author: Acicekson, S. C. C.

text:
    FLORENCE McBRIDE, PLAINTIFF, v. NEW AMSTERDAM CASUALTY COMPANY, A CORPORATION OF THE STATE OF MARYLAND, DEFENDANT.
    Decided July 6, 1934.
    For the plaintiff, Eichenbaum, Kantrowitz & Eichenbaum.

    For the defendant, Joseph 0. Paul.

   Acicekson, S. C. C.

The plaintiff having recovered a judgment for damages against John F. Zemkoski, arising out of an automobile accident, and having had execution returned unsatisfied, has brought this action against Zemkoski’s insurance carrier, the present defendant.

The defendant’s answer is made to rest upon the assertion that the liability policy in question had been canceled prior to January 15th, 1933, the date upon which the plaintiff sustained the injuries for which she obtained judgment against Zemkoski.

Plaintiff now moves to strike out this answer upon the ground that it is either sham or frivolous, and our labors are very materially lightened by the concession contained in the defendant’s brief to the effect that the only question raised by the answer is whether or not the policy was in effect at the date of the accident above mentioned.

It is conceded that the policy in question could only be canceled pursuant to conditions contained in "Condition J” thereof which reads as follows:

“This policy may be canceled at any time by either party by written notice to the other, mailed under registered cover, stating when thereafter cancellation shall be effective. Such notice by the company, to the assured’s address given herein, not less than ten (10) days prior to the effective date of cancellation shall be a sufficient notice. * * * The check of the companjr, delivered or mailed under registered cover to the assured’s address given herein, shall be a sufficient tender of any unearned premium.”

It is further conceded that on January 3d, 1933, the defendant addressed a letter to John F. Zemkoski, the assured, at 32-34 Orient avenue, Jersey City, New Jersey, the address set forth in the policy, which letter contained a notice of cancellation which reads as follows:

“Newark, N. J. January 3, 1933.
John F. Zemkoski 32-34 Orient Avenue Jersey City, N. J.
Dear Sir:
On account of your failure to comply with recommendations on your Policy described below you are hereby notified that the New Amsterdam Casualty Company does hereby Cancel the Liability Policy No. 305558 heretofore issued to you.
This cancellation takes effect on the 13th day of January, 1933 at midnight, standard time, at the place of your address written above.
We enclose herewith check for $16.15 the amount of unearned premium due you by reason of this cancellation.
New Amsterdam Casualty Co.
Cancellation Department.”

It is further conceded that the above letter was received at the post office in Newark, New Jersey, on January 3d, 1933, as appears by the post mark thereon, and was received at the post office in Jersey City, on January 4th, 1933, and that an attempt to present the same was made on January 5th, 1933, by the letter-carrier, who failed because the assured had moved from the given address without notice to the company, and the letter was marked "not found, return to writer,” January 5th, 1933, and that the letter was returned undelivered. The accident occurred on January loth, 1933.

In the case of Lattan v. Royal Insurance Co., 45 N. J. L. 453, it was held that:

“A party who seeks the advantage of the termination of a continuing contract before the period limited for its duration, in compliance with a power to terminate contained in the contract, must show by proof that he complied with the conditions on which the power was exerciseable and that he did so at a period before his liability under the contract was incurred.”

The plaintiff concedes, however, that it is not necessary for the defendant to show that the assured actually received the notice of cancellation, and that the cancellation clause in question provides for a method of cancellation by constructive notice, which if fully complied with terminated the contract of insurance. This concession was no doubt prompted by the ease of Raiken v. Commercial Casualty Insurance Co., 135 Atl. Rep. 479, which held to that effect.

Beferring to the above-quoted provision regarding cancellation, it will be found that the procedure is set forth in two sentences. The first deals with a method of cancellation by either party, viz.: “by written notice, mailed under registered cover, stating when thereafter cancellation shall be effective.”

The second sentence describes the procedure to be adopted only by the insurance company and is in the following language:

“Such notice by the company, to the assured’s address given herein, not less than ten (10) days prior to the effective date of cancellation, shall be a sufficient notice.”

This is the method of constructive notice mentioned in Raiken v. Commercial Casually Insurance Co., supra, and its purpose and intent are explained in Werner v. Common wealth Casualty Co., 109 N. J. L. 119; 160 Atl. Rep. 547, as follows:

“The purpose of the particular provision specifying how notice should he given is of course to protect the company against changes of residence of the assured which it could not be expected to follow, while at the same time affording reasonable protection to the assured through the mail forwarding custom of the postal authorities.55

Whether the notice of cancellation in the instant case was effective to terminate the policy on January 13th, 1933, the effective date of cancellation specified in the notice, depends upon the event from which the ten days period of grace is to be computed. Does the sentence concerning constructive notice mean that the notice of cancellation must be deposited in the mail ten days prior to the effective date of cancellation, or does it mean that the notice must be actually delivered at the stated address of the assured ten days prior to the effective date of cancellation? I am inclined to conclude that the former was intended and for the following reasons : The purpose of the provision for constructive notice of cancellation, as explained in the ease of Werner v. Commonwealth Casualty Insurance Co., supra, is to protect the insurance company against changes of residence of the assured. How could this purpose be reasonably effectuated unless the company knew in advance of giving the notice, a definite date from which to figure the effective date of cancellation which is required to be stated in the notice itself, and how could the company otherwise know the exact amount of unearned premium to be returned to the assured?

If the construction to be put upon this method of cancellation is that the notice thereof must be actualty delivered at the stated address of the assured ten days prior to the effective date of cancellation expressed therein, the company could not be sure of effective cancellation unless a return receipt was demanded, and this would be improper under the provision for cancellation now being considered, for the reason that it is not provided for therein, and would defeat the purpose of the notice by lessening the chances of it eventually reaching the insured, as was very definitely held in the case of Werner v. Commonwealth Casualty Insurance Co., supra.

Furthermore, ten days’ notice of cancellation is an unusually long time if figured from the date of actual delivery at the stated address, while in cases where cancellation is made to depend upon actual receipt of notice by the insured, five days seems to be the time usually specified, indicating that the longer period was intended to take care of the time necessary for transmission to a distance, and still leave ample time for the assured to procure other insurance. To hold that the actual mailing of the notice is the event or occurrence from which the ten days period commences to run is logical, practical and reasonable, because a notice mailed anywhere in the United States to any other address therein, would in the normal course of events be delivered within four or five days, which would still give ample time for the assured to procure other insurance, and at the same time give the insurance company a definite date from which to figure the effective date of cancellation required to be stated in the notice, and the exact amount of earned or unearned premium as the case may be.

Furthermore the very structure of this sentence covering constructive notice of cancellation, naturally lends itself to the above construction, for it starts out as follows:

“Such notice by the company to the assured’s address given herein * *

Notice is not naturally given “to” an address but rather “to” a person. The two sentences covering the methods of cancellation must be read together. The first sentence deals only with a written notice, “mailed” under registered cover. Then comes the second sentence which deals with constructive notice, and that starts out, as already noticed, by stating: “Such notice by the company, to the assured’s address given herein.” The words “such notice” undoubtedly refer to the notice described in the preceding sentence, viz.: “Written notice, mailed under registered cover.” The first sentence, therefore, supplies the event or occurrence from which the effective date of cancellation mentioned in the second sentence is to be computed. So if we insert the word “mailed” in the sentence covering constructive, notice following the word, “company,” we give to the sentence a logical, reasonable and fair construction, for it would then read as follows: “Such notice by-the company, mailed to the assured’s address given herein, not less than ten (10) days prior to the effective date of cancellation shall be a sufficient notice * * (Italics mine).

Since, as we have seen, the company cannot safely ask for a return receipt for its registered letter, under the wording of the cancellation clause contained in the policy in question, Werner v. Commonwealth Casualty Insurance Co., supra, the above construction would enable the company to be sure when its policy had been canceled and at the same time afford ample opportunity for the postal authorities to forward the letter to any new address of the assured, if available to them, and thereby reach a fair and logical result. The assured would be protected by sending to the insurance company his new address, or by leaving it with the postal authorities for forwarding purposes.

Since the notice of cancellation in the present case was deposited in the mail at Newark, January 3d, 1933, the cancellation under the above construction would become effective on January 13th, 1933, which was the date specified therefor in the notice, and since the accident occurred on January 15th, 1933, the policy had at that time been regularly canceled.

It follows, therefore, that the defendant’s answer cannot be considered as either sham or frivolous, and the plaintiff’s motion will, therefore, be denied and an order may be presented in accordance with the conclusion thus reached.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    SEASHORE REALTY COMPANY, A CORPORATION, PROSECUTOR, v. CITY OF OCEAN CITY, A MUNICIPAL CORPORATION, AND JOHN MARTS, BUILDING INSPECTOR, DEFENDANTS.
    Submitted October term, 1933
    Decided July 12, 1934.
    Before Brogan, Chief Justice, and Justices Tebncttard and Heher.
    For tlie prosecutor, Joseph II. Carr and Bernard G. Luethy.

    For the defendants, No appearance.
   Per Curiam.

This is an application for a certiorari to review the action of defendant building inspector in revoking a permit granted to prosecutor for the erection of a building on premises owned by it, situate in the city of Ocean City.

Title to the land in question was in dispute, and in an action of ejectment instituted by prosecutor against defendant municipality the former prevailed. On May 24th, 1933, the building inspector issued a permit for the construction of the building. The application for the permit was accompanied by plans and specifications which accurately showed the location of the proposed building. Thereupon prosecutor entered into a contract for the erection of the building. On June 7th, 1933, the contractor was advised by the building inspector, by letter, that the permit “is hereby revoked, having been obtained under false pretense.” Defendants made no effort to establish this allegation of false pretense, or any other ground for the revocation of the permit. The prosecutor took depositions on notice, but there was no appearance for defendants, and no depositions were taken on their behalf. And there was no appearance by defendants to resist this application.

It follows that this attempted exercise of power by the building inspector, in directing the revocation of the permit, was invalid. See Montefiore Cemetery Co. v. Newark, 3 N. J. Mis. R. 1100; 130 Atl. Rep. 730.

The application is granted, with costs.


author: Matthews, A. M.

text:
    Edward John Anderson, petitioner, v. Viola Marie Anderson, defendant.
    [Decided January 8th, 1934.]

      Messrs. ZucTcer & Shapiro, for the petitioner.

      Mr. Frank 8. Sauer, for the defendant.
   Matthews, A. M.

The petitioner in this case sued for divorce on the ground of desertion, stating in paragraph 4 of his petition:

“The defendant has willfully, continuedly and obstinately refused and refrained from having sexual intercourse with the plaintiff and has steadfastly refused to cohabit with him as his wife and has steadfastly refused to consummate the marriage since October, 1930, and ever since which time and for more than two years last past, defendant has willfully, continuedly and obstinately deserted him.”

The defendant filed an answer denying the desertion and setting up the further defense that “at the time of the alleged desertion charged against her in the petition [this defendant] was suffering from a psychosis and was incompetent and incapable of forming an intent to desert the petitioner.” The defendant also urged the defense of the laches of the petitioner “in that knowing of the fact that the defendant was suffering from a psychosis immediately after the consummation of the marriage in June, 1922, the petitioner resided and lived with the defendant as husband and wife from that date to October, 1932, and took no action to have the marriage dissolved down to the date of the filing of the petition herein.”

The proofs on behalf of petitioner and defendant in this case revealed a period of pre-marital incontinence of approximately three years during which time the parties indulged frequently in a union of the genital organs that did not involve complete penetration but which produced mutual masturbation.

The defendant testified that the reason complete penetration was not indulged in pre-maritally was her fear of pregnancy before marriage.

Immediately after marriage when the complainant attempted a completed sexual relation the defendant according to her own testimony could not allow it because of a fear which she could not describe but which she definitely said was not a fear of pregnancy because she is fond of children and would like to have one of her own.

The defendant further testified that she had no fear of sexual relations similar to those indulged in by the pair premaritally, that she even desired such relations and enjoyed the orgasm resulting therefrom.

The defendant further admitted that her husband urged her frequently during the ten years of their married life to allow him to complete the marital act but that on all of these occasions she tried but at the moment of completion she was seized with the same fear. She says she went to a doctor on two occasions and that the doctor told her on the last occasion in March, 1932, that she was physically perfect and that she could have intercourse and should go home and live with her husband.

The evidence revealed that because of the defendant’s continued refusal to consummate the marriage the petitioner became “a nervous wreck” and in order to protect his health petitioner left the defendant in November, 1931, and lived apart in a boarding house until defendant came to him after her examination by the doctor in March, 1932, and promised him if he would return to their home in Grantwood she would fulfill the marital duty. Eelying on her promises petitioner returned but all attempts at completed intercourse were unavailing and petitioner finally left the defendant because of the effect of her actions upon his nervous condition and has not resided with her or made any further attempts at intercourse since October, 1932.

The defendant’s mother testified that she went with her daughter lo a Dr. Logan in October, 1932, after petitioner had left her daughter, the defendant, and that she, defendant’s mother, heard Dr. Logan advise the defendant to have real sexual intercourse with her husband because she was physically fit to do so.

From this recital of the testimony it can be seen that the question remaining to be decided in this case is whether this defendant was as alleged in her answer suffering from a psychosis that produced a will removing fear which would have made her refusal to have complete sexual intercourse not an act of her own free will.

In arriving at a conclusion as to this point the court has had the benefit of the mental examination in private of this defendant in the presence of counsel for both sides by two psychiatrists who qualified as such, and also the benefit of the testimony of both of these psychiatrists, Dr. Lewis H. Loeser, who examined and testified on behalf of the petitioner, and Dr. Theodore E. Eobie, who examined and testified on behalf of the defendant. Both of these doctors are also medical doctors.

Because of recent developments in the science of psychiatry and its rather general use in recent years to analyze empirically mental states of persons, it has seemed to me fitting that I should state as a rule that fear alone unaccompanied by any antecedent concomitant or previously experienced post factum physical pain, is not such a psychosis when experienced over a long period of time as can be considered will removing, or such a psychosis as would render its possessor incapable of willing or not willing to do an act.

In the instant 'case the fear or phobia from which this-woman is alleged to suffer has been called “a nameless fear” by both psychiatrists. The defendant herself doesn’t know what the fear is. She simply states that fear takes possession of her, not during the preliminary acts of mutual contact of the genitalia which she says she not only enjoys but on occasion seeks, not during the orgasm which completes-this mutual masturbation of the genitalia, which she also says she enjoys and on occasions seeks, but solely when the petitioner either before or during the acts above mentioned asks or physically attempts penetration beyond the clitoris of the defendant.

It is the reasoned opinion of this court that psychologically, or psychiatrically (which I shall term empirically psychologically) this defendant is selfish, and that her selfishness is born of her satisfaction with the sexual relations which she indulged in pre-maritally and which, as it were, organized her nervous system and her sexual desires in a habit-formed method of sex indulgence. It is inconceivable to me as a psychologist of the old school who has kept abreast of the new psychiatry that a nameless fear of something or some act a person never experienced can destroy that person’s will to do or not to do that thing or that act, particularly where that same person invites the happening or doing of that act by pleasurably seeking and enjoying acts that are necessarily antecedent to and consequent upon it.

The proofs in this case negative the idea of mental disease or insanity in this defendant. They clearly show that she is normal in her antecedents and in her everyday life and method of living.

I feel that in informing the conscience of the chancellor and advising his decree in this case I must hold that the alleged psychosis set up in defense of the desertion is nothing more than selfishness masquerading as fear, a selfishness albeit that has by reason of pre-marital incontinence with the petitioner organized the defendant’s nervous system and her sexual desires in a habit-formed method of sex indulgence. To characterize the “nameless fear” disclosed by the evidence in this case as a psychosis that would be will removing would be to approve the abdication of the moral responsibility of this defendant to the sin of selfishness.

The defense of laches set up by the defendant is without merit under the evidence.

I will advise a decree of divorce for the petitioner.


author: Case, J.

text:
    CAROLINE BENZ, PLAINTIFF-RESPONDENT, v. RALPH MILLER AND MARY MILLER, DEFENDANTS-APPELLANTS.
    Submitted May term, 1934
    Decided August 3, 1934.
    Before Justices Lloyd, Case and Donges.
    For the plaintiff-respondent, Samuel D. Aaron.

    For the defendants-appellants, Frank J. Burns.

   The opinion of the court was delivered by

Case, J.

There have been two trials. In the first the judge sat without a jury and found for the plaintiff. The defendants applied for and Were granted a new trial. The second trial was had before a jury which returned a verdict of no cause of action. Thereupon the plaintiff obtained a rule to show cause why a new trial should not be granted, and on the return of the rule the application was granted. Defendants appeal and argue two points: First, that the action of the trial court in granting a new trial is appealable when such action constituted an abuse of discretion and, second, that the trial court abused its discretion in granting a new trial to the plaintiff after the jury had rendered its verdict.

Assuming, but not deciding, that the statement contained within point one is, in its general tenor, correct, defendants are nevertheless, under their second point, confronted with the rule that appeal lies only from final judgment (Hoffman Associates v. Snook, 112 N. J. L. 68; 169 Atl. Rep. 666; Gottfried v. Gottfried, 106 N. J. L. 116; 148 Atl. Rep. 719; MacMullen v. Kingsley, 82 N. J. L. 258; 82 Atl. Rep. 46; Van Hoogenstyn v. Delaware, Lackawanna and Western Railroad Co., 90 N. J. L. 189; 100 Atl. Rep. 232), and with the fact that the action of the trial court in granting a new trial does not constitute a final judgment. Such a finality would be incident to a judgment resulting from the new trial granted. Gaffney v. Illingsworth, 90 N. J. L. 490; 101 Atl. Rep. 243. Moreover, when a matter is within the sound discretion of the trial judge, his rulings will not be disturbed in the absence of clear proof that such discretion has been improperly exercised. Braelow v. Klein, 100 N. J. L. 156; 125 Atl. Rep. 103. We find no convincing proof of abuse of discretion.

The appeal will be dismissed (Salmons v. Rugyeri, 103 N. J. L. 596, 600), with costs.


text:
    JOSEPH BARRASE, ADMINISTRATOR, ETC., OF CARMONICA BARRASE, DECEASED, ALSO KNOWN AS CARMELA DI GIACOMO BARRASE, DECEASED, PLAINTIFF-RESPONDENT, v. METROPOLITAN LIFE INSURANCE COMPANY, A CORPORATION, DEFENDANT-APPELLANT.
    Submitted May term, 1934
    Decided August 3, 1934.

      Before Justices Lloyd, Case and Donges.
    For the defendant-appellant, Herbert R. Baer.

   The opinion of the court was delivered by

Case, J.

The action was upon an insurance policy issued by the defendant company covering the life of plaintiffs decedent. The judge, sitting without a jury, gave judgment to the plaintiff. Defendant appeals.

The specification of determinations sets out, and appellant’s brief argues, numerous rulings, to which exception was taken. We think, however, that the subject-matter will sufficiently appear in the discussion of appellant’s point three, which is that the trial court erred in not finding affirmatively upon the defendant’s eighth request as follows: “That under and by virtue of the terms and conditions of the policy herein sued on, the policy of insurance in this' particular case is void, and there can be no recovery of the sum payable under the policy.”

The policy was issued November 2d, 1931, and the insured died of pulmonary tuberculosis April 17th, 1932. The policy contained amongst other provisions the following:

“If, (1) the Insured is not alive or is not in sound health on the date hereof; or if (2) * * * the Insured ...... * has, within two years before the date hereof, been attended by a physician for any serious disease or complaint, or, before said date, has had any pulmonary disease, * * * then, in any such case, the Company may declare this Policy void and the liability of the Company in the case of any such declaration or in the ease of any claim under this Policy, shall be limited to the return of premiums paid on the Policy * *

The only medical testimony was given by Dr. Marshak, a practicing physician of the State of New Jersey, and a specialist in tubercular diseases. He testified that he had physically examined the insured on June 17th, 1928, at the Hudson County Tuberculosis Clinic in Bayonne and found that she was suffering from pulmonary tuberculosis which, on the basis of that examination, he classed as 2 B; that at the same time lie had X-ray photographs taken and upon the showing of those photographs changed the classification from 2 B to 3 B because the type of tuberculosis shown by the photographs was more serious than had been disclosed by the physical examination; that on the date mentioned the sputum of the insured was tested and showed positive for pulmonary tuberculosis; that the witness had again attended the insured in September, 1930, and found that she was still suffering from tuberculosis and that her sputum was positive; that he treated her again in October and still again in November of the same year and then advised sanatarium treatment; that the witness had seen the insured again in December, 1931, at the Bayonne Hospital, and that she was then suffering from the same tubercular condition that she had had in 1928 and 1930, but that the disease had meanwhile been progressive and had included in its development a toxic joint and muscle condition; that the insured’s condition in 1928 and 1930 constituted a serious disease or complaint and that in the opinion of the witness the insured was not in sound health on November 2d, 1931, the date of the policy, but was then suffering an active tuberculosis. There was no contradiction of that testimony. It is true that the plaintiff, husband of the deceased insured, testified, over objection by the defendant, that prior to November 2d, 1931, the insured “was always on her feet, cooking for me and serving on me,” had “never complained to me” and so far as the witness knew had not called in a doctor for treatment before December, 1931; and that a friend of the family testified, likewise over objection, that the witness had frequently seen the decedent in her own house and in the witness’ home and that “she look in good condition with me.” But this testimony is of the character declared by the Court of Errors and Appeals in McAuliffe v. Metropolitan Life Insurance Co., 93 N. J. L. 189; 101 Atl. Rep. 258, to be without evidential value on the question whether the deceased had disease or was in sound health.

We conclude that the proofs demonstrate, without contradiction, that the deceased was not in sound health on the date of the policy and that the insured had, within two years before that date, been attended by a physician for a serious disease or complaint and that before that date she had a pulmonary disease. It follows that the company was thereupon, by the terms of the policy, authorized to declare the policy void and to limit its liability to the return of the premiums paid on the policy. The company did declare the policy void and made a tender, which was refused, of the amount of the premiums paid on the policy.

The question of fraud does not enter; and we need not determine whether the insured had knowledge of her true physical condition. The terms of the policy, supplemented by uncontradicted proof of the physical condition and history and by the declaration of the company voiding the policy, are determinative. McAuliffe v. Metropolitan Life Insurance Co., supra; Prahm v. Prudential Insurance Co., 99 N. J. L. 288; 122 Atl. Rep. 752; Orsini v. Metropolitan Life Insurance Co., 9 N. J. Mis. R. 407; 154 Atl. Rep. 201. The trial judge should have found as requested.

The judgment of the District Court is reversed.


author: Yan Pipes, C. P. J.

text:
    RAY S. VAN ALLEN, PETITIONER-APPELLEE, v. PUBLIC SERVICE CO-ORDINATED TRANSPORT, RESPONDENT-APPELLANT.
    .For the petitioner, Benjamin J. Downer.

    For the respondent, Henry H. Fryling (Elmer W. Romine, <of counsel).
   Yan Pipes, C. P. J.

The above-entitled matter coming on to be heard before me, one of the judges of the Essex County Court of Common Pleas, in the presence of Benjamin J. Downer, Esquire, attorney for petitioner-appellee and Henry H. Fryling, Esquire, .attorney for the respondent-appellant, on appeal from a judgment of the workmen’s compensation bureau denying the respondent-appellant a more specific bill of particulars, and it appearing from the certified transcript before me that the ■respondent, Public Service Co-ordinated Transport, demanded of the attorney of the petitioner before answer was filed, a bill of particulars.

And it further appearing that the petitioner served upon the respondent company a bill of particulars as follows:

And it further appearing that the respondent, Public Service Co-ordinated Transport, gave notice to the attorney of the petitioner by its attorney that it would apply to one of the deputy commissioners of the workmen’s compensation bureau for a more specific bill of particulars, aud it appearing that the workmen’s compensation bureau by its deputy-commissioner, Charles E. Corbin, entered a judgment against, the respondent on its motion for a more specific bill of particulars, and after considering the argument of the respective-counsel on the briefs as filed in this appeal, I am satisfied that the respondent-appellant was entitled to a more complete-bill of particulars upon its application made before the deputy commissioner.


author: Berry, V. C.

text:
    Upholsterers', Carpet and Linoleum Mechanics International Union, Local No. 76, New Jersey Section, et al., complainants, v. Essex Reed & Fibre Company, Incorporated, a corporation, et al., defendants.
    [Decided July 31st, 1934.]

      Mr. Charles Handler, for the complainants.

      Messrs. Furst & Fu-rst, for the defendants.
   Berry, V. C.

This matter comes on for hearing on the return of an order to show cause advised by Vice-Chancellor Bigelow and imposing limited restraint. The object of the bill is to enforce an employment agreement entered into between the complainant local and the defendant corporation, and by which the defendant agreed to employ only members of the complainant union and under conditions therein specified. The agreement is for a term of one year with the privilege of termination by either party upon thirty days’ notice in writing given prior to the expiration date which is fixed therein as September 1st, 1934. If not so terminated it thereafter “continues in perpetuation from year to year.” There is also' a motion to strike the bill on the ground that it does not present an equitable cause of action and that there is an adequate remedy at law. The defendant admits the execution of the agreement but contends that it was temporary only until the N. R. A. code was adopted and that after the approval of such code the agreement was to be modified to. eliminate inconsistencies. It is also contended by the defendant that eighty per cent, of plants similar to that of the defendant operate under the N. R. A. code which permits a forty-hour week and piece work while the agreement provides for a thirty-five hour week and certain rates of pay. It is apparent from the bill of complaint that at or about the time the agreement was entered into a strike of the employes of the defendant was in progress and that there had ben a previous employment agreement between the parties. The agreement, copy of which is attached to the bill of complaint, contains the following clause:

“All persons employed on work consisting' of upholstering furniture, tufting machine operators, sewing machine operators springers, cushion makers and apprentices, shall be members in good standing of Local No. 70 of the Upholsterers Carpet and Linoleum Mechanics International Union of North America.
Should the union be unable to furnish sufficient workers from its membership after 48 hours time had elapsed, from the date the employer has requested the representative of the union to furnish extra help, the employer may hire non-members with the understanding that the non-member shall file application for membership in the union before he starts to work.”

On the back of the first sheet of the agreement the names of the defendant’s empolyes, twenty-seven in number, are written in ink with the rate of their pay opposite their respective names.' The defendant claims, and it is not denied, that the agreement was for the benefit of the employes thus named. Twenty-one of these men have now joined in a petition of the defendant for a modification of the agreement to conform to the N. R. A. code. That the agreement was temporal'}’ is denied by the complainant.

The defendant’s plant is located at 84 Monroe street, Newark, Essex county, New Jersey, in what is known as the “metropolitan area.” The complainant international union maintains locals throughout this area and, according to the complainants’ affidavits, contracts identical with the one which is the subject-matter of the present litigation have been entered into between the complainant union and a majority of employers engaged in businesses similar to that of the defendant company throughout the metropolitan area. According to this affidavit, fifty-two out of eighty such employers have signed contracts identical with the one here involved. This is a part of the complainants’ proofs and indicates that the present contract is but part and parcel of an attempt to unionize the whole industry in the metropolitan area and to create a monopoly of labor in that industry. Such a contract is opposed to public policy and is void. Brennan v. United States Hatters of North America, 73 N. J. Law 729; 65 Atl. Rep. 165; Lehigh Structural Steel Co. v. Atlantic Smelting and Refining Works, 92 N. J. Eq. 131; 111 Atl. Rep. 876; Baldwin Lumber Co. v. Local No. 560, International Brotherhood of Teamsters, Chauffeurs, Stablemen and Helpers of America, 91 N. J. Eq. 240; 109 Atl. Rep. 240; Walsche v. Sherlock, 110 N. J. Eq. 223; 159 Atl. Rep. 661; Connors v. Connolly, 86 Conn. 641; 86 Atl. Rep. 600; Berry v. Donovan, 188 Mass. 353; 74 N. E. Rep. 603; 13 Corp. Jur. 492, and see note, 45 L. R. A. (N. S.) 564.

Counsel for complainants has cited Knee v. Suitcase, Bag and Portfolio Makers’ Union, 142 Atl. Rep. 184, and Gilchrist Co. v. Metal Polishers, Buffers and Platers Local Union No. 44, 113 Atl. Rep. 320, both decisions of this court, in support of the bill, but neither is in point.

In Lehigh Structural Steel Co. v. Atlantic Smelting and Refining Works, supra, Vice-Chancellor Backes said:

“The principle of the closed shop, i. e., the monopolization of the labor market, has found no judicial sponsor. In whatever form organized labor has asserted it, whether to the injury of the employer, or to labor, or to labor unions outside of the fold, the judiciary of the country has responded, uniformly, that it is mimical to the freedom of individual pursuit guaranteed by the fundamental law of the land, and contravenes public policy.”

The following language appears in the syllabus to the same case:

“The provisions of a contract between an association representing nearly all the building contractors of New York City and Long Island aud an association representing the labor unions of these communities, binding the contractors to employ only union men in their enterprises therein, and having for its object the closed shop and the monopolization of the labor market by the unions, violates public policy as to monopolies.”

There is a wealth of decisions in other jurisdictions to the same effect and so far as this state is concerned the law on that-point must be considered as settled.

My attention has been called to a decision of Mr. Justice Smith in the New York supreme court, special term, reported in the New York Law Journal of February 7th, 1934, in the case of Bandler v. Lorberbaum, in which an application similar to that pending in this cause was made and in which preliminary restraint was granted. In that case the court said:

“The defendants further contend that the agreement is illegal and void in that it requires defendants to employ only members of plaintiff’s union. This might be so if it appeared that the agreement operated so generally throughout the community as to prevent craftsmen in the trade from obtaining employment and earning their livelihood. * * * No such facts appear on this motion and the court cannot, therefore, in advance of a trial on the merits, condemn this agreement as being against public policy and void for that reason.”

That case is cited as authority for the granting of the preliminary restraint here, but it is not. The proofs there absent are furnished here by complainants’ own affidavits to the effect that the identical agreement which it is here sought to enforce is operating in about sixty-five per cent, of the industry in the metropolitan area. The inference to be drawn from these proofs is that the contract presently involved is the result of an intensive campaign on the part of the union to unionize the whole industry in the metropolitan area. Under these circumstances, the right of the complainant to specific performance of the agreement is at least sufficiently j u doubt to warrant the refusal of preliminary restraint. The limited restraint imposed by the order to show cause will be vacated.


author: Campbell, A. M.

text:
    Maxine Williams, petitioner, v. Henry A. Williams, defendant.
    [Decided August 9th, 1934.]

      Messrs. Lum, Tamblyn & Colyer (Mr. Ralph E. Lum), for tlie petitioner.

      Mr. Henry A. Williams, pro se, and Mr. Filbert L. Rosenstein, for the defendant.
   Campbell, A. M.

This is an application for modification of a decree for permanent alimony advised October 30th, 1933, by Vice-Chancellor Fielder. The decree orders, among other things, pajrment of $500 per month to Mrs. Williams for her support and maintenance and that of the child of the marriage of the parties hereto. The petition prays for modification of only that part of the decree as directs payment of said monthly sum. Mrs. Williams and defendant entered into a written agreement for maintenance of May 16th, 1932, being prior to the entry of the final decree in their divorce proceedings, which provides, among other things, for the payment of approximately $696 per month for the support and maintenance of Mrs. Williams and said child.

Mrs. Williams contends that defendant’s application for modification should be denied because it is impossible to know when any reduction in his income manifested itself so> as to entitle him to relief; that he comes before this court without having acted in good faith; that his conduct has been wholly inequitable, and that the doctrine of "unclean hands” precludes him from consideration.

This court, in Fornataro v. Atlantic Coast Building and Loan Association, 10 N. J. Mis. R. 1248; 163 Atl. Rep. 240 took judicial notice (in 1932) of the stress of the financial situation. In James Mitchell, Inc., v. Kreuger's Unknown Executors, 10 N. J. Mis. R. 1176; 168 Atl. Rep. 10, it was held that "courts may take judicial notice of facts that may be regarded as forming part of common knowledge of person of ordinary understanding and intelligence generally known within limits of jurisdiction.” This branch of the court takes judicial notice of the fact that the stress of the financial situation is acute, particularly in so far as the professions are concerned. • Furthermore, the present practice of this court is to relax the strict application of the rules heretofore applying to petitions for modification of alimony decrees, because of the known inability of alimony payers in general to fully comply with the standards heretofore established. In other words, a defendant, ■ even though he be in contempt, will not be denied his right to petition if he can show lona fides in his past endeavors to comply with the order which he seeks to have modified; the power of contempt is presently used sparingly and the doctrine of “unclean hands” is tempered with the exigencies of to-day’s financial situation.

Consequently, in so far as defendant’s arrearages are concerned this court will not deny him the right to have his petition considered; such arrearages will not abate and a modified order will be advised if the circumstances warrant. All the court requires is proof that the defendant has demonstrated an honest desire, and his inability, to comply with an existing alimony order.

That this court may entertain a wife’s petition for alimony and support and maintenance of children of the marriage, is elementary, and that right, agreement or no, is inherently hers. In Sobel v. Sobel, 99 N. J. Eq. 376; 132 Atl. Rep. 603, the court stated: “One of the principal duties arising out of the marital tie is the duty of the husband to provide suitable support and maintenance for his wife. This is a common law duty arising out of the status of wedlock. The obligation to support and maintain the wife does not arise out of any contract between the husband and wife to that -end, but out of a state policy, recognized and enforced by the -civil and common law.”

The Divorce act (Revision of 1907-2 Comp. Stat. 1910 p. 2035 § 25, amended by P. L. 1933 ch. 146), provides:

“Pending a suit for divorce or nullity, or after decree of divorce, it ■shall be lawful for the court of chancery to make such order touching the alimony of the wife, and also touching the care, custody, •education and maintenance of the children, or any of them, as the circumstances of the parties and the nature of the case shall be rendered fit, reasonable and just, * * *; orders so made may be revised and altered by the court from time to time as circumstances may require.”

Mrs. Williams having applied for and obtained a decree of this court fixing the amount of permanent alimony, it is the plain intention of the last sentence of section 25, i. e., “orders so made may be revised and altered by the court from time to time as circumstances may require,” that the right to apply for modification of any such decree is not exclusively hers.

In Rigney v. Rigney, 62 N. J. Eq. 8; 49 Atl. Rep. 460, it was held: “The statutory jurisdiction to vary the amount of alimony from time to time, which is found in this legislation (2 Gen. Stat. p. 1269 § 19), will not, in my judgment, be ousted because the decree omitted to reserve io the parties the right to apply for such variation. The defendant in the original action, therefore, had a right to apply for and urge the reduction of the amount of alimony allowed by the decree, upon proof of changed circumstances and conditions.” This rule seems to have been followed also in Greenberg v. Greenberg, 99 N. J. Eq. 461; 183 Atl. Rep. 768: “The husband’s ability to pay for the support of his wife and the justice of the wife’s enjoyment of her right are subject to the change of circumstances which a court cannot anticipate, and hence complete justice requires that the court’s power to act shall be kept open so long as it shall be needed to direct just variation.” Consequently, such portion of the decree sought by this proceeding to be modified, as restricts that right exclusively to Mrs. Williams, is untenable.

It has frequently and most persistently been urged by the bar, upon numerous applications before me, that permanent alimony should be settled at one-third of the husband’s income for the wife’s support, and when she has been awarded custody of minor children the amount should equal, and in some instances exceed, one-half of such income. In many cases one-third of a small income is wholly insufficient for the proper support of the wife. On the other hand, where the husband possesses large means, one-third would be grossly excessive and in many instances would fax exceed what the wife would have received if she and her husband were living together. While this rule has been frequently appliéd in reported cases, I do not find, however, any substantial reason for its consideration as an unvarying criterion. Chancellor Pennington laid down a most sensible and equitable rule in Richmond v. Richmond, 2 N. J. Eq. 90, substantially to this effect: There is no fixed general rule by which to graduate the allowance for alimony, but every case must depend much on its own. peculiar circumstances, and indeed it would be impossible to frame one which would work justly in all cases. Certain rules have indeed been laid down from time to time, so as to form some guide; still every case must depend very much on its own peculiar circumstances. Nor will it answer to be guided by the actual wants of the complainant. They may exceed the amount which the claims of equal justice to both the parties may warrant, and in fact might work an injury to the true interests of the whole family, by consuming the estate and breaking down all incentives, to exertión on the part of the defendant. It will be noted that while Chancellor Pennington remarked that certain rules had been laid down from time to time, so as to form a guide, he ignored them completely in framing the foregoing opinion in 1838; he based his conclusions upon the premises that “every case must depend very much on its own peculiar circumstances,” and that an amount should not be fixed that “might work injury to the true interests of the whole family, by consuming the estate and breaking down all incentives to exertion on the part of the defendant.” While this rule was laid down more than ninety-five j^ears ago, I cannot conceive that a more equitable one could be framed to meet the requirements of modern times.

In Boyce v. Boyce, 27 N. J. Eq. 433, decided in 1876, Chancellor Eunyon stated, after taking into consideration the situation and station in life of the parties, and the amount of defendant’s property and income: “This sum will provide for her a support and maintenance equal, in all respects, to that which, taking into consideration the amount of his income, she had a right to expect at the hands of her husband had she continued to live with him.”

In Lynde v. Lynde, 64 N. J. Eq. 736; 52 Atl. Rep. 694, the court of errors and appeals held: “The amount of the allowance, the method of its enforcement, the method of its application, and the security to be exacted of the husband for its payment, are all confided to the discretion of the Chancellor ; and he is at liberty to increase or decrease the amount of the alimony from time to time according to the circumstances of the case. * * * The purpose is to require the husband to pay to the wife, periodically, such sum as, in view of his circumstances and the necessities of the wife, will be a reasonable fulfillment of his continuing duty to support her. The purpose is not to enrich the wife.”

In Dietrick v. Dietrick, 88 N. J. Eq. 560; 103 Atl. Rep. 242, decided in 1918, the court of errors and appeals, after stating that the measure of permanent alimony is usually about one-third of the husband’s income, seems, however, to have completely disregarded that suggestion when it concluded : “The amount is not fixed solely with regard, on the one hand, to the actual needs of the wife, nor, on the other, to the husband’s actual means. There should be taken into account the physical condition and social position of the parties, the husband’s property and income, including what he would derive from personal attention to business, and also the separate property and income of the wife. Considering all these, and any other factors bearing upon the question, the sum is to be fixed at what the wife would have a right to expect as support, if living with her husband.”

In the more recent case of Robins v. Robins, 106 N. J. Eq. 198; 150 Atl. Rep. 340, decided by the court of errors and appeals in 1930, another element is considered, viz.: “At all events, in determining the matter [amount?] of alimony to be, awarded, the court may take into consideration not only the husband’s property and income, but also his capacity to earn money from personal attention to business. It it were otherwise, a husband, by deliberate intent or disinclination to work, might defeat or avoid his marital obligation of support.” Excessive alimony is not to be awarded against a defendant husband for the purpose of punishing him for the wrongs he may have committed. This rule was established in Amos v. Amos, 4 N. J. Eq. 171: “The court will * * * hold out no inducement for the oppression of the husband.”

It seems, therefore, that the practice of allowing one-third and one-half, respectively, of the husband’s income for permanent alimony and maintenance of minor children is not an established rule in this state, but that the equitable basis of measurement requires consideration of the following factors : The husband’s property and income. Robins v. Robins, supra. The husband’s capacity to earn money from personal attention to business. Robins v. Robins, supra; Dietrick v. Dietrick, supra. The separate property and income of the wife. Dietrick v. Dietrick, supra. The sum the wife would have a right to expect of her husband had she continued to live with him. Boyce v. Boyce, supra; Dietrick v. Dietrick, supra. The sum to be such as will not enrich the wife. Lynde v. Lynde, supra. The award to be of such amount as to hold out no inducement for the oppression of the husband. Amos v. Amos, supra. The actual wants of the wife considered with equal justice to both the parties, to the end that no injury will result to the true interests of the whole family by consuming the estate and breaking down all incentives to exertion on the part of the defendant. Richmond v. Richmond, supra.

The defendant has remarried. His wife is enceinte. She also has a child by a former marriage whom defendant has recently adopted. He is a lawyer and formerly enjoyed a lucrative practice. Subsequent to the execution of the agreement for maintenance he was forced into bankruptcy and thus stripped of his entire estate. He alleges that his income has become so seriously reduced as to render it impossible for him to make the $500 monthly payments; that that sum represents approximately two-thirds of his net income, based on the calendar year 1933; that the payment thereof will not leave a balance of income wherewith to provide suitable clothing, food, shelter and other necessities of life for his present family and himself. He says that he recognizes his first duty to his former wife and the child of his marriage to her. This is as it should be because the fact that he has remarried, and thus assumed new obligations, cannot be successfully urged by him as a reason for modification. Cooper v. Cooper, 103 N. J. Eq. 416; 143 Atl. Rep. 559; Robins v. Robins, supra.

In defendant’s memorandum lie indicates his net income for the calendar year 1933 to have been, in round numbers, $10,000. In his petition he discloses that he has been required to pay annually, as a continuing obligation, approximately $468 on account of a note of $15,000 which represents the deficiency on a mortgage foreclosure. In addition thereto he is obligated in the annual sum of approximately $440, representing interest on a note endorsed by his mother which he is morally compelled to continue, irrespective of completed bankruptcy proceedings against him, for the protection of his mother. These two items, aggregating approximately $900 annually, are not allowable deductions from defendant’s gross income in proceedings of this nature. Consequently, his disclosed net income should be increased by $900, resulting in a corrected net o£ $10,900.

The defendant avers that he is living modestly and that lie has effected every possible economy. He cites the loss of specific retainers that have tended to matrially decrease his income. In respect to the latter, the rule is that the sum allowed for alimony should be predicated upon other than favorable engagements. Furth v. Furth, 39 Atl. Rep. 128.

It is evident that Vice-Chancellor Fielder gave consideration to the agreement for maintenance in advising the decree sought to be modified by this application. On the return of the order to show cause, however, and from which that decree resulted, no one appeared for the defendant. Neither did he undertake to give an account of his property before the vice-chancellor nor submit himself to examination there. But failure of the defendant to thus appear, account and subject himself to examination does not prejudice his rights in the matter sub judice. In this respect the court stated in Rigney v. Rigney, 68 N. J. Eq. 8; 49 Atl. Rep. 460: “Such an application is not one involving a review of the propriety of the decree as made.”

While the agreement for maintenance between the parties is not at issue in the matter sub judice, the court may, however, resort thereto on an application of this nature, and on which application the wife may legitimately ask the court to recognize the agreement as a basis for its award, and the court will recognize it or not as it thinks proper. Apfelbaum v. Apfelbaum, 111 N. J. Eq. 529; 162 Atl. Rep. 543. Recognition of the agreement is necessary to the extent of its provisions for payment of sums in addition to the annual item for maintenance and to the payment of which sums defendant has offered no objections.

Mrs. Williams owns and occupies the homestead known as 107 Clinton avenue, Montclair. This homestead was, apparently, provided for her by the defendant. It is encumbered with a mortgage of $18,000. A collateral note for $10,000, made by Mrs. Williams, represents a portion of the purchase price. The annual taxes approximate $850. Interest on the mortgage and note aggregate $1,680 per annum. Life insurance for the benefit of Mrs. Williams requires payment by defendant of annual premiums approximating $1,334. These items total $3,864 yearly, or $322 per month. Deducting this sum from defendant’s net income of $10,900 leaves a balance of $7,036 available for the maintenance of Mrs. Williams and the child and defendant and his family, respectively.

In Habble v. Habble, 99 N. J. Eq. 53; 132 Atl. Rep. 113, Vice-Chancellor Backes held that a divorced wife is entitled to live in the homestead provided by her former husband in the same style as if they were living together, and she need not cheapen her course of living unless his means require it. Interest and taxes on the home occupied by Mrs. Williams approximate $200 per month. Considering defendant’s net income for 1933 of $10,900, I am doubtful that this sum ($200) would be expended monthly for use and occupation of a homestead if the parties were now living together. Defendant has, however, obligated himself by said maintenance agreement to pay these items. Consequent^', consideration thereof must be had in determining whether or not the decree should be modified.

Defendant’s petition does not disclose whether interest and taxes are in arrears on the home of Mrs. Williams. His memorandum, however, indicates that he defaulted the August, 1933, interest payment as well as the 1933 taxes. It is reasonable to assume that if the payment of $500 monthly to Mrs. Williams for her maintenance is beyond the present ability of the defendant to earn, that the occupancy of her homestead as well as her future participation in defendant’s life insurance are presently imperiled; that default in payment of these essential items will result in a future loss to her of far greater proportions than could possibly be compensated by a present continuance of the $500 monthly payments.

Prom the facts before me, and reviewing all of the circumstances, I am of the opinion that equity and good conscience warrant modification of the decree to $3,900 per year, or $325 per month. Considering defendant’s present earning capacity I am doubtful whether Mrs. Williams would receive, much less expect, this monthly sum for her personal and household necessities, as well as for the maintenance of her daughter, were she and the defendant now living together. There is nothing before me to indicate that Mrs.'Williams possesses separate property or income.

It is not contended that defendant is presently capable of earning more money than his 1933 statement discloses, or that he is not giving personal attention to his business. Mrs. Williams is a young woman and apparently possesses normal health. Her social position will not be materially affected nor will her normal course of living be required to be cheapened by reason of the reduced amount. With only herself and her young daughter to clothe, feed and maintain, plus the general and reasonable upkeep (other than interest and taxes) of a home of the type and located in the community in which she resides, I am satisfied that an allowance of $500 monthly resolves itself into a surplus of such proportions as to amount to enrichment, and concerning which Mrs. Williams need not account should contempt proceedings be instituted against defendant as the result of his future defaults. Meither do I understand the rule to be that the former social position is permitted to be maintained by the wife at the expense of the forfeiture of the husband’s when such forfeiture is occasioned by his known financial inability to maintain the standard previously established by them.

There is nothing before me to indicate the actual wants of Mrs. Williams. What she would have a right to expect from defendant had she continued to live with him I have herein-above commented upon. Considering defendant’s present net income, in conjunction with what I consider to be Mrs. Williams’ actual wants, the payment of $500 per month is oppressive; to deny his petition for reduction will result in nothing short of completely breaking down every incentive to exertion on the part of defendant and immeasurable injury to the true interests of all concerned. Equity does not encourage such possibilities.

In arriving at the foregoing conclusions I have not been unmindful of the rule laid down in Rigney v. Rigney, supra, wherein Chancellor Magie stated that an application such as this “must exhibit changed circumstances and new facts which have arisen since the decree. To succeed upon such an application there must be clear proof of such new facts and circumstances as will justify and require a variation in the alimony allowed, either increasing or diminishing it. 2 Bish. Mar. & D. §§ 429, 429a, 433. There must be cogent reason for diminishing the amount of alimony. Barrett v. Barrett, 41 N. J. Eq. 139; 3 Atl. Rep. 689.” But all of the equities warrant the tempering of this rule not only with the stress' of the prevailing financial situation but with the several other factors herein cited as the equitable basis of measurement in establishing the amount of permanent alimony; these factors constitute, collectively, a “cogent reason for diminishing the amount of alimony.” Barrett v. Barrett, supra. As collateral security for the payment of $3,900 annually, defendant will assign to Mrs. Williams his salary as secretary and treasurer of The Call Printing and Publishing Company. A form of decree may be submitted by defendant in accordance with the foregoing. Unless the respective solicitors can agree upon a reasonable counsel fee on this application, considering, also, the application for custody of the child previously disposed of by decree, I will hear them on appropriate notice.


author: Pee Cukiam.

text:
    HILARIO FERNANDEZ, PETITIONER-RESPONDENT, v. FORD MOTOR COMPANY, RESPONDENT-PROSECUTOR.
    Argued May 2, 1934
    Decided August 13, 1934.
    Before Justices Tkenchabd, Hehek and Peeskte.
    For the prosecutor, McCarter & English (Herbert B. Baer, of counsel).
    For the respondent, David Boslcein (Harold Krieger, of counsel).
   Pee Cukiam.

It is admitted that Hilario Fernandez (hereinafter called the workman) on July 27th, 1930, was in the employ of the Ford Motor Company (hereinafter called the employer) and on that day sustained an injury to his left hand arising out of an accident during the course of his employment.

On April 2d, 1931, the workmen’s compensation bureau made an allowance of twenty-five per cent, of total permanent disability of the left hand of the workman. Subsequently a petition was filed for additional compensation for permanent disability. The compensation bureau on June 27th, 1933, dismissed the petition.

An appeal was taken to the Hudson County Court of Common Pleas and that court entered a judgment for eighty per cent, of total permanent disability of the left hand and allowed a counsel fee for services rendered in the Common Pleas in the sum of $400. The employer then obtained this rule to show cause why certiorari should not issue to review the Common Pleas judgment. At the argument of this rule counsel agreed that the matter should be considered by-the court as though a writ of certiorari had been issued and proceed to judgment accordingly, and this course has been adopted by the court.

The employer contends (1) that the Common Pleas Court erred in awarding the workman eighty per cent, of total permanent disability of the left hand; (2) that the allowance of $400 as counsel fee in the Court of Common Pleas was excessive and an abuse of discretion; (3) that the Common Pleas order that $250 be paid by the workman for services rendered by the workman’s counsel in the compensation court was improper.

We think that the Common Pleas Court did not err in finding that the workman had suffered increased disability of his left hand since the award was made to him by the compensation bureau in 1931 and that the extent of such disability was eighty per cent, of total permanent disability.

It is apparent that there was serious conflict of testimony upon this topic, especially in respect to the testimony of the physicians, but the testimony of the workman himself, when considered in the light of the testimony of his own physicians as well as in the light of that of the physicians called by the employer, we think amply justifies the finding by the Common Pleas judge that the workman sustained the burden of proof that his disability had increased and that he had lost eighty per cent, of the functional use of his left hand; “that the ulnar nerve was involved and that the hand was entirely deformed and that the workman has a claw hand.”

The workman himself testified that since 1932 his hand has been getting worse and more painful in attempting to close the hand, with a growing inability to close it, and with the result that he is unable to get any small article in his hand.

His family physician testified that since 1931 his hand had gotten worse and had lost strength; that he had lost the use of part of his ulnar nerve which resulted in paralysis of the muscles and that the disability was eighty per cent.; “that his hand is of very little use to him; that he has a claw hand.” Another expert called by the workman testified that “there was a loss of all ulnar functions—functions of the ulnar nerve.” There was other expert testimony to the same general effect.

On the other hand, experts called by the employer had, and testified to, a different opinion as to increased disability; but there seems to have been a consensus of opinion that the ulnar nerve was involved and that the nerve supply was at least measurably cut off, producing atrophy of the hand.

It would be idle to undertake to state the testimony in greater detail. The impression made upon our minds is that the finding of the Common Pleas judge on this phase of the case was amply supported by the evidence.

We cannot say that the allowance of $400 as a counsel fee in the Common Pleas Court was excessive. The ease was hotly contested and seems to have been thoroughly tried and argued, and certainly on this phase of the case we cannot say that there was an abuse of discretion.

With respect to the contention that the Common Pleas Court erred in ordering $250 to be paid by the workman for services rendered by the workman’s counsel in the compensation court, it is sufficient to say that there is nothing in the record which we think would justify us in disturbing this action, more especially in view of the fact that the workman does not complain. Doyne v. Stollerman, 3 N. J. Mis. R. 1171; 131 Atl. Rep. 68.

In accordance with the agreement of counsel a writ of certiorari will be considered as issued and the judgment of this court is that the judgment brought up by the writ of certiorari will be affirmed, with costs.


text:
    JOSEPH DICKERSON, PROSECUTOR, v. JOSEPH ALTMAN, RECORDER OF ATLANTIC CITY, RESPONDENT.
    Argued May 1, 1934
    Decided August 13, 1934.
    Before Justices Tkenchakd, IIehek and Pekskie.
    For the prosecutor, Samuel Morris.

    For the respondent, Anthony J. Siracusa.

   Pee Cukiam.

By his writ of certiorari the prosecutor thereof sought to review an alleged conviction of the prosecutor by the recorder of Atlantic City on the charge of selling and/or delivering coal in an amount exceeding one hundred pounds, such sale and/or delivery not being accompanied by a delivery ticket, contrary to the provisions of Pamph. L. 1932, ch. 60, as amended by Pamph. L. 1933, ch. 215.

Our examination of the record in this case shows that there is nothing before us for review. The record does not show any conviction of the prosecutor. It shows nothing more than the writ of certiorari and the complaint together with the affidavit made by the prosecutor in obtaining the writ of certiorari, and what purports to be the testimony. True the affidavit gives the prosecutor’s version of the action taken by the recorder; but we repeat, there is nothing in the record showing a conviction.

The writ of certiorari will be dismissed, with costs.


text:
    ADOLF HOLLENDER, PLAINTIFF-RESPONDENT, v. BERGEN COUNTY AUTOMOBILE CLUB, GUARDIAN CASUALTY COMPANY AND CONSOLIDATED INDEMNITY AND INSURANCE COMPANY, BODIES CORPORATE, DEFENDANTS-APPELLANT’S.
    Submitted January term, 1934
    Decided August 16, 1934.
    Before Brogan, Chief Justice, and Justices Trenchard and Hehbr.
    For the appellants, Jacob Siegal.

    For the respondent, Jerome J. Dunn.

   Per Curiam.

Plaintiff was awarded judgment in an action upon a contract alleged to have been entered into between him and defendants Bergen County Automobile Club and Guardian Casualty Company on March 23d, 1932, providing for the payment of disability1- benefits in event that plaintiff suffered injury, and consequent disability, as a result of an “automobile accident.” The asserted liability of defendant Consolidated Indemnity and Insurance Company, was predicated on an alleged assumption of the obligations (including the one in suit) of the Guardian Casualty Company.

Plaintiff, on April 3d, 1932, sustained an injury resulting in disability, while riding in a motor vehicle, and judgment was given against the three defendants. All defendants join in this appeal.

Appellants urge that there was error in the denial of their motions for a nonsuit, and for the direction of a verdict in their favor. The single issue is the existence vel non of an .indemnity contract at the time respondent suffered the injury resulting in disability.

We are of opinion that there was no error in the rulings •complained of as to appellants Guardian Casualty Company .and Consolidated Indemnity and Insurance Company. While it is true that the policy of indemnity insurance was not actually issued by the casualty company, and did not, by its express terms, become effective, until May 14th, 1932, there was evidence tending to show that respondent, on March 23d, 1932, became a member of the automobile club for a period •of one year, and that, in consideration of the annual premium •of $10, which he paid on that day, he was, inter alia, insured by the casualty company against “the effects of bodily injuries •caused directly, solely and independently of all other causes by external, violent and accidental means.” The agent who .solicited his membership, one Sallan, according to respondent, advised him that, if he “took the membership” he “would be insured in case of death to $1,000;” and that if he “ever should have an accident, compensation of $10 a week.” Respondent testified: “He [Sallan] told me, because I was a member at the time it [his membership] was renewed, I was still a member and insured. * * * He [Sallan] said, brow, the policy will be here in a few days/ and he gave me to understand that from the time I paid my membership that I was insured.”

Under date of April 12th, 1932, the automobile club, by letter addressed to respondent, expressed its appreciation “for renewal of your membership in your county organization, Bergen County A. A. A.” The automobile club was .affiliated with the American Automobile Association. The membership card enclosed in the letter was dated March 26th, 1932, and certified to respondent’s membership “in the A. A. A.” for a period of one year from the date thereof. There was also enclosed in the letter a “card for your personal accident policy,” which respondent was directed to “kindly fill in and return to this office.” The club’s secretary testified that this procedure was essential because it was necessary to have the full name of the applicant and the name and address of the beneficiary to be designated in the policy. Respondent said ho “filled out” this card, and returned it immediately. The club’s secretary insisted that the card was not returned until May 14th, when she prepared and countersigned the policy, and forwarded it to respondent. Neither the application for membership nor the accident policy card referred to was introduced in evidence. The club’s secretary explained that they were delivered to the North Jersey Automobile Club, which “took over” the Bergen county club, and that futile efforts had been made to locate them.

While the coverage of the policy was, by its terms, limited to one year from May 14th, 1932, there was evidence tending to establish that it was the intention of the parties that the benefits thus provided for were incidental to respondent’s membership, and that this coverage commenced when his membership became effective. The delay in issuing and forwarding the policy, according to the testimony of the secretary and manager of the automobile club, was due to the failure of its agent, Sallan, to deliver respondent’s membership contract to its officers. But this witness admitted that respondent was entitled, as a member of the automobile club, to the policy of insurance. And she was also an agent of the casualty company, authorized to prepare, counter-sign and issue, without the approval of the company, or any officer thereof, such policies to those who became members of the automobile club. The policy issued to respondent was prepared and counter-signed by her, as the “authorized representative” of the casualty company. It is not contended that Sallan did not have authority to accept respondent as a member of the club. On the contrary, there was evidence that this was a renewal membership. Moreover, respondent’s membership concededly became an accomplished fact on March 26th, 1932, when the enrollment card was issued. There was evidence, therefore, tending to establish the contractual liability of the casualty company for disability benefits from the time respondent’s membership became effective. And there was evidence also that appellant Consolidated Indemnity and Insurance Company, assumed the obligations of the casualty company.

But there was no evidence to support the judgment against the automobile club. Manifestly, the undertaking to procure and deliver the casualty company’s policy of indemnity insurance did not impose upon it the self-same indemnity obligation. The automobile club was not authorized to do an indemnity insurance business, and it was not within the contemplation of the parties that it should undertake this liability. Respondent bargained only for the policy of the casualty company.

The judgment will therefore be affirmed as to appellants Guardian Casualty Company and Consolidated Indemnity and Insurance Company, and reversed as to appellant Bergen County Automobile Club.


author: Pee Cubiam.

text:
    EDWARD ACKERMAN, PLAINTIFF-RESPONDENT, v. SOMERSET BUS COMPANY, INCORPORATED, DEFENDANT-APPELLANT.
    Submitted May term, 1934
    Decided August 16, 1934,
    Before Justices Lloyd, Case and Donges.
    For the appellant, Andrew 0. Wittreich.

    For the respondent, David E. Feldman.

   Pee Cubiam.

This is an automobile accident case in which the plaintiff obtained judgment. Trial errors are alleged in rulings on the admission of evidence and on a motion for nonsuit.

The first objection was as to the ruling of the judge permitting the plaintiff to prove the value of his car. This was competent. Teets v. Hahn, 104 N. J. L. 357; 140 Atl. Rep. 427.

The next point is that there was error in permitting the plaintiff to testify as to the net earnings of the cab which had been damaged in the collision and was later repaired. The objection was that it was not accompanied by proof of the plaintiff’s books of account. The witness was competent to prove his earnings regardless of his books. Stuart v. Burlington County Farmers’ Exchange, 90 N. J. L. 584; 101 Atl. Rep. 265. He it was who received the proceeds from the operation of the car and he it was who would know of the expense of its operation.

It is next claimed that there was error in permitting one Hoagland, driver of the defendant’s bus, to testify that he was employed by the defendant. This clearly was not objectionable. Hoagland was competent to prove his employment.

The motion for nonsuit was made and rested on the ground that the ownership of the defendant’s bus had not been proved. This ground of objection was not decisive of the question of liability’-. Plaintiff did not rely upon ownership and its legal implications, but on the fact that the driver of the bus was employed by the bus company and that for his negligent operation of the automobile within the scope of his employment, the latter would be answerable.

The judgment is affirmed, with costs.


author: Pee Cueiam.

text:
    PAUL MILLER, PLAINTIFF-RESPONDENT, v. SOUTH ORANGE AVENUE BUS COMPANY, DEFENDANT-APPELLANT.
    Submitted May term, 1934
    Decided August 16, 1934.
    Before Justices Lloyd, Case and Donges.
    For the appellant, Andrew 0. Wittreich.

    For the respondent, David E. Feldman and Julius B. Cohen.

   Pee Cueiam.

Appellant complains that the trial court refused to grant an adjournment of the cause on application by a representative of the defendant, and that thereby he was forced to proceed with the trial in the absence of two witnesses.

The record being devoid of anything bearing on the question, the trial judge, on petition of the appellant to a justice of this court, was directed to certify the facts, and in compliance therewith Judge McMahon certified that on the morning of the trial of the cause application was made on behalf of the defendant by a person unknown to him for an adjournment of the cause because of the engagemnet of Andrew 0. Wittreich in the trial of a criminal case in Hudson count}’, and claiming that defendant was unable to proceed with the case. He further certified in substance that Alan Krant was attorney for the defendant and that neither court nor counsel had been apprised of any change; a substitution of Mr. Wittreich as attorney was not made until two-weeks thereafter.

This is far from showing an abuse of discretion, which appellant must establish before a reversal can be had. In the subsequent trial appellant was represented by counsel and no objection was made to the court’s ruling. The case pro-ceded normally to its conclusion, witnesses for both sides being called and examined in an ordinary suit for damages arising out of a collision of two automobiles.

The appeal might well be dismissed on the ground that the ruling of the court was not challenged, but we prefer to affirm on the ground that there was no abuse of discretion in ordering the trial to proceed.

The judgment is affirmed, with costs.


text:
    ROBERT BROADMAN APPELLANT, v. LEROY DYAL, RESPONDENT.
    Submitted May term, 1934
    Decided August 16, 1934.
    Before Justices Lloyd, Case and Donges.
    For the appellant, Henn & Burr (Alfred L. Kettell, of counsel).
    For the respondent, James V. Mylod.

   Per Curiam.

Three actions for rent of premises in Bloomfield were consolidated and heard together by the trial judge without a jury and resulted in judgment for the defendant. The plaintiff appeals.

The main facts of the cases were reviewed by this court on appeal from a judgment on an earlier trial of two of the cases in Broadman v. Dyal, 11 N. J. Mis. R. 432; 166 Atl. Atl. Rep. 631, and will not be repeated here.

In that case a judgment for plaintiff was reversed because of the fact that when the rents accrued the relation of landlord and tenant between the parties no longer existed, plaintiff having theretofore parted with the title and possession of the property. On the retrial of the cases the plaintiff proved and offered in evidence an assignment of the rents involved from his vendee to himself, an assignment executed and delivered before the actions' were instituted. To this proof there was no contradiction and the plaintiff thereby established a clear title to the rents.

Other questions urged having been disposed of in the earlier appeal, the judgment is reversed and to the end that a retrial of the case may be had.


text:
    STATE BOARD OF MEDICAL EXAMINERS OF NEW JERSEY, RESPONDENT, v. LOUIS ADLER, APPELLANT.
    Submitted May term, 1934
    Decided August 16, 1934.
    Before Justices Lloyd, Case and Donges.
    For the appellant, I. Paerber Goldenhorn and Abraham, Sepenulc.

    For the respondent, David T. Wilentz, attorney-general, and Robert Peacock, assistant attorney-general.
   Pee Cubiam.

This is a case of the state board of medical examiners against one Louis Adler, charged with practicing medicine in violation of section 10 of the act to regulate the practice of medicine (Pamph. L. 1894, p. 459), in which the defendant was convicted, and from which defendant’s appeal is here presented.

The respondent has a motion to dismiss the appeal on the ground that the remedy, if any, was by certiorari. While this motion might well prevail, as it is a statutory proceeding for the recovery of a penalty, the case will be disposed of on its merits.

Adler had an office in which he apparently received patients. He was not licensed to practice nor did he have a doctor’s sign displayed or call himself “doctor,” but he undoubtedly, as testified by the witnesses called by the board, diagnosed the physical ailments of these witnesses, prescribed medicines and charged therefor sums clearly indicating that it was for the advice as well as for the medicine. This, under all our cases, established the practice of medicine within the meaning of the act under such cases as State Board v. Buettel, 102 N. J. L. 74; 131 Atl. Rep. 89, and numerous other decisions anterior and subsequent thereto.

It is urged by the appellant that the prosecution was not by a “district attorney,” and that no representative of the attorney-general’s office could conduct the case; this because of the last sentence of the tenth section which says, “it shall be "the duty of the respective district attorneys of the counties of this state to prosecute violations of the provisions of this act.” Whether it is the duty of district attorneys (probably meaning prosecutors of the pleas) the right of the board to prosecute through any other official or attorney it seems to us is not in doubt.

The judgment is affirmed, with costs.


author: Pee Otjeiam.

text:
    MORRIS LEVIN, RESPONDENT, v. THE MORRIS PLAN CORPORATION, APPELLANT.
    Argued May 1, 1934
    Decided August 16, 1934.
    Before Justices Lloyd, Case and Donees.
    For the appellant, Charles Blume.

    For the respondent, Louis K. Press.

   Pee Otjeiam.

Plaintiff below brought suit to recover from the defendant moneys paid on account of an illegal note signed by plaintiff and one Glickman.

The state of the case discloses that a loan of $300 was made by defendant to Glickman and that plaintiff with others signed the note as makers; that plaintiff paid $237.50 on account of principal and interest on the note; that the note is in substantially the same form as that involved in Langer v. Morris Plan, 10 N. J. Mis. R. 128; 158 Atl. Rep. 326. Added as exhibits are the note, the checks showing payments and the receipt book. The court held the loan was in violation of the Small Loan act, and gave judgment for the plaintiff.

Defendant, appealing, contends that the note was not similar to the note in the Langer case and not in violation of the law; that the act of 1914 (chapter 49) was repealed by the act of 1932 (chapter 62), which became effective April 12th, 1932, and that the several provisions of the earlier act ceased to exist, even as to the plaintiff whose action was begun two months earlier; that plaintiff was not a borrower within the meaning of the act; that payments were voluntarily made, .and that the act is unconstitutional.

None of these grounds we think work to a reversal. The note clearly offends the provisions of the Small Loan act of 1914 (chapter 5), as amended by chapter 293 of the laws of 1929 (Langer v. Morris Plan, supra), and the constitutionality of the act is no longer doubtful.

The act of 1932 was neither invoked in the answer or raised in the trial of the case. It has been many times declared by this court and in the Court of Errors and Appeals that counsel cannot raise questions on review when they have not been presented for the trial court’s consideration. Any other course would be unfair to the opposing litigant and ■counsel, as well as to the court itself. It was incumbent on the defendant to at least urge the effect of the act of 1932 at the trial by some appropriate method; perhaps by motion for nonsuit or for a finding in favor of the defendant on that .ground. While chapter 62 of the laws of 1916 permits the correction on appeal of errors in the entering of final judgment, without exception being taken thereto, it does not relieve the complaining party from the burden of raising the question sought to be reviewed before the trial judge.

The judgment is affirmed.


author: Heher, J.

text:
    MICHELE JULIANO, PLAINTIFF, v. EDMUND ABELES, GUS FECHNER, Jr., AND FIDELE AMBRUSCIO, DEFENDANT.
    Argued May 1, 1934
    Decided August 17, 1934.

      Before Justices Trenchard, Heher and Perskie.
    Por the rule, Harold Simandl.

      Qontra, Raymond Dawson.

   The opinion of the court was delivered by

Heher, J.

This action is in tort for negligence. Plaintiff suffered personal injuries as a result of a highway intersection collision between two motor vehicles, in one of which he was a passenger. He was given a verdict in the sum of $500, and he seeks a new trial upon the ground that the award gisgrossly inadequate. While the record contains a certificate of the trial judge that he denied an “application for a new trial applied for within time,” the parties agree that the application denied was for a rule to show cause why a new trial should not be granted. The instant application is made under rule 123 of this court, which provides, inter alia, that “if such rule shall be refused by the trial judge, application may be made to the court as heretofore.”

These facts were undisputed: On September 2d, 1931,. plaintiff suffered, in the opinion of the physicians who treated him, permanent injuries to an arm and shoulder. He sustained also a linear fracture of the skull over the parietal bone “with a slight depression of the inner table.” The trial took place on January 15th, 1934, more than two years after the occurrence of the injury, and there were then, in the opinion of his physician, whose credibility was not impeached,, indisputable evidences of “chronic” and permanent injuries. Scar tissue formed in the healing process, and some ankylosis of the joint, so he testified, had permanently impaired the function of the arm. Plaintiff was confined to a hospital for seven weeks, during six of which he was bedfast, and thereafter he was confined to his home for two or three months. There were subjective symptoms of headaches and dizziness which, in the opinion of his physician, were the consequences of the head injury, and he insisted that the injuries-had incapacitated him during the whole of the intervening period. The weight to be given to this latter testimony was, however, peculiarly within the province of the jury. His expenditures were $200 for medical attention and $147 for hospital service. The reasonableness of these charges was not questioned. At the time he sustained the injuries in question, he was in receipt of a weekly wage of $48.

This medical testimony was not seriously challenged. At one point counsel for defendants, when he found that his expert medical witness was not in court, announced that he was “willing to close without him if he does not arrive.” He was later called, and it developed that his conclusions, which in the main differed from those of plaintiff's medical witness only as to permanency and the degree of disability, were based upon a single examination of plaintiff, made on October 17th, 1931. He testified merely to the opinion formed then that plaintiff “might be disabled a month or so more.” He said that “functionally there was no impairment at the time that I saw him,” and that disability resulting from a fracture of the skull “is problematical to a certain extent; it is the way he reacts to it.” The evidence adduced from plaintiff's physician as to his physical condition at the time of the trial, therefore, stood uncontradicted.

Moreover, the trial judge refused to permit plaintiff, after he had closed his case, but before defendants had called their medical witness, to introduce the testimony of two medical experts who had lately examined him, on the grounds that he had closed his case without reserving “any right to put on the doctors,” and, in the opinion of the court, he had “covered the case.” But when the plaintiff sought, before resting, to reserve the right to call, before the close of the case, these expert witnesses, who had not then arrived, the court observed: “I do not think you need any other doctor; the doctor who has testified examined him up to recently.” The trial judge did not rest his action upon plaintiff's alleged unexplained and unexcused failure to comply with the rules of orderly procedure. It was based upon the view, clearly expressed, that plaintiff had adequately covered the medical phases of the case, and that the offered testimony was unnecessary. This was an arbitrary curtailment of plaintiff’s right to introduce testimony on a vital issue. If such testimony had been introduced, it might well be that the verdict returned would have been unassailable.

We have concluded that, in these circumstances, the application for a rule to show cause should be granted, and the plaintiff may proceed accordingly.


text:
    TOWN OF NUTLEY, COMPLAINANT, v. OSCAR BRANDT, DEFENDANT.
    Decided August 30, 1934.
    Before Case, Justice, sitting alone pursuant to the statute.
    For the complainant, Edwin J. G. Joerg.

    For the defendants, Jacob S. Karhus.

   Case, J.

There are nine convictions by the recorder of the town of Nutley presented for review. Each concerns a different defendant, but all turn upon the same questions. An ordinance of the town of Nutley provides that “no person, not a resident of the town of Nutley, shall * * * distribute eirculars or other matter * * * from house to house * * * without first having received a permit from the police department of the town oí Nutley * * *.” The ordinance further requires the payment of a fee of one dollar per day to be “deposited” daily and furnishing of fingerprints and photographs in duplicate, of which one set is to be fastened to the permit. Each defendant was separately charged with and convicted of a violation of the ordinance in that he or she, not being a resident of the town of Nutley, distributed circulars and other printed matter without a permit in violation of the ordinance. The evidence disclosed that the defendants were distributing religious tracts from house to house.

The defendants contend that the ordinance is invalid in that it makes an illegal discrimination against non-residents of the town of Nutley.

An ordinance with like provisions was before the Supreme Court in Town of Westfield v. Stein, 113 N. J. L. 1; 172 Atl. Rep. 522. In that case the Common Pleas judge of the county of Union, sitting as a special statutory tribunal, had set aside the conviction. On certiorari, prosecuted by the municipal authorities, the Supreme Court determined that inasmuch as the sentence under the conviction had been served the questions, so far as the municipality was concerned, were moot and dismissed the writ. But Mr. Justice Parker, writer of the opinion, closed with this observation:

“It may not be out of place to remark in passing that on the merits of the validity of the ordinance, the decision of Judge Stein seems supported by excellent authority in this-state. The ordinance provides that fno person not a resident of the town of Westfield shall canvass/ &e., without a written permit from the police department. Cases dealing with such discriminatory regulation are : Muhlenbrinck v. Long Branch Commissioners et al., 42 N. J. L. 364; Morgan v. Orange, 50 Id. 389; Hewson v. Englewood, 55 Id. 522; Kellam v. Newark, 79 Id. 364; Jersey City v. Chasan, 81 Id. 315; Siciliano v. Township of Neptune, 83 Id. 158; Haddon Heights v. Hunt, 90 Id. 35; affirmed, 91 Id. 696; North Wildwood v. Coney, 100 Id. 38.”

Had that judicial statement been made as a holding, it would have been dispositive of the present case. Even as obiter it points, I think, in the direction of sound law.

The town presents contrariwise:

First, that our cases on the subject are directed against a discriminatory use of the taxing power whereas the present ordinance is an exercise of the police power. That, as an analysis of our decisions, is not altogether accurate, as witness Morgan v. Orange, 50 N. J. L. 389; 13 Atl. Rep. 240: “* * * distinctions between inhabitants of our state, based upon no other ground than the place of actual residence, are in restraint of trade, invidious, unjust and illegal. Ordinances passed in the exercise of a police power to control the sale of articles within a town or city, or in other matters, must be reasonable * * (Italics mine.) Also Jersey City v. Chasun, 81 N. J. L. 315; 79 Atl. Rep. 1058, wherein the Supreme Court reviewed an ordinance allowing residents of three months’ standing to do by license what others might do only by permit, and Mr. Justice Bergen, writing the opinion, said, “I also think the ordinance is void because of its discrimination between residents and non-residents.”

Second, that to deny validity to the ordinance would be to “open the way for sneak thieves and second-story men, who are unknown to the Nutley police, to obtain the very knowledge requisite to ply their nefarious trade successfully,” which really, it seems to me, begs the question. Because we may not assume that any populous center is without those who, given opportunity, would violate the law, and, further, the police in any such community can scarcely have a complete knowledge of the impulses of all the residents or, having such knowledge, have the means to render impotent the desires or weaknesses of those who incline towards wrongdoing, particularly since an evil-doer from without may easily and quickly become a resident.

I am of the opinion that the defendants’ point is well made. It is unnecessary to discuss the remaining matters presented by the defendants.

All of the convictions and the proceedings upon which they are based will be set aside, with costs.


author: Perskie, J.

text:
    LEHIGH VALLEY RAILROAD COMPANY OF NEW JERSEY, A CORPORATION, PETITIONER, v. THE STATE BOARD OF TAXES AND APPEALS AND THE MAYOR AND ALDERMEN OF JERSEY CITY, A MUNICIPAL CORPORATION, RESPONDENTS. NATIONAL STORAGE COMPANY, A CORPORATION, PETITIONER, v. THE STATE BOARD OF TAXES AND APPEALS AND THE MAYOR AND ALDERMEN OF JERSEY CITY, A MUNICIPAL CORPORATION, RESPONDENTS. LEHIGH VALLEY HARBOR TERMINAL RAILROAD COMPANY, A CORPORATION, PETITIONER, v. THE STATE BOARD OF TAXES AND APPEALS AND THE MAYOR AND ALDERMEN OF JERSEY CITY, A MUNICIPAL CORPORATION, RESPONDENTS. UNITED REAL ESTATE COMPANY, A CORPORATION, PETITIONER, v. THE STATE BOARD OF TAXES AND APPEALS AND THE MAYOR AND ALDERMEN OF JERSEY CITY, A MUNICIPAL CORPORATION, RESPONDENTS.
    Submitted May term, 1934
    Decided August 16, 1934.

      Before Justices Tbenchakd, Hehek and Perskie.
    For the petitioners, Lum, Tamblyn <& Fairlie {Ralph E. Lum, of counsel).
    For the respondents, James A. Hamill (Charles Ilershenstein, of counsel).
   The opinion of the court was delivered by

Perskie, J.

These cases, consolidated as one, are before us on a rule to show cause why a writ of certiorari should not be allowed commanding the respondents to certify and send to this court the judgments and proceedings touching and concerning the valuations for the assessments of taxes for the year 1932, of certain properties of each petitioner located in the city of Jersey City.

Petitioners contend that they are entitled to a writ for the following reasons: (1) “Analysis of the testimony as to value reveals that the valuation as determined by the state board of tax appeals are in excess of true values.” (2) “The state, board of tax appeals committed an error in law in refusing to hear the testimony of petitioners touching discrimination.”

Although petitioner makes certain obvious observations concerning the effect of the depression on land values, nevertheless, they say: “We hasten to explain that the petitioners are not seeking relief in this proceeding simply because there has been a marked recession in all land values. On the contrary we submit that the assessments here under review—on the sole basis of sales of comparable property before the depression—are excessive and have been so for years.”

The special character of the property affected affords little opportunity to determine values on the basis of sales of comparable property before, and much less since, the general real estate depression. United New Jersey Railroad, &c., Co. v. State Board, &c., 103 N. J. L. 33; 134 Atl. Rep. 669.

It will serve no useful purpose to restate or summarize the testimony disclosed by the record and that stipulated as having been taken on September 27th, 1932, and October 4th, 1932, on hearings before the board on first and second class property for the year 1931. Suffice it to say that, as is usual in such eases, there is a sharp divergence on the proof as to values. But there is, without question, sufficient proof to justify the determinations reached by the state board, upon which determination the judgments in question were based.

The unanimous conclusions of the state board resulted in the following reductions to each petitioner: (a) Lehigh Valley Harbor Terminal Railway Company, $1,808,200; (b) United Real Estate Company, $75,000; (c) Lehigh Valley Railroad Company, $6,400. There was no reduction as to the National Storage Company.

It is the settled law of this state that valuations ordered by the unanimous board should not be set aside unless it is entirely clear that the evidence will not fairly support them, and valuations by a divided board be determined according to circumstances. Pennsylvania Railroad Co. v. Jersey City, 98 N. J. L. 283, 285; 125 Atl. Rep. 921.

Did the state board commit an error in law in refusing to hear the testimony of petitioners touching discrimination? Decidedly no. It is the established law of this state that the fact that other property in a taxing district is assessed for valuation at less than its true value affords no ground for reducing the assessment placed upon the property of a complaining taxpayer below the true value thereof. Royal Manufacturing Co. v. Board of Equalization of Taxes, 78 N. J. L. 337; 74 Atl. Rep. 525. The petitioners concede this to be true but contend that the rule to the contrary, as announced in the cases of which Sioux City Bridge Co. v. Dakota, 260 U. S. 441, is typical, should be followed and that the holding of Royal Manufacturing Co. v. Board of Equalization of Taxes, supra, should be disapproved. A substantially like contention was made and denied by this court in the case of Hackensack Water Co. v. Woodcliffe Lake, 104 N. J. L. 48; 139 Atl. Rep. 410. The law, on this point, is also settled and controlling.

It is claimed that petitioners were not offered a hearing before the county board. We are not to be considered as approving the action of the county board in failing to make an appropriate or just order respecting the time and manner for a hearing of the appeal pending before it, prior to the determination thereof, in a summary manner. We are rather of the .opinion that under the proofs and proceedings of the instant case, petitioners waived the right to now raise that objection. At all events, it is not now properly before us.

Wo debatable- question is made to appear, to us, on this application.

The rule to show cause is discharged, with costs.