text:
    TILLIE KLUGHAUPT, PLAINTIFF, v. ACQUACKANONK WATER COMPANY, A CORPORATION, DEFENDANT.
    Submitted March 13, 1924
    Decided July 25, 1924.
    Pleading — Motion to Strike Out — Answer Contains as “Third Defense” On or Before Trial Defendant Would Move to Strike Out on Ground That No Cause of Action was Disclosed' — Rules 30 and 40 Construed to Mean That Motions to Strike Out Complaint Must Be Made Before Answer Has Been Filed.
    Before Justices Kalisch, Katzenbach and.Lloyd.
    For the plaintiff, Weinberger & Weinberger.

    Eor the defendant, William P. Seddon.

   Per Curiam.

This is a motion to strike out a complaint upon the ground that it discloses nc cause of action. The complaint alleges that the plaintiff was the owner of a dwelling-house in the city of Passaic; that the defendant water company maintained a series of water pipes beneath the street in front of the plaintiff’s house; that “it was the duty of the company to maintain such pipes in good condition and not to permit them to deteriorate or become defective so that they would not be able to stand any pressure of water which the said defendant might cause to be forced through them;” that the water pipe burst and flooded the cellar of the plaintiff; that the cellar became damp and unsanitary, and that the foundations were weakened, causing the house to settle, &c. To this complaint an answer was filed. The answer denied the allegations of the material parts of the complaint. It also set up as a defense that there was a leak across the street from the plaintiff’s property, and also that water, sprayed on the front lawn of the plaintiff’s property, passed through the cellar window, and that any damages to the plaintiff’s property was occasioned by the negligence of the plaintiff. The answer also set up as a defense that the pipes were in good condition and did not deteriorate or become defective.

Under the heading “Third Defense” the defendant stated that on or before the trial of this action the defendant would move to strike out the complaint on the ground that it disclosed no cause for action.

The record does not show the date of the filing of the answer or disclose whether the action was placed on the cal endar for trial. After the filing of the answer notice of this motion was given.

In the ease of Applebaum v. Pierce (No. 402, February term, 1924), a similar motion, after answer filed, was made. In this case this court said: “Bule 30 of the Supreme Court rules reads as follows: 'Order of pleadings. The order of pleadings shall be — (1) complaint; (2) motion addressed to the complaint: (3) answer; (4) motion addressed to the answer; (5) reply. Further pleadings may be had, if necessary, until issue is joined. Unless otherwise ordered by the court, pleadings must be filed and motions made, in the order mentioned above.’

“Eule 40 provides as follows: ‘Demurrers are abolished. Any pleadings may be struck out,on motion on the ground that it discloses no, cause of action, defenseror counter-claim, respectively. The order made upon such motion is appeal-able, after final,judgment. In lieu of a motion to strike out, the.same objection, and any point of law [other than a question of pleading or practice] may be raised in the answering pleadings, and may bé disposed of at or after the trial; but the court, on motion of either party, may determine the question so raised before trial, and if the decision be decisive of the whole case the court may give judgment for the successful party or malee such order as may be just.’

“We construe these sections as requiring a motion to strike out a complaint to be made to this court before an answer has been filed. After an answer has been filed the motion must be made at or after the trial before the judge to whom the cause has been referred for trial. The practice pursued in the present case, if sanctioned, could be made most, oppressive to plaintiff and a means of obtaining a delay in the trial of an action.- In many counties the Circuit calendars are so crowded that frequently all the canses listed for trial cannot be reached during the term. A defendant could, as the case was approached, give notice of a motion before the court to strike out the complaint. This would result in delay and deprive the plaintiff of a speedy trial of his case which our system of procedure seeks to give.”

These words are applicable to the present ease. Afielan swer filed this court will not entertain a motion to strike out the complaint. Often upon a motion made before the trial court defects in the complaint may be cured by amendments which the court will permit to be made where the complaint imperfectly states a good cause of action. This practice'of making a motion'of this kind, after answer filed to -the trial judge, leads to greater expedition in the trial cf causes.

Eor the reasons herein expressed the motion to -strike out-the complaint is denied, with costs.


source: Caselaw Access Project

author: Oliphaxt. S. 0. C.

license: Public Domain

text:
    POPKIN BROS., INC., A CORPORATION OF THE STATE OF NEW JERSEY, PLAINTIFF, v. VOLK’S TIRE COMPANY, A CORPORATION OF THE STATE OF NEW JERSEY, AND DANIEL H. VOLK, DEFENDANTS.
    Decided December 15, 1941.
    For the plaintiff, John W. Taylor.

    For the defendant, Horace 0. Brown.

   Oliphaxt. S. 0. C.

This matter is before me sitting as a Supreme Court Commissioner on a motion to strike the complaint on two grounds, that the plaintiff is not a proper party plaintiff and that the suit is by one tort feasor against another alleged tort feasor for contribution or reimbursement.

Plaintiff was engaged in the. produce business in the City of Trenton and as such operated a fleet of trucks. It entered into an agreement with the defendant whereby it bought tires and tubes for its trucks from it who agreed to service, inspect and keep in good and safe repair and running condition the tires, tubes, rims, lugs and wheels of the said trucks.

On July 13th, 1939, the defendant replaced a tire and rim on one of the trucks of the plaintiff allegedly in a careless and negligent manner. The truck was on later occasions inspected by the defendant and apparently passed as in good condition with reference to the tires, rims, &c.

On August 10th, T939, an employee of the plaintiff was operating the truck in Bethlehem, Pennsylvania, when the rim of the wheel gave way, it flew across the street and injured a pedestrian, one Dorn, who allegedly suffered severe injuries. The said Dorn made claim against the plaintiff for damages and admitting liability, plaintiff paid to him the sum of $9,000. The instant suit seeks to procure from the defendant indemnification for the sum so paid.

The first ground for the motion is predicated upon the facts that both from the complaint and the answer to the demand for particulars it is evident some one other than the plaintiff made the payment to Dorn and that that individual or corporation has an interest in plaintiff’s demand by way of subrogation. Though it does not appear, without doubt plaintiff’s insurance carrier made the payment.

This ground is effectively disposed of by the decision of the Supreme Court in Weber v. Morris and Essex Railroad Co., 36 N. J. L. 213.

The second ground presents a question which appears to be novel in this state.

It is well established law that “There can be no contribution between joint tori feasors * * * the law will not undertake to adjust the burden of ill conduct.” Manowitz v. Kanov, 107 N. J. L. 523; 154 Atl. Rep. 326; Public Service v. Matleucci, 105 N. J. L. 114; 143 Atl. Rep. 221.

That rule does not apply when there is a difference between the character of the wrongs and the quality of the conduct of the parties. In the instant case the plaintiff’s negligence consisted in its failure to properly inspect the instrument causing the damage, retying upon the defendant’s representations as to its fitness; the defendants’ negligence consisted in its failure to property attach the tire and rim, thereby furnishing an article defective for the use for which it was supplied.

There are many decisions throughout the country touching upon the subject of implied indemnity and restitution and they have been crystallized in the Restatement of the Law of Restitution.

Paragraph 93 of that title ls as follows:

“(1) Where a person has supplied to another a chattel which because of the supplier’s negligence or other fault is dangerously defective for the use for which it is supplied and both have become liable in tort to a third person injured by such use, the supplier is under a duty to indemnify the other for expenditures properly made in discharge of the claim of the third person, if the other used or disposed of the chattel in reliance upon the supplier’s care and if, as between the two, such reliance was justifiable.
“(2) The rule stated in subsection (1) applies where a person has negligently made repairs or improvements upon the land or chattels of another whereby both become liable in tort to a third j)erson.”

The reporter in the text comments on paragraph 93 of the title Restitution and explains it as follows (page 409) :

“The usual application of the rule, however, is with reference to persons who are under a duty of care to third persons and who are made liable because of a failure to use care in the inspection of the chattels. Thus the seller of a dangerous chattel is normally under a duty of care to make some inspection before selling the chattel. * * * A master is under a duty of care to his servants to inspect tools which he purchased from third persons. * * * In such cases the fact that the claimant was negligent with respect to the person harmed does not prevent him from obtaining indemnity from the supplier, if his negligence consisted merely in failing to make an inspection and his failure was because of his belief due to representations by the supplier that the chattels were not defective. In all cases indemnity depends upon the existence of some form of representation made by the supplier and reasonableness, as between the two, by the payor in relying upon the supplier’s representation.”

Among numerous other cases cited in the reporters’ notes on this paragraph of the Restatement contained in the pocket supplement are those of Boston Woven Hose and Rubber, Co. v. Kendall, 178 Mass. 332; 59 N. E. Rep. 657, and Busch & Latta Painting Co. v. Woermann Construction Co., 310 Mo. 419; 276 S. W. Rep. 614. They are good illustrations of the principles here involved. In both, the defendant, from whom indemnity was sought, was the originator or creator of a dangerous article which the plaintiff in each case negligently failed to inspect. The plaintiffs in each case were held liable to third persons for their negligence in failing to make a proper inspection and were allowed indemnity against the creator of the defective article, the plaintiffs having relied upon the defendant’s representations and warranties as to the fitness of the article for the purpose for which it was in each cáse intended.

In 31 C. J. 455, ¶ 55, is found the following:

“The general rule (i. e., the rule against contribution by the joint tort feasors) however, does not apply and there may be a recovery of indemnity where the person seeking indemnity and the person from whom indemnity is sought are not pari delicto, as where, although the relation of the party seeking indemnity to the negligent or wrongful act is such that he is liable therefor, he did not join in such act, or did not know and was not presumed to know that the act was wrongful; or where he was only technically or constructively at fault, as from a failure to perform some legal duty, and the negligent, or wrongful act of the party from whom indemnity is sought was the primary or proximate cause of the injury, or where both parties were at fault, but not in the same fault toward the person injured, and the fault of the party against whom indemnity is claimed was the primary and efficient cause of the injury.”

A further paragraph on page 456 sets forth the tests to be applied to determine whether indemnity can be enforced.

In the case of Wise Shoes, Inc., v. Blatt, 107 Pa. Super. 473; 161 Atl. Rep. 89, wherein the plaintiff sued the defendant to recover the amount of a judgment recovered against it by a third party for personal injuries sustained by falling on ice on the plaintiffs sidewalk, the ice being formed in the course of defendant washing plaintiffs windows and spilling water, the court said: “The plaintiff was not a joint tort feasor. It was held liable in a suit against it because of its duty as a property owner to maintain its sidewalk in a reasonably safe condition. The motivating cause of the injury was the act of the window cleaner, an independent contractor, in which plaintiff did not concur. Under these circumstances, the ordinary rules applicable to joint tort feasors do not apply, but the party held liable in the first instant may recover over against the one who actually causes the dangerous condition, since the latter is the active wrongdoer.” In quoting from the case of Fowler v. Jersey Shore Borough, 17 Pa. Super. 366 (at p. 373), the court said: “The rule that one of two joint tori feasors cannot maintain an action against the other for indemnity or contribution does not apply to a case where one does the act or creates the nuisance and the other does not join therein but is thereby exposed to liability; in such cases the parties are not in pari delicto as to each other, though as to third parties either may be held liable.” This passage well states the principle.

The fact that the payment by the plaintiff here to the injured person was a voluntary one in the sense that the claim was not reduced to judgment does not defeat the right of indemnification. Tf it appears that the party was legally liable and could have been compelled to satisfy the claim, that is sufficient. Voluntary payment merely varies the degree of proof needed to establish the liability of the idemnitor. Wise Shoes, Inc., v. Blatt, supra. See, also, 31 C. J. 453.

Paragraph I) of the text of the Restatement of the Law of Restitution under section 86, page 291, says: “The rule stated in this section is applicable whether or not suit has been brought by the injured person against the payor. If, however, suit is not brought by the injured person, and the payor seeks restitution from a fellow tort feasor, it is necessary for him to prove that his payment terminated or reduced a valid claim against the other, except under the conditions stated in paragraphs-78 and 83. It is also necessary for him to prove that the settlement made with the injured person was' reasonable under the circumstances.”

The motion will be denied.


author: Per Curiam.

text:
    APPLICATION OF KINGSTON STONE FOR WAIVER OF PART OF RULE 5, RELATING TO THE FILING OF QUALIFYING CERTIFICATE.
    Decided June 21, 1941.
    Before Justices Parker, Donges and Colie.
   Per Curiam.

.This candidate matriculated at law school in September, 1938, and has graduated. He filed the required qualifying certificate but failed to file in time the certificate of registration with a counselor-at-law because unaware of the rule at that time, and asks that the registration filed in October, 1938, be considered effective as of the earlier date.

This case seems to be clearly within the lines of the Evers case, Application of Evers, 124 N. J. L. 97, and the application will be granted.

It appears by another certificate that this candidate has been drafted and will be short of his office clerkship at the time of the examination, and asks leave to take the examination and continue the clerkship afterwards. This privilege is frequently allowed and will be allowed in the present case.


author: Wolber, C. C. J.

text:
    JOHN F. KANE, PLAINTIFF, v. BOARD OF EDUCATION OF THE TOWN OF MONTCLAIR, IN THE COUNTY OF ESSEX, DEFENDANT.
    Decided November 7, 1941.
    For the plaintiff, Sullivan & Sullivan.

    For the defendant, George S. Harris.

   Wolber, C. C. J.

This matter comes before me on a motion to strike the complaint on the ground that it is insufficient in law. Supreme Court Rule 40.

The complaint is set forth in two counts. They allege that the plaintiff sustained personal injuries as a result of a fall on the evening of November 14th, 1939, down a flight of steps located adjacent to the George Inness School in Montclair. Plaintiff alleges he attended a theatrical performance of The Studio Players in that school building and that the building and premises were under the control of the defendant. He further contended that the defendant’s conduct was tortious in that it failed to keep lights burning to illuminate the stairway by which the plaintiff sought to leave the building. Admitting for the purposes of this motion all the facts well pleaded in the complaint, the defendant asserts that neither count of the complaint discloses a cause of action.

R. S. 18:5-30; N. J. S. A. 18:5-30, provides:

“No school district shall be liable for injury to the person from the use of any public grounds, buildings or structures, any law to the contrary notwithstanding.” Source: L. 1933, c. 460, sec. 1, p. 1550.

Common Pleas Judge Hartshorne in Falcone v. Board of Education of Newark (Essex County Court of Common Pleas, 1939), 17 N. J. Mis. R. 75; 4 Atl. Rep. (2d) 687, considered the question of how far the public school system of this state is, as such, liable for injury to' the person. In that case, while plaintiff’s intestate, a girl, was using a washroom and lavatory in a public school building on a school playground in Newark, a slate slab, which acted as a screen, fell upon the girl, as the result of which she died. In determining the real question, he had to appraise the effect of the aforesaid statute. . He found that no language could be clearer than the simple words of the 1933 act and deduced an intent thereof to modify the common law, not only from the generality of its language, but from the fact that the law was to apply “any law to the contrary notwithstanding.”

In Allas v. Rumson (1935), 115 N. J. L. 593; 181 Atl. Rep. 175, Mr. Justice Heher said:

“The general rule is that one who sustains special damage from a common nuisance has an action therefor against the creator of the nuisance, although the latter may also be subject to indictment. But there is a firmly established exception to this rule, grounded in 'ancient precedent and public policy,’ that, in the absence of statutory provision to the contraiy, a municipality is not liable to an individual for its failure to exercise an imperative governmental function, or for the negligence of its officers or agents in the performance of a public duty imposed on it by law, whereby a public wrong has been done for which an indictment will lie. The injurious consequences of such a default may not be repaired by private action; the wrong is remediable only by indictment or presentment. * * *
“There is, of course, a well recognized distinction, in respect of liability for negligence, between the exercise of a governmental function or duty imposed upon the municipality by law for the benefit of the public, and from the performance of which no profit or advantage is derived, and powers conferred for the accomplishment or corporate purposes essentially special or private in character, in respect of which the municipality stands upon the same footing as a private corporation. * * *
“Generally, the test of liability to a private action for special damage is whether such damage is or is not a part of a public wrong for which an indictment would lie. * * * But this exemption from liability does not extend to private injury resulting from active wrongdoing chargeable to the municipal corporation. * * *
“* * * There is some confusion in the adjudicated cases as to what constitutes active wrongdoing by a municipality, and the line of demarcation is not always clearly maintained. The difficult}' usually lies in the application of the principle to the facts of the particular case. The true distinction seems to be whether the private injury has resulted from a wrongful act or positive misfeasance, as distinguished from mere negligence. A private action must rest upon some positive, affirmative act, ‘wrongful in itself, and detrimental to the plaintiff/ ”

In Hammond v. County of Monmouth (Supreme Court, 1936, Perskie, J.), 117 N. J. L. 11; 186 Atl. Rep. 452, a culvert was held not to come within the purview of Pamph. L. 1935, eh, 460, absolving counties from liability for injury to the person from the use of any public grounds, buildings or structures.

The late Circuit Court Judge Lawrence in Cohen v. Morristown (Supreme Court, 1937), 15 N. J. Mis. R. 288; 190 Atl. Rep. 851, held that chapter 460 of the laws of 1933 was not applicable to a culvert or bridge, nor to a sidewalk leading from a public; park to a public street. Selph v. Morristown (1938), 16 N. J. Mis. R. 19.

In Leeds v. Atlantic City (1935, Jayne, C. C. J.), 13 N. J. Mis. R. 868; 181 Atl. Rep. 892, the city was charged with negligence in the construction and maintenance of seats at an entertainment conducted by the city for profit in the municipal Convention Hall, to which the plaintiff was invited. Judge Jayne pointed out that the convention Hall in Atlantic City in which the plaintiff was injured is maintained and the entertainments therein are conducted under statutory authority. Pamph. L. 1929, p. 396, and that the legislature, in conferring the power to maintain convention halls, said:

“‘It being the intent of this act that such municipality shall be enabled to operate such station or hall in the businesslike manner similar to the methods that would be employed if the station or hall was operated by a private and not a municipal corporation.’ ”

Cf. Bianchi v. South Park Presbyterian Church (1939, Heher, J.), 123 N. J. L. 325; 8 Atl. Rep. (2d) 567, holding that a religious society is exempt from liability for damages to a non-member beneficiary of its incidental philanthropy who suffers injury by reason of its negligence in the management of a house used as an appurtenance to a church.

In the Leeds case the court said that if it may be assumed that the legislature may grant to a municipality, engaged in a private enterprise, an exemption from liability in fort which it denies to private corporations similarly engaged, no such intention on the part of the legislature should be merely surmised. Such an intention should be clearly evident, otherwise it should not be inferred that the legislature intended the statute to be positively repugnant and inimical to the settled law, and reached the conclusion that chapter 460 of the laws of 1933 did not absolve the defendant from liability to the plaintiff.

R. S. 18:5-22; N. J. S. A. 18:5-22, provides:

“The board of education of any school district may, subject to reasonable regulations to be adopted by such board, * * * permit the use of any school house and rooms therein, and the grounds and other property of the district, when not in use for school purposes, for any of the following purposes: * * *
“d. For such meetings, entertainments, and occasions where admission fees are charged as may be approved by the board of education.”

In the instant case the exercise of no proprietary power by the school 'board is shown. The school building where the alleged accident took place was erected for the purpose of providing instruction for the children of the Town of Montclair. This is definitely a governmental function. McKnight v. Cassady (1934, Lloyd, J.), 113 N. J. L. 565; 174 Atl. Rep. 865; Johnson v. Board of Education, Wildwood (1926, Parker, J.), 102 N. J. L. 606; 133 Atl. Rep. 301.

On the evening in question the defendant had express legislative authority to permit The Studio Players, a theatre group, to use the school. There is no allegation in the complaint that the defendant operated the school auditorium for profit, as was the case in the Atlantic City Convention Flail in Leeds v. Atlantic City, supra. There is no statutory authorization for a school district to rent school buildings for a profit.

The instant case presents facts that are different from those in any of the foregoing eases where the statutory exemption was denied by our courts. This case is more like the Falcone case, and for that reason, 1 must reach the conclusion that the statute expressly exempting a school district from liability for personal injuries resulting from the use of public grounds, buildings or structures, applies. Both counts of the complaint must therefore be stricken.


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

text:
    Somerset County Circuit Court.
    IN THE MATTER OF THE ALLEGED ELECTION OF FREAS L. HESS AS MEMBER OF THE GENERAL ASSEMBLY FOR SOMERSET COUNTY.
    Decided December 12, 1941.
    Por the petitioner pro se, Anthony P. Kearns.

    Por the respondent, Arthur B. Smith.

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

(Orally.) This comes on a motion of the respondent or as referred to in the statute R. S. 19 :29-l; N. J. S. A. 19 :29-l, the incumbent, to dismiss the petition filed by Anthony P. Kearns, contesting the election of Preas L. Hess to the General Assembly of New Jersey, from Somerset County, the said petition further praying that the petitioner, Anthonj^ P. Kearns, be declared by this court to be the candidate lawfully entitled to the seat in the Assembly.

Three questions arise under the petition and the motions addressed thereto:

(a) Whether or not this court has jurisdiction to hear and determine the petitioner’s contest of the respondent’s election;

(b) Assuming such jurisdiction, whether or not, under the facts stated in the petition, admitting them to be true for the purposes of this motion the said Preas L. Hess is shown to be disqualified to take his seat in the General Assembly, and

(c) If there be a vacancy by reason of such alleged disqualification of Ereas L. Hess, whether or not this court can determine the right of the petitioner to take the seat so vacated.

In the order stated these questions will be disposed of.

(a) The jurisdiction of this court.

Article 1Y, section 4, paragraph 2, of the ISiew Jersey Constitution provides:

“Each House shall be the judge of election returns and qualifications of its own members * * *.”

N. J. S. A. 19:29-l and 2 provide for the contest of the election of any person to any public office by the voters of this state, upon the grounds stated in the aforesaid sections; one of the said grounds being:

“That the incumbent was not eligible to the office at the time of the election.”

And still another ground:

“For any other cause which shows that another was the person legally elected.”

The said sections also provide, under given circumstances, for a hearing and determination of the said contest by the Circuit Courts of this state, the contest being commenced by the filing of a petition with the Circuit Court clerk, signed by any defeated candidate for a public office. If there ever was any apparent conflict or contradiction between the constitutional provision above referred to, and the statutory provisions, the matter has been judicially determined and settled, it seems to me. Briefly, it has been stated by our courts, that the General Assembly still has the power to “finally judicially determine” the election of a member, and that the power that has been given to the Circuit Court by the statutory provision is merely ministerial in nature and subject to the final determination of the General Assembly, and that the decision of the Circuit Court does not have a conclusive effect. Thus, in Conger v. Convery, 52 N. J. L. 417; 20 Atl. Rep. 166, Mr. Chief Justice Beasley stated (at p. 443) :

“* * * This act under consideration, when properly construed, does not transfer to the county Circuit Court any part of that prerogative' power of this court of which we have been treating. The proceedure which it establishes is to be regarded simply as a part of the apparatus for organizing the government, by supplying it temporarily, and in view of a pressing public necessity, with its necessary members. In its purpose and nature it is similar to the power exercised by the judges of election and the county canvassers. It may, in fact, be said to be a supplement to such machinery, the object of it and the other agencies just referred to being the same—that is, to put into office for the time being such candidates as appear to have been chosen by the people.
“This construction excludes, of course, the idea that the procedure has any conclusive effect, and regarding it in this light it appears to be, in a constitutional point of .view, unobjectionable, at least so far as it is employed merely as an electoral adjunct. Plainly, the judgment rendered in such procedure would not oust this court of its jurisdiction subsequently to try the title to the office by quo warranto. Indeed, no case has been observed in which it has been declared that a decision of this kind, settling for immediate purposes and as a part of the electoral process with which it was intimately connected, the right to office, is a bar to further judicial inquiry. The doctrine of the inconelusiveness of such decisions in these cases, is approved by Judge McCrary in his excellent treatise on Elections, section 360.”

This decision was followed by our Supreme Court in Van Winkle v. Caffrey, 12 N. J. Mis. R. 834, in which Winant Van Winkle, petitioner, sought to obtain a writ prohibiting the Circuit Court of Bergen County from proceeding with the petition filed by William H. J. Ely, contesting the election of the said Winant Van Winkle, to the Mew Jersey Senate from Bergen County.

The same question of jurisdiction was brought up in that case. The court quoted and followed Conger v. Convery, supra, and said (at p. 836) :

“It is plain, we think, that the legislature intended, when it enacted article 26 of the act of 1930, that the power to finally determine the election of a senator should remain where it is placed by the constitution. * * *
“The duties of the Circuit Court in carrying out the provisions of article 26 of the act are therefore ministerial, and are employed as an electoral adjunct. Ho doubt the Circuit Court will so limit its activities. Of course if it should exceed its true powers its action would be subject to review and annulment by the senate, and by appeal as provided for by the act itself, and otherwise.”

And again, in In re Hunt, 15 N. J. Mis. R. 331; 191 Atl. Rep. 437, in a well-considered opinion by one of my colleagues, Circuit Court Judge Wilfred H. Jayne, the jurisdiction of the Circuit Court to hear and determine contests in a ministerial capacity, was determined. It follows therefore that this court, in a ministerial capacity, has the jurisdiction to hear and determine this contest of election.

This brings us to the next question, namely, (b) the alleged disqualification of the successful candidate, Preas L. Hess, to take his seat in the General Assembly. The gist of - the complaint addressed to the qualifications of the successful candidate, Preas L. Hess, is that the said Proas L. Hess was and is the Mayor of the Borough of Somerville, and therefore, as such, he was and is judge of a court of record and a justice of the peace, and thus is disqualified to hold a seat in the Assembly. Article IV, section 5, paragraph 3 of the Hew Jersey Constitution provides:

“Persons holding certain offices in state not entitled to seat in legislature; vacation of office upon taking seat; federal officer not entitled to seat.
“Ho justice of the supreme court, nor judge of any other court, sheriff, justice of the peace, nor any person or persons possessed of any office of profit under the government of this state, shall be entitled to a seat, either in the senate or in the general assembly; but on being elected and taking his seat, his office shall be considered vacant; and no person holding any office of profit under the government of the United States shall be entitled to a seat in either house.”

It is important to note the clause in the constitutional provision “on being elected and taking his seat, his office shall be considered vacant.” It appears then that one who occupies the office of judge or justice of the peace may be elected and may take his seat in the Assembly or in the Senate, but that upon taking that seat, his office of judgeship becomes vacant.

How, this precise point is what was decided by Mr. Chief Justice Brogan, in Rodgers v. Taggart, 118 N. J. L. 542; 194 Atl. Rep. 162; affirmed, 120 N. J. L. 243; 199 Atl. Rep. 47. That case was by quo warranto proceedings brought in the name of the Attorney-General, by a citizen of Atlantic City, contesting the right of Thomas D. Taggart, Jr., to hold the office of recorder after he had been elected to the state legislature and had taken his seat as a member of the General Assembly. The first question raised in that case was whether or not the constitutional provision above quoted also applied to recorders as judges. Mr. Chief Justice Brogan held that a recorder was a judge, within the meaning of the constitutional provision. On this point the Chief Justice stated (at .p. 545) :

“The respondent argues that the recorder of Atlantic City is a municipal officer and not a judge or justice of the peace within the purview of the constitution. It may well be conceded that a recorder is a municipal officer. Perry v. Bianchi, 96 N. J. L. 113. But the respondent contends (a) that the constitutional inhibition applies only to a judge of the state court, and (b) that the words of the constitution ‘jxrdge of any other court’ should be held to apply only to judges eo nomine and that since the respondent was appointed as ‘recorder’ and not as ‘judge,’ he is outside the letter and the meaning of the constitutional interdiction. This second or alternative argument seems to be without merit. We dare say that no one would seriously urge that the Chancellor of the state (prescinding from the provisions of article VII, section 2, paragraph 1 of the Constitution) or any of the Vice-Chancellors of the Court of Chancery might, while occupying their high office, serve as a member of the legislative branch of the government. We therefore perceive no merit in the contention that only judges appointed to office by the designation of ‘judge’ were intended by the constitution as the class disqualified from participation in the other branches of government.”

And further on that point, the court stated (at p. 546) :

“A judge may he defined as ‘a public officer lawfully appointed to decide litigated questions according to law/ ” Now, after determining that the respondent, Thomas D. Taggart, Jr., was a judge, the court held that by his election to the legislature and by his taking his seat in the General Assembly, lie had vacated his office of recorder and a judgment of ouster was rendered. The converse of this rule is also stated at times, namely, that if a person first holds the seat in the Assembly and then becomes elected or appointed a judge, and accepts such election or appointment, he thereby vacates his seat in the Assembly. Thus, in State v. Parkhurst, 9 N. J. L. 427, Mr. Justice Kirkpatrick delivered an opinion in which he stated (at p. 438) :
“The fact is, that soon after the establishment of our constitution, considerable doubt arose as to the true construction of this section of that instrument. Some, giving it a short construction, held that it operated only upon those who held offices at the time of their election, and at the time of their taking their seats, and not upon those who were elected to office after they had taken their seats; that it prevented an officer from taking his seat and holding his office at the same time; but that it did not prevent a member from taking an office and holding his seat at the same time. And for this construction they relied principally upon the words of the last clause of the section, viz.: That on Ms being elected and taking his seat, Ms office shall be considered as vacant, relating as they insisted, altogether to such persons as were in office at the time of their election. But however correct this instruction may be, according to the letter of the section, yet one much more liberal, and much better calculated to preserve the legislative department from all suspicion of corruption, ultimately prevailed;” underlined by this court: "and it was determined, not only that, a person actually holding an office of profit, being elected and talcing his seat, vacated Ms office, but also that a person holding a seat, and afterwards being appointed to and accepting an office, should vacate Ms seat. And this being once settled has been the uniform construction ever since.”

There can be no serious question that the respondent, Hess, as Mayor of the Borough of Somerville, was and is a “judge” under the meaning of the constitutional provision above quoted. The powers given him under N. J. S. A. 40:87-32, 33 and 35, unquestionably bring him under the definition of “judge” as adjudicated by Mr. Chief Justice Brogan in the Rodgers v. Taggart Case, supra. However, it will be noted that the effect of his election to the assembly and his taking his seat in the Assembly, if and when he does so, would be to vacate his office of judgeship. Of course this statement of the court is obiter dicta, because that question is not directly before this court. However, this statement is relevant in the interpretation and application of the constitutional provision. Prom Mr. Justice Kirkpatrick’s statement above quoted, it appears that had the respondent first held the seat in the Assembly and afterwards was appointed to and accepted the office of judgeship, he would vacate his seat in the Assembly. That is not our situation. Under the circumstances presented in this case, the force of the constitutional provision would be to bring about the vacation of his office as judge rather than of his seat in the Assembly.

Thus, the court concludes that the respondent, Preas L. Hess, is not shown, by the-facts alleged in the petition, to be disqualified to hold his seat in the Assembly or disqualified to have been elected to that office. Therefore it becomes unnecessary to pass upon the prayer of the petitioner to declare the petitioner as the candidate legally elected to the Assembly from Somerset County.

Por the reasons stated, the motion to dismiss the petition filed in this matter, will be granted without costs, and an order will be entered accordingly.

You may submit an order, gentlemen.


text:
    New Jersey Department of Labor, Workmen’s Compensation Bureau.
    LESLIE MacDONALD, PETITIONER, v. THE RIVERSIDE AND FORT LEE FERRY COMPANY, RESPONDENT.
    Decided December 11, 1941.
    For the petitioner, Collins & Corbin (Patrick F. McDevitt, of counsel).
    For the respondent, Henry H. Fry ling (William F. V osseller, of counsel).
   Upon carefully considering the entire evidence in this case, I find and determine as follows:

That the petitioner’s decedent, John Muir, was regularly employed by the respondent as a dock tender at its Edgewater ferry house, Edgewater, TSTew Jersey, and that the said employment was subject to article II of the Workmen’s Compensation Act. It has been definitely adjudicated that the locality "test governs in determining whether the Maritime law or the Workmen’s Compensation law controls, and that when it appears that an accident occurred on land, and not upon a ship, and the state has provided a scheme of compensation for the injury, exclusive of all other legal remedy against the employer, admiralty will not impose its jurisdiction, but will remit the party injured to such exclusive remedy. See 31 A.L.R. 518.

That on August 29th, 1939, the decedent met with an accident, arising out of and in the course of his employment, when he was struck by a revolving mooring wheel, throwing him backwards and causing him to strike his head upon falling to the floor, followed by unconsciousness; that during his transportation by ambulance to the Englewood Hospital he regained his composure and consciousness sufficiently long enough to tell one, Stephen Bolcik, a police officer who was accompanying him to the hospital, that he, the decedent had been struck by the wheel and was injured in the fall; and that under the well established rule the above utterances of the decedent form part of the res gestes. See Hannaford v. Central Railroad Company of New Jersey, 115 N. J. L. 573; 181 Atl. Rep. 306; Slayback Van Order Co. v. Eiben, 115 N. J. L. 17; 177 Atl. Rep. 671; Demeter v. Rosenberg, 114 N. J. L. 55; 175 Atl. Rep. 621. % ❖ ❖ ❖ ❖ ❖

That the decedent was unmarried and left surviving him a widowed sister, Leslie MacDonald, aged 54, the petitioner in the present case, with whom lie lived up to the time of his death and who was totally dependent upon the said decedent. i]i í|í iji #

I find, therefore, that the petitioner is entitled to an award of compensation on the basis of one (1) total dependent. # ❖

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

John J. Stahl,

Deputy Commissioner.


text:
    New Jersey Department of Labor, Workmen’s Compensation Bureau.
    MARIA CONCETTA FRANCHINO, PETITIONER, v. MING TOY DYEING CO., RESPONDENT.
    Decided December 11, 1941.
    For the petitioner, Nathan Rabinowitz and Charles Corgas.

    For the respondent, Walter W. Ilubley, Jr.

   This is a death case coming on for determination under the provisions of the Uew Jersey Workmen’s Compensation Act. The petition was filed by Maria Concetta Franchino as the lawful widow of Antonio Franchino to recover compensation arising out of his death by accident while in the employ of respondent. The matter came on for formal hearing at Paterson, the final hearing being had on December 4th, 1941. It was not disputed that decedent, Antonio Franchino, died as a result of an accident arising out of and in the course of his employment with respondent, the issue in the ease being confined to whether or not petitioner was a dependent of decedent and entitled to compensation as such.

Petitioner was lawfully married to decedent on August 19th, 1911, iu Italy and came to the United States with her husband in 1912 living with him at Rosetta, Pennsylvania, for six years. Subsequently they moved to Easton, Pennsylvania. In February, 1932, while living at Easton, decedent, who was then working as a mill fireman, left his home by automobile, leaving behind most of his personal effects, and telling petitioner that he intended to look for a better job and that after he secured same, he would return and move with petitioner to the place where he was working. Decedent remained away for about six months, at the end of which time he returned to the Easton home, and upon inquiry from petitioner as to where he had been, cried,and said that she was his wife and he was wrong in leaving her and that he would not leavé her again. Decedent remained with petitioner for eight days and again deserted her. During the period of decedent’s absence, petitioner was employed on a W. P. A. project as a seamstress earning $15 per week.

In August, 1932, petitioner entered a complaint in one of the criminal courts of Easton against deceased for his failure to support her and upon his conviction, was confined to jail there and released on August 23d, 1932.

The last time she saw decedent was about two years prior to his death at which time decedent promised to 'take petitioner to Paterson where he was then working, but decedent failed to carry out his promise although petitioner was willing to go to Paterson and live with him there. Petitioner received no support from decedent during his absence.

Decedent thereupon returned to live with the petitioner but after about fifteen days, deserted her again, without removing his personal effects, and without informing petitioner of his intentions. After an absence of about three years, he returned to petitioner for about fifteen days during which time both petitioner and decedent applied to the authorities for “relief” and received same, after which he again deserted her and never returned to her thereafter.

During the last mentioned three year period of desertion, petitioner was employed on a W. P. A. project for about ten months but was dismissed from her position because of her being a non-citizen of the United States.

On several occasions, petitioner sought the aid of the American Eed Cross and also thé aid of the police authorities of Easton, in an effort to locate her husband but without result.

Subsequent to decedent’s last desertion, petitioner, who paid a rental for her living quarters in the amount of. $10 per month, rented out two rooms, receiving therefrom the sum of $4 per month for each room. For the two year period just prior to decedent’s death, petitioner subsisted on such sums that she had saved from her earnings while employed on the W. P. A. as well as some money she earned caring for an infant aged one year, and also received some financial assistance from others.

It was shown by the testimony of one Mrs. Mary La Freddo, that she met decedent in 1932 in Easton, Penns.ylvania, and came to Paterson, New Jersey, with him in February 17th, 1932, living with him on River Street in that city for a time. At the time of decedent’s death, they were living together at 65 Ellison Street, Paterson, Kew Jersey. Mrs. La Freddo admitted that she has a husband presently living in Pennsylvania, from whom she is separated, but not divorced. She testified that for about the first year she supported decedent because he was out of work and after decedent secured a job, she says, he turned over his entire earnings to her.

As soon as petitioner learned of her husband’s death, she came to Paterson from Easton, arriving there on May 30th, 1940. Upon going to Marocco’s Funeral Parlor, where the body of decedent lay, she met above named Mary La Freddo there. Petitioner requested permission to take charge of the funeral and have the body returned to Easton for burial. At first Mrs. La Freddo objected, but upon petitioner’s insistence, she finally acquiesced. The body was taken to Easton where petitioner arranged for a burial in accordance with the rites of the church.

While it is true that petitioner was not living with decedent at the time of the accident and his death and was not a part of his household at that time, yet in view of decedent’s conduct in returning to petitioner on the several occasions hereinabove mentioned after long periods of absence, it is a fair inference that petitioner always entertained the hope that decedent would again return to her and eventually give up the other woman, Mrs. La Freddo entirely. I am satisfied that petitioner, at no time, acquiesced in her husband’s separation from her, and that she was not in the slightest degree responsible for it. It is conclusively shown that petitioner did not at any time acquiesce in any separation from her hus.band or assert her independence of him, but on the contrary, opposed it'and was always willing to resume marital relations with him. While she received no actual support from her husband while he was absent from her, yet she made several attempts, by the institution of formal legal proceedings and otherwise, to secure such support. While she worked and at times kept roomers, and sought aid and received some aid from the authorities by way of “relief” at times, such action on her part does not militate against her rights under the Compensation Act since she had no alternative. See Alexander v. Cunningham Roofing Co., 124 N. J. L. 390; 11 Atl. Rep. (2d) 41; affirmed, 125 N. J. L. 277; 15 Atl. Rep. (2d) 612.

I find, therefore, that as a fact, petitioner is totally dependent upon decedent. * * *

It is, therefore, * * * ordered that judgment final be entered in favor of the petitioner, Maria Concetta Franchino, and against the respondent, Ming Toy Dyeing Co. * * *

John J. Stahl,

Deputy Commissioner.


text:
    New Jersey Department oe Labor, Workmen’s Compensation Bureau.
    CLARENCE H. VAN ORDEN, PETITIONER, v. DARE’S FLOWERS, INC., RESPONDENT.
    Decided December 17, 1941.

      For the petitioner, Sol J. Cohen.

    For tiie respondent, Cox & Walburg (Arthur F. Mead).

   The petitioner alleged that in connection with his regular florist work sometime in October, 1940, he sustained injuries to his skin over his entire body, chest, neck and so forth. He was treated by Dr. John Cox. The petitioner claims that the condition which he suffered was compensable. The respondent denied that the petitioner suffered an accident or that the petitioner’s condition arose out of and in the course of his employment with the respondent.

The petitioner testified that he has worked as a general florist and designer for a great number of years and in connection with that work handles flowers almost every day. The flowers are of different kinds and in connection with that work his hands were roughened and occasionally would be lacerated. lie stated that sometime in September or October of 1940, he noticed that there was a rash on various parts of his hands which seemed to be generally all over his hands and involved a breaking of the skin accompanying the rash together with a soreness and redness which condition spread to various other parts of his body. He also noticed that this condition was irritated when the skin came in contact with water. He continued to work but sought medical attention and his employer sent him to one, Dr. Cox. He worked until March of 1941 and then was out of employment until August. He returned to work at that time and worked until about the middle of November. He stated that while under the treatment of Dr. Cox the condition was a little better but continued while he worked. He also stated that when he stopped working and handling flowers the condition became much better. He testified with respect to medical treatment which he received and medical expense.

On his behalf Dr. Cox testified as treating physician. He stated on examination he found a skin rash which he characterized as a dermatitis and received a history that this condition had started sometime prior to October, 1940, and had gradually spread to various parts of the body. He stated that he made various tests and found the petitioner was positive to a number of flowers and he made a diagnosis of occupational dermatitis. He rendered treatment by giving a vaccine and expressed his opinion that this condition was brought about by the petitioner’s working among flowers.

On behalf of the respondent, Dr. James, a skin specialist, testified from an examination made by him in March, 1941'. He stated that he made a diagnosis of dermatitis involving various parts of the anatomy and stated also that there was a possibility that it was due to petitioner’s occupation or due to a cause other than the occupation. The only recommendation he could make was to remove the petitioner from both his occupational and home environment and make skin tests for different substances that the petitioner may have come in contact with.

The parties stipulated to present first the issue of compensability under the terms of the Workmen’s Compensation Act and reserved the right to put on testimony as .to the extent of disability in the event the petitioner substantiated his claim to benefits under the Workmen’s Compensation Act.

Considering more particularly the testimony of the petitioner and of the treating physician who was petitioner’s medical witness, I am satisfied that the petitioner developed a skin rash which the doctors both characterized as dermatitis and that this came from petitioner’s exposure to handling flowers in connection with his work. However, in my opinion this is not an accident or an accidental injury. It may be the result of petitioner’s occupation and, employment but it is not by accident even in the liberal interpretation of the term and does not involve accidental injury. Furthermore, it is not an occupational disease covered under the Hew Jersey Workmen’s Compensation Act.

In my opinion it is a case clearly within the case of Liondale Bleach Works v. Biker, 85 N. J. L. 426; 89 Atl. Rep. 929, and cases of a similar nature.

It is, therefore, ordered, * * * that the petition herein be dismissed and judgment be entered in favor of the respondent.

John C. Wegner,

Deputy Commissioner.


author: Flannagan, C. P. J.

text:
    Essex County Court of Common Pleas.
    SAMUEL GORDON EL, Jr., BY HIS NEXT FRIEND, HIS FATHER, SAMUEL GORDON EL, PETITIONER-APPELLANT, v. NEWARK STAR-LEDGER AND LIBERTY MUTUAL INSURANCE COMPANY, RESPONDENTS-APPELLEES.
    Decided December 10, 1941.
    For the petitioner-appellant, Harry Krieger.

    Por the respondent-appellee Newark Star-Ledger, Harry V. Osborne,, Jr.

    Por the respondent-appellee Liberty Mutual Insurance Co., John W. Taylor.

   Flannagan, C. P. J.

The petitioner, a boy some 12 or 13 years old, was employed by the respondent Newark Star-Ledger. His employment was of a multiple character, he was to deliver papers to certain subscribers for the paper, 60 in number, he was also to collect from such subscribers certain small insurance premiums, and was also to obtain new subscribers. Petitioner was given a book containing the names and addresses of the subscribers and instructed in the performance of the duties of his employment. He made deliveries of the papers to the subscribers from day to day and collected certain insurance premiums, but succeeded in getting no new subscriptions for himself, though procuring some for other boys whose district or route was outside that in which he worked. Ordinarily, and except on one day, petitioner was furnished with only 60 newspapers, but on the said day, which is the day on which he claims to have been injured, he was given 61 papers, the extra paper he was instructed to deliver to one Mrs. Todd, 109 Orchard Street, who was not one of the 60 subscribers.

Petitioner endeavored to deliver the extra paper to Mrs. Todd but delivery was refused, and when petitioner returned to the representative of the Star-Ledger after completing his other deliveries he brought the paper back with him. He was thereupon instructed to deliver the paper to a house or place “around the corner,” the precise destination is not made clear in the evidence.

While attempting to make the delivery of this extra paper the petitioner alleges he received the injuries for which he now seeks compensation.

The petitioner, under the circumstances recited, would, as an employee, unquestionably be entitled to the benefits of the Workmen’s Compensation Act but for the provisions of R. S. 34:15-36 (third paragraph) which the respondent contends excepts him from its benefits.

The statute provides that “A person engaged in vending, selling or offering for sale or delivery directly to the general public newspapers” shall be excepted from the benefits of the Compensation Act.

The petitioner was not “vending, selling or offering for sale” newspapers within the meaning of the statute. Crawford v. Newark Star Publishing Co., 15 N. J. Mis. B. 77; 188 Atl. Rep. 731.

It is strongly contended, however, that he falls within á particular exception, i. e., that he was “delivering directly to the general public” newspapers.

As far as the acts of making deliveries were concerned, the petitioner’s were limited to making delivery to certain specified names, and specifically 60 names. He was provided with no papers to make deliveries to the general public but with only 60 papers to be delivered to the 60 names specified in a: book with which he was provided. He thus had no relation to the general public as far as deliveries were concerned. He could not go out and deliver to whomsoever he might come in contact and who might ask for delivery or could be induced by him to purchase and accept delivery. He could only deliver to the restricted number whose names were found in the hook provided by his employer. He was not delivering to the general public but only to subscribers. Subscribers formed a class as distinguished from the public.

Even if the petitioner had obtained additional subscribers in his own district the names would have been added to those in his book and he would thereafter still have been delivering to the subscribers named in the book, increased in number, but still a class.

Eor these reasons the judgment of dismissal must he reversed.

.But aside from this. At the time oí the alleged injury the petitioner was not engaged in making deliveries to the 60 persons to whom he customarily delivered or to any of them, but he was engaged on an accidental, unusual and isolated service, viz., the delivery to a specified person or house to which he Avas sent with a single paper for delivery. This cannot be regarded as a delivery to the general public.

At the outset of the trial before the Deputy Commissioner, counsel stipulated that the sole question submitted was the “question of compensabilitjr under the Workmen’s Compensation Act.”

The Commissioner acquiesced in this arrangement.

Later iu the trial objection was made by petitioner’s attorney to a question asked on the ground that, “The issue lias been stipulated to be one of compensability at this time,” and this objection was sustained. Nevertheless, the Commissioner included in his determination a finding that the “petition should be dismissed in so far as it claims double compensation.” I do not think this question was properly before the Commissioner.

The finding that the petitioner’s employment is excluded from the provisions of the Workmen’s Compensation Act is reversed and the case will be remanded for further evidence and a determination of all other issues, including that as to whether the petitioner is entitled to double compensation, if any.


text:
    New Jersey Department of Labor, Workmen’s Compensation Bureau.
    AUGUST R. LINDEN, PETITIONER, v. COUNTY OF ESSEX, RESPONDENT.
    Decided December 16, 1941.
    For tire petitioner, Samuel B. Ball • (David Boslcein, appearing).
    For the respondent, Edwin Joseph O’Brien.

   The petitioner testified that he had thought nothing of the accident when it happened, when he slipped trying to regain his balance he' struck his head against the door jamb. He said he thought nothing of the occurrence at the time, did not report the accident to any one until the month following, when he was struck with a convulsive seizure. On suffering the second convulsive seizure, a short time thereafter, he claims that he notified one of the doctors at the plant of such occurrence. He states that he recalled that fact when a letter which he sent to Dr. Harmon, superintendent of the hospital, under date of May 26th, 1938, was shown to him and that refreshed his recollection. A perusal of the letter which was entered in evidence shows nothing whatsoever of any such notification, the letter which was signed by the petitioner, August E. Linden, shows that September, 1937, he saw Dr. Loeser of Newark and mentioned nothing to him about any accident. This is significant, in view of the fact that in this same letter the petitioner states that Dr. Loeser, a Newark neurologist, asked him whether he had received a blow on the top of the head and he told Dr. Loeser that he had not. The petitioner stated that he had suffered with a pain across the top of his head ever since the time he had struck it and that it was constantly with him. Yet in this very letter which he signed to the superintendent of respondent’s hospital under date of May 26th, 1938, he admits that even though in September, 1937, when he was asked by Dr. Loeser, who examined him, whether he had received a blow to the head, he answered Dr. Loeser that he had not.

It was further stipulated that Dr. W. F. Bennett and Dr. McBride, if produced, would testify that they knew of no accident to the petitioner and had not treated him for any accident, that the first they heard of an accident was some time in the fall of 1937, when he claimed that he had sustained an accident.

Furthermore, a letter of Dr. L. G. Guyer, a resident physician of the respondent’s hospital where petitioner was emplojnd, stated that petitioner did not report to him until the month of November, 1937, that he had claimed to have sustained any such accident.

A portion of the hospital records were introduced and marked 11-7, which showed that in March 9th, 1937, petitioner was admitted to the infirmary for a rash and that there was no evidence of any trauma or accident. Another portion of the records, dated May 28th, 1937, were introduced in evidence, and marked Exhibit B-&, where petitioner had an epileptiform furor, and possible hypertensive encephalopathy and no mention of accident oy trauma. Another portion of tlie records introduced, and marked B-5, said portion also covering May 28th, 1937, and showing that petitioner had a positive tuberculosis and that he had an epileptic convulsion and no mention made of trauma or accident.

The petitioner was shown a two-page statement dated June 8th. 1938, and identified the signature on the bottom of both statements as his. He was asked to read the first page, which he did, and said that it was entirely correct. Then he was examined about the second page, which contained in part this statement:

“It was in September, 1937,'that I got the idea that these attacks were the result of the blow I had received in February, 1937. I spoke to Dr. Harmon about it during the latter part of May, 1938” (over a year later. That was marked R-3 in evidence)..
'Another paper was shown to the petitioner dated June 16th, 1938, marked R-2 in evidence, and he identified his signature to that, which statement contained the information that he was injured the end of February, 1937, and in answer to this question “12, when did you report this accident?” the answer was “November 17, 1937.”

Dr. Louis H. Loeser’s report, dated July 18th, 1938, was offered in evidence and marked Exhibit R-Í, in which petitioner admitted to the doctor that he had told the doctor in the summer of 1937, in answer to the question as to whether or not he had received anjr blow to the head, that he had no such accident.

Then there was introduced in evidence a letter from the Neurological Institute of New York, dated June 29th, 1937, marked i?-l in evidence, addressed to Dr. Bennett of the Essex Mountain Sanatorium, Yerona, New Jersey, and signed by R. J. Masselink, M.D., superintendent at the Neurological Institute in New York, with reference to the history and the treatment and diagnosis of the petitioner. There is no mention of any accident or trauma such as alleged by the petitioner and in the last paragraph the following statement appears: “* * * we cannot make a definite diagnosis at this time, although we suspect that the patient probably has either an idiopathic epilepsy or an intracranial tumor of the tuberculoma type.”

Without going into the merits of the case and solely as the result of the stipulations and evidence and testimony produced before me, I do find as a fact that the petitioner did not report any such accident as he alleges occurred in February, 1937, to the respondent or any one in authority there until the late fall of 1937, or considerably more than ninety days after the accident was alleged to have occurred. I do further find from the said testimony, evidence and stipulations adduced before me that the respondent had no knowledge of any such occurrence during the employment of the petitioner by the respondent.

Petitioner having failed to establish that the respondent received notice within the statutory time or had knowledge within the statutory time, judgment is hereby entered in favor of the respondent and the petition dismissed.

John C. Wegner,

Deputy Commissioner.


text:
    New Jersey Department of Labor, Workmen’s Compensation Bureau.
    AGNES McBENNETT, PETITIONER, v. CITY OF PATERSON, RESPONDENT.
    Decided December 18, 1941.
    Por the petitioner, Nathan Rabinowitz.

    Por the respondent, George Surosky.

   An answer was filed by the respondent, the City of Paterson, in which it was admitted that decedent was a fireman attending a fire at 278-280 Main Streeet, Paterson, New Jersey, on May 3d, 1941, that he collapsed from exhaustion while returning to fire headquarters after the fire.

Testimony was taken with respect to the dependency of the widow, Agnes McBennett, and it was shown that she was part of the same household and dependent upon the decedent for support and that residing with her was her daughter, Agnes McBennett, born of the marriage, and it was shown that the daughter, Agnes McBennett, has been suffering from epilepsy since infancy which condition is of a permanent nature, and she was part of decedent’s household and wholly dependent upon him. I also find that she would have continued to remain dependent upon him by reason of the disease from which she suffers, had he continued to live.

The statute, R. S. 34:15-13, subdiv. (j); N. J. S. A. 34:15-13, subdiv. (/), provides that payments to such physically or mentally deficient persons as are for such reason dependent shall continue during the full compensation period of 300 weeks.

It was contended by counsel for petitioner that by reason of the illness of the infant child which she suffers as above stated, that compensation- should be computed on the basis of 35% of the wages for a period of 300 weeks payable to the widow ■ and for similar period and rate to be paid to the infant child.

On behalf of respondent it was urged that the statute requires merely the payment of a maximum of 300 weeks’ compensation as the full compensation period for both the widow and child calculated on the basis of 40 % of the weekly wages of decedent.

I am of the opinion that the statute does not require the payment of compensation for a longer aggregate period of 300 weeks and that R. S. 34:15-13, subdiv. (j); N. J. S. A. 34:15-13 subdiv. (j), merely has the effect of extending the period for the payment of compensation beyond the normal age of sixteen years for infant children in those cases where the child is physically or mentally deficient and dependent for said reason upon the parent.

See Lazzio v. Primo Silk Co., 114 N. J. L. 450; 177 Atl. Rep. 251; affirmed, 115 N. J. L. 506; 180 Atl. Rep. 881.

I find, therefore, that petitioner’s decedent, Charles MeBennett, died on May 28th, 1941, as a result of an accident which occurred on May 3d, 1941, arising out of and in the course of his employment, leaving him surviving, the petitioner, as widow, and Agnes MeBennett, a daughter, aged fifeen years, both members of his household, and the latter suffering from epilepsy, a permanent condition, by reason of which she has been and will, therefore, remain permanently dependent upon decedent for support.

It is, therefore, * * * ordered that judgment final be entered and respondent is to pay compensation for the full compensation period of three hundred (300) weeks at the compensation rate of 40% of the wages aforesaid in the amount of $17.69 per week, beginning with May 28th, 1941. í,': ¡¡s ^

John J. Stahl,

Deputy Commissioner.


text:
    New Jersey Department of Labor, Workmen’s Compensation Bureau.
    GAETANO ROMANO, PETITIONER, v. ALEXANDER J. MILMOE T/A MILMOE CONSTRUCTION COMPANY, INTERNATIONAL EXCAVATING COMPANY AND CHARLES GREENWOOD T/A GREENWOOD CONSTRUCTION COMPANY, RESPONDENTS.
    Decided December 15, 1941.

      For the petitioner, Sanford M. Kirsch.

    For the respondent International Excavating Company, James Slceffington.

    For the respondent Charles Greenwood, t/a Greenwood Construction Company, William A. Davenport.

    For the respondent Alexander J. Milmoe, t/a Milmoe Construction Company, Melville J. Berlow.

   The first question to be determined is whether or not petitioner met with an accident arising out of and in the course of his employment as contemplated by the provisions of the Workmen’s Compensation Act; and secondly, if said petitioner was so injured, then whether judgment should be entered against all of the respondents herein or only against one or two of them.

The uncontroverted facts proved at the trial are as follows:

One Charles Greenwood t/a Greenwood Construction Company was the general contractor on a certain job on Lincoln Avenue between Main and William Streets in East Orange, New Jersey. Said Charles Greenwood subcontracted the excavation required for the job to the International Excavating Company. Both the said Charles Greenwood and International Excavating Company were covered by workmen’s compensation insurance as required by the Employer’s Liability Insurance Law—B. S. 1937, 34:15-70, et seq.j N. J. S. A. 34:15-70, et seq. The International Excavating Company sublet its contract which it had received from said Charles Greenwood to one Alexander J. Milmoe t/a Milmoe Construction Company. Petitioner Gaetano Eomano was employed by said Alexander J. Milmoe t/a Milmoe Construction Company. On August 14th, 1940, at about ten o’clock in the morning while performing his duties as a laborer on the excavation job undertaken by his employer Alexander J. Milmoe on Lincoln Avenue between Main and William Streets in East Orange, New Jersey, and on which job Charles Greenwood t/a Greenwood Construction Company was general contractor and international Excavating Company was first subcontractor as hereinbefore described, petitioner was struck a blow on the head by a rock which fell from the street into the excavation in which he was working. He was stunned and removed by automobile to the Orange Memorial Hospital where he remained for a period of 16 days. On the way to tile hospital in the automobile of a fellow employee, the car stopped suddenly and petitioner fell forward resulting in his receiving a cut on the nose. Petitioner had no recollection of sustaining this injury. While at the hospital petitioner was treated for a laceration of the scalp, concussion of the brain and numerous subjective symptoms which accompanied the same, paralysis agitans and arteriosclerosis. I further find that as a result of said accident the petitioner sustained an injury to the neck which presents signs of a fibromyositis of the trapezius muscle as well as of the deeper muscles of the right side of the neck. I further find that respondent Alexander J. Milmoe t/a Milmoe Construction Companjq was not insured as required by the Employer’s Liability Insurance Law of the Workmen’s Compensation Act.

After considering the facts as they appeared at the trial and as outlined in the preceding paragraph hereof and after hearing the arguments of counsel for the respective parties to this proceeding I have concluded that petitioner met with an accident arising out of and in the course of his employment with respondent Alexander J. Milmoe t/a Milmoe Construction Company. I find that said Alexander J. Milmoe is therefore obliged to pajr to petitioner the compensation which is hereinafter awarded and judgment will be entered accordingly. I further find that said Alexander J. Milmoe did not carry workmen’s compensation insurance as is required by the “Employers’ Liability Insurance Law” (R. S. 1937, 34:15-78; N. J. S. A. 34:15-78) at the time of the accident. In consequence thereof I find that International Excavating Company, Inc., is also obliged to pay to petitioner the compensation as hereinafter awarded; judgment will be entered accordingly under the direction of the statute in such case made and provided—“Employers’ Liability Insurance Law,” R. 8. 1937, 34:15-79; N. J. S. A. 34:15-79—which among other things provides as follows:

“Any contractor placing work with a subcontractor failing to carry workmen’s compensation insurance as required by this article becomes liable for any compensation which may be due an employee * * * of the subcontractor.”

I dismiss the petition as against respondent Charles Greenwood t/a Greenwood Construction Company as I find nothing in the statute which fixes any liability on him. & íJí & í|í # >;j

After considering all the testimony adduced before me I have come to the conclusion that petitioner has sustained a permanent disability of 15% of partial permanent total disability including the orthopedic disability. v ^ ^

It is therefore * * * ordered that judgment be entered in favor of petitioner and against respondents Alexander J. Milmoe t/a Milmoe Construction Company and International Excavating Company in accordance with the above findings.

John C. Wegner,

Deputy Commissioner.


author: Quinn, President.

text:
    State Board of Tax Appeals.
    CITY OF NEWARK, PETITIONER, v. HAHNE & CO., RESPONDENT.
    Decided December 30, 1941.
    For the petitioner, Raymond Schrdeder (by Vincent J. Casale).

    For the respondent, Lum, Tamllyn & Fairlie (by Ernest Lum).

   Quinn, President.

The City of Newark assessed the personal property of the respondent company for taxation for the year 1939, at $900,000. This was reduced to $814,200 by the Essex County Board of Taxation, and the city appeals to restore the assessment as made. Both sides adduced testimony purportedly probative of the true value of the accounts receivable, stock in trade, and furniture and fixtures of the department store business conducted by respondent, as of October 1st, 1938.

Respondent's personal property tax return, filed with the city's assessors for the year 1939, shows accounts receivable of a true value of $655,296.35 and a total of inventory and furniture and fixtures of $814,167. The claim made, however, is that the intangible property item is fully offset by deductible debts, leaving the tangibles as the sole basis for a personalty assessment. The matter of deductible debts thus becomes determinative of the question as to the correctness of the action of the county board. The applicable statute is B. 8. 54:4-14. The city contends that respondent has not complied with its requirements and therefore is not entitled to any deduction for debts. The section allows deductions for debts owing to creditors residing in this state, but only if the debtor makes claim therefor in writing, stating, among other things, when the debt was incurred. The sworn claim filed by respondent sets up two debts owing to a Newark bank, in the amounts of $500,000 and $150,000. The first is described as having been created, “prior to October 1st, 1933,” and the other, “about October 31st, 1935.”

The statutory requirements set out in section 54:4-15 must be strictly complied with, and substantial compliance is insufficient. Household Finance Corp. v. State Board of Tax Appeals (Supreme Court, 1941), 126 N. J. L. 399; Household Finance Corp. v. State Board of Tax Appeals (Supreme Court, 1937), 119 Id. 230. Neither of the designations made by respondent states precisely when the obligation referred to was incurred. “Prior to October 1st, 1933,” could mean a week, a month, or a year prior to that date. “About October 31st, 1935,” is similarly vague and indefinite. Neither of the debts may be deducted, because of non-compliance with the statute. It results that the assessment must be restored to the original figures fixed by the city assessors.

Judgment accordingly.


author: Herr, A. M.

text:
    Louise May George, complainant, v. David B. George, defendant.
    [Decided November 19th, 1941.]

      Mr. John Henry Reiners, Jr., for the complainant.

      Messrs. Katzenbach, Gildea £ Rudner, for the defendant, under special appearance.
   Herr, A. M.

This is a separate maintenance suit brought quasi in rem under R. S. 2:50-39, 40, and R. S. 2:29-88 et seq.; N. J. S. A. 2:50-39, 4-0, and N. J. S. A. 2:29-88 et seq. Pennsylvania is the matrimonial domicile of the parties and continues to be the domicile of the complainant. She was abandoned there by the defendant on August 2d, 1940. Since then he has neglected to maintain and provide for her, and has kept his whereabouts concealed, so that she has been precluded from bringing suit against Mm for support in personam in Pennsylvania or elsewhere. Pennoyer v. Neff, 95 U. S. 714; 24 L. Ed. 565.

Property belonging to the defendant was, however, located in New Jersey. Hence this suit. Adequate proofs led the court to issue a writ of sequestration as original process, under which the property was duly seized. The cause proceeded regularly to final hearing, ex parte. By the decree the measure of complainant’s separate maintenance was adjudged and decreed, and she has since been in receipt of regular maintenance payments out of the proceeds of the property. N° writ of subpoena was issued in the cause.

The defendant now moves under special appearance to dismiss the bill and all proceedings thereunder, urging that the court was without jurisdiction to entertain the spit because neither party was domiciled in New Jersey, and was without jurisdiction to grant relief because no writ of subpcena was issued and returned prior to the adjudication.

Since the enactment of our present divorce statute in the year 1907, our courts do not seem to have been called upon to decide directly whether the domicile of at least one of the parties in this state continues to be, as it was prior to the adoption of that statute, a condition of the court’s jurisdiction over the subject-matter of separate maintenance. Such was the jurisdictional condition expressly imposed by statute throughout the period commencing in the 3rear 1818, when the legislature first authorized the court to decree separate maintenance, until the year 1907, when our present act was adopted. P. L. ISIS p. 20; P. L. 1820 p. 48; Revision of 1846 Statute 1847 p. 922; Revision of 1874 p• 254; P. L. 1902 p. 602 (■§ Ill 4, VI p. 504) i P. L. 1902 p. 268; P. L. 1907 p. 482.

By the 1907 act the legislature adopted a new schedule of domiciliary requirements as the basis of jurisdiction in matrimonial causes, which are now embodied in R. 8. 2:50-9, 10 and 11; N. J. S. A. 2:50-9, 10 and 11, but which relate exclusively to. divorce and nullity actions. As to separate maintenance the legislature saw fit to waive all domiciliary conditions by expressly repealing the prior legislation and by omitting to re-enact any such provisions. P. L. 1907 ch. 816; Comp. Siat. p. 8081. The 1907 act is a comprehensive revision of the whole subject-matter of nullity, divorce and separate maintenance, superseding all prior legislation on these subjects. By necessary implication it must be held that the legislative intent was to eliminate all domiciliary requirements in separate maintenance actions, and the statute must be read as though it included an express declaration to that effect. See Roche v. Jersey City, 40 N. J. L. 857; Bracken v. Smith, 39 N. J. Fq. 169. It follows that to decline to take jurisdiction of a suit for separate maintenance merely because neither party happens to be domiciled in Hew Jersey would be to circumscribe the operation of this highly remedial statute in contravention of the clear legislative mandate.

The 1907 act marks a radical departure from the earlier notion that the court cannot decree support unless it has acquired jurisdiction over the status of the marriage to an extent sufficient to constitute the jurisdictional basis of a decree for divorce. The legislature thereby adopted the more reasonable view that the wife’s cause of action for support is independent of the status of the marriage and is essentially personal and transitory in its nature. See Lynde v. Lynde, 64 N. J. Eq. 736; 52 Atl. Rep. 694; Gasteiger v. Gasteiger, 5 N. J. Mis. R. 315; 136 Atl. Rep. 497; Fried v. Fried, 99 N. J. Eq. 106; 132 Atl. Rep. 674; Sutphen v. Sutphen, 103 N. J. Eq. 203; 142 Atl. Rep. 817; Dennison v. Dennison, 98 N. J. Eq. 230; 130 Atl. Rep. 463; affirmed, 99 N. J. Eq. 883; 133 Atl. Rep. 919; Noel v. Noel, 15 N. J. Mis. R. 576; 193 Atl. Rep. 558; Bueter v. Bueter, 18 S. D. 94; 45 N. W. Rep. 208; 8 L. R. A. 562; Kelley v. Bausman, 98 Wash. 686; 168 Pac. Rep. 181; Artman v. Artman, 111 Conn. 124; 149 Atl. Rep. 246. Consistently with this view the legislature has recently provided for a plenary suit for alimony, without domiciliary conditions, in the interest of women who have secured divorces elsewhere than in Hew Jersey (R. S. 8:50-37; N. J. S. A. 8:50-37; P. L. 1938 ch. 835 p. 538), thus recognizing alimony and maintenance as being in the same category (that is, as being merely different terms used in differing situations to describe the same thing, viz., the husband’s obligation to support his wife, or his former wife who has divorced him), and emphasizing the independent and transitory nature of all causes of action for support as distinguished from causes of action for divorce.

There never existed any sound reason why the statutory remedy for separate maintenance should have been conditioned upon domicile. The wife’s right to support is a common law right universally upheld in all civilized communities. It does not spring from statute. Her common law remedy consists of the pledging of her husband’s credit, resulting in a creditor’s cause of action which is essentially transitory, sounding in contract. Vusler v. Cox, 53 N. J. L. 516; 22 Atl. Rep. 347, and cases cited. The statute has furnished the wife with an additional, direct remedy, co-extensive with her common law right. Richman v. Richman, 129 N. J. Eq. 114; 18 Atl. Rep. (2d) 403; Weigand v. Weigand, 41 N. J. Eq. 202, 209; 3 Atl. Rep. 699; affirmed, 42 N. J. Eq. 699; 11 Atl. Rep. 113. The ultimate repeal of all domiciliary limitations upon this statutory remedy was deliberate and thoroughly justified on principle. Regardless of where the parties may be domiciled (in the absence of statutory restriction), why should a deserting husband be afforded a haven for his person or his property in this state or in any other state against the just claims of his destitute wife? What sound principle in law or in morals can be invoked to give him immunity because of state boundaries? See Gasteiger v. Gasteiger, supra. Ho matter where the domicile of the parties majr be the wife’s cause of action for support ought to be enforceable, on equitable principles and with due regard to the rules of comity, wherever she can secure service of process personalty upon her husband or wherever she can reach his property by due process. Decisions of other states applying domiciliary limitations in such cases are generally based upon local statutes prescribing such limitations. See Anderson v. Anderson, 140 Okla. 168; 282 Pac. Rep. 335; 74 A. L. R. 1231, and eases cited.

Our statutes provide that if property of a non-resident husband is found in this state a writ of sequestration may issue against it in a separate maintenance suit as original process. The action is then quasi in rem. Defendant’s property is substituted for his person, and the decree affects his property-only. Wood v. Price, 79 N. J. Eq. 1; 81 Atl. Rep. 1093; affirmed, 79 N. J. Eq. 620; 81 Atl. Rep. 893; 38 L. R. A. (N. S.) 772; Ann. Cas. 1913A 1210; Swetland v. Swetland, 105 N. J. Eq. 608; 149 Atl. Rep. 50; affirmed, 107 N. J. Eq. 504; 153 Atl. Rep. 907; Vaux v. Vaux, 115 N. J. Eq. 586; 172 Atl. Rep. 68; Frank v. H. E. Salzburg Co., 102 N. J. Eq. 107; 140 Atl. Rep. 241; Maloney v. Maloney, 12 N. J. Mis. R. 397; 174 Atl. Rep. 28.

Defendant nevertheless contends (refusing to concede the statutory abolition of all domiciliary limitations, and insisting that the court is free to determine, on general principles, whether or not such limitations should be read into the law) that suits for separate maintenance should be held to be conditioned upon the domicile of at least one of the parties in New Jersey. He argues that otherwise there might result great confusion, vexation and injustice, because a wife might then institute proceedings for her separate maintenance in every state where property of her husband might be found, and have it decreed to her in each state, whereas the law of the matrimonial domicile might afford her no such remedies, or might afford her husband defenses not available to Mm elsewhere, or might even, through its courts, have decreed a restitution of conjugal rights. He urges specifically that he may have defenses against complainant under the laws of Pennsylvania which are not available to him here. In my judgment, these contentious are without substance (assuming that they can be given any consideration in view of the statutory mandate) for the reason that in decreeing separate maintenance the court applies equitable principles, weighs all of the facts and circumstances and is guided by principles of comity and expediency, to the end that a husband may be protected against the inequitable claims of an overreaching wife, as well as that a husband shall not be permitted to escape his just obligation to maintain his abandoned wife.

In this matter, had litigation been brought in Pennsylvania for complainant’s support this court, in its discretion and upon principles of comity, might have refrained from exercising the jurisdiction undoubtedly possessed by it, except as ancillary to the Pennsylvania proceedings. But since defendant has made it impossible for suit to be brought against him there it does not lie in his mouth to object to this court’s assumption of jurisdiction on the ground that he might have defenses in Pennsylvania not available to him here. To sustain such an objection would be to permit him to profit by his own wrong. Moreover, such considerations have to do merely with the matter of comity, not with the question of jurisdiction. Having assumed original jurisdiction we are not concerned with alleged defenses not available under our own statute. We administer our own law. See Corbin v. Mathews, 129 N. J. Eq. 549, 554; 19 Atl. Rep. (2d) 633.

The further contention that our assumption of jurisdiction in this case is violative of the Fifth and Fourteenth Amend - ments of the Federal Constitution is not sustained by the authorities. See Pennington v. Fourth National Bank 243 U. S. 269; 61 L. Ed. 713; Restatement: Conf. of Laws: §§ 116, 462, 468, 457 (c); 2 Beale: Conf. of Laws 1488 and note; 27 Am. Jur. 26.

Nor is the absence of a subpoena of any moment. The issuance and return of a writ of subpoena was not needed to clothe the court with jurisdiction to make the decree. The cause of action for separate maintenance is statutory and the statutes expressly provide that the original process shall be sequestration where (as in this case) the defendant is a non-resident and has property within this state. R. S. 2:50-39, 40; R. S. 2:29-88 et seq.; N. J. S. A. 2:50-89, 40; N. J. S. A. 2:29-88 et seq. Jurisdiction rests upon the seizure of the defendant’s New Jersey property under the writ of sequestration regularly issued upon adequate proofs. Frank v. H. E. Salzburg Co., supra.

In my judgment the decree is unassailable on jurisdictional grounds. Defendant’s, petition must therefore be dismissed.


text:
    New Jersey Department of Labor, Workmen’s Compensation Bureau.
    JOHN DUCCI, PETITIONER, v. KAPO DYEING AND PRINT WORKS, RESPONDENT.
    Decided January 9, 1942.
    Por the petitioner, Nathan Rabinotuitz.

    Por the respondent, Stanley U. Pharos.

   A claim petition having been filed in regard to the above entitled matter seeking recovery for an alleged increase of permanent disability and an answer having been thereto filed by the respondent the same came on for hearing before me, a Deputy Commissioner of Labor, in the Workmen’s Compensation Bureau at Paterson, ISTew Jersey.

The testimony took several days, the only issue involved being the question as to whether the petitioner’s disability had increased from the date of last hearing.

The history of this case briefly is as follows: The petitioner on December 30th, 1935, strained his back while working for the respondent. lie received some treatment and lost several months from work and it appears that about three years prior to this date he had another accident to his back namely on August 11th, 1933, and at that time lost approximately five months from his work. The first petition filed for the accident of December 30th, 1935, was settled on July 7th, 1936, for 5% of total. Subsequently another petition was filed claiming an increase of disability and a former trial was held on December 1st, 1936, and a judgment was entered to the effect that the petitioner’s disability had not increased. Subsequently thereto a third petition was filed which resulted in a rather lengthy trial with a considerable amount of testimony being taken. This trial resulted in an award being entered under date of April 19th, 1938, allowing to the petitioner temporary disability as paid plus a permanent disability of 15% of total of which 5% was paid leaving a balance due of 10%. Immediately following said disposition of the case, the petitioner entered the Orange Memorial' Hospital and received certain treatments and then a fourth petition was filed, likewise alleging an increase of permanent disability. This petition was disposed of by a formal trial, the same consuming several days testimony, and an award was entered under date of August 31st, 1939, to the effect that the petitioner had failed to prove that his disability had increased since the date of last hearing and further finding that the treatment rendered to the petitioner was unauthorized by the respondent and unnecessary and therefore not chargeable to the respondent. The fifth and present petition was filed December 36th, 1939, and remained on the trial list for approximately a year and a half before if was moved for trial by the petitioner. Again a lengthy trial was held and the testimony therein consumed several trial days.

I have had an opportunity to hear all the testimony in the present trial and to observe the witnesses on the witness stand and their demeanor in answering questions both on direct and cross-examination. I have also had an opportunity to observe the petitioner day after day as he sat in the court room and also as he was demonstrated before me on various occasions. In addition thereto I have been afforded the opportunity of reading the transcript of testimony of the former trial and I feel that this case is controlled by the recent case of Rotino v. J. P. Scanlon, Inc., reported in 125 N. J. L. 227; 15 Atl. Rep. (2d) 336 and 752. The court in that case held that the burden of proof is upon the party asserting the change in disability, in this case the petitioner. The language used by the court is as follows: “Upon a petition to establish and obtain amended compensation allowance for an increase or a decrease in disability, the burden is upon him who asserts the change. The testimony of increased or decreased disability must be predicated upon the condition and causes determined at the original hearing.”

A brief analysis of the medical testimony shows that there is some opinion evidence given by the doctors on behalf of the petitioner of some change in his condition. I refer to Dr. Max Kummel and Dr. M. Weinstock Bergman. There was also some testimony by Dr. Roemer who was produced on behalf of the petitioner that recent X-rays showed some arthritic changes. This I believe was also corroborated by Dr. Russel. However, I am of the opinion that the minor arthritic changes as revealed in X-rays taken over a period of 6 years are not particularly important. It is not unusual for arthritic changes to take place in such a length of time regardless of the question of trauma. Dr. Botbyle testified on behalf of the petitioner that in main the only changes he noted were the X-ray changes. It is also to be noted that the original injury was not one involving a bone damage, but, as a matter of fact, was confined entirely to a soft tissue or muscle injury. Dr. Botbyle seemed to feel that the petitioner’s present disability was the same to-day as when he had last examined him, and Dr. Russel and Dr. Briggs seemed to feel that there had been some slight increase in his disability.

I have carefully considered all the evidence produced by the petitioner including his own testimony and that of Drs. Kummel, Bergman, Roemer, Russel, Briggs, Botbyle and Córtese and I cannot help but feel that the petitioner has a tendency to exaggerate his condition and, as a matter of fact, he clearly, I believe, attempts to impress the court that he is even more disabled than his own doctors seem to feel.

The respondent produced Dr. William B. Bin and Dr. J. Kippel. Both these doctors have seen the petitioner many times and their testimony was clear and unequivocable that they found no change in the petitioner’s condition whatsoever. Even Dr. Córtese, who was produced by the petitioner on rebuttal, admitted that in the main, so far as the disability was concerned, he found the same degree on his previous examinations as he finds to-day, so far as heavy work is concerned. His actual estimate of disability at the last time ■he examined apparently was 50% of total, however, in the trial before the last his estimation was 100% of total.

Erom the evidence produced on behalf of both the petitioner and the respondent I definitely feel that the petitioner’s condition to-day is the same as it was at the time of the last trial, and if at that time the petitioner was dissatisfied with the award he should have taken the remedy of appeal for I do not believe under the law he has any right to file a new petition unless-his disability has increased. This would be governed by the case of De Marco v. F. H. McGraw Co., 181 Atl. Rep. 639. That was a case where the original award was considered to be inadequate by the petitioner but no appeal was ever taken to rectify or otherwise correct the award, however, instead thereof the petitioner later filed an application similar to the present one under 21 E for increased disability and the court held in that case that it was never the legislative intent that the provisions of 21 E should be used for such purpose. There must be a finality to a case and that once a case is adjudicated it is final and conclusive upon the party unless there be an after-occurring change or alteration taking place in the impaired condition. The court.said in that case “by the clear weight of credible evidence no increased disability was shown” and I believe the same is true in the present case.

Upon a careful analysis of the testimony in the present case, .particularly the medical testimony of the various physicians produced by the respective parties, I feel reasonably satisfied that the burden of proof resting on the petitioner to establish an increase of incapacity of disability has not been met. As a matter of fact some of the medical testimony produced would seem to indicate that the petitioner’s condition, to some degree, has slightly improved.

Upon a petition to establish and obtain amended allowance for increase or a decrease in disability the burden is upon him who asserts the change. Pasquale v. Clyde Piece Dye Works, 320 N. J. L. 557; 1 Atl. Rep. (2d) 45; Cf. Tucker v. Frank J. Beltramo, Inc., 117 N. J. L. 72 (at p. 80); 186 Atl. Rep. 821; affirmed, 118 N. J. L. 301; 192 Atl. Rep. 62. Also the Supreme Court opinion in Cirillo v. United Engineers and Constructors, Inc., 120 N. J. L. 225; 198 Atl. Rep. 768; reversed on other grounds, 121 N. J. L. 511; 3 Atl. Rep. (2d) 596. The testimony of increase or decrease must be predicated upon the condition and causes determined at the original hearing. Cirillo v. United Engineers and Constructors, Inc., 121 N. J. L. 511; 3 Atl. Rep. (2d) 596.

Upon a careful consideration of the entire case it would seem the petitioner’s main grievance is grounded upon the contention that he was not granted stifficient compensation by the terms of the last award, however, by the doctrine annunciated in De Marco v. F. H. McGraw Co., supra, as set forth above, a proceeding under the provisions of N. J. S. A. 34:15-27 for increased disability cannot be instituted for the purpose of correcting or revising a previous award.

In conclusion I find and determine that the proofs in the present case fail to establish any increase of incapacity over what existed at the time of the last trial. The award rendered by Deputy Commissioner Corbin, which the petitioner now claims was inadequate and improper, was not appealed and therefore is not open to challenge at this time. Therefore, in view of my finding that the petitioner has failed to sustain the burden of proving that his disability has in any way increased since the date of last hearing, I therefore order that the petition herein be and the same is hereby dismissed.

John J. Stahl,

Deputy Commissioner.