author: Way, C. P. J.

text:
    Cape May County Orphans Court.
    IN THE MATTER OF THE ESTATE OF EMILY M. LAKE, DECEASED.
    Decided October 30, 1940.
    Proctors for the estate, Norcross & Farr.

   Way, C. P. J.

Emily M. Lake by her last will dated October 28th, 1924, in the second paragraph, bequeathed, free and clear of all estate, inheritance taxes or other taxes, $1,000 to her daughter, Ada Emily Lake Soars; $1,000 to her daughter, Della May Lake Oliver; and $500 to her grandson, Charles Henry Masland, Jr. In the third paragraph of her will she bequeathed $2,500 free and clear of all estate, inheritance taxes or other taxes, to the Provident Trust Company as trustee, to invest and hold until her grandchildren, Alfred Cookman Oliver, Jr., James Edward Lake Oliver, David Kogers Oliver, John Crane Oliver and Jean Hart Oliver should severally attain the age of twenty-one years. The will further provided:

“If my said grandchildren respectively attain the age of twenty-one years, my trustee shall pay over, transfer and assign unto each such grandchild so attaining said age, one-fifth part of the entire capital or principal of said trust and the accumulated income thereon, absolutely, clear of all trusts. If any of iny said grandchildren should die before attaining the age of twenty-one, then at his or her decease respectively my trustee shall pay over, transfer and assign the share of the capital or principal of said trust and accumulated income thereon, which such deceased grandchild would have been entitled to take and receive if he or she had continued to live, unto Della May Lake Oliver, if she should then be living, otherwise unto her heirs and next of kin under the intestate laws of the State of New Jersey.”

In the fourth paragraph the testatrix bequeathed all the residue of her estate, real, personal and mixed, equally to her daughters, Ada Emily Lake Soars and Della May Lake Oliver.

On April 3d, 1928, the testatrix died leaving all the beneficiaries named in the will surviving her except James Edward Lake Oliver who died a minor at the age of fourteen on January 13th, 1928. All the others are now living. All the grandchildren named in the will who are living have attained twenty-one with the exception of Jean Hart Oliver who is a minor of the age of twenty years, and will attain the age of twenty-one years on October 23d, 1940.

The executor filed an accounting showing a balance for distribution, before payment of costs and expenses of accounting, commissions and proctor’s fees, in the sum of $3,596.59, and showing payments on account of distributive shares as follows: to Ada Emily Lake Soars, from corpus $250; to Della May Lake Oliver, from corpus $200, and from income $50. Thus there is an insufficiency of assets to pay the legacies in full.

At her death, the testatrix held title to some lots at National Park, New Jersey. The executor, since its appointment, has endeavored to secure a purchaser for the lots, and none could be found. More than two years ago the lots were sold for taxes and were purchased by the borough of National Park. At the present time the accrued taxes, with interest, costs and penalties due equal or exceed the sale value.

The executor now seeks instructions on the following questions:

1. Does the legacy to James Edward Lake Oliver, contained in the third paragraph of decedent’s will, pass to the remaining grandchildren, to Della May Lake Oliver, or lapse and fall into the residuary estate?

2. Do the legacies in the will constitute a charge against the real estate owned by the decedent at the time of her death ?

3. Should the taxes on the real property be paid out of the balance in the hands of the executor?

4. In what manner shall the property be distributed ?

5. What notice should be given to the legatees?

As to the first question the gift to decedent’s grandchildren was a gift to individuals rather than a gift to a class. A gift to persons by name indicates the testatrix’ intention to give to them as individuals, and it does not matter that they form a class of relatives. New Jersey Title Guarantee and Trust Co. v. Ellsworth, 108 N. J. Eq. 227; 154 Atl. Rep. 602; In re Cella’s Estate, 108 N. J. Eq. 496; 155 Atl. Rep. 263. This is a presumption, however, which can be overcome by evidence indicating to the contrary on the face of the will. But there appears to be no indication on the face of the will that this should be considered to be a class gift, while there is a strong indication that a gift to individuals was intended, namely the gift over upon the death of any of the grandchildren before attaining twenty-one.

Regarding this as a gift to individuals the legacy to James Edward Lake Oliver cannot pass to the surviving grandchildren. The more difficult question now arises. Will the gift over to Della May Lake Oliver take effect, or did it lapse ■because of the death of James Edward Lake Oliver before the death of the testatrix ?

It therefore becomes necessary to determine what the testatrix meant when she said “if any of my said grandchildren should die before attaining the age of twenty-one years, then at his or her decease, respectively, my trustee shall pay over” — whether she meant “should survive me and die before attaining twenty-one” or whether “should die either before or after my death and before attaining the age of twenty-one” was meant. Upon examination of the authorities, within this jurisdiction there appears to be no case sufficiently in point to settle the question. My examination of cases in other jurisdictions affords but little assistance, and it is a general scarcity of authorities that prompts a writing of this conclusion.

As I read the will it impresses me that the testatrix did not intend the gift over to be effective unless one of her grandchildren (and she specifically named all of them) survived her and died before attaining the age of twenty-one years. It would have been impossible to make the payment referred to upon the death of J ames Edward Lake Oliver during her (testatrix) lifetime. The gift over to Mrs. Oliver, upon the death of any of the testatrix’ grandchildren before attaining the age of twenty-one years is to be paid “at his or her decease respectively” and these words it seems would indicate that the testatrix had in mind only the death of such grandchild or grandchildren that might survive her. There is nothing to indicate that the gift over should take effect and the result would therefore be that the bequest to the grandchild James Edward Lake Oliver lapsed by reason of his having died prior to the death of the testatrix, and it would then follow that the gift of twenty-five hundred ($2,500) dollars, as mentioned in the third paragraph of decedent’s will was reduced to the sum of two thousand ($2,000) dollars. Counsel submitted many cases of interest but no case directly in point could be located. There is a general indication that, in the absence of other intentions expressed in testator’s will, the substitutionary gift will be held to be effective where the original legatee predeceased the testator or survived him and thereafter died before attaining the stipulated age. However, in the conflict of authorities one thing appears to stand out and that is, in construing the testatrix’ will the words used are to be given particular consideration rather than any general rule of law or construction. See 69 Corp. Jur. 355; Will Section 1364. A reading of the following English cases will prove to be of interest: Thornhill v. Thornhill, 4 Madd. 377; 56 Reprint (1819); Corlyn v. French, 4 Ves. Jr. 418; 31 Reprint 213 (at p. 221) (Master of the Rolls, 1799); Smith v. Smith, 8 Sim. 353; 8 Eng. Ch. 353; 59 Reprint 140; In re Hannam (Haddelsey v. Hannam), 2 Chanc. Div. (1897) 39.

As to the second question, the legacies in the wilf are a charge upon the realty to the extent that the personal estate is insufficient for the pajonent thereof. This is because the realty was not specifically devised and the legacies cannot be fully paid out of the personal estate.

As to the third question, the taxes on the real property should not be paid out of .the balance in the hands of the executor, but the realty should be conveyed to the legatees in proportion to their legacies, in case there should subsequently appear to be any equity in the lands then the legatees may benefit proportionately.

As to the fourth question, the legacies must be abated prorata. $1,000 was bequeathed to Ada Emily Lake Soars, $1,000 was bequeathed to Della May Lake Oliver, $500 was bequeathed to Charles Henry Masland, Jr., $500 was also bequeathed to each of decedent’s four grandchildren, Alfred Coolnnan Oliver, Jr., David Rogers Oliver, John Crane Oliver and Jean Hart Oliver. Payments have been made on account of distributive shares as follows: To Ada Emily Lake Soars $250 from corpus; to Della May Lake Oliver, $300 from corpus, $50 from income. The $500 paid out must be added to the balance in the hands of the executor after payment of costs and expenses of accounting, commission and proctor’s fees. This sum shall then be divided as follows-: two-ninths to Ada Emily Lake Soars (less $350 which has already been paid); two-ninths to Della May Lake Oliver (less $350 which has already been paid); one-ninth to Charles Henry Masland, Jr.; one-ninth to Alfred Cookman Oliver, Jr.; one-ninth to David Rogers Oliver; one-ninth to John Crane Oliver and one-ninth to Gene Hart Oliver.

As to the fifth question, since the interested parties 1-ive no further distant than Washington, District of Columbia, or Carlisle, Pennsylvania, fifteen (15) days’ notice may be given to each of the interested parties by sending the same registered mail with return receipt requested at their last known respective addresses.


source: Caselaw Access Project

author: John J. Stahl, Deputy Commissioner.

license: Public Domain

text:
    New Jersey Department of Labor, Workmen’s Compensation Bureau.
    FRANCES MARKIEWICZ, PETITIONER, v. INTERNATIONAL MILK CO., INC., RESPONDENT.
    Decided December 23, 1940.
    For the petitioner, Joseph V. Fumagalli (by Edwin J. O’Brien).
    For the respondent, James J. Sheffington.

   *******

From the undisputed facts as developed by the evidence in this case, it appears that the petitioner’s decedent, Antoni Markiewicz, was regularly employed by the respondent as an engineer in charge of its boiler room; that his wages were $40 per week; and that he met with an accident which arose out of and in the course of his employment on September 9th, 1938, when he was engaged in assisting several other workers lifting a drum containing a chemical compound and weighing several hundred pounds. He was lifting it onto a hand truck and while doing so he felt something snap in his lower abdomen and he thereupon slipped forward or backward, as I recall the testimony; causing the drum to strike him in the chest. The respondent does not deny the occurrence. It further appears from the evidence that the petitioner’s decedent died on December 22d, 1938.

The vital issue in controversy is whether or not the accident, as I have just related, caused or contributed to Markiewicz’s death. The question is largely one of medical opinion and for that reason the witnesses produced by the respective parties have been more or less limited to medical experts. The only lay witnesses I recall are Theodore MacDonald and Victor Schaefer, co-workers, who gave support to the petitioner’s case in establishing proof of the accident.

Dr. Canio Oestone, who was produced by the petitioner and who was the family physician of the decedent for a period of four years prior to the accident, expressed the opinion that the accident contributed to the death of Markiewicz, which took place on December 22d, 1938, in that it aggravated the chronic diseases with- which he had for a long time been a sufferer, namely, an auricular heart condition and a cirrhosis of the liver.

In a similar vein Dr. Max Kummel, also appearing on behalf of the petitioner, expressed the view that there was a direct causal relation between the accident and death; in that the pre-existing diseased conditions were aggravated and accelerated by the accident, thereby hastening his death.

On the other hand the respondent produced Dr. Arthur Masters and Dr. Otto Lowy, who took the opposite view. Both doctors expressed the opinions that the accident played no part either as a causative or aggravating factor; and that the death of petitioner’s decedent resulted from a natural consequence of the diseases themselves and bore no relationship whatever to the accident. It seems that Dr. Masters’ opinion was based primarily upon the fact that too long a time intervened between the accident and death. On cross-examination he answered counsel’s question to the effect that if death had occurred within a period of hours or .a day or so after the accident, possibly then there might be some causal relationship between the accident and the death, but that since it was a period of months he went on record to take the opposite view to that taken by the petitioner’s doctors.

Dr. Lowy expressed a similar opinion that there was no causal relationship between the accident and death, because, as he testified, if there had been any aggravation due to the lifting event or strain upon these pre-existing diseases, death would have ensued the same day or the day after, and .furthermore that the decedent would not have been able to resume work the second day following the accident.

Of course, the relative weight to be accorded the testimony of a medical expert has always been the subject of much controversy. I believe the rule to be, not alone here, but in all courts, that a treating physician who is acquainted with the patient’s condition, not only on the day of the accident, but prior thereto, and all during the course of treatment following the accident, is in a better position to express an opinion as to cause and effect than mere medical experts, particularly where, as here, the experts have never seen nor examined the man who is a subject of their expert, opinion. In this case neither Dr. Masters nor Dr. Lowy ever saw the decedent during his lifetime and accordingly based their opinions upon hypothetical questions propounded to them. Therefore, in weighing the medical testimony and in approaching this case for a logical conclusion, 1 must go into the factual situation which existed prior to the day of the accident, as well as the circumstances following the accident and up to the date of death.

I would be somewhat inclined to agree with the opinions expressed by Dr. Masters and Dr. Lowy if Markiewicz, on the day of the accident, had continued at his work and had complained of little or no physical distress and had worked uneventfully thereafter and then, for the first time wound up with these conditions several months later. Under such circumstances there would be little doubt, if any, in my mind but that the diseases themselves ran their natural course and terminated in death. However, there is nothing in this case to indicate that the decedent was not immediately incapacitated after the accident. True, he went back to work the second clay following the accident in spite of his double herniae and abdominal distress, but his work was sporadic, and he was not able to perform his regular tasks and had to quit a short time later. His incapacity began shortly after the occurrence and his condition continued to grow progressively worse until it ended in his demise on December 22d, 1938.

I cannot accept the opinion of the respondent’s experts that, because Marldewicz did not die the same day or the next day following the mishap, there is no relation of cause and effect between the accident and death. The evidence indicates that there were immediate complaints and a complete bridging of symptoms from the very moment of the accident down to the day of his death. The evidence in this case establishes a series of connective events indicating very plainly that from the date of the accident to the day of his death there was a gradual downgrade decline in his health.

The doctrine of aggravation of a diseased bodily condition by trauma is well recognized in this and other jurisdictions as constituting a compensable injury by accident within the purview of the Workmen’s Compensation act. In the leading case of Geisel v. Regina Co., 96 N. J. L. 31; 114 Atl. Rep. 328, it was held “that death may be found as having been caused by an accident, although there was a diseased bodily condition prior to the injury, without which death would not have ensued, where the undeveloped and dangerous conditions are set in motion producing such result.”

If a diseased condition exists at the time of an accident, and the accident accelerates the disease, such acceleration is an injury by accident under the act. See Voorhees v. Smith Schoonmaker Co., 86 N. J. L. 500; Bernstein Co. v. Kelly, 114 Id. 500; 177 Atl. Rep. 554; Graves v. Burns, Lane & Richardson, 10 N. J. Mis. R. 667; 160 Atl. Rep. 399; Lundy v. Geo. Brown & Co., 93 N. J. L. 107; 106 Atl. Rep. 362; VanMeter v. E. R. Morehouse, Inc., 13 N. J. Mis. R. 558; 179 Atl. Rep. 678; Matthews Construction Co. v. Ranallo, 13 N. J. Mis. R. 878; affirmed (Court of Errors and Appeals), 117 N. J. L. 148; 187 Atl. Rep. 372; Dougherty v. Miller, 14 N. J. Mis. R. 229; 183 Atl. Rep. 904; affirmed, (Court of Errors and Appeals), 117 N. J. L. 454; 189 Atl. Rep. 137.

If it be contended that a workman must be in normal health as a condition precedent to recover compensation, the act would then be limited in its application to those in robust health; but the act, however, was intended to apply equally to those who may be in a subnormal state of health. I feel that Mr. Justice Perskie, in Bernstein Co. v. Kelly, 114 N. J. L. 500; 177 Atl. Rep. 554, very aptly enunciated the apposite rule when he stated “until such time as it may be provided to the contrary, by proper authority, the beneficent provisions of the act must and shall be extended alike to the weak and sick as well as to the strong and able, so long as those of either class, coming under the provisions of the act, sustain a compensable accident.” And upon affirmance by the Court of Errors and Appeals (Bernstein Co. v. Kelly, 115 N. J. L. 500; 180 Atl. Rep. 832), the court gave further expression to this rule by saying, “suffice it to say that an accidental strain of a heart, even though the heart was previously weakened by disease, may be a compensable injury under our statute when as in this ease, the accident arose out of and in the course of the employment.”

As I view the medical testimony in the present case it seems that the opinions of the respondent’s experts were predicated entirely upon a hard and cold set of facts set forth in a hypothetical question. Their answers thereto were in the negative as to whether any relationship existed between the accident and death. While I have the greatest respect for both Dr. Masters and Dr. Lowy, the former being a renowned cardiologist and internalist and the latter being a well known pathologist and diagnostician, I do not believe their opinions carry the same weight as the petitioner’s experts, one of which was the attending physician. On the other hand, the petitioner produced the treating physician, whose opinion was to the opposite effect, that is, that the accident brought about a decided change in the decedent’s health and caused an aggravation of these old diseases which hastened his death. In assigning reasons for his opinion, Dr. Cestone testified that following the accident various symptoms appeared for the first time, to wit — ascites, or fluid in the abdomen, anasarca or dropsy, and difficulty in urination (nephritis); that the edematous condition of both legs was first noticed by the doctor shortly after the accident, all of which indicated that the accident had had a harmful influence upon these diseases. It does not require any undue stretch of one’s imagination (although both respondent’s doctors had considerable difficulty on the witness stand in giving their answers with considerable hesitancy) to conclude that a man in decedent’s state of health-prior to the accident and who meets with an accident such as the evidence discloses in this case, is by far in a more vulnerable state to withstand the effects of trauma than a man who is in a normal state of health.

■ It seems to me that the proofs in this case establish a causal relationship between the accident and death. We begin with a man in a poor state of health who suffers with heart and liver disease and who meets with an accident which in this particular case consists of a physical overact or strain; and it follows without much argument that a strain sufficiently severe enough to cause a double inguinal hernias would likewise be sufficient enough to cause a strain upon other abdominal organs, particularly where those organs are already below par.

jfc

John J. Stahl, Deputy Commissioner.


author: Collester, D. C. J.

text:
    Clifton District Court.
    ALLAN J. ADELMAN AND BEATRICE ADELMAN, T/A FINANCE AND DISCOUNT COMPANY, PLAINTIFFS, v. SAMUEL BIBER ET AL., DEFENDANTS.
    Decided January 9, 1941.
    For the plaintiffs, Charles Blume.

    For Isadore Margolis and Hamilton Investment Company, Inc., Kimmel & Kimmel.

    For Samuel Biber and Morris Silver, Aaron Heller and Samuel Bosenfeld.

   Collester, D. C. J.

The plaintiffs, Allan J. Adelman and Beatrice Adelman, trading as Finance and Discount Company, bring this action in replevin to recover possession of an automobile. At the trial of the cause, a judgment of nonsuit was entered as to the defendants, Isadore Margolis and Hamilton Investment Company, a corporation, and hence the issue now concerns only the remaining defendants, Samuel Biber and Morris Silver. The pertinent facts are as follows:

On April 8th, 1937, the defendant, Morris Silver, purchased a Hudson sedan automobile from the Bergen Sales, ínc., a corporation, under a conditional sales contract whereby title to said vehicle was retained in the seller until the purchase price was fully paid.. The seller thereupon transferred said contract to the Franklin Discount Company, Inc., and notice of said encumbrance was duly filed, in the office of the Commissioner of Motor Vehicles at Trenton.

On May 7th, 1937, the conditional vendee, Morris Silver, borrowed the sum of $500 from the Hamilton Investment Company, Inc., and as seeurity for said loan made and delivered a chattel mortgage which encumbered the aforesaid Hudson automobile and an International truck, which said chattel mortgage was recorded in the office of the register of Passaic county on May 7th, aforesaid, in book V-9 of Chattel Mortgages for said county at page 332.

On August 8th, 1938, said Morris Silver applied to the plaintiffs (hereinafter described as plaintiff Company), for a loan in the sum of $195, which was granted to him. To secure said loan, Silver made and delivered to the plaintiffs his promissory note and a chattel mortgage on the before-mentioned Hudson automobile. A check in the sum of $135.80 was made and delivered to said Morris Silver, who endorsed the same, whereupon it was transmitted by the plaintiffs to the Franklin Discount Company, holder of the first lien on said automobile in payment of the amount remaining due on said first lien. Several days thereafter, the plaintiff company received from the Franklin Discount Company the title papers of said motor vehicle stamped on the face thereof, “Paid in full, 8/12/38. Franklin Discount Company E. S.”

The chattel mortgage given by Silver to the plaintiffs was recorded on August 9th, 1938, in the office of the register of Passaic county in Book B-10 of Chattel Mortgages for said county on page 420.

On September 8th, 1938, the defendant Silver defaulted in his obligation to the plaintiffs, having made no payments thereon.

On September 19th, 1938, Silver having defaulted under the conditions of the chattel mortgage held by the Hamilton Investment Company, the latter took steps to foreclose under the same; and on October 12th, 1938, the Hudson automobile was sold at public sale by William Nussman, a constable of Passaic county to the defendant Samuel Biber for the sum of $175. Biber is a brother-in-law of the defendant Silver.

The records of the foregoing foreclosure proceedings were duly filed with the Commissioner of Motor Vehicles at Trenton and a certificate of sale was issued to the purchaser on October 28th, 1938. Said certificate revealed that the automobile was subject to a lien in favor of the Franklin Discount Company, the assignee of the conditional vendor. On October 29th, 1938, the Hamilton Investment Company, by its president, Isadore Margolis, submitted an inquiry by letter to the Franklin Discount Company with reference to its apparent lien and received reply thereto which stated, “account paid in full at this office.”

On May 4th, 1939, the Franklin Discount Company made and delivered to the plaintiff an instrument whereunder it endeavored to “assign, transfer and set over” to the plaintiff company all of its right, title and interest in the Hudson automobile. Said instrument set forth that the consideration thereof was the sum of $135.80 paid to the Franklin Discount Company by the plaintiff company on August 8th, 1938, and stated:

“This assignment is executed for the purpose of securing to Allan J. Adelman and B. S. Adelman, trading as Finance and Discount Company, its subrogation rights by reason of the fact that Finance and Discount Company, did on the 8th day of August, 1938, loan to the said Morris Silver, the sum of $195 out of which the sum of $135.80 was paid to the undersigned in satisfaction of the balance due on the aforesaid conditional sales contract on the 8th day of August 1938.”

The plaintiff company on September 25th, 1939, demanded possession of the Hudson automobile and failing to receive the same instituted the present action. On said date, the defendant Samuel Biber was the registered owner of the automobile which he permitted the defendant Silver to use when desired. Silver made no claim to ownership of said motor vehicle.

The plaintiff company contends that its title and right to possession of the chattel is paramount to that of either defendant on two grounds: (1) that plaintiff is subrogated to the rights of the Franklin Discount Company, the holder of the first lien on said automobile; and (2) that the chattel mortgage- given by the defendant Silver, to the Hamilton Investment Company is invalid and fraudulent. The above grounds will be considered by the court as respectively set forth.

Subrogation is generally understood to mean putting one to whom a particular right does not legally belong in the position of the legal owner of the right. 4 Williston on Contracts (Rev. Ed.) § 1265. While it is a doctrine of purely equitable origin and nature, it is now settled that, when the right of subrogation is practically conceded, and there remains only the right of realizing the value of the subject-matter, such right may, on proper occasion, be within the cognizance of a court of law. Polhemus v. Prudential Realty Corp., 74 N. J. L. 470; 67 Atl. Rep. 303. But the right of subrogation will not be recognized at law unless the right of action made the subject, thereof is legal in its nature, and is cognizable at law. Bater v. Cleaver, 114 N. J. L. 346; 176 Atl. Rep. 889; Offer v. Superior Court of San Francisco, 194 Cal. 14.

In the case sub judice, the plaintiffs contend that they are entitled to be subrogated to the position formerly held by the Franklin Discount Company, as paramount lienors. They base this contention upon the fact that a portion of the money loaned to.the defendant Silver was used in paying Silver’s debt to the Franklin Discount Company.

It must be noted that the plaintiffs do not contend that .they are entitled to prior rights in the chattel by reason of a legal assignment of the Franklin Discount Company’s claim to them. Their claim is based upon an instrument made and delivered to them by the Franklin Discount Company which purports to assign to plaintiffs all of the right, title and interest of said Franklin Discount Company in the' original conditional sales contract. Said instrument recites that the debt due from Silver to the Franklin Discount Company was paid on August 8th, 1938, and further states that the “assignment” was executed in order that the plaintiffs -might be secured with their “subrogation rights.” In addition to the aforesaid “assignment,” the' plaintiffs contend that they are entitled to a prior claim to the chattel upon the theory that it is equitable that they be given priority, and therefore this court, as a matter of law, should decree that their claim to the chattel is prior to that of the defendant Biber.

The evidence shows that on March 4th, 1939, when the Franklin Discount Company executed the before described “assignment” that it no longer had any claim against the defendant Silver, the same having been extinguished by payment on August 8th, 1938. This being so, their assignment could transfer nothing to the plaintiffs in this cause. It therefore follows that plaintiffs’ claim to priority is based purely upon the theory that it is equitable for plaintiffs to have a paramount right to the chattel.

It is readily apparent that plaintiffs’ contention falls squarely within the restrictions set forth in Bater v. Cleaver, supra, namely, that “the right of subrogation will not be recognized at law unless the right of action made the subject thereof is legal in its nature. * * *”

Even if we assume that the contention of the plaintiffs is cognizable in a court of law, it is the opinion of this court that they are not entitled, in equity, to be subrogated to the rights of the Franklin- Discount Company. Subrogation is never applied in aid of a mere volunteer, and in the present case the plaintiffs are no more than volunteers.

Our Court of Chancery in the case of Shinn v. Budd, 14 N. J. Eq. 234, has said:

“Subrogation as a matter of right * * * is never applied in aid of a mere volunteer. Legal substitution into the rights of a creditor, for the benefit of a third person, takes place only for his benefit, who being himself a creditor, satisfies the lien of a prior creditor, or for the benefit of a purchaser who extinguishes the encumbrances upon his estate, or of a co-obligor or surety who discharges the debt, or of an heir who pays the debts of succession.”

In the Bank of the United States v. Winston’s Executors, 2 Brocken. R. 254, Chief Justice Marshall said:

“If a security not assignable be discharged by a surety whom it binds, equity keeps it in force in his favor, and puts such surety in the place of the original creditor. But I think there is no case in which this has been done in favor of a person, not bound by the original security, who discharges the debt as a volunteer.”

In Sanford v. McLean, 3 Paige 122, the court said:

“It is only in cases where the person advancing money to pay the, debt of a third party stands in the situation of a surety, or is compelled to pay it to protect his own rights, that a court of equity substitutes him in the place of a creditor as a matter of course without any agreement to that effect. In other cases, the demand of a creditor, which is paid with the money of a third person, and without any agreement that the security shall be assigned or kept on foot for the benefit of such third person, is absolutely extinguished.”

In the case at bar, the debt due to Franklin Discount Company by the defendant Silver was extinguished by the plaintiffs who were in no manner involved with the defendant Silver prior to said transaction. Their status being that of mere volunteers, even the equitable doctrines of our courts do not avail them. They are not entitled in either law or equity to be subrogated to the rights of the paramount lienor.

Considering next the charge of the plaintiffs that the defendant Biber holds the chattel as a result of a fraudulently executed chattel mortgage by Silver to the Hamilton Investment Company, and a fraudulent foreclosure thereof, it is the opinion of this court that the evidence does not sustain such charge.

The chattel mortgage was executed by Silver to the Hamilton Investment Company on May 7th, 1937, and duly recorded in the office of the Passaic county register on that date. Its existence was a matter of public record for over a year prior to Silver’s transactions with the plaintiffs. The foreclosure proceedings instituted by the Hamilton Investment Company in 1938 were valid and the records duly filed with the Commissioner of Motor Vehicles as 'required by law. The only inference to be drawn from said testimony is that the transaction was bona fide and there was neither evidence nor logical inferences' presented from which fraud could be spelled out.

It is well established that the burden of proving fraud is upon the one who charged it. Likewise, fraud is never to be presumed but must be proved. In the case at bar, the plaintiffs have not sustained the burden of establishing fraud in the execution of the chattel mortgage or in the foreclosure proceedings thereof.

For the reasons hereinbefore set forth, it is therefore the decision of this court that judgment must be entered as follows:

Judgment in favor of the defendants Samuel Biber and Morris Silver and against the plaintiffs, Allan J. Adelman and Beatrice Adelman, t/a Finance and Discount Company, “no cause for action.”


author: John C. Wegner, Deputy Commissioner.

text:
    New Jersey Department of Labor, Workmen’s Compensation Bureau.
    HAZEL B. MERGELSBERG, PETITIONER, v. BRICK CHURCH BUICK CO., A CORPORATION, AND AMERICAN MUTUAL LIABILITY INSURANCE CO., RESPONDENT.
    Decided November 18, 1940.
    For the petitioner, Jade Wolf (by David Boslcein).

    For the respondent, James J. Carroll.

   * Hi * # * * *

From the testimony adduced, and the stipulations of counsel, I find that on October 28th, 1939, Frank Henry Mergelsberg, husband of the petitioner, was in the employ of the Brick Church Buick Co. as a manager of the Buick car service department. In the evening of that day, about ten-thirty p. m., the decedent arrived at the Sussex avenue armory in Newark, New Jersey, for the purpose of removing a Buick automobile which was on exhibition at-the automobile show being conducted at the said armory. The show was in the process of closing and the exhibitors were in the act of removing their automobiles from the showroom floor. Under the rules and regulations under which the show was operating, the batteries were detached from the cars and all gasoline removed from the tanks. It was therefore necessary that the automobiles be removed from the said showroom floor by pushing them to the entrance door where the batteries were installed and the tanks of the automobiles filled with gasoline. The cars would then enter upon the public street and eventually be directed to their places of destination.

The Buick exhibit was at the rear end of the armory building, a distance of about one city block from the place of exit. The petitioner’s decedent and two other men were in the act of pushing the said car from the place of exhibition to the front exit. The car was so situated that it had to be shoved backward and forward and shifted into several positions before it could reach the lane leading to said exit. During such maneuvering the decedent was on the left side of the car pushing the same with his left hand and holding on to the wheel with his right hand, steering same as necessity would require. During part of these maneuvers the car was stationed on a rug which was continually slipping, and on other occasions, the car was being pushed on a center lane of a wooden floor. This work required the exertion of three men. The testimony stands uncontradicted that the air in said tires was low and so made it difficult to move the car. Considerable noise and excitement were prevalent and there was an atmosphere of hurry and rush as is expected under circumstances such as prevailed at the closing of an automobile show with the desire of the exhibitors to remove from the show as quickly as possible their products. That it required considerable effort and strain in moving the said automobile under the prevailing conditions is clear. As the car was about 200 feet from the exit door Drank Mergelsberg was seen to slump to the floor and his right hand was seen leaving the wheel. He collapsed to the floor and died. He was pronounced dead upon the arrival of an ambulance interne. An autopsy was performed by Dr. Harrison S. Martland which disclosed (1) that the right coronary was completely blocked with an organized thrombus; that (2) there was present numerous atheromata in both coronary arteries; and that (3) there were numerous hyaline scars in the posterior half of the interventricular septum.

Dr. Asher Yaguda appeared on behalf of the petitioner and he stated that the cause of the decedent’s death was acute dilatation of the heart due to an over-exertion and that in all probability the over-exertion was the effort expended by the decedent in moving the automobile immediately prior to his death.

There is no doubt in my mind that the proofs more than adequately support the fact that the decedent had a coronary atherosclerosis and had some time prior to the accident which resulted in his death suffered an occlusion of the right coronary artery. Dr. Martland’s findings and autopsy are to this effect. From the testimony of Dr. Yaguda we find that such an underlying condition might exist without producing any symptoms and whether or not Mr. Mergelsberg knew of his coronary disease is of no importance. The undisputed evidence is conclusive that the over-exertion of the decedent in moving the heavy automobile was the cause of the dilatation of. the heart and the precipitating cause of his death, and I so find. The petitioner’s decedent put a strain upon his damaged heart muscle in pushing the automobile and as a result developed an acute heart failure and died.

The rule of law applicable to the situation here presented was enunciated in Bernstein Furniture Co. v. Kelly, 115 N. J. L. 500; 180 Atl. Rep. 832, to be that an accidental-strain of a heart, which was previously weakened by disease, may be a compensable injury under our statute where the accident arose out of and in the course of the employment. There the decedent’s work was that of delivering and moving furniture and while delivering some furniture from a truck he carried a -heavy settee up several flights of stairs to the fourth floor of a house where the furniture was to be delivered, put it down at a designated point within the apartment, went over to the window, slumped over and died. There was no impact or striking of his body or head as he fell. This occurrence was held by our court of last resort to be an accident within the meaning of the Workmen’s Compensation act and that the death was held to be one resulting from an accident arising out of and in the course of the employment.

In Hentz v. Janssen Dairy Corp., 122 N. J. L. 494; 6 Atl. Rep. (2d) 409, the deceased, employed as a milk truck driver and delivery man, while ascending a hill to return to his truck after making a delivery, felt a sharp pain in his side. It appeared that he suffered a coronary thrombosis and died shortly thereafter. The Court of Errors and Appeals held that there was no doubt that he suffered a strain of the heart in the course of his employment and that it made no difference that his heart had been weakened by the strain of work over a Long period of time prior to the occurrence. An award of compensation was granted to his widow. Similarly the same court ruled in Bollinger v. Wagaraw Building Supply Co., 122 N. J. L. 512; 6 Atl. Rep. (2d) 396, that death from disease alone during the employment will not suffice but injury or death which on proofs that are sufficient and persuasive, would not have occurred but for the services rendered in the employment, amount to injury by accident.

The undisputed proofs in this case clearly indicate that I find, that but for the efforts that were put forth by the decedent in moving the automobile on the day in question, and the exertions expended by him incident thereto, his death would not have occurred at the time, date and place that it did occur. The uncontroverted medical testimony adduced by the petitioner in this regard, adequately supports this conclusion. The evidence presented on behalf of the petitioner, clearly indicates that the exertion and strain which the decedent engaged in at the time that he endeavored to and did move the automobile, are related and connecting links in the chain of causation that resulted in the heart attack and death, and I so find.

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John C. Wegner, Deputy Commissioner.


author: Harry S. Medinets, Deputy Commissioner.

text:
    New Jersey Department of Labor, Workmen’s Compensation Bureau.
    ELIZABETH M. ANDRES, PETITIONER, v. KEYSTONE VARNISH COMPANY, THE STATE INSURANCE FUND, A CORPORATION, RESPONDENT.
    Decided January 3, 1941.
    For the petitioner, David Roskein.

    For the respondent, Joseph Hockbaum.

   Hí H< sfc ❖ Hí H*

From the testimony adduced and the stipulations of counsel, I find that the petitioner’s decedent, Frederick Andres, was employed by the respondent, Keystone Varnish Company, a New York corporation, as a salesman, to work partly in New York and partly in New Jersey. While the contract of employment was entered into in the borough of Brooklyn and State of New York, it appears without contradiction that the employe’s duties required him to perform a goodly part thereof in New Jersey. His work as a salesman contemplated the solicitation of customers in this state and thus obtain orders for his employer. Petitioner’s decedent was a resident of the State of New Jersey at the time of his death and in fact was engaged in calling on one of the respondent’s customers in Elizabeth, New Jersey, when the accident, which resulted in his death, occurred. The respondent contends that the New Jersey Workmen’s Compensation act does not apply. The law on this subject is well settled that, where a servant was employed in New York under a contract of employment that required the performance of work partly in that state and partly in New Jersey, and met with accidental injuries in New Jersey which resulted in his death, while engaged in the work he was employed to do in New Jersey, the right of his personal representative to recover compensation under the Workmen’s Compensation act of New Jersey (B. S. 34:15-1 et seq.) is not affected by the fact that hiring or contract of employment was entered into in New York. American Radiator Co. v. Rogge, 86 N. J. L. 436; 92 Atl. Rep. 85. Our act makes no distinction between cases where the relationship of employer and employe is created by a contract made in New Jersey and a contract made in another state. Its language is genera]; it covers “every contract of hiring.” In view of the foregoing and the fact that the petitioner, Elizabeth M. Andres, is a resident of the State of New Jersey, she is not precluded from maintaining this action, in the New Jersey Workmen’s Compensation Bureau.

The next inquiry presented for determination, is: Did the decedent suffer an injury as a result of an accident arising out of and in the course of his employment with the respondent, and if so, did that injury contribute in any manner to his death.

The testimony is uncontradicted that on December 4th, 1939, the petitioner’s decedent left his home in apparent good health and drove his automobile to the store of one of the respondent’s customers in Elizabeth, New Jersey. The accidental occurrence took place as he parked his car in a driveway immediately adjoining the customer’s premises. There is no doubt that the decedent in so doing was at a place, as was his automobile, where he had a legal right to be. The testimony of Samuel Koltzberg, a retail customer of the respondent, on whom the deceased employe was making a business call is that at about seven-fifteen of the morning in question he heard a grating sound as if a car was scraping along the building which he occupied. Upon proceeding through the side entrance to the driveway he observed that the right rear wheel of the decedent’s car was against the wall with the right front wheel very close to the wall and that the petitioner’s decedent, Frederick Andres, was caught 'or pinned between the bumper and the wall and was leaning towards the automobile. The witness thereupon helped extricate the decedent from his precarious position and assisted him into the store. While so doing, the decedent gasped “Sam, the car got me.” This testimony coupled with the photographs of the scene of the occurrence as well as those of the decedent’s automobile which was involved, and an engineer’s diagram of the locality, all of which were introduced in evidence, can lead to no other inference than that Andres, while attempting to prevent his automobile from rolling down the driveway which contained an eight-degree grade, into a busy thoroughfare, was caught and pinned between said automobile and the wall of the building. This untoward occurrence constituted an accident well under our cases and the injuries so received as a result of that accident, arose out of and in the course of the decedent’s employment with the respondent, and I so find.

The employe, after resting in the customer’s paint store was shortly thereafter removed to his home where he was put to bed. He complained of severe pains in his chest which radiated down his left arm and was found, by a physician who was called to attend him, to be pale and in a state of collapse. Significantly, this physician also found contusions and minor lacerations to the decedent’s chest wall which, in the course of a few days, were changed to areas of discoloration. Morphine was administered by the doctor and electric pads were prescribed to be applied in an effort to relieve the condition. Thereafter the injured employe remained completely incapacitated and. confined to his bed until the early morning of Decembér 30th, 1939, when he collapsed and died.

I have no hesitancy in attributing the physical manifestations of the injury above described to the accident in question. Some point is made by the respondent that since the decedent was found pinned against the wall of the building with the running board of the automobile pressing against that area of his body at the height of the runningboard, i. e., two and one-half to three feet from the ground, that no proof was adduced to establish that the injury to his chest was the result of this accident. Jfrom a consideration of all of the circumstances proven in this case and bearing in mind that the employe left his home that morning in an apparently normal condition, without any external manifestation of inj ury of any kind, that the accident as above described had occurred, which involved his being pinned against the brick wall of a building by said automobile and upon being removed to his home in a state of collapse, he is found to possess minor contusions and lacerations to his chest wall which developed into an area of discoloration within a few days, the reasonable inference is inescapable that during the course of the described accident, the decedent injured his chest. It is not encumbent upon the injured employe to carry the burden of proof to the point of demonstration. Jackson v. New York Shipbuilding Corp., 119 N. J. L. 542; 197 Atl. Rep. 284. This burden is sustained if the evidence be such as to induce a.reasonable man to draw the inference that the injury arose out of and in the course of the employment. Such a conclusion in the instant case is not based upon mere conjecture or surmise; it is supported by logical reasoning from established facts. The circumstances shown justifies inferences that bring this fundamental fact within the realm of probability. Belyus v. Wilkinson Gaddis & Co., 115 N. J. L. 43; 178 Atl. Rep. 181; affirmed, 116 N. J. L. 92; 182 Atl. Rep. 873. Nor am I impressed with the respondent’s contention that at the autopsy there was found no evidence of physical injury to the decedent’s chest. It is to be borne in mind that at no time was it contended that the injury to the chest was serious. On the contrary, it was described as simple lacerations. It follows, that in the normal course of things, this condition should have and in all probability did clear up within the two weeks following the accident and prior to his demise.

In addition to the employe’s attending physician, there testified on behalf of the petitioner Dr. Asher Yagnda, a pathologist, who was present at the time an autopsy was done of the decedent employe’s body. Among other things found at said autopsy by Dr. Yaguda was a bread and butter pericarditis which was quite extensive and this suggested a contusion of the surface of the heart. It was his opinion that the direct trauma to the chest which the employe suffered on December 4th, 1939, resulted in a compression of the chest cage and' the development of a coronary occlusion and the ensuing thrombosis which followed, which produced his death. His opinion in this respect was corroborated by the autopsy findings. He testified that he was of the opinion that there was a relationship between the trauma in question, the symptoms which followed thereafter, and the death of the petitioner’s decedent. The medical evidence indicates that Andres did not possess a normal heart at the time of the accident, in that the biood vessels surrounding same were affected by some pre-existing condition. However, this underlying condition appeared to be non-disabling and did not impede his regular pursuit of his duties. The trauma to the chest wall and the exertion incident to this occurrence superimposed upon the underlying condition evidently was the causative factor of the symptoms which followed and accelerated the employe’s death. An examination of the testimony of Dr. Gonzales, one of the experts produced by the respondent lends itself to this theory.

As has been indicated above, the burden of proof imposed upon the petitioner is to prove her case by a preponderance of the evidence and it is not a requisite that she establish a medical hypothesis to a point of certainty or demonstration. All that is necessary is that there be established a hypothesis which is reasonably probable. Jackson v. New York Shipbuilding, supra. From a consideration of all of the testimony adduced and the reasonable inferences to be drawn therefrom, I 'have reached the conclusion, and I so find, that the petitioner has sustained the burden of proof in establishing that the accident of December 4th, 1939, suffered by the. petitioner’s decedent, produced injuries and set in motion a chain of events which resulted in his death on the 20th day of December, 1939.

There is no question in the instant case that the petitioner, Elizabeth M. Andres, and her minor child, Elizabeth A. Andres, are total dependents of the deceased employe within the meaning of the statute and I so find.

The decedent was admittedly earning over $5,000 per year at the time of his death, thus entitling the petitioner to the compensation rate of $20 per week.

It is therefore, * * * ordered that judgment be entered in favor of the petitioner, Elizabeth M. Andres, and against the respondent, Keystone Yarnish Company.

Hi Hi Hi Hi H« H« Hi

Harry S. Medinets, Deputy Commissioner.


author: Harry H. Umberger, Deputy Commissioner.

text:
    New Jersey Department of Labor, Workmen’s Compensation Bureau.
    WILLIAM J. STEEN, PETITIONER, v. DUGAN BROTHERS, INC., RESPONDENT.
    Decided October 16, 1940.
    Eor the petitioner, Marlin P. O’Connor.

    For the respondent, Coult, Satz, Tomlinson & Morse (by Edward E. Kuebler).

   t]i jij % íjs ijt ❖

The petitioner alleges that he is totally disabled as the result of an accident which occurred on June 29th, 1938. The accident consisting, according to his testimony, of a fall while getting into a truck and striking his right testicle on the metal handle of a basket. It is to be noted, however, that he has not been at all consistent in describing this accident to various physicians consulted by him. To Dr. L-inke who he first consulted he described the accident as a slip and strain of his testicle in so doing. To others he stated that he had squeezed his testicle between his thighs in getting on the truck.

The petitioner was operated on by Dr. Paul Menke at the Newark Memorial Hospital on September 7th, 1938, and the operation revealed he was suffering from a teratoma of the testis in the subgroup of embryonal carcinomas. This physician gave it as his opinion that the trauma in this case did not cause or aggravate the teratoma.

Several outstanding cancer specialists called by the respondent, namety, Dr. Edgar A. Ill, Dr. James Ewing, Dr. Leila Knox and Dr. Ei*ancis C. Wood all testified from hypothetical questions that the trauma in this case would not cause, accelerate or light up the teratoma and that the development of the same in this case was normal in all respects.

While Dr. Wuester, testifying on behalf of the petitioner, did say that trauma would aggravate cancer, he further stated that it would not cause an embryonal carcinoma as in this case and seemed rather doubtful if the trauma in this case would have aggravated the teratoma suffered by petitioner.

Prom a very careful review of all the evidence presented it is my conclusion that petitioner fails to prove that the accident suffered by him either caused or aggravated the testicular tumor, nor can I agree with petitioner’s contention that the preliminary treatment given him had any deleterious effect on the same.

There is, however, another feature of this case which seems to have escaped attention. Dr. Linke stated that his provisional diagnosis was traumatic orchitis, although he further stated there was no enlargement of the epididymis, either,' the globus major or globus minor. However, after a month or so of treatment, during which time the condition did not respond to treatment, the doctor became skeptical of this diagnosis and suggested an aspiration biopsy to the petitioner which he refused and left the treatment of the doctor about August 13th, 1938. The petitioner was next examined by Dr. Cacciarelli on August 12th, 1938, who diagnosed the case as tuberculosis of the epididymis, which on cross-examination he stated resulted from the accident. The doctor further testified that the post operative findings corroborated his diagnosis. The petitioner was then submitted to an examination by Dr. Burnet Rothhouse, an urologist, who, testifying for the respondent, stated that he examined the petitioner on August 28th, 1938, and diagnosed the case as traumatic epididymitis which was confirmed by the post operative diagnosis. This witness further testified that he recommended the operation and .that the epididymis condition and the tumor of the testicle were separate and distinct and had nothing to do with each other.

From these undisputed facts it would seem to me that it was the injury to the epididymis and not the cancerous condition that necessitated the operation. If it were necessary to operate to cure the epididymis, the fact that cure in any other manner was made impossible by the presence of the tumor would be immaterial in so far as respondent’s liability for the resultant loss is concerned. The fact that a cure is impossible in the ordinary way because of the underlying condition does not relieve the respondent of responsibility for the full consequences of the injury, Gorman v. Miner-Edgar Corp., 9 N. J. Mis. R. 180; 153 Atl. Rep. 271, notwithstanding that because of such underlying condition such consequences are greater than they otherwise would be.

It is further to be noted that Dr. Cacciarelli stated that tests made after the operation showed no metastasis were present. And also it is noted in the record of Newark Memorial Hospital in evidence as F2 (4/24/40) under the heading physical findings, the following “Abdomen — soft, flat. Well healed old McBurney scar. No masses or tenderness. No Murphy’s sign.” Dr. Wuester in his testimony stated that when he examined the petitioner on December 17th, 1938, he found a mass the size of a lemon in the right lumbar gutter slightly below the umbilicus and the suggestion of a similar mass deep in the pelvis on the right side and that his diagnosis was post operative embryonal carcinoma of the right testicle with abdominal metastasis. Several medical experts testified that removal of the testis as in this case would cause metastasis and it therefore seems rational to conclude that such occurrence took place in this case.

There was medical testimony on behalf of the petitioner undenied by the respondent that he is now totally and permanently disabled.

I do, therefore, find and determine that the petitioner has sustained personal injuries by accident arising out of and in course of this employment with the respondent on the 29th day of June, 1938.

It is, therefore, ordered, that judgment final be entered in favor of the petitioner and against the respondent.

:{i if: $ ^ sfc

Harry H. Umberger, Deputy Commissioner.


text:
    New Jersey Department of Labor, Workmen's Compensation Bureau.
    HARRY RITENOUR, PETITIONER, v. CREAMERY SERVICE, INC., RESPONDENT.
    Decided January 11, 1941.

      For the petitioner, Meyer W. 8Lein (David Cohn, of counsel).
    For the respondent, George F. Lahey, Jr. (George Gockeler, of counsel).
   H* # H< ❖ ❖ H< Hi

It was stipulated by counsel that the petitioner was regularly employed by the respondent as a truck driver on one of its milk trucks at wages of $39.50 a week and that on February 9th, 1939, while so employed, he met with an accident arising out of and in the course of his employment consisting of a collision between his truck and another truck, which accident occurred in the village of PaJlatine Church, New York, a.nd which resulted in injuries in and about his lower back. By stipulation of counsel it was agreed that the question of jurisdiction was to be tried out first as to whether the petitioner’s contract of hire was governed by the Workmen’s Compensation act of New Jersey or that of New York. It was further agreed by counsel that the question of disability would be passed upon at a subsequent hearing, if necessary.

Upon the completion of oral arguments by counsel, briefs were thereafter submitted which I have carefully examined. From the facts in the case, I am satisfied that the contract of hire took place and was consummated in the State of New York and that the work and services to be rendered by the petitioner thereunder were confined exclusively within the State of New York. I feel reasonably satisfied that the present case is controlled by Hamm v. Rockwood Sprinkler Co., 88 N. J. L. 564; 97 Atl. Rep. 730, which held that the Workmen’s Compensation act of New Jersey did not apply where the contract of hiring was made in New York, the work performed in New York and the person injured in New York, although the employe was a resident of New Jersey and the employer was a foreign corporation licensed to do business in New Jersey.

Nor do I feel that the present case is governed by Hi-Heat Gas Co. v. Dickerson, 12 N. J. Mis. R. 151; 170 Atl. Rep. 44; affirmed, 113 N. J. L. 329; 174 Atl. Rep. 483, wherein a contract of hiring made in New Jersey and work to be performed partly in New Jersey and partly in New York was held to be a New Jersey contract and that the New Jersey law governed even though the employe was injured in New York.

In the present case, counsel for petitioner strenuously argues and contends that the petitioner’s daily route in driving a large milk truck from Brooklyn, New York, to upstate New York required his traveling through a small portion of northern New Jersey and that by reason thereof counsel urges that the petitioner’s employment was partly performed in New Jersey, notwithstanding that the respondent did no business whatever in the State of New Jersey. Such contention is wholly without substance. The statute and the decisions construing the same contemplate substantial services and not purely superficial services in order to confer jurisdiction upon a given state.

Another significant fact in the case is the payment .of compensation in the amount of $300.84 by the respondent to the petitioner under an award made by the Department of Labor of the State of New York, Division of Workmen’s Compensation. In view of these circumstances, assuming that the said contract extended to work both in New York as well as New Jersey, the petitioner would nevertheless be precluded from making a claim under the New Jersey act because of his prior election under the New York statute. The case of DiCarvallo v. G. DiNapoli, Inc., 13 N. J. Mis. R. 603; 180 Atl. Rep. 488, is controlling, “holding that an employe who submits himself to jurisdiction of New York Workmen’s Compensation Bureau and accepts compensation as result of adjudication is estopped from making claim in New Jersey.”

Upon carefully considering the proofs in this case I am satisfied that the Workmen’s Compensation Bureau is without jurisdiction over the subject-matter of the present claim.

* * * * $ * *

John J. Stahl, Deputy Commissioner.


text:
    New Jersey Department of Labor, Workmen’s Compensation Bureau.
    WILLIAM DAVIS, PETITIONER, v. CITY OF NEWARK, RESPONDENT.
    Decided January 10, 1941.
    For the petitioner, Robinson <& Morris (by Irving Morris).

    For the respondent, James F. X. O’Brien (by Simon Englander).

   Petitioner having moved for reinstatement of judgment entered July 29th, 1940, and vacated August 9th, 1940, in the case sub judice and argument upon said motion was heard by mo on November 15th, 1940. * * *

The grounds upon which petitioner bases his argument are as follows:

“1. The order of August 9th, 1940, or thereabouts, revoking or setting aside the determination and judgment of July 24th, 1940, or order which stayed any further proceedings

“a. Was entered without notice to petitioner or his attorney

“b. Was entered without proofs of any kind which would sufficiently warrant the entry of such an order

“c. Without the Honorable John C. Wegner having jurisdiction for entering such an order under the laws of the State of New Jersey.

“2. Further the petitioner assigns the reason that the city of Newark settled the ease and did receive full releases from the judgment of this court and that they are accordingly debarred from reopening the award.

“3. Further the city of Newark or its agents unlawfully and wrongfully, without justification in law and without justification in fact and without the consent of your petitioner and under duress and mistake, did procure the moneys paid as a result of said judgment.”

Petitioner an aged and illiterate colored man, age seventy-one years, had worked for the city of Newark approximately eighteen years as a laborer first in the water department and of late years in the city park sweeping grass and leaves.

Under dates of September 21st, 1926, March 12th, 1928, August 27th, 1929, and June 17th, 1930, he met with acci-' dents for which he was treated first by Dr. Bell and later by Dr. Markens. He was paid full salary while under treatment. No pajunent was made on account of any permanent disability.

On May 31st, 1940, a petition was filed by Mr. Emil Neblo, a counselor-at-law of this state, now deceased, alleging that petitioner suffered a permanent injury as the result .of the aforementioned accidents referring 'to the first three in petition and adding the later one on motion to amend June 17th, 1930.

Before trial of case on July 24th, 1940, counsel for petitioner and respondent appeared before me in chambers and advised that they were in close agreement as to disability but desired judgment entered.

At the commencement of the trial, certain facts were stipulated and Mr. Bernhaut, attorney for respondent waived all legal defects in the petition as to misjoinder, there being four accidents covered by one petition, all of which occurred on different dates.

Prior to Pamph. L. 1931, ch. 278, p. 703, the Accident Reporting act barred the defense that the petition had not been filed within time. (See Pamph. L. 1924, ch. 187, ¶ 6, p. 403.) Respondent’s attorney admitted non-compliance with this act stipulating that no form had been filed.

After hearing the testimony of petitioner, Dr. Edward Markens, who testified for him, and Dr. Paul Keller, who testified for respondent, I awarded compensation based upon twenty-five per cent, of total disability or 125 weeks at $19.07 a week. I further instructed that owing to the age of the petitioner and the fact that he was illiterate, that the check be forwarded to Mr. Thomas Holwerda of the Department of Labor for distribution, the whole sum being due.

Order was signed by me July 29th, 1940.

On August 9th, 1940, Mr. Simon Englander appeared before me and advised that petitioner had not received the moneys awarded to him, that a sum of $300 was paid to petitioner, one-half of which he paid to a runner; that my order to the effect that the moneys be turned over to Mr. Holwerda for distribution had not been complied with; that attorney for petitioner had retained the bulk of the moneys paid and police intervention was necessary to have same returned; that respondent had a meritorious defense, public funds were involved and such defense should have been interposed; that there had been fraud on petitioner, on respondent and on the court.

Based upon facts as presented to me, I issued an order setting aside determination and order entered July 29th, 1940, which order reads as follows:

“This matter having been opened to the Court and sufficient cause appearing, it is, on this 9th day of August, 1940, ordered that the determination and order entered July 29th, 1940, be and the same is hereby set aside and for nothing holding pending further determination of the cause and controversy.”

Answering petitioner’s grounds for revoking order of August 9th, 1940, and restoring determination and order entered July, 1940, seriatim:

1. (a) No notice was necessary to petitioner or his attorney; (b) sufficient proof was given to warrant action taken; (e) Compensation Bureau has jurisdiction over its own j udgments.

2. While a representative of the city of Newark consented to certain stipulations and waived certain legal defects, judgment was entered and this was not a settlement. Eeleases have no legal status in a compensation case.

3. Action of respondent was necessary due to manner in wdiich moneys were distributed and in order to protect petitioner.

That a court in which a judgment is rendered has power to reopen, amend or vacate its judgment appears to he settled beyond controversy. One of the first cases in this state enunciating this principle is that of Bell v. Kelly, 17 N. J. L. 270. The Court of Errors and Appeals in Assets Development v. Wall, 97 Id. 468; 119 Atl. Rep. 10, passed upon the point more recently. That court stated that an application to open a judgment regularly entered is addressed wholly to the discretion of the court in which the judgment was rendered and further that an appeal would not lie. The court stated:

“That the courts of this state whose practice and procedure are in accordance with the rules and regulations of the common law have power to open judgments upon good cause shown, is settled beyond controversy.”

Also Mr. Justice Trenchard speaking for the Supreme Court in Lutter v. Neubauer, 100 N. J. L. 17; 125 Atl. Rep. 113, discussed at great length this power and likened it to the power of the court to set aside a judgment and issue a writ of coram nobis. He went on to say:

“We do not find that a writ of error coram nobis has ever been used in New Jersey practice hut it is a common law writ and it is safe to say that we have not used it because of our equitable liberality of reviewing matters of this kind in a summary way.”

34 C. J. 371: An application to open or vacate a judgment is an appeal to the equitable powers of the court, addressed to the discretion of the court, and is to be disposed of upon equitable principles, so as to do justice to all persons concerned. Generally the discretion will not be favorably exercised unless the enforcement of the judgment would he unjust, oppressive or inequitable as to the moving party, who must be actually or prospectively injured or prejudiced by it, and be benefited by its opening or vacation, nor unless the motion can be granted without material injustice or injury to the opposing party or prejudice to the intervening rights of third persons.

Bradner’s N. J. Law Practice, § 276: Application to open judgments are addressed to the discretion of the court; and the court has power at any time, while the cause remains under its control, to open a judgment; provided the moving party has embraced the first opportunity to present his cause. Laches will bar a motion to reopen. If a judgment is invalid or void, it may be vacated by the court at any time, the doctrine of laches being inapplicable. The judgment is a mere nullity and vacation thereof is a matter of right * * * a judgment, however, that is not absolutely void may be vacated upon showing that its enforcement would be unjust, oppressive or inequitable to the party moving to vacate. The method of attack is by summary motion, and the motion is addressed to the discretion of the court.

Assets Development Co. v. Wall (Court of Errors and Appeals, referred to above and the leading case on the subject).

“That the courts of this state whose practice and procedure are in accordance with the rules and regulations of common law have power to open judgments upon good cause shown, is settled beyond controversy. It was exercised by the Supreme Court as early as the year 1795 in the case of Miller v. Alexander, 1 N. J. L. 400, and has continued to be exercised from that time to the present, whenever it was properly invoked. The court may assume this power at any time while the cause remains under its control, provided the moving party embraces the first opportunity he has of presenting his cause. It is equally well settled that by common law, an application to open a judgment regularly entered, is addressed wholly to the discretion of the court in which it was rendered, and that, consequently a writ of error (an appeal under our present practice) will not lie to review the determination of that court. West Jersey Trust Co. v. Bigham (Court of Errors and Appeals), 118 Id. 160; 191 Atl. Rep. 743.

“Where the court has jurisdiction of the subject-matter and has acquired jurisdiction over the defendants, and the judgment is complete and regular upon its face, it is not void. An application to open a judgment regularly entered is a matter over which the court exercises jurisdiction of a discretionary and equitable character. Somers v. Holmes, 114 N. J. L. 497; 177 Atl. Rep. 434.

“It is settled that by the common, law, an application to open a judgment regularly entered, is addressed wholly to the sole discretion of the court in which it was rendered, and the court will not exercise this discretion when there is not sufficient doubt on the merits to justify it in so doing.”

Savage v. P. S. Railway Co., 103 N. J. L. 549; 137 Atl. Rep. 533 (on the question , of laches, as applied to motion to vacate judgment, &c.).

Where plaintiff waited for over three years from the entry of a judgment before applying to the Supreme Court for such relief, the court will decline to vacate the judgment where the long delay in making the application is not satisfactorily explained to the court, such delay held to be an apparent inexcusable laches.”

It may be urged that the Workmen’s Compensation Bureau is not such a court as may exercise such discretionary power but the Supreme Court in Rose v. Wagner Construction Co., 2 N. J. Mis. R. 118, has answered that argument and has placed the power of the Workmen’s Compensation Bureau and the jurisdiction of the Workmen’s Compensation Bureau to open a compensation judgment upon not only the general principles referred to above but also upon the Workmen’s Compensation act. It is to be noticed in that case also that there was no hearing on the application to vacate the original judgment and it is to be noticed also that the original judgment of the Bureau had been docketed in the Court of Common Pleas. The opinion states:

“However, counsel for the petitioner went afterwards to the deputy commissioner and obtained from him an order vacating his previous order for judgment and setting aside all judgments entered in any court and placing the case again on the commissioner’s calendar for hearing. * * *”

The Supreme Court on the two arguments stated:

“We cannot agree to the proposition that the commissioner’s power of his judgment ceased because it was docketed in the county clerk’s office.”

And further stated:

“We consider that the statute does confer power to open such judgments if not expressly by plain implication.”

The statute referred to is the Workmen’s Compensation act, more particularly, section 11 of the act of 1918 and the amendment of 1921 and as now appears in R. S. 1937, 34:15-58.

The Supremo Court reached the same result in the subsequent case involving a compensation judgment in the case of Katz v. Zepela, 10 N. J. Mis. R. 258; 159 Atl. Rep. 306. This was affirmed by the Court of Errors and Appeals in 110 N. J. L. 14.

My action as a whole caused no injury to' the petitioner. He was put in status quo. Case was subsequently listed for trial. If the petitioner is entitled to compensation as awarded and it is so (determined by a trial of the cause, an award will be made.

The respondents are entitled to a trial on its merits. If they have a meritorious defense, it should be heard.

Public funds are involved and must be protected. The bureau must not be a party to their dissipation.

I am therefore denying the motion of petitioner’s attorney for the revocation or setting aside of my order of August 9th, 1940, and am placing same on the calendar for Tuesday, February 11th, 1941, at ten A. M., at which time after a hearing on its merits a disposition of the case can be made.

John C. Wegner, Deputy Commissioner.


text:
    New Jersey Department of Labor, Workmen’s Compensation Bureau.
    HENRIETTA BRAUNSTEIN, INDIVIDUALLY, AND ON BEHALF OF BETTY LOU BRAUNSTEIN, PETITIONER, v. KRAFT CORRUGATED CONTAINERS, INC., RESPONDENT.
    Decided January 20, 1941.
    Por the petitioner, Kalisch <& Kalisch.

    Por the respondent, John W. Taylor.

   The petitioner herein filed two petitions for compensation which, by a stipulation of the respective parties’ attorneys, reflected in an order of this court, were consolidated for the purposes of trial. One petition claimed that on January 21st, 1938, Louis Braunstein, husband of the petitioner, while carrying the payroll of his employer, was held up by a robber and as the result of such holdup, serious further damage was caused to Louis Braunstein’s already sclerotic heart and further alleged that as a result of said holdup, the said Louis Braunstein died on November 25th, 1938; and the other petition claimed that on November 25th, 1938, Louis Braunstein engaged in the exertion of digging away snow in order to get his automobile out, the facts being that the automobile was parked in the rear of his home, with the intention of attending certain duties for his employer, and as a result of the exertion, upon an already weakened heart, Louis Braunstein died on November 25th, 1938.

The petitioner and Louis Braunstein had one child, a girl, Betty Lou, who was born on May 21st, 1928.

Louis Braunstein, the petitioner’s intestate, died on November 25th, 1938.

At the trial oí the issue, the respondent admitted the holdup alleged in the petition but denied any causal relation between such holdup and the death.

The petitioner testified, that following the holdup, she noted a change in her husband;” that he was cranky and lost the good color in his face which he had previously possessed and this appeared to continue and he seemed to slow up in his movements and at times would indicate a shortness of breath. The petitioner produced five doctors to support the claims made in the two petitions.

Dr. Nimaroff testified that on December 29th, 1937, he diagnosed the petitioner’s condition as anxiety neurosis, cardiac neurosis and possible coronary sclerosis accompanied by sighing respiration while at rest, although the anxiety neurosis was not very serious, and the facts in the case indicate that up to this time his condition had not interfered noticeably in the performance of his duties as office manager and personnel director in his place of employment.

On January 22d, 1938, Dr. Cohen testified he found the deceased to be apprehensive, pale, exhibited shortness of breath with a profuse perspiration and precordial pains, all of which he diagnosed as coronary sclerosis, for which he gave the patient a drug to dilate the coronary vessels, and these conditions were apparent as late as July 11th, following, upon further examination by him.

Dr. Friedman examined the deceased on November 11th, 1938, and found him to be suffering with an enlarged heart with poor sounds, difficulty in getting his breath and pain in the chest accompanied by some fatty infiltration of the heart muscles, which he diagnosed as coronary sclerosis, and for which he gave medication.

The petitioner also introduced the testimony of one of the police officers, William Rogers, who responded to a telephone call from police headquarters after the holdup and who found the deceased in a nervous condition, shaken and pale and several of the employes of the respondent company further testified that within a few weeks, the deceased had lost his good color possessed before the holdup and became pale, nervous and cranky, and thereupon the petitioner introduced the testimony of Drs. Ailing and Green, two experts who refused to ascribe the holdup as the cause of the death of the petitioner’s intestate, which occurred on November 25th, 1938, but did testify that the cause of death was the exertion attached to the attempt of the deceased to shovel away the snow about his automobile on November 25th, 1938. Dr. Ailing further testified that previous to the exertion of November 25th, 1938, with the conditions present as testified to by Drs. Nimaroff, Cohen and Friedman, the deceased was suffering from a partial, permanent disability of approximately fifty per cent, of total.

On cross-examination of one of petitioner’s lay witnesses, it was developed that the deceased had engaged in the playing of Badminton, but that around October 1st, 1938, apparently by reason of the development of the heart condition, he could no longer engage in this form of exercise, and it further appeared that the petitioner up to that time had lost no time from work and had received his weekly salary of $35 per week, so that it clearly appears, and I find that up to October 1st, 1938, the deceased was under temporary disability and during a greater part of that time was actually receiving the attention of doctors.

The respondent, so far as the medical aspect of the case is concerned, introduced the testimony of Dr. Olcott, who testified that as the result of the holdup in connection with the already weakened heart, the petitioner’s intestate suffered an aggravation of this condition which created a disability of thirty per cent, of total.

From a consideration of all the testimony, it is my conclusion that the petitioner’s intestate, the deceased, died as the result of the effort in attempting to extricate his automobile from the snow, but I am not satisfied that this occurrence arose out of or in the course of his employment, and I further con-elude that the holdup was too remotely connected with his death to have been either the proximate or contributory cause of his death. I therefore find and determine from all the evidence, that the deceased suffered an accident arising out of and in the course of his employment with the respondent on January 21st, 1938; * * * that as a result of the accident he suffered a partial permanent disability equal to thirty per cent, of total.

K‘ ❖ H« H« :¡í ^ Hi

John C. Wegner, Deputy Commissioner.


text:
    New Jersey Department of Labor, Workmen's Compensation Bureau.
    JOHNNIE MAE HARRIS, PETITIONER, v. CITY OF NEWARK, RESPONDENT.
    Decided January 23, 1941.
    For the petitioner, David Roshein.

    For the respondent, James F. X. O’Brien (by Joseph B. Sugrue).

   *******

From the stipulation of counsel and the testimony adduced, I find and determine as follows:

That Lonnie Harris, the petitioner’s decedent, was in the employ of the city of Newark as a laborer in the refuse division of the Department of Public Affairs, for a period of twelve years next preceding March 11th, 1939, and was earning $28.80 per week. On that date, while so employed, he suffered an injury by accident arising out of and in the course of his employment with the respondent, the city of Newark, when the employe was struck by a limb of a tree while he was riding on top of a city-owned dump truck, and was thrown to the concrete highway. He was rendered unconscious, and removed to the Newark City Hospital where he remained disoriented, drowsy, confused, and his speech was rambling and irrelevant. A diagnosis showed cerebral concussion and possible fracture of the skull, together with the findings of lacerations to his lower lip and left shoulder. Upon his release from the City Hospital, he continued under the care of the Newark city physician, Dr. E. Eink, until April 7th, 1939, when Harris, having obtained no relief from his painful symptoms, came under the professional care of a physician of his own choosing, who thereafter treated the decedent until his death on July 5th, 1940.

The testimony further discloses that on July 4th, 1940, at approximately ten a. m., the employe collapsed in front of his home, and was at once removed to the Newark City Hospital, where he died the following day. An autopsy which was performed revealed that the immediate cause of death was a spontaneous subarachnoid hemorrhage. It was also indicated that his death was caused by the rupture of a military anurysm of the left anterior cerebral artery, and that “this anurysm had ruptured into the anterior horn of the left lateral ventricle.”

The primary issue presented for determination is the relationship, if any, between the admitted compensable accident of March 11th, 1939, and the employe’s death.

The medical witnesses who testified on behalf of the petitioner were of the affirmative opinion that there was a causal relationship between the accident of March, 1939, and the petitioner’s death on July 5th, 1940. Dr. W. T. Darden who treated the injured employe during his lifetime following the accident and until shortly before his death, Dr. C. C. Beling, a neurologist who had occasion to examine the petitioner on several occasions during his lifetime following the accident, Dr. Alfred Mamlet, a specialist in diseases of the head, who performed various tests of the petitioner during his lifetime, and Dr. Asher Yaguda, a pathologist, who performed the autopsy of the petitioner’s brain, all testified in support of this hypothesis. In addition, lay witnesses consisting of relatives, members of the employe’s family, and neighbors testified as to his conduct following the accident.

It would serve no useful purpose to here analyze in detail all the medical and lay testimony adduced. The conclusion is compelling, that the accident which the decedent suffered on March 11th, 1939, was a severe one, and caused definite damage to the structure of his brain, and produced numerous objective and subjective symptoms which disabled him and prevented his pursuit of his normal activities and mode of life. The testimony clearly indicates that following said accident, he suffered from the effects of intense and persistent dizziness, headaches, apprehension, dizzy spells on bending, partial loss of hearing, stammering of speech, and instability of station. In fact, he had been and was receiving active medical treatment for these symptoms up to his collapse and death. The neurological examinations made by both the experts of the petitioner and the respondent, indicate that his symptoms were the sequelae of a concussion of the brain and of the organic damage to the brain that was produced by the industrial accident. The lay witnesses testified in detail as to his unusual actions during the period following this accident. They had occasion to frequently observe him in the neighborhood, unemployed, manifesting the symptoms above enumerated. It also appears that these symptoms necessitated the employe’s confinement in and about his home, the treatment of a physician, and endeavors on the part of the employe to obtain relief elsewhere. Such conduct was in marked contrast to his apparent good health, industry, and regular employment prior to the accident. The contention of the petitioner that her husband’s death was causally related to the accident of March 11th, 1939, is denied by the respondent. The employer adduced the testimony of Dr. E. Fink, and Dr. H. Davidson a neurologist. It is the respondent’s contention that the anurysm which ruptured July 4th, 1940, and resulted in the collapse of the employe, and his subsequent death, was of a congenital origin, and in no way connected with the accident of March, 1939.

The testimony, without serious dispute, indicates that the petitioner’s decedent, a young man of thirty-three years of age, was employed steadily for twelve years, up to the date of the accident, by the respondent, during which time he exhibited no evidence of any head symptometology, and was in apparent good health. On March 11th, 1939, he suffered an admittedly severe injury to his head, which produced both objective and subjective nervous symptoms, and which injury was diagnosed by all the neurologists as a concussion of the brain with organic brain damage. This injury and the ensuing objective and subjective symptoms incapacitated Harris from work on and after the date of said accident. Moreover, the symptoms, which were recurrent, continued up to the time,of his death. The credible preponderance of the medical testimony established that while the schools of medical thought are divided as to the etiology, such an anurysm may be produced by trauma. This theory finds abundant support in the case under consideration, in the absence, on autopsy, of any other congenital anomalies. Moreover, it was testified that the anatomic condites of the skull are favorable for the development of a traumatic anurysm, especially at the base of the brain where the arteries are in contact with the bony structures. Thus there is a reasonable basis to conclude that the accidental injury to the brain and blood vessels of March, 1939, which' was demonstrated by the persistent evidences'of brain damage thereafter, undoubtedly produced severe damage to the arteries and blood vessels of the brain, and from it the anurysm from which the employe died by reason of its subsequent rupture. The findings of Dr. Yaguda, the pathologist, who was present at the autopsy, and personally observed the conditions to which he testified, is obviously more informing and valuable than the conclusions of the respondent’s neurologist, who did not witness or participate in the autopsy, but merely rendered his opinion, based on the reports of the autopsy findings of Drs. Martland and Yaguda. Jackson v. New York Shipbuilding Corp., 119 N. J. L. 542; 197 Atl. Rep. 284.

In appraising the evidence, probability and not the ultimate degree of certainty, is the test. Auten v. Johnston, 115 N. J. L. 71; 178 Atl. Rep. 187. The medical testimony adduced by the petitioner satisfies that requirement. The chain of related events which began with the industrial accident, and continued up to the death of the employe, coupled with the affirmative expert medical testimony of the four physicians who appeared on behalf of the petitioner, established, in my opinion, adequate facts from which the proper deducible inferences from a rational basis, that the decedent’s death was the result of an accident arising out of and in the course of his employment. Calicchio v. Jersey City Stockyards, 125 N. J. L. 112; 14 Atl. Rep. (2d) 464; Jackson v. Delaware, Lackawanna and Western Railroad Co., 111 N. J. L. 487; 170 Atl. Rep. 22; Hercules Powder Co. v. Nieratko, 113 N. J. L. 195; 173 Atl. Rep. 606; affirmed, 114 N. J. L. 254; 176 Atl. Rep. 198; Belyus v. Wilkinson Gaddis & co., 115 N. J. L. 43; 178 Atl. Rep. 181; affirmed, 116 N. J. L. 92. The respondent seeks to avoid liability because, as it contends, the anurysm which ruptured and caused the death of the employe, was of congenital origin and wholly unrelated to the accidental injuries suffered by the employe, and its sequelae. The burden of proof in this respect is on the employer. Atchison v. Colgate, 3 N. J. Mis. R. 451; 128 Atl. Rep. 598; affirmed, 102 N. J. L. 425; 131 Atl. Rep. 921. From a careful consideration of all the testimony adduced, I find that the respondent has failed to meet and sustain that burden.

I am satisfied that the petitioner has established by competent and compelling proofs, facts and circumstances of such a character as to afford a fair and reasonable presumption that the death of her decedent, Lonnie Harris, was causally related to the injuries which he suffered in the accident of March, 1939, that arose out of and in the course of his employment with the respondent, and I so find.

*******

John C. Wegner, Deputy Commissioner.


author: Quinn, President.

text:
    State Board of Tax Appeals.
    CITY OF HOBOKEN, PETITIONER, v. MORRIS AND ESSEX RAILROAD CO., RESPONDENT.
    Decided January 21, 1941.
    Por the petitioner, John J. Fallon and Otmar J. Pellet.

    Por the respondent, John L. Segar (by John A. Laird).

   Quinn, President.

This is an appeal by the city of Hoboken to restore an assessment, reduced by the Hudson County Board of Taxation, upon the land and building commonly known as the Fourteenth street Hoboken ferry property, for the year 1938. The assessment is in the sum of $631,600, being land, $461,600, and improvement $170,000. The county board reduced these figures to $514,500, being land, $354,500, and improvement, $160,000.

The assessment of this property has been on appeal before us for each of the years 1935, 1936 and 1937. The original assessments for those years were identical with those for the year 1938. The Hudson County Board of Taxation uniformly reduced the land assessments by $107,100, and those for improvements by $20,000. This board, however, in each year, restored the original land Valuation, and $10,000 on the improvement reduction, the final assessments thus being fixed at $461,600 for laud and $160,000 for improvements. Our conclusions were arrived at after lengthy hearings, at which testimony substantially similar to that here adduced was offered by the parties. Our determination for the year 1937 as to land was entered by consent of the respondent. Under these circumstances, the presumption of correctness, which normally attends determinations of county boards of taxation (Newton Trust Co. v. Atwood (Supreme Court, 1908), 77 N. J. L. 141; 71 Atl. Rep. 110), must be deemed neutralized, in the absence of a satisfactory showing that the reductions which we determined to be improper for the years 1935-1937, inclusive, are warranted for the year 1938. Such a showing is not made upon this appeal.

The divergence in land valuations testified to by the equally competent experts on either side continues. Messrs. Coffin and Makray, on behalf of petitioner, valued respondent’s land, as of October 1st, 1937, at $587,518 and $600,870, respectively, compared with the assessment of $461,600. Individual assessors of the taxing district valued the property at $747,000, admitting that they had consciously under assessed the parcel, in pursuance of a fixed policy of maintaining the assessment at figures originally arrived at for the years 1921 and 1922 by the Supreme Court. See Hoboken Ferry Co. et al. v. Stale Board of Taxes and Assessment (Supreme Court, 1925), 3 N. J. Mis. R. 361; 128 Atl. Rep. 418.

On the contrary, respondent’s witnesses, Stack and 'Ryer, valued the property at $288,416 and $306,535, respectively. These witnesses relied, among other factors, upon two allegedly comparable sales of properties in the vicinity. The first was that of a parcel known as plot 5 or Y, in 1932, by Hoboken Terminal Properties, Inc., to Hoboken Land and Improvement Company for the apparent consideration of $300,000, being at the rate of $45,000 an acre, as compared with the assessment rate of $75,000 an acre for the property under appeal. We have had occasion heretofore, however, to examine full proofs as to the details of this transaction, in the appeal of the Hoboken Land and Improvement Company of its realty assessment for the years 1935 and 1936, and we found that simultaneously with the contract of sale, the vendor and the purchaser had made an agreement that the latter would, if it took title under the contract of sale, execute a lease unto the vendor or its nominee, in conformance with a schedule of terms thereto attached. City of Hoboken v. Hoboken Land and Improvement Co., New Jersey Tax Reports, 1934-1939, p. 551 (at p. 559). We were of the opinion, and nothing adduced in this case has altered it, that the commitment of lease constituted a consideration for the sale, moving to the seller, over and above the stated $300,000. Respondent’s witnesses, however, have, as noted, given the sale full weight at its face consideration.

The other sale was of another parcel of Hoboken waterfront from Hudson Realty Co. to General Foods Corporation at $28,000 an acre. While we regard this sale as one of comparable property, in a literal sense, i. e., susceptible of comparison, we find it. of little evidentiary value. While respondent’s witnesses conceded that the property under appeal was far more valuable than that sold to General Foods, nothing was presented as to the degree of difference in value, upon the basis of which their final valuation of respondent’s property could properly be referred to the sale price of the General Foods property as a criterion. All that definitely appears is that the difference in value is substantial. The property under appeal is at the foot of Fourteenth street, a major crosstown artery in Hoboken. The parcel, land and improvement, is an important and apparently profitable ferry property, held and operated as such by its owner, and properly subject to valuation for assessment in the condition actually held. Trustees of Stevens Institute v. State Board (Supreme Court, 1928), 105 N. J. L. 99; 143 Atl. Rep. 356; affirmed (Court of Errors and Appeals, 1929); 105 N. J. L. 655; 146 Atl. Rep. 919; Hackensack Water Co. v. Borough of Woodcliff Lake, New Jersey Tax Reports, 1934-1939, p. 144 (at p. 147); Gen eral Motors Corp. v. City of Linden, New Jersey Tax Reports, 1934-1939 (at p. 748); affirmed (Supreme Court, 1940), 124 N. J. L. 212; 11 Atl. Rep. (2d) 314. On the other hand, the other property had only potential value of an uncertain extent, prior to its purchase by General Foods.

Some of the witnesses were of the opinion that waterfront Values in Hoboken were receding during the period of three or four years prior to October 1st,.1937; others, that they were advancing. On the whole case, we conclude that the assessed valuation of $461,600 is not in excess of the true value of the land, as of the assessing date.

As to the improvement, we heretofore fixed its value at $160,000 for the period, 1935-1937, and as it was testified that no alteration or change in the structure has taken place since, we determine that the petitioner’s prayer for restoration of the $170,000 assessment should be denied.

In accordance with the foregoing conclusions the judgment of the Hudson County Board will be reversed as to land, and affirmed as to the improvement, to the end that the assessment be fixed at $621,600, being land, $461,600, and improvement $160,000.