of moneys that came into the possession of Davis, and contained in slot machines that had theretofore been lawfully seized and taken possession of by the prosecutor, did unlawfully embezzle and convert to the use of one Ruben Wilbur, Jr., who was not the rightful owner thereof, a sum of money, to wit, $20, &c.

The indictment in No. 283 charges defendant with being, on October 14th, 1928, the servant or agent of James Mercer Davis, prosecutor of the pleas of Ocean county, and as such being entrusted with the care and custody of certain moneys that came into Davis5 possession as such prosecutor and contained in slot machines that had been lawfully seized and taken possession of by said Davis, and with unlawfully and fraudulently embezzling and converting to his own use $125 contained in said slot machines, &c.

The conclusions which we have reached with respect to the first ease herein considered (No. 284) in effect dispose of cases Nos. 282, 283, 285 and 286 herein mentioned.

The writs of certiorari applied for will be denied and the several rules to show cause discharged.


author: Bodine, J.

text:
    ROBERT BUERMANN, PLAINTIFF, v. ALICE A. MORRIS AND ARCHIE SAKI, DEFENDANTS.
    Decided November 12, 1930.

      Eor the motion, Conover English.

      Contra, Wilfred H. Jayne, Jr.

   Bodine, J.

The present action is one in tort for the alienation of the affections of the plaintiff’s wife. The defendants answered with a general denial. The present motion is for a bill of particulars.

It is apparent and not controverted that the complaint is in such form ,and the action is of such a nature that the defendants would be entitled to many of the particulars requested if the demand therefor had been made before answer filed.

“The bill of particulars has the two-fold effect of informing the defendant with relation to the details of the plaintiff’s ease with a view of preparation of a proper pleading in reply to the complaint, and also of limiting the plaintiff’s proof on the trial as well as apprising the defendant what is proposed to be set up, to the end that the defendant may prepare a proper defense.” Hopper v. Gillett, 140 Atl. Rep. 17.

In order that trials may proceed with fairness and due dispatch it is important that the issue to be tried be simplified, and that parties be informed with particularity as to the details of the matters to be presented. It would, therefore, seem that courts were little concerned as to when the demand for particulars was made, providing that it was made so as not to delay the trial of the action.

The Supreme Court in Dixon v. Swenson, 101 N. J. L. 22, in an opinion- by Mr. Justice Kalisch, held that a demand for a bill of particulars must be made before answer filed.

Mr. Justice Parker, who had sat with Mr. Justice Kalisch in the Dixon case, said in Hopper v. Gillett, supra (at p. 18), respecting the Dixon case that it was a contract case; whereas in cases of tort particulars are ordered as a matter of common law.

Judge Ackerson relying upon the Hopper case, in Schwalm v. Public Service Transportation Co., 143 Atl. Rep. 516, permitted a demand for a bill of particulars in a tort action after answer filed.

Mr. Chief Justice Gummere on October 4th, 1913, ordered a bill of particulars after issue joined in Zietarski v. Hahne Co., a tort action. The order was entered after argument, upon the merits, and contains a notation of consent which probably went no further than to form.

Mr. Justice Case in Gaqlganski v. Andrysiak, 149 Atl. Rep. 57, stated obiter that the common law permitted a bill of particulars after answer filed in a tort action.

The federal courts have not recognized in contract actions, section 102 of the Practice act (Pamph. L. 1903, p. 567), and section 34 (Pamph. L. 1912, p. 383), as limiting the right to particulars to a demand before answer filed. Wetmore v. Goodwin Film and Camera, 226 Fed. Rep. 352.

The court held in that case that the filing of an answer is not a waiver of the right to demand a bill of particulars and that the right in New Jersey exists as at common law to demand a bill of particulars any time before the trial of the case. The reason for allowing a bill of particulars after answer was held to be that “more knowledge of an adversary’s case is often necessary to prepare a defense than to frame a written answer which will survive an attack.” The acquaintance by both counsel with the simplified issues to be tried promote a speedy and fair trial.

“In actions for wrongs, the injury complained of is in general stated in the declaration; and therefore, in such actions, it is not usual to make an order for the particulars;. but circumstances may occur which render it necessary.”' Tidd Pr. 597.

The basis for granting a bill of particulars was stated in Tilton v. Beecher, 59 N. Y. 176 (at p. 184), as follows: “A bill of particulars is appropriate in all descriptions of actions where the circumstances are such that justice demands that a party should be apprised of the matters for which he is to be put for trial with greater particularity than is required by the rules of the pleading.” This was approved in Watkins v. Cope, 84 N. J. L. 143, 147.

“The courts of common law have a general jurisdiction, independently of any statute, to order particulars of the demand in an action, or of defense, to be given, in order to prevent the necessity of applying to a court of equity.” 2 Arch Q. B. Pr. 1450.

By rule 20, H. T. 1853, “a summons for particulars, and order thereon, may be obtained by a defendant before appearance, and may be made, if the judge think fit, without the production of any affidavit.” 2 Arch. Q. B. Pr. 1454.

“It is discretionary with the judge to make an order at any time before the trial. But in general it will be refused after plea pleaded, unless under special circumstances.” 2 Arch. Q. B. Pr. 1454.

“A bill of particulars may usually be moved for at any time before trial, even before appearances entered, or after issue joined, or a reference to arbitrators. At the trial it is too late, and if a party delay to move for a bill, it should be at his own costs.” 2 Am. & Eng. Encycl. L. 248; 3 Encycl. Pl. & Pr. 532.

When good reason exists for ordering a bill of particulars, the mere circumstance that a general denial has been filed is no reason to stay a court from requiring particulars which will limit the plaintiff on the trial and apprise the defendant of what is proposed to be set up. The proper administration of law requires that such information be given.

■ The particulars demanded go a little beyond an inquiry into the foundation and object of the action. A demand for evidence is not proper. The defendant is not entitled to copies of letters and communications, but is entitled to know the dates of the letters and communications referred to, and to whom the letters were sent and the communications made.

The application, as modified, will be granted.


text:
    Union County Circuit Court.
    JOHN A. RUBINO, TRADING AS UNITED STATES STEEL AND WIRE COMPANY, CLAIMANT, v. GROVER C. TRANOR AND HERBERT C. McVOY, OWNERS, AND PIONEER IRON WORKS, INCORPORATED, A CORPORATION, AND BERNHARD MILLER AND MORRIS ABRAMSON, TRADING AS INTERSTATE IRON WORKS, BUILDERS, AND MEYER M. SEMEL, RECEIVER OF PIONEER IRON WORKS, INCORPORATED, AND FIDELITY UNION TITLE AND MORTGAGE GUARANTY COMPANY, A CORPORATION, MORTGAGEE, DEFENDANTS.
    Before Union County Common Pleas Judge Lloyd Thompson, by reference and stipulation.
   This is a motion to strike out the complaint on the ground of misjoinder of two separate causes of action in each of two counts. It might well have been made on the ground that as to one of the debts set forth therein the complaint does not state facts sufficient to constitute a cause of action against the defendants Tranor and McYoy or a lien on their lands. Counsel have in their briefs really argued the motion as though it had actually been made on that ground and rest their respective contentions on their conception of the merits considered from that standpoint, as well as that of alleged misjoinder. The first count alleges a lien, under the Mechanics Lien law, upon the real estate of the defendants, Grover C. Tranor and Herbert C. McYoy as owners, for the amount of two debts to the plaintiff, one from Pioneer Iron Works, Incorporated, in the amount of $607.07, and the other from Bernhard Miller and Morris Abramson, trading as interstate Iron Works, in the sum of $266.59. The amount of each debt is alleged to be the contract price of work done or materials furnished in each case to the building constructed on the lands of Tranor and McVoy. The second count sets up the same debts, the amounts being therein alleged to be the reasonable worth of the respective work and materials furnished.

The facts are as follows: Tranor and McVoy, owners of the land, contracted with Pioneer Iron Works, Incorporated, for certain steel material and construction on their lands in Westfield, New Jersey. Pioneer Iron Works, Incorporated, in turn, contracted with the plaintiff for the furnishing of such material and construction. Plaintiff furnished it to the extent of $607.07. The last materials furnished or work done on the buildings by the plaintiff, under this contract, was on June 24th, 1929. Pioneer Iron Works, Incorporated, failed, a receiver was appointed, and the plainitff was not paid. He filed no materialman’s lien within four months of June 24th, 1929, for this debt. Subsequently, McVoy and Tranor, owners, contracted with Miller and Abramson, trading as Interstate Iron Works, for similar materials and work necessary to complete the construction. The latter also, in turn, contracted with the plaintiff for furnishing these materials and work to the extent of $266.59. None of the contracts were filed. The last materials furnished by plaintiff to Interstate Iron Works and used in the building in question was on October 23d, 1929. Within four months thereafter, plaintiff filed his lien and brought this action against Tranor and McVoy, as owners of the land, and against Pioneer Iron Works, Incorporated, for the labor and materials previously furnished to it (and for which plaintiff had failed to file a lien claim within the statutory four months), and against Interstate Iron Works for the remainder of the materials. The receiver of Pioneer Iron Works, Incorporated, and the Fidelity Union Title and Mortgage Guaranty Company, mortgagee, are also made parties defendant.

The objection to the complaint, on the part of the defendants, Tranor and McYoy, owners, and the ground of their motion to strike the complaint, is that the claims are misjoined in the same counts, in that they are not debts against the same parties, or all proper liens against the land and buildings, and that they are independent and separate causes of action against different parties, and that, as before stated, the claim against Pioneer Iron Works, Incorporated, does not constitute a cause of action against Tranor and McYoy, or a lien on their lands. It is claimed that this is so because neither Tranor and McYoy, nor their lands, can be liable for the plaintiff’s claim for the materials furnished and work performed under his contract with Pioneer Iron Works, Incorporated, for the reason that plaintiff lost his right against Tranor and McYoy, or their lands, by failure to file a materialman’s lien claim within the statutory period of four months, and that plaintiff therefore has a claim only against Pioneer Iron Works, Incorporated, and its receiver, which is a separate and distinct cause of action against a party other than the defendants, Tranor and McYoy, and that such cause of action may not be joined in the same counts with the cause of action properly against them or their lands. The plaintiff contends, on the other hand, that it has a cause of action against Tranor and McYoy, or a lien on their lands, by reason of the indebtedness of Pioneer Iron Works, Incorporated, under the Mechanics Lien law, and that there is therefore no misjoinder. The basis of the plaintiff’s contention is that the work and materials furnished by him to Pioneer Iron Works, Incorporated, under the one contract, and the materials furnished to Interstate Iron Works under the other contract, all went into the building of Tranor and McYoy, and that notwithstanding that plaintiff may have lost his right of lien originally, under the Pioneer Iron Works, Incorporated, contract, by his failure to file his lien within four months, nevertheless he, having subsequently furnished materials to the same building, although for another contractor, and having filed his lien and brought his action within four months of the date that the last materials were furnished under the second contract, he may now bring this action for all the work and materials under both contracts, arguing that the last date of furnishing of any materials fixes the time within which he may bring his action for all.

I am of the opinion that the plaintiff is wrong in this contention, for two reasons:

First, because to sustain such a contention would mean destroying the protection of the statute (section 18 of the Mechanics’ Lien law) to the owner with respect to the time as of which he is charged with notice of the possible claims of mechanics or materialmen. The law provides that the mechanic .or materialman must file his lien within four months from the date of the last work done or material furnished. This is manifestly so that an owner may know when he may safely pay his contractor, free from the possibility of later claims of those having done work or furnished materials, and whom the contractor has failed to pay. There must be a time when an owner may have this security. The statute fixes it at four months. The owner could not rely upon this security if it were possible that a materialman or mechanic who had furnished materials or done work for a given contractor, and failed to file his lien within the statutory period, could, by contriving to furnish some material or perform some labor subsequently, through another contractor, upon the same premises, thereby revive a lien which an owner had become secured against previously, by reason of the expiration of the four months period limited by the statute. As.counsel for the defendants aptly argues in his brief, it would be possible under the plaintiff’s theory for the statutory period to elapse, and the owner rely on it in making payments, and many months and even years afterward, if the owner happened to employ the same mechanic or buy materials from the same materialman, a previously extinguished right of lien would thereby become revived by reason of the later date of furnishing labor and material to the same premises. Such a situation could not have been contemplated by the statute. To say that the statute does not protect against such a situation is to throw wide open the gates for fraud against an owner, and to make owners, mortgagees, purchasers and all others dealing with the real estate in question, subject to unknown and indeterminable risks.

Second, I believe the statute itself inhibits its working out in the manner contended by the plaintiff, and with the result I have above indicated, because the language of section 1 is as follows: “Every building hereafter erected or built within this state shall be liable for the payment of any debt contracted and owing to any person for labor performed or ma- ' terials furnished for the erection and construction thereof, which debt shall be a lien on such building,” and section 18 reads: “No debt shall be a lien by virtue of this act unless a lien claim is filed as hereinbefore provided within four (4) months from the date of the last work done or material furnished for which such debt is due.” (The italics are mine).

It clearly appears that what is intended to be a lien on the lands is a debt, the debt to the mechanic or materialman, owing by the one with whom he contracted to do the work or furnish the material. The debt of the mechanic or material-man is not against the owner, unless the owner contracted with him. It is against the contractor, and it is this debt that becomes a lien, and once the lien period has expired, that debt can never again be a lien on the property, and it certainly can not be reinstated as a lien by coupling it with a debt due from another party which may be a lien because filed within time. That is what has been sought to be done by the plaintiff in this case. He has a debt against Pioneer Iron Works, Incorporated, for which he has no lien on the lands, and he has another debt against Interstate Iron Works, for which he has a lien on the lands. Both of these debts are against different parties. Neither of them is the debt of the defendants, Tranor and McYoy, owners of the lands, though the lands may be subject to a lien for one of them. Tranor and McYoy are in no way concerned with plaintiff’s debt against Pioneer Iron Works, Incorporated, their lands being no longer subject to a lien for it. The cause of action against Pioneer Iron Works, Incorporated, is against it alone. Neither Tranor and McVoy nor Interstate Iron Works is concerned with it, yet it is joined in the same count with claims against these defendants. These causes of action have no relation to each other. The debts are not the same debts, and the debt that lost its lien cannot ride in on the property with the debt that has a lien.

Plaintiff’s counsel cites the case of Gardner & Meeks Co. v. New York Central Railroad, 72 N. J. L. 257, and Boynton Lumber Co. v. Evans, 101 Id. 120. It is true, these cases are authority for the proposition that a mechanic or material-man has his lien claim on the lands and buildings irrespective of his contractual relation with the owner, but neither of them lends any countenance to the contention that where the statute gives a lien for a debt, and such debt has lost its lien by expiration of time, it can he revived by arbitrarily linking it with another separate and different debt that has not lost its time. The case of Franklin Society v. Thornton, 85 N. J. Eq. 37, holds that the Mechanics’ Lien law is to be construed strictly, so far as it established an encumbrance upon the property of one person for another person’s debt.

For the foregoing reasons I conceive the causes of action to have been improperly joined in both of the two counts in the complaint, and the claim against Pioneer Iron Works, Incorporated, not a cause of action against ’ Tranor and McVoy or a lien on their lands. If there had been separate counts in one of which the claim growing out of the Pioneer Iron Works, Incorporated, contract had been separately set out, the defendant owners might have moved to strike that count, leaving the other count involving the claim growing out of the Interstate Iron Works contract unaffected and subject to answer; but by uniting all the claims in one count as to contract price, and in the other count for reasonable value, the plaintiff has left defendants no alternative but to' move to strike the whole. The motion to strike will be' granted, or I will entertain a motion to amend the complaint by eliminating the claim under the Pioneer Iron Works, Incorporated, contract against Tranor and McVoy on their lands.


author: Macicay, J.

text:
    Passaic County Circuit Court.
    RUTH METZLER, PLAINTIFF, v. WALTER METZLER, DEFENDANT.
   Macicay, J.

The plaintiff in this action, Enth Metzler, is the wife of the defendant, Walter Metzler. By virtue of some contract, or agreement or contractual relationship or other, the plaintiff brought an action at law in the New York courts as wife against the defendant and obtained a judgment for the amount mentioned in the complaint in this action. It seems to be admitted that a judgment was rendered and that the authority for the wife to bring an action at law against the husband was governed by a New York statute providing therefor. The wife now brings this action in the New Jersey court of law founded upon this judgment obtained in the New York court of law. It is admitted by both plaintiff and defendant that the husband was regularly served in New York and there was no fraud. These appear to be the two defenses allowed to an action in this state upon what is called a foreign judgment.

The plaintiff moves for a summary judgment contending that because of the New York statute giving authority to sue at law in New York, that she has a right to bring her action in this state upon the judgment there obtained. The defendant moves to strike out the complaint on the ground that the plaintiff is not entitled to maintain her action in this court.

Counsel for both plaintiff and defendant said they could find no law on the subject in New Jersey or elsewhere where a judgment had been obtained in a state in an action at law by the wife against the husband or vice versa, and an action brought upon that judgment in a law court in a state where there was no statute.

At first blush I was inclined to believe, that the plaintiff was entitled to a judgment, but upon mature consideration of the matter I am inclined to believe that the action cannot be maintained.

In the case of Wood v. Chetwood, 44 N. J. Eq. 64; 14 Atl. Rep. 21; affirmed, 45 N. J. Eq. 369; 19 Atl. Rep. 622, Vice-Chancellor Van Pleet said:

“If a right of action exists in the complainant, it would seem to be unquestionable that this court has exclusive original jurisdiction over it. The foundation of the action is a contract made by a husband with his wife. To entitle the complainant to recover, a contract, either express or implied, must be shown to have existed between the husband and his wife. Contracts between persons holding this relation to each other still stand on their ancient footing—void at law, but good in equity, if fair and fairly obtained. The statutes giving married women the same dominion over their property that they might exercise if they were single, expressly declares: ‘Nor shall anything herein enable husband or wife

to contract with or to sue each other- except as heretofore/ Rev., p. 639, § 14. Courts of equity alone can give a remedy on a contract made between a husband and his wife, whether redress is sought by one of the original parties against the other, or by or against the legal representative of one or both of the original parties. Woodruff v. Clark, 13 Vr. 198; Gould v. Gould, 8 Stew. Eq. 37; S. C. on appeal, Ibid. 562; Rusling v. Rusling, 18 Vr. 1; National Bank of Rahway v. Brewster, 20 Id. 231.” See, also, Drum v. Drum, 69 N. J. L. 557.

I cannot find anything in the statutes since this decision changing the rule as to the right of the wife to sue the husband or the husband to sue the wife at law.

Again, we find it is held that—

“Under the common law neither spouse can. sue the other at law, the relation of the parties in the view of law being inconsistent with the idea of any legal controversy between them. Brown v. Brown, 88 Conn. 42; 89 Atl. Rep. 889; Whiting v. Whiting, 114 Me. 382; 96 Atl. Rep. 500; Atkins v. Atkins, 195 Mass. 124; 80 N. E. Rep. 806; 122 Am. St. Rep. 221; 11 L. R. A. (N. S.) 273.”

“The doctrine that husband and wife could not sue each other was founded upon the theory that they were one person in law and is supported by weighty considerations. Lombard v. Morse, 155 Mass. 136, 140; 29 N. E. Rep. 205; 14 L. R. A. 273.”

“Public policy originating in the delicate relation existing between husband and wife forbade the wife from maintaining an action at law against her husband. Heacock v. Heacock, 108 Iowa 540, 543; 79 N. W. Rep. 353; 75 Am. St. Rep. 273.”

“The common law rule still prevails except where changed by statute, either expressly or impliedly. Wood v. Chetwood, 44 N. J. Eq. 64; 14 Atl. Rep. 21; affirmed, 45 N. J. Eq. 369; 19 Atl. Rep. 622; Hunt v. Koehler, 236 Pa. St. 13; 84 Atl. Rep. 583; Leahy v. Leahy, 97 Ky. 59; 17 Ky. L. Rep. 187; 29 S. W. Rep. 852; Greenwood v. Greenwood, 113 Me. 226; 93 Atl. Rep. 360; Frankel v. Frankel, 173 Mass. 214; 53 N. E. Rep. 398; 73 Am. St. Rep. 266.”

The motion to strike out the complaint will be granted.


author: Kipp, J.

text:
    Second Judicial District of Bergen County.
    BLOOMINGDALE BROTHERS, INCORPORATED, PLAINTIFF, v. ROSA COOK AND GEORGE B. HOLMAN COMPANY, INCORPORATED, DEFENDANTS.
    Submitted June 10, 1930
    Decided October 30, 1930.
    Eor the plaintiffs, McDermott, Enright & Carpenter.

    For the defendant George B. Holman Company, Incorporated, Stanton T. Lawrence.

   Kipp, J.

The above matter was tried on Tuesday, June 10th, 1930. The plaintiff offered in evidence a conditional sales contract between itself and one Eosa Cook, dated August 19th, 1927. By the terms of said contract, Bloomingdale Brothers, Incorporated, sold, and the said Eosa Cook purchased, one Walters player piano, and the said contract further provided that title to the said chattel should remain in Bloomingdale Brothers, Incorporated, until the full amount of the agreed purchase price should have been paid. This contract was admitted in evidence and marked Exhibit "P-1.”

Plaintiff then showed that the said Eosa Cook did not make payments in accordance with said contract, but that she was in arrears thereunder and owed a balance of $362. Plaintiff then produced a certificate of the clerk of Bergen county, to which was annexed a copy of the said contract, to the effect that a true copy of said contract was filed in his office on September 2d, 1927. Said certificate was admitted in evidence and marked Exhibit “P-2.”

Demand for possession of said instrument and due service of replevin papers was admitted by counsel for the defendant George B. Holman Company, Incorporated.

On behalf of defendant Holman and company, Henry Holman, its Hackensack manager, testified that his company was engaged in the business of storage warehousemen, and as such, on September 25th, 1929, received from Rosa Cook the items herein sought to be replevined. There was offered in evidence on behalf of the defendant the standard warehouse declaration, signed by Rosa Cook, that the goods placed in storage were the sole and exclusive property of the said Rosa Cook (marked Exhibit “D-1”), and the standard form of non-negotiable warehouse receipt was issued to the said Rosa Cook under the statute, which receipt has never been surrendered; that the goods have remained in storage until replevined in the month of May, this year. Just prior to the institution of replevin suit, the defendant was notified by plaintiff’s attorney that a conditional bill of sale existed on the piano and not to permit the piano to be removed without the authority of the plaintiff; that charges against the goods for handling and storage were thirty dollars ($30), which is the standard charge, and that the same has not been paid nor tendered to defendant, but is still due and owing.

The validity and operation of any terms as set forth in Exhibit “D-1” will, of course, depend upon the law as enacted in the Warehouse Receipts act and Conditional Sales act of this state. It is contended by plaintiff that under the circumstances above set forth, the title and property right of the conditional vendor who has duly recorded his conditional sales contract is paramount to the lien of a warehouseman with whom the chattel in question is stored after the filing of said contract.

2 Cum. Supp. Comp. 8tat., §§ 182, 190, subdiv. 4, of the Conditional Sales act of this state reads as follows:

“Every provision in a conditional sale reserving property in the seller after possession of goods is delivered to the buyer, shall be valid as to all persons, except as hereinafter otherwise provided.”

The exception with which we have to deal is as follows (2 Cum. Supp. Comp. Stat., §§ 182, 191 ,-subdiv. 5) :

“Every provision in a conditional sale reserving property in the seller, shall be void as to any purchaser from or creditor of the buyer, who, without notice of such provision, purchases the goods or acquires by attachment or levy a lien upon them, before the contract or a copy thereof shall be filed as hereinafter provided, unless such contract or copy is so filed within ten days after the making of the conditional sale.”

It will be noted that a warehouseman does not fall under any of the classifications protected by this section. He is not a purchaser from nor is he a creditor of the buyer, who, without notice “purchases the goods or acquires by attachment or levy a lien upon them.” This, however, is mérely incidental, since the contract in the instant case was filed with the county clerk prior to the deposit of the chattel in question with the defendant. Sections 182 to 191 makes void the reservation of title only where the purchase is made or lien acquired “ * * * before the contract or a copy thereof shall be filed. * * *.” This section then continues with “* * * unless such contract or copy is so filed within ten days after the making of the conditional sale.” This provision gives the conditional vendor absolute protection for a period of ten days after making the contract. During such period no one could get title to or acquire a lien upon the chattel even though a purchase or levy were made before such filing provided the contract is filed within the designated ten-day period. This phrase does not by any means have the effect of limiting a conditional vendor to the filing of his contract within ten days after the making thereof, in order that he may be protected at all by such filing. A conditional vendee is protected even though his contract is filed more than ten days after its making, provided that it is filed before the right of any intervening party accrues. Morey & Co. v. Schaad, 98 N. J. L. 799.

It seems clear therefore that under the Conditional Sales act of this state no one could acquire title to or a lien upon the chattel in question superior to the title and property right ■of the plaintiff where the title or lien of such third party accrued subsequent to the filing of such conditional sales contract.

If the defendant George B. Holman Company, Incorporated, is to prevail it must be by virtue of the Warehouse Eeceipts act. Section 28 of this act (4 Comp. Stat., p. 5781), reads as follows:

“Subject to the provisions of section 30, a warehouseman’s lien may be enforced—

(a) Against all goods, whenever deposited, belonging to the person who is liable as debtor for the claims in regard to which the lien is asserted; and

(b) Against all goods belonging to others which have been deposited at any time by the person who is liable as debtor for the claims in regard to which the lien is asserted, if such person had been so intrusted with the possession of the goods that a pledge of the same by him at the time of the deposit to one who took the goods in good faith for value would have[ been valid." Pamph. L. 1907, p. 348.

Subdivision B of this section pertains to the lien that a warehouseman may obtain upon goods belonging to others than the depositor thereof. The Conditional Sales act of this state protects the title of Bloomingdale Brothers, Incorporated, especially in view of the fact that a copy of the conditional sales contract was duly filed before the chattel in question was deposited. Our present situation is therefore one in which the depositor deposits goods belonging to another. Subdivision B of section 28 is to the effect that a warehouseman’s lien may be enforced as to such goods only if such depositor “* * * had been so intrusted with the possession of the goods that a pledge of the same by him at the time of the deposit to one who took the goods in good faith for value would have been valid.”

There can be no doubt whatsoever that a pledge of the chattel in question by the depositor, Eosa Cook, would not have been valid as against Bloomingdale Brothers, Incorporated, under the Conditional Sales act of this state.

The defendant brought out in evidence that there was a non-negotiable receipt outstanding. This fact was not urged as a defense to the obligation of the warehouseman to surrender the chattel to the conditional vendor. o

There do no appear to be any cases covering this specific point in this state. We find the following decision in New York state where there is a Uniform Warehouse Receipts act which is .similar to the New Jersey act. 5 Am. Dig., p. 138; N. Y. Supp., 1910. The right of a mortgagee to possession of personalty, under a mortgage, duly filed, giving that right on-any default of the mortgagor, is superior to the lien of a warehouseman, with whom the mortgagor has stored the goods, under General Business law (laws 1909, chapter-25; consolidated laws, chapter 20), section 113, subdivision “b” allowing enforcement of such a lien against goods, irrespective of ownership, where the person storing them had been so intrusted with them that a pledge of them to a pledgee in good faith, for value, would be valid, since the mortgage, being duly filed, would be constructive notice to a pledgee, so that the warehouseman was not within the statute. Ludwig, Baumann & Co. v. Roth, 123 N. Y. Supp. 191; 67 Misc. Rep. 458.

It may seem a hardship to compel a warehouseman to examine the records in the county clerk’s or register’s office before accepting a chattel for storage, but under the law as it is he must either do so or else protect himself by collecting his storage fees in advance.

Judgment for possession is given to the plaintiff.


text:
    ALICE HANNA, DEFENDANT, v. ERIE RAILROAD COMPANY, PROSECUTOR.
    Argued May 7, 1930
    Decided November 14, 1930.
    Before Justices Parker, Campbell and Bodine.
    Eor the defendant, Alexander M. MacLeod.

    Eor the prosecutor, Ilolart & Minard.

   Per Curiam.

The prosecutor seeks to review an award of compensation under the statute. Alice Hanna, the defendant, is the mother of the decedent, William Hanna, who was fatally injured on the night of April 5th, 1927, while in the employ of the Erie Eailroad Company at Secaucus. Compensation was awarded and from the award an appeal was taken to the Court of Common Pleas.

The Common Pleas Court found that the accident occurred in the course of the employment and arose out of the employment, and that the injury occurred while the decedent was engaged in intrastate commerce.

The findings of fact by the trial judge will not be disturbed, if they are supported by evidence. Geisel v. Regina Co., 96 N. J. L. 31, 33; affirmed, 97 Id. 331; Kauffeld v. G. F. Pfund & Sons, Ibid. 335, 336.

The prosecutor argues that there was no evidence to justify the finding of the Court of Common Pleas that the accident arose out of and in the course of the employment, and that the decedent was not engaged in intrastate commerce.

The deceased had been working for eight or nine days before his death on what is known as cab work. Cab work is-said to be the setting of the valves and piston packing , in engines. Some of the engines on which he worked were used in the yard and some went out on the side lines. The sidelines appear to be the line to Hackensack and the line to-Greenwood Lake. It further appears that the deceased worked on the night shift. The cab work was done in the roundhouse or outside the machine shop. It was customary for the employes to eat lunch between three and three-twenty a. m. Some of the employes went over to the Y. M. C. A. across the street, while others went into the machine shop where no adequate benches or other facilities were provided for them, and ate their lunch wherever it might happen to-suit them. In the machine shop was a planer, which was-somewhat out of repair, and would start occasionally, if the-power was still on, without the application of manual manipulation. Sometimes the employes sat on the planer. Although the foreman does not appear to have been in the-machine shop at lunch time, still the custom of eating lunch in that shop seems well established and the use of the plañeras an occasional seat was also established. Ho signs were displayed forbidding the men from sitting where they chose.

The deceased sat upon the planer—a friend was already there. The power was still on, and the machine apparently commenced operations without anyone moving the lever designed to put it in motion. The young man was cruelly injured and died almost immediately.

Within our decisions there was sufficient evidence of the-intrastate character of the work to justify the conclusions of' the Common Pleas Court. In Bissett v. Lehigh Valley Railroad Co., 102 N. J. L. 283; affirmed, 103 Id. 172, it was-held that a railroad employe, who at the time of his injury was repairing a pump on an engine used in shifting cars in. the railroad yard was not engaged in interstate commerce—■ Ills general work being the repair of engines and cars. Mr. Justice Katzenbach, in writing the opinion in that case, exhaustively reviews the prior decisions. In Herzog v. Hines, 95 Id. 98, a car repairer was repairing a freight car attached to several other cars in the freight yard. Since the instrument of commerce was entirely out of commission, the work was not being done in interstate commerce. In Mathison v. Payne, 98 Id. 87; 99 Id. 285, a roundhouse employe engaged to take care of engines used in interstate and intrastate commerce was held employed in both. In Price v. Central Railroad Co., Ibid. 425, an employe was held not engaged in interstate commerce, who was employed in repairing ears used in both sorts of commerce. In Jayson v. Pennsylvania, 101 Id. 159, a shop employe repairing a ear withdrawn from interstate commerce for repairs was held not engaged in such commerce. See, also, Hart v. Central Railroad, 147 Atl. Rep. 733; affirmed October 20th, 1930.

The mere circumstances that the employe was eating Ms lunch does not seem to alter the case. Zabriskie v. Erie Railroad, 86 N. J. L. 266; Terlecki v. Strauss, 85 Id. 454; affirmed, 86 Id. 708.

In Terlecki v. Strauss, supra, a girl employed in a woolen factory had left her machine preparatory to going home. She was combing wool from her hair and was standing before a mirror for that purpose. It appeared that other girls had done likewise, and that the practice was not forbidden. The injured girl’s hair got in the moving machinery and she was badly injured. Mr. Justice Swayze said: “It would be entirely too narrow a construction to limit the benefit of the statute to the time the workman is actually employed at his machine. He must have time to reach his machine and to get away from his employer’s premises. In fact, it is a necessary implication of the contract of employment that the workman shall come to his work and shall leave with reasonable speed when the work is over. The preparation reasonably necessary for beginning work after the employer’s premises are reached and for leaving when the work is over is a part of the employment. A workman is none the less in the course of employment because he is engaged in changing his street clothes for his working clothes, or in changing his working clothes for his street clothes. In the present case it was reasonably necessary that the petitioner should comb her hair and remove the particles of wool before leaving the factory.”

It is sought, however, to distinguish the case at bar on the ground that there was no proof that there was a custom to sit upon the planer, or that this custom was known to the foreman. The proofs, however, do show quite conclusively that it was the custom for the workers to eat their lunch in the machine shop. No other provision was made for them, except that they could go to the Y. M. C. A. across the street. No benches were arranged for them in the machine shop, but they sat wherever they chose, upon machinery or anything that was convenient, and the planer had been used on several occasions as a convenient place to sit and eat. There is the further circumstance that the planer was known to be out of order and would start up while the power was on without the application of any levers. The men were not warned of any danger or forbidden to use the machine shop as they saw fit.

In Zabriskie v. Erie Railroad, supra, no toilet facilities were provided at the place of work, and it was the custom of employes to cross a public street between the employer’s premises in order to satisfy their needs. All this was known to the employer, and the court held that an employe injured, by being struck by an automobile on the public street while crossing the same in order to use the toilet, was injured by an accident arising out of and in the course of the employment.

In Fisher v. Tidewater Building Co., 96 N. J. L. 103; affirmed, 97 Id. 334, it was held that: “When a workman was killed some distance from the place of his employment, while boarding a train on which the employer furnished free transportation from the place of employment to the workman’s home, the accident causing the death was one which arose out of and in the course of his employment.”

In Blovelt v. Sawyer (1904), 1 K. B. 271, the accident was to the workman during the dinner hour while he was eating his dinner on the premises. There was no rule as to the workman going or staying during the dinner hour. He was at liberty to do either. While he was eating his dinner a wall fell upon him. The court found that there was no break in his employment, and the workman was entitled to his compensation.

In Rowland v. Wright (1909), 1 K. B. 963, it appears that a teamster was in the stable in the course of his duties. While there he ate his dinner and was bitten by the stable cat. The court held that eating his dinner did not put an end to the course of his employment and the workman was allowed compensation, not because he was eating his dinner but because he was on the spot in the course of his employment.

In Armstrong, Whitworth & Co. v. Bedford (3920), A. C. 757, a girl employed as a machinist left the works where she was employed, during the dinner hour, as the rules required, and went to a canteen provided by the employers for their women workers in another part of the premises. The canteen and the works were within the same curtilage, but by day the canteen could only be reached by the street. The workers were invited, but were not obliged, to use the canteen. After finishing her dinner the girl was hurrying down a flight of stone stairs leading from the canteen into the street in order to return to her work when she slipped and broke her ankle. She claimed compensation under the Workmen’s Compensation act, 1906, and it was held that there was evidence upon which the arbitrator could find that the injury arose in the course of as well as out of the employment.

In the note to Thomas v. Proctor and Gamble Manufacturing Co., 104 Kans. 432; A. L. R. 1145, 1151, the following appears: “In a number of cases it has been held that an injured workman is entitled to compensation for injuries received on the master’s premises, although the accident occurred during the lunch hour when work was not actively in progress, where the eating of the lunch on the premises was with the master’s knowledge and consent, express or implied.

“Thus an employe may be found to be performing service ‘growing out of and incidental to his employment/ where he was seated on a large piece of rubber in a room in the factory at the noon hour, eating his lunch in accordance with the long established custom known by and tacitly consented to by his employer, and a pile of crude rubber near him unexpectedly fell on him, breaking his leg. Racine Rubber Co. v. Industrial Commission (1917), 165 Wis. 600.”

It is finally argued that the case falls within the rule laid down in Schmoll v. Weisbrod & Hess Brewing Co., 89 N. J. L. 150. We do not think so. In that case, the decedent, a collector for the brewery, was shot by an unknown person while returning to his wagon. Apparently robbery was the motive. The decision in that case is rested upon the simple ground that there was no fact or circumstance before the court that connected the shooting, either directly or indirectly, with the employment.

There is nothing in the case to justify a conclusion that the injury occurred by reason of horseplay or skylarking. Hully v. Moosbrugger, 88 N. J. L. 161.

The application will be denied.


text:
    WILLIAM KANE, PLAINTIFF, v. KELLY & McALINDEN COMPANY, A BODY CORPORATE, ET AL., DEFENDANTS. PAT MORSE, PLAINTIFF, v. KELLY & McALINDEN COMPANY, A BODY CORPORATE, ET AL., DEFENDANTS.
    Submitted May 17, 1930
    Decided November 14, 1930.

      Before Justices Parker, Campbell and Bodine.
    Eor the plaintiffs, Quinn, Parsons & Doremus.

    Eor the defendants Kelly & MeAlinden Company and David R. Kipp, Charles Stockwell Gray.

   Per Curiam.

The eases were tried at the Monmouth Circuit. Both plaintiffs and the defendants have rules for new trials. The plaintiff Morse recovered a verdict of $750 and the plaintiff Kane one of $500. Both were seriously injured. They were injured while riding in a truck owned and operated by Stryker & Stryker, their employers. The firm is not involved in the litigation.

The testimony adduced in behalf of the plaintiffs indicates that the Stryker truck was being driven from Roselle where the plaintiffs had been working. The driver of the truck was familiar with the concrete ro'ad on which he was driving. The evidence indicates that when he was approaching Lawrence Harbor and about twenty-five or thirty feet from a dirt crossroad he saw the defendants’ car approaching. This car was coming out of the dirt road and onto the concrete road and was moving slowly. To avoid striking this car, the Stryker truck, which was proceeding at about thirty miles an hour, was suddenly swerved to the left and proceeded a short way along the highway and overturned after it had struck a telegraph pole on the opposite side of the road. In this manner were the plaintiffs injured.

The testimony adduced on behalf of the defendants indicates that the defendants’ car was at a standstill, and that the driver was waiting an opportunity to cross and did not cross or come out on the road until after the Stryker car had turned over.

The trial judge submitted the issues in a well-balanced charge.

The plaintiff Kane suffered a fracture of the pelvis. The testimony indicates that there will he a permanent dislocation which will require years of patient treatment. The medical testimony indicates that he was completely disabled for one year and will be partially disabled for another, and will always suffer some pain and impairment of his efficiency. He earned $27 a week before the accident and was regularly employed. He has expended $628 upon physicians and surgeons and is .in no sense compensated for his proved injury by a verdict of $750.

The plaintiff Morse sustained a fracture of the leg and was out of employment for more than a year by reason thereof, and is still unable to work. He appears to have been regularly employed prior to the accident and to have been in receipt of weekly wages of $27. His doctor’s bill amounted to $230 and he still suffers pain. A verdict of $500 in this case cannot be said to be just compensation for the proved injuries.

We do not think there should be a new trial on damages only. We do'not think that the verdicts should stand as fixing the liability of the defendants. Examination of all the evidence leads to the conclusion that the jury had doubt as to the negligence of the defendants and the verdicts look like a compromise.

There will be rules absolute for new trials.