author: Stafford, A. M.

text:
    Gerbrand Smith, petitioner, v. Helen Smith, defendant.
    [Decided July 16th, 1943.]

      Mr. Vincent A. Pernetti, Messrs. Ward~& McGinnis and Mr. Louis G. Friedman, for the petitioner.

      Messrs. Feder & Binder, for the defendant.
   Stafford, A. M.

On May 1st, 1942, the petitioner filed a petition for divorce, wherein he accused the defendant of committing adultery with unknown persons on two different occasions.

The defendant, a minor, for whom a guardian had been appointed, answered denying the charges. She also counterclaimed, charging petitioner with extreme cruelty.

Petitioner denied allegations in counter-claim; issue was joined and the matter came on for final hearing.

On November 9th, 1942, after hearing began, petitioner filed a supplemental petition charging defendant with committing adultery on July 9th, 1942, with one William Brzskain. His correct name is William Brzoska.

Defendant answered denying the charges. She- furthermore pleaded the following separate defenses: (1) Petitioner was guilty of extreme cruelty prior to these alleged acts of adultery; (2) therefore, petitioner came into court with unclean hand's; (3) petitioner was guilty of prenuptial intercourse. Defendant repeated her counter-claim charging the petitioner with extreme cruelty.

The hearings on the merits consumed four or five days. At the close of the whole casé the court instructed the defendant’s solicitor to confine his argument, in commenting on petitioner’s ease, to the act of adultery alleged in the supplemental petition, as the court was not satisfied, from the evidence, that the defendant was guilty of the acts of adultery charged in the original petition.

The defendant’s solicitor then moved for a dismissal of the supplemental petition on the ground that the alleged act of adultery committed by the defendant after the filing of the original petition could not bo pleaded by supplemental petition; that such pleading was irregular and this court could not base a decree on such pleading; that it was the duty of the petitioner to seek the court’s permission to dismiss the original petition and then set up these different causes of action in an entirely new petition.

It is generally understood that a supplemental hill is an addition, to the original bill, of something happening since the filing of the original bill. The new matter should be in aid of, in support of, have some relation to, have a direct connection with, the matters and things pleaded in the original hill.

In divorce cases it seems that leave should not he granted to file a supplemental petition for the purpose of charging acts of adultery committed subsequent to the filing of the original divorce petition. Lutz v. Lutz, 52 N. J. Eq. 241; 28 Atl. Rep. 315; Milner v. Milner, 2 Edw. Ch. (N. Y.) 114; Schwab v. Schwab, 96 Md. 592; 54 Atl. Rep. 653; Renner v. Renner, 177 Md. 689; 12 Atl. Rep. (2d) 195; Carters. Carter, 139 Md. 265; 114 Atl. Rep. 902; Kirkwood v. Kirkwood, 165 Md. 547; 170 Atl. Rep. 180.

There are exceptions to this rule. Tor instance, where the new matter will corroborate acts occurring before the filing of the original petition. And again where the new matter will remove the effect of a condonation. Lutz v. Lutz, supra; Carter v. Carter, supra; Wagner v. Wagner, 130 Md. 346; 100 Atl. Rep. 364.

While not a divorce case, to the same effect is Szelewa v. Windeler, 110 N. J. Eq. 299; 159 Atl. Rep. 677.

The prevailing rule seems to be, therefore, that an alleged act of adultery committed subsequent to the filing of the original divorce petition cannot be pleaded by way of a supplemental petition. It is a new cause of action and cannot be grafted upon the original action. The existing suit for divorce must be dismissed by consent of the court, and an entirely new action instituted.

Nevertheless such an irregularity can be waived, and this is what happened in this case.

Kule 55, Court of Chancery, provides: “Supplemental pleadings showing matters arising since the original pleadings, or suit begun, may be filed by either party by leave of 'court and upon terms.”

To file a supplemental bill without leave of court first obtained is irregular. Allen v. Taylor, 3 N. J. Eq. 435.

In this case no application was made for, and the court did not grant, leave to file a supplemental petition.

This irregularity in the pleading was cured and waived by the voluntary appearance of the defendant when she answered, filed her counter-claim and contested the case on its merits for several days. Allen v. Taylor, supra.

If the defendant wished to take advantage of this irregular pleading, since demurrers are abolished, it was her privilege and duty to move to strike. Instead she chose to answer and defend.

The general rule is that a party will not be permitted to demur after he has pleaded to the merits. 31 Cyc. 275. And demurrers come too late after the time for filing them has expired. Idem 274. Hand v. Hand, 60 N. J. Eq. 518 (at p. 521); 46 Atl. Rep. 770; Tipton v. Randall, 87 N. J. Eq. 387; 101 Atl. Rep. 204; Baird v. Board, &c., South Orange, 108 N. J. Eq. 91 (at p. 112); 154 Atl. Rep. 204; Wemple v. B. F. Goodrich Co., 125 N. J. Eq. 109 (at p. 114); 4 Atl. Rep. (2d) 510; Business Men’s, &c., Assn. v. Tumulty, 13 N. J. Mis. R. 638 (at p. 640); 180 Atl. Rep. 772.

It is true that in Farrow v. Farrow, 70 N. J. Eq. 777; 60 Atl. Rep. 1103, and Laing v. Rigney, 160 U. S. 531; 16 S. Ct. 366, supplemental bills were filed charging adultery subsequent to the filing of the original bills. In neither case, however, was any attempt made to cure this irregularity. In the Farrow Oase no demurrer was filed and the court heard the ease on its merits. In the Laing v. Rigney Case the defendant did not answer the supplemental bill and filed no demurrer. But he did appear by solicitor and through his efforts the decree was amended.

It seems to be the well settled rule in Hew Jersey that where the parties have joined issue without raising a jurisdictional question whether the case presented by the pleadings is one which the court of equity will now exercise its jurisdiction, and the case has gone to final hearing, and the proofs have been taken, it is too late to raise the question. The court will consider that the parties have in effect stipulated that facts exist which make the exercise of jurisdiction appropriate. Varrick v. Hitt, 66 N. J. Eq. 442; 57 Atl. Rep. 406; Van Horn v. Demarest, 76 N. J. Eq. 386; 77 Atl. Rep. 354; affirmed, 77 N. J. Eq. 264; 77 Atl. Rep. 354.

To the same effect is Pridmore v. Steneck, 122 N. J. Eq. 35 (at p. 38); 191 Atl. Rep. 861.

It is needless to state that this court did have jurisdiction of both parties and subject-matter.

Therefore I am compelled to find that although the filing of the supplemental petition was irregular such defect was waived by the defendant when she not only failed to move to strike out the supplemental petition but filed her answer and counter-claim and also took testimony for several days on the merits of the ease. It was too late at the close of the whole ease to take advantage of this irregular pleading.

The evidence introduced by the petitioner in an attempt to prove the allegations in the original petition is not at all satisfying and convincing. The court entertains grave doubt that the defendant is guilty of these charges. That doubt must be resolved in favor of the defendant.

The court is not perplexed with doubt, however, as to the charge made in the supplemental petition.

There is plenty of testimony in the case from which the court has no great difficulty in concluding that the defendant did enjoy the company of men other than her husband.

The defendant did not deny that she and her girl friend were out riding with Leonard Mesi and Walter Malkowitz. In fact they stopped at a tavern to celebrate Leonard Mesh's birthday, and that both boys kissed her. Again while denying the adultery of July 9th, 1942, she did admit that she went riding with William Brzskain on that evening and was sitting -in a parked automobile with him when the petitioner and his witnesses came upon her.

The testimony of the petitioner and his witnesses, Norma Kopp, investigator, Sol Wasser, chauffeur for Norma Kopp, and Elizabeth Murphy, sister of the petitioner, establishes the following facts: On July 9th, 1942, in the evening the defendant boarded a Eord automobile. She sat in the front seat with the driver, William Brzoska, while a passenger, characterized as a cripple, sat in the back seat. They stopped and knocked out a few golf balls and then drove to Webber’s tavern. From this place the passenger was taken home, and the defendant continued in the auto with William Brzoska. They hugged and kissed each other. The automobile was finally stopped and parked on Shaw Street, Cherry Hill, East Paterson. After waiting ten or fifteen minutes, petitioner and his witnesses came up to the parked automobile, and with the aid of the large automobile lights, saw William Brzoska getting off the defendant. His pants were open and her dress was up.

The petitioner said to the defendant, “You’ve been committing adultery with this man.” She answered, “What of it?”

The defendant testified that her brother introduced her to William Brzoska a year before the incident in question; that she accepted his invitation to go riding and finally arrived in the neighborhood of some military barracks in Cherry Hill, East Paterson. The automobile was parked one-half block away. She and William Brzoska were seated in the parked automobile about five minutes when the petitioner and his witnesses came upon her. She denied all questionable actions and all charges of misconduct.

The co-respondent was called by the petitioner. At his request, the court protected him from incriminating evidence. He did, however, testify as follows:, he saw the defendant but once and that was on July 9th, 1942; that she took an automobile ride with him; that he parked the automobile at the Cherry Hill development; no homes were nearby; they were there fifteen or twenty minutes and he guessed he kissed her. He was leaning over her.

That William Brzoska asked the court to excuse him from giving incriminating answers does not strengthen the petitioner’s ease. But the testimony that he did give undoubtedly is corroborative of petitioner’s cause, and must be considered by the court.

Likewise with some of the petitioner’s witnesses, who are paid investigators. This testimony should be carefully scrutinized and cautiously accepted. Subject to that test and guard, it is not to be disregarded, and if belief in its truth is induced by attending circumstances, it must be given due weight. Rupp v. Rupp, 97 N. J. Eq. 201; 126 Atl. Rep. 862; Cummings v. Cummings, 109 N. J. Eq. 637; 158 Atl. Rep. 537; Janner v. Janner, 113 N. J. Eq. 110; 166 Atl. Rep. 95; Bemis v. Bemis, 114 N. J. Eq. 53, 54; 168 Atl. Rep. 295.

I am not unmindful of the rule that if defendant’s actions can be construed to be innocent as well as guilty, I would be compelled to follow the conclusion of innocence rather than that of guilt. Berckmans v. Berckmans, 16 N. J. Eq. 122 (at p. 140); Grundy v. Grundy, 92 N. J. Eq. 687; 114 Atl. Rep. 552; Torrens v. Torrens, 94 N. J. Eq. 480; 120 Atl. Rep. 189; Schwartz v. Schwartz, 104 N. J. Eq. 420; 146 Atl. Rep. 57.

And, if I entertained doubt about defendant’s guilt, she would be entitled to the benefit of that doubt. Danielson v. Danielson, 127 N. J. Eq. 41 (at p. 45); 11 Atl. Rep. (2d) 23.

With the testimony that the witnesses saw a man get off the defendant on the evening of July 9th, 1942, the proofs also tended to establish that the defendant had both the inclination and the opportunity to commit adultery. The law is well settled on this point. The evidence must be convincing; its probative quality must support the charge; it must satisfy and leave the careful and guarded judgment of the court free from conscientious perplexing doubts as to whether the charge was proved. Lotz v. Lotz, 129 N. J. Eq. 476; 19 Atl. Rep. (2d) 675, and cases cited therein; Hight v. Hight, 129 N. J. Eq. 15; 17 Atl. Rep. (2d) 802.

I am not disturbed by perplexing doubts. On the contrary, I feel that the evidence in the cause warrants the guarded judgment of this court to come to the conclusion that the defendant is guilty as charged in the supplemental petition.

The defendant, in her counter-claim, charges the petitioner with acts of extreme cruelty, commencing about June, 1941, and continuing during the months of July, August and September, 1941. Many of these accusations are entirely lacking in corroboration.

The defendant called as her corroborating witnesses, on her counter-claim, her mother, sister and two brothers. The court was not impressed with their testimony. Not that this mere relationship rendered such testimony inherently improbable or unworthy of belief. Although such a situation does present opportunities for members of a family to color their testimony with interest, bias and exaggeration. Particularly where one’s daughter and sister has had pinned upon her breast the scarlet letter, and where the disgrace of the family hearth threateningly impends.

No medical testimony was offered relative to these alleged acts of extreme cruelty and not one disinterested witness appeared for the defendant.

The evidence was not at all satisfying and convincing. The testimony does not reveal very much concern on the part of the defendant with regard to these alleged acts of cruelty until the petitioner charged her with adultery.

No criminal complaint was made against the petitioner as a result of these cruel acts. But the defendant, on November 17/th, 1941, did see fit to complain against him for nonsupport, and he was ordered to pay her $8 a week.

Extreme cruelty is that degree of cruelty, either actually inflicted or reasonably inferred, which endangers the life or health of the aggrieved party, or renders his or her life one of such extreme discomfort and wretchedness as to incapacitate him or her, physically or mentally, from discharging the marital duties. Smith v. Smith, 40 N. J. Eq. 566; 5 Atl. Rep. 109; Taylor v. Taylor, 73 N. J. Eq. 745; 70 Atl. Rep. 323; Pfender v. Pfender, 106 N. J. Eq. 373; 150 Atl. Rep. 832; Fallon v. Fallon, 111 N. J. Eq. 512; 162 Atl. Rep. 406; Cavileer v. Cavileer, 94 N. J. Eq. 160; 119 Atl. Rep. 101; Rosengren v. Rosengren, 115 N. J. Eq. 283; 170 Atl. Rep. 660; Bamberg v. Bamberg, 123 N. J. Eq. 570; 199 Atl. Rep. 54; Schnatter v. Schnatter, 129 N. J. Eq. 373; 19 Atl. Rep. (2d) 642; McCabe v. McCabe, 129 N. J. Eq. 431; 19 Atl. Rep. (2d) 687.

The court must be satisfied that the wife is in danger of bodily harm, if she goes back to him. Close v. Close, 25 N. J. Eq. 526, 529; English v. English, 27 N. J. Eq. 579.

There were quarrels and disagreements, and the defendant was nervous and hysterical, as most pregnant women are. But the court is left in a state of grave doubt as to whether or not the petitioner is guilty of these charges of extreme cruelty or that the defendant would be in danger of bodily harm if she returned tb the petitioner.

I am of the opinion that the evidence of the defendant and her corroborating witnesses is lacking in that quality and weight sufficient to warrant a decree in her favor and against the petitioner.

The separate defenses based upon the extreme cruelty of the petitioner must fall with the counter-claim. The separate defense of prenuptial intercourse is not only denied by the petitioner but is without any corroboration whatsoever. Therefore, it must fall also.

The motion to dismiss the supplemental petition is denied; the defendant is innocent of the charges alleged in the original petition; the defendant is guilty of the charge alleged in the supplemental petition; the counter-claim is dismissed.

A decree in conformity with the above conclusions may be presented.


source: Caselaw Access Project

author: BübJjIng, S. C. C.

license: Public Domain

text:
    SUNSHINE PARK, INC., A CORPORATION OF THE STATE OF NEW JERSEY, PLAINTIFF, v. WARD T. GULVIN, DEFENDANT.
    Decided July 2, 1943.
    For the plaintiff, Leon Leonard.

    For the defendant, Elwood 0. Weehs.

   BübJjIng, S. C. C.

Motion has been made before me as a Supreme Court Commissioner for an order to strike the answer of the defendant in this cause of action. The following reasons are assigned: (a) the answer is sham; (b) untrue in fact; (c) frivolous; (d) insufficient in law; (e) interposed for the purpose of delay.

In support of the motion, affidavit of the assistant secretary of the plaintiff has been presented, and answering affidavits of Wallace C. Eoth, and of the defendant, Ward T. Gulvin, have been presented on behalf of the defendant.

The plaintiff in the cause of action demands possession of that certain premises known, designated and described as Lot numbered one (1) in block numbered six (6) on a certain map entitled “Plan of Sunshine Park” made by J. M. Adams, Civil Engineer and Land Surveyor and filed July 9th, 1936, as map of Eiver Yiew Park, being map Ho. 1000 in the office of the Clerk of Atlantic County, at Mays Landing, H. J.,” and located in Sunshine Park, Hamilton Township, Atlantic County, Hew Jersey, and all that certain premises known, designated and described as Lots numbered one (1), two (2) and three (3) in Block numbered eleven (11) as shown on the map of Sunshine Park, Inc., Hamilton Township, Atlantic County, Hew Jersey, and filed in the office of the county clerk at Mays Landing and located in Sunshine Park, Hamilton Township, Atlantic County, Hew J ersey.

By stipulation of counsel, this motion is limited to the portion of the tract of land as above described being Lot numbered one (1) in Block numbered six (6) on said plan, by virtue of the pendency of a cause of action in the Court of Chancery, with ad interim restraint relating to the remaining tracts of lands described in said complaint.

The summons appears to have been drafted in accordance with the provisions of rule 183 of the Supreme Court, N. J. 8. A. tit. 2, and form 2a of the schedule annexed thereto.

The complaint appears to have been drafted in accordance with rule 184 of the Supremo Court rules, and with form 13a annexed to said rules.

The answer raises the general issue and is in or suggested by form Ho. 22a referred to in rule 185 of the Supreme Court rules.

Apparently neither party has demanded in writing of the other, a bill of particulars, after issue has thus been joined, pursuant to the opportunity provided by R. S. 2:51-25: N. J. S. A. 2 :ol-25.

In the first instance, as a matter of practice, there seems to be a donbt as to the authority for a motion to strike out a pleading in the nature of a demurrer at common law in an action in ejectment, and since there is no statute which provides for the striking out of a pleading in an action in ejectment, a notice for that purpose cannot be treated as a demurrer. Ahlemeyer v. Miller (Court of Errors and Appeals, 1927), 103 N. J. L. 617 (at p. 619); 137 Atl. Rep. 543.

The answer was good upon its face, but the plaintiff contended false in fact, and as heretofore stated, added this as an additional ground to strike the answer, thereupon assuming the burden of conclusively proving it to be so by proof. The Scottish Rite Co. v. Salkowitz (Court of Errors and Appeals, 1937), 119 N. J. L. 558 (at p. 559); 197 Atl. Rep. 43.

The defendant pleads the general issue, thus admitting possession by him. Quilan v. Fair Haven (Court of Errors and Appeals, 1925), 102 N. J. L. 443 (at p. 444); 131 Atl. Rep. 870, citing Jacobson v. Hayday (Court of Errors and Appeals, 1912), 83 N. J. L. 537 (at p. 538); 83 Atl. Rep. 902.

The issues raised by both the plaintiff and the defendant in this motion revolve about the effect of two certain deeds:

1—Sunshine Park, Inc. (the plaintiff) to J. Alex Eubin Clark, dated June 22d, 1938, affecting premises in question which contains the following conditions:

“Provided, however and this conveyance is made upon the following expressed conditions and covenants, all of which are hereby declared to run with the land hereby conveyed and to each and every of which the said party of the second part' for himself, his heirs and assigns, hereby consents and covenants to observe and keep, that is to say that if the said party of the second part his heirs or assigns shall violate any of the regulations, rules, laws, conditions, orders or by-laws of Sunshine Park, Inc., then the title and interest in and to said premises hereby conveyed shall be and become wholly void, and said premises and appurtenances shall revert to and become revested in said party of the first part, its successors or assigns without re-entry or any other act or ceremony whatever as fully as if these presents had not been made.”

And the habendum clause of said deed contained the following:

“To have and to hold all and singular the above described land and premises with the appurtenances, unto the said party of the second part, his heirs and assigns, to the only proper use, benefit and behoof of the said party of the second part, his heirs and assigns, so long as the same shall he used in compliance with the conditions hereinbefore mentioned and no longer.” Which deed was recorded in the office of the clerk of Atlantic County in Deed Book 1078, page 295.

(2) Deed J. Alex Eubin Clark, single man, to Ward T. Gulvin (the defendant herein) dated May 20th, 1941, and recorded in the clerk’s office o£ Atlantic County in Book 1116 of Deeds, page 435, affecting the premises in question, and which deed provided as follows:

“* * * under and subject to certain rules and regulations, covenants and restrictions as therein contained.”

It is the contention of the plaintiff that the latter conveyance worked a forfeiture of title, and thereby gave to the plaintiff herein the right of re-entry and possession for the reason that the grantee of the plaintiff, J. Alex Eubin Clark, violated a rule and regulation of the plaintiff contended to be one of those referred to in the first deed above mentioned, which regulation was known as No. Six and reads as follows:

“6. No property transfers, sales, leases, sub-leases or rentals shall he made by any owner-member to any non-owner-member without the written consent of the Park management after formal consideration at a meeting of the Directors.” by virtue of the transfer and sale of the premises in question by said cleric to the defendant herein, as evidenced by the deed referred to herein as No. 2.

This forfeiture is contested by the defendant upon the following grounds: (1) the provision in the primary deed is too vague and uncertain, and (2) the rules and regulations were adopted by the board of directors of the plaintiff rather than by the members thereof, and (3) the factual question of the existence of the rules and regulations, and (4) the application of the doctrine of estoppel by virtue of the representations of the plaintiff’s agents as to the non-existence of such regulations.

This motion is denied upon this ground:

A factual question has arisen upon the affidavits of the parties as to the existence or non-existence of rules and regulations which must be primarily and previously disposed of by the triers of the facts before the application of the legal principles germane to such regulations may be made.

The affidavits in question set out directly adverse facts with respect to the existence of such rules and regulations.

It has been repeatedly stated that it is the duty of the court to determine whether an issue of fact has been presented, and not to try the issue on affidavits. Barnes v. P & D Manufacturing Co., Inc. (Court of Errors and Appeals, 1936), 117 N. J. L. 156 (at p. 159); 187 Atl. Rep. 186. The power to strike out a pleading must be exercised with the greatest caution and where falsity is alleged, it must appear clearly and palpably so. Eday Fabrics, Inc., v. Seymour Dress Co. (Court of Errors and Appeals, 1935), 116 N. J. L. 251; 183 Atl. Rep. 167. Violation of conditions which involve a forfeiture must be clearly established and when they tend to defeat estates are to be construed strictly. Board of Education, Borough of Paterson v. Brophy (Court of Chancery, 1918-1919), 90 N. J. Eq. 57 (at p. 62); 106 Atl. Rep. 32; Southward v. Central Railroad Co. (Supreme Court, 1856), 26 N. J. L. 13 (at p. 20).

In passing it is to be noted in the alleged regulation depended upon, there appears to be no embargo against the transfer by an owner-member to an owner-member.

The determination of the points of law depend upon the factual question of the existence and the terms and the time and manner of adoption of the rules and regulations, in relation to the provisions of the deed and must await their timely presentment.

An appropriate rule may be presented.


author: Burling, S. C. 0.

text:
    LOUIS LIPMAN, PLAINTIFF, v. JULES ARFIELD, INDIVIDUALLY, ETC., DEFENDANT.
    Decided July 2, 1943.
    For the plaintiff, Albert B. Melnik.

    For the defendant, Irving I. Jacobs.

   Burling, S. C. 0.

Motion has been made before me as a Supreme Court Commissioner for an order to strike the complaint in this cause of action. The following reasons are assigned: (1) Complaint is duplicitous and states two causes of action in one count by alleging in paragraphs 6 and 7 a false return of process and negligence in failing to serve process, and (2) the complaint lacks certainty in that it fails (a) to aver the name of the alleged creditor in paragraph 6 of the complaint, (b) to allege the value of defendant G-unning’s property in paragraphs 4 and 5; and (3) that the complaint is so framed as to embarrass and delay a fair trial.

There is merit in points one and three of the reasons upon which this motion rests for support.

At common law, uncertainty in a pleading being one of form, was the subject of attack by special demurrer and by rule 39 of the Supreme Court rules, N. J. S. A. tit. 2, remains an objection together with the framing of a pleading which embarrasses a fair trial. Such objections are now met by a motion to strike since the abolition of general demurrers. Rule 41 of this Supreme Court rules.

A constable who makes a false return to process in his hands is liable for any injury resulting. therefrom. The mere fact that the official return is erroneous in some respects does not subject him to liability unless the error is properly attributable to some official misconduct or negligence. 57 Q. J. 894, article 493.

Counsel for both parties have cited a pertinent case, Astor v. Heller (Supreme Court, 1897), 61 N. J. L. 78; 38 Atl. Rep. 819, as a guide to the disposition of this motion.

Paragraph 7 of the complaint alleges the negligent conduct of the defendant in failing to serve the process and the result of the false return to be the gravamen for recovery.

In the complaint in the present cause of action, as a matter of form, .there are thus apparently two separate causes of action, with which the defendant is confronted in the same count.

(1) The actionable wrong resulting from the false return. The objection to the first count of the declaration in the cited case does not prevail in this matter, although it does not appear in the present complaint the manner in which such conduct was the proximate cause of the damage sustained by the plaintiff. Por instance, if in fact the service could not be made because of the non-residence of the defendant, it would have afforded notice to the plaintiff to protect his rights otherwise by attachment.

And (2) for actionable negligence by reason of official misconduct of the defendant in his failure to make service of the process upon the assumption that such service could have been made with the exercise of reasonable care. The facts in the present caso are silent upon such ability.

Perhaps not by intention but nevertheless, the complaint is duplicitous and alleges incompletely two causes of action in the same count.

The motion to strike the complaint in its present form will be granted with (1) leave to the plaintiff to amend by the deletion of this objection, and maintaining two causes of action (if so desired) in two separate counts, and (2) to provide the manner in which the false return was the proximate cause of injury to the plaintiff, and (3) in the event a count is set forth for actionable negligence, the averments appropriate thereto are to be made.

Further objection as to form of the complaint in that it lacks certainty should not prevail as the subject-matter of this objection may be reached by a demand for particulars.

An appropriate rule may be presented.


author: Büelifg, C. C. J.

text:
    EVA BANKS, VELMA SUTTON AND EUGENE SUTTON, PLAINTIFFS, v. RODNEY L. UHLAND ET AL., DEFENDANTS.
    Decided July 14, 1943.

      For the plaintiffs, JSlwood Q. Weeks.

    For the defendants, Starr, Summerill <& Lloyd (by Frank T. Lloyd).

   Büelifg, C. C. J.

Application was made to me within six days of the rendition of the verdict of no cause of action for a rule to show cause why a new trial should not be granted and due consideration has been given thereto.

In the oral ex parte application, the principal reason relied upon was that the verdict of the jury was inconsistent, particularly in its relation to the cause of action of the plaintiff Eva Banks, an occupant of the ear being operated by the co-plaintiff Velma Sutton, in that a counter-claim was asserted for property damage by the defendant J. Leo Lhland, the owner of the automobile operated by the defendant Rodney L. IJhland, and no verdict was rendered in regard thereto. This counter-claim was abandoned and withdrawn by the attorney for the counter-claimant, J. Leo Uhland, at the close of the reception of the evidence and during the argument of such attorney to the jury. Since no voluntary non-suit was applied for or formal rule of discontinuance taken, the attorney for the plaintiffs maintains the counter-claim was still before the jury for action thereon.

The point contended for is without merit, because a reading of the entire charge which I have had transcribed, convinces me that there was no confusion in the submission of the issues in this case to the jury. The pleadings in this case, wherein the counter-claim was pleaded, were not delivered to the jury in its consideration of the case, and prior to the charge, the defendant’s attorney announced in open court his abandonment of his counter-claim, and this fact was alluded to in the argument of the attorney for the plaintiffs. 1 G. J. 8., Actions, 1418, § 188.

No reference was made whatsoever in the charge respecting the counter-claim. The respective positions of all parties, and the only possible verdicts seem to me to have been clearly and emphatically defined, and the verdict met the issues submitted.

Eurther, the failure to award an affirmative verdict upon the counter-claim, even if submitted to the jury, could not have been complained of by the plaintiffs, and especially by Eva Banks, the occupant.

The remaining reasons assigned at the oral presentation of the application appear to be without merit, and do not advance reasons which warrant the intervention of the court in the premises.

The application is accordingly denied.


author: Dreund, D. C. J.

text:
    Second District Court of the City of Newark.
    SONYA BRAUNSTEIN, PLAINTIFF, v. THE MUTUAL LIFE INSURANCE COMPANY OF NEW YORK, A CORPORATION, DEFENDANT.
    Decided July 9, 1943.
    Dor the plaintiff, Edward Gaulhin.

    Dor the defendant, Collins & Corbin.

   Dreund, D. C. J.

Plaintiff’s suit was predicated upon a policy providing that in the event the assured be totally and permanently disabled before the age of sixty years, premiums were to be waived and she was to receive the sum of $82.45 monthly during such disability. Plaintiff became totally and permanently disabled about November 28th, 1930, and obtained the benefits of the policy under the total disability clause from that period up to December 28th, 1940. On that date defendant denied plaintiff further benefit under the disability clause, in so far as the monthly payments were concerned, contending that plaintiff was no longer “permanently disabled.” Plaintiff, admittedly totally disabled up to that date, continues to be so considered until such time as she may again engage in a gainful occupation, meeting all the usual requirements of that occupation, without the danger of suffering hazardous consequences.

The only testimony offered by the defendant in its effort to contradict plaintiff’s contention that she was still totally disabled, was that of experts. Dr. Riggins and Dr. Poliak, on behalf of the plaintiff, were the experts upon whose testimony the defendant’s contention, to its greatest extent rested, the testimony of Dr. Huyler being almost entirely confined to the X-ray interpretations.

Plaintiff was unquestionably tubercular. The greater weight of the evidence indicated that the plaintiff, suffering that scourge, could not return to her usual occupation in the fur trade, unless she were apparently cured. Even defendant’s experts acknowledged a distinction between an arrested ease and an apparently cured case. Dr. Riggins, on behalf of the defendant, recognized the classifications adopted by accepted authorities, distinguishing those stages. Still, in spite of the weight of the evidence indicating that the tests usually applied for the purpose of determining whether one is apparently cured, were not made, Dr. Riggins testified that the plaintiff was apparently cured. His contention that the plaintiff advised him that she had not had a sputum examination for two years prior to his examination of her, due to the absence of sputum, indicated the absence of bacilli, is not well founded. The authorities accepted specifically by the defendant, provided that in the event no sputum test was made, a fasting gastric content should be obtained and examined, in lieu thereof. Argument by defendant’s counsel that the term used was “should” and not “must” indicated merely a recommendation, is without merit.

The further test that the patient continue to live under ordinary conditions of life for a two-year period is an essential one in order to determine whether or not the patient is apparently cured. Ordinary conditions of life must, of necessity, entail engagement in the useful occupation, and in this instance, the only occupation in which plaintiff had been trained, moreover, the occupation which defendant contends the plaintiff can resume. Dr. Riggins’ testimony to the effect that “ordinary conditions of life” for this plaintiff merely anticipate the quiet, leisure manner which she found necessary to pursue during the last ten years, is contrary to the evidence and the normal interpretation of the term, and inconsistent with the law as it prevails and as urged by the defendant in this cause.

I have given great consideration to the expert testimony offered in this cause. I recognize the philosophy that, as between the testimony of experts on behalf of those who engage, them, and treatises by learned and accepted authors, the theories of the treatises, particularly those recognized by the testifying experts, is oft more acceptable.

The greater weight of the evidence indicates that the plaintiff was not "apparently cured” and because of the severity of the disability she suffered, should not be required to resume her gainful occupation until such time as she is "apparently cured.”

Although the sum involved may be considered slight, the consequences of this verdict will seriously affect the interests and the rights of the parties to this cause. A study of the testimony warrants me in finding that this is an instance where the discretion of the court should be exercised in favor of setting aside the verdict. It may be interesting to note that the voluminous testimony taken in this matter, complicated and controversial to the extent that it compelled serious deliberation, resulted in a verdict by a lay jury in approximately fifteen minutes. So far reaching are the consequences of a determination under the terms of the policy, that further investigation by both parties to the suit would result in more substantial justice. The controversy is important and there is much reason to believe that justice has not been done.

Plaintiff’s rule to show cause why judgment should not be set aside and a new trial granted is made absolute.


author: Burling, 0. C. J. and S. C. C.

text:
    ELSIE ALEXANDER, PLAINTIFF, v. ANIEL A. MANZA, DEFENDANT.
    Decided September 28, 1943.
    For the plaintiff, Irving I. Jacobs.

    For the defendant, Emanuel Weitz (by Vincent 8. Wane-man) .

   Burling, 0. C. J. and S. C. C.

Suit was instituted herein on the 17th day of July, 1943, by the plaintiff, the assignee of a bond and mortgage, created on October 15th, 1925, which it is alleged the defendant herein assumed by virtue of a covenant contained in deed dated April 1st, 1926, wherein William P. Richards et ux. and Alexander A. Lincoln et ux. were the grantors and the defendant was the grantee, which deed was recorded in the office of the clerk of Bergen County on April 6th, 1926, in Book 1397 of Deeds for said county at page 187, and that subsequently she foreclosed said mortgage, and a deficiency arose resulting in the damages which are sought in this cause of action.

This cause of action is maintained upon the principle that the -grantee who assumes a mortgage debt and promises to pay it makes a contract with the grantor for the benefit of the mortgagee.

Since the adoption of chapter 207 of the Pamphlet Laws of 1898, nor R. S. 2:26-3.6; N. J. S. A. 2:26—3.6, a court of law has jurisdiction to entertain a claim based upon such an assumption. Herbert v. Corby (Supreme Court, 1940), 124 N. J. L. 249; 11 Atl. Rep. (2d) 240; affirmed (Court of Errors and Appeals, 1940), 125 N. J. L 502; 17 Atl. Rep. (2d) 541, and followed in Woodbridge v. DeAngelis (Court of Errors and Appeals, 1940), 125 N. J. L. 579 (at p. 580); 17 Atl. Rep. (2d) 542, and in Fidelity Union Trust Co. v. Multiple Realty Co. (Court of Chancery, 1942), 131 N. J. Eq. 527; 26 Atl. Rep. (2d) 155. In the last case (at p. 538); 26 Atl. Rep. (2d) 161, it was stated:

“This long line of decisions stood unchallenged until 1940, when our Supreme Court decided that a grantee who assumes a mortgage debt and promises to pay it makes a contract with the grantor for the benefit of the mortgagee; and that since the adoption of chapter 207, P. L. 1898 (now R. S. 2:26—3.6; N. J. S. A. 2:26-3.6), a court of law has jurisdiction to entertain a claim based upon such assumption. Herbert v. Corby, 124 N. J. Law 249; 11 Atl. Rep. (2d) 240; affirmed, 125 N. J. Law 502; 17 Atl. Rep. (2d) 541, and followed in Woodbridge v. DeAngelis, 125 N. J. Law 579; 17 Atl. Rep. (2d) 542. These cases hold that, by virtue of the statute, courts of law have concurrent jurisdiction with that inherent, original jurisdiction which has always been, from time immemorial, the prerogative of the Chancellor.”

Motion was made before me sitting as Supreme Court Commissioner for the following rule: “To dismiss the complaint in the above cause, and abate the proceedings herein, on the ground that a prior action is pending and undetermined for the same cause between the same parties in this court, to wit: The suit commenced in the Hew Jersey Supreme Court, Atlantic County, on August 7th, 1941.”

By the provisions of modern practice, resulting from the act of 1912 (N. J. S. A. 2:27-1 ei seq.), and the rules of court promulgated pursuant thereto, pleas in abatement are abolished, and in lieu thereof, objection shall be made on motion. Buie 56, Supreme Court (N. J. S. A. tit. 2): Commercial Credit Corp. v. Boyko (Court of Errors and Appeals, 1927), 103 N. J. L. 620 (at p. 625); 137 Atl. Rep. 534.

Suit had been heretofore instituted (August 7th, 1941, as above referred to) in the Hew Jersey Supreme Court with venue laid in Atlantic County by the plaintiff against the defendant and in said suit by the second count of the complaint a cause of action was asserted against the present defendant and based upon a written agreement with the plaintiff in the capacity of executrix of the estate of Madeline Alexander, whereby it is alleged that the defendant grantee assumed and covenanted to make payment of the principal and interest of the indebtedness resulting from the same bond and mortgage upon which the present suit is based. It is therein alleged that the plaintiff herein was the assignee of said bond and mortgage and that as a result of the foreclosure thereof, a deficiency arose upon which said suit is based, which deficiency together with court costs represents the damages claimed in said cause of action, although no specific allegation is contained in said cause of action of the assignment of the agreement referred to in paragraphs 3 and 14 of the second count. Issue has been joined in that cause of action and its trial is awaiting in the Atlantic County list of causes. In that cause, the defense of usury with respect to the agreement upon which the suit is based has been asserted.

To afford a ground for abatement of one cause of action because another action is pending between the same parties, the cause of action in both suits must he identical. Steers v. Shaw (Supreme Court, 1891), 53 N. J. L. 358 (at p. 359); 21 Atl. Rep. 940; 1 Corp. Jur. 61.

The disposition of this motion then hinges upon the question as to whether the causes of action are identical. One of the tests applied to determine this question is—will the same evidence support both actions? 1 Corp. Jur. 67. In Steers v. Shaw (ante), 53 N. J. L. (at p. 360); 21 Atl. Rep. (2d) 941, it was held:

“Again a crucial test of the identity of the two causes c' action is to consider whether the same evidence will suppoj. both actions. Broom Max. 305.

“If this identity of evidence be found, it will make no difference that the form of the two actions is not the same. Freem. Judg. 259.

“But if the evidence which will support one action would not have entitled the plaintiff to recover in the other, there exists no identity. Stowell v. Chamberlain, 60 N. Y. 272; Martin v. Kennedy, 2 Bos. & P. 69.”

And in that case, in the syllabus it was held:

“A Judgment was obtained in the State of Hew York upon certain notes. A new action was afterwards begun in this state upon the same notes. Later an action between the same parties was begun in this state upon the Hew York Judgment. Held that a plea in abatement filed in the last action setting up the pendency of the action upon the notes, was bad, as the respective causes of action were not the same.”

It is apparent that a reading of the two complaints discloses the fact that they are distinct causes of action alleged therein, one—upon a direct written agreement to which has been asserted a defense of usury and the other cause of action ’ upon the determination of liability for a contract made by assumption in a deed alleged to be for the use and benefit of a third person mortgagee.

In the first case, the transaction regarding the independent written agreement is under scrutiny and in the second case, the clause contained in a deed. The evidence in each is obviously different and the alleged primary liability arises from different sources.

The defendant relies upon the principle asserted in the case of Smith v. Redtop (Court of Errors and Appeals, 1933), 111 N. J. L. 439; 168 Atl. Rep. 796, and upon the point that both suits seek to establish a liability on the same bond for deficiency after foreclosure.

In said case the court (at p. 443 of 111 N. J. L.; 168 Atl. Rep. 798), did hold:

“The rule against splitting causes of action was devised to prevent repeated litigation between the same parties in regard to the same subject of controversy, and to avoid the inconvenience and expense incident to numerous suits. The claimant is not at liberty to split up his demand, and prosecute it by piece meal. There would be no end to litigation if such a practice were tolerated. Baltimore Steamship Co. v. Phillips, supra." [274 U. S. 316; 47 S. Ct. 600; 71 L. Ed. 1069] and frowned upon the attempt in a tort case to split plaintiff’s action because the damages were entirely personal as distinct from injuries caused to person and property by the same negligent act. But distinct causes of action, growing out of the same transaction (tort) exist and may be maintained separately for damages resulting to property and to the person, and therefore a judgment in one cause is not a bar to an action to recover in another, founded upon the case of Ochs v. Public Service Railway Co. (Court of Errors and Appeals, 1911), 81 N. J. L. 661; 80 Atl. Rep. 495.

In passing it is also of interest to note in the case of Igoe Bros. v. National Surety Co. (Court of Errors and Appeals, 1933), 112 N. J. L. 243; 169 Atl. Rep. 841, separate causes of action were asserted and permitted, basing the plaintiff’s right to recover, growing out of liability upon the same bond, on two different dates of acceptance and in the syllabus, the court said:

“3. Where the right of recovery upon a surety bond given in pursuance of chapter 75 of the laws of 1918 (Pamph. L., p. 203 [N. J. S. A. 2:60-207 et seq.]) depends on certain preliminaries, of which there is a difference in respect to dates of acceptance of the work, the materialman is not obliged to choose one of the conflicting dates, but may properly sue on each date of the acceptance.” And the court further, 112 N. J. L. (at p. 247); 169 Atl. Rep. 842, stated that:

"A dismissal of either suit before trial might have resulted in a denial of justice.”

In the case of Schwartz v. International Brotherhood (Supreme Court, 1941), 126 N. J. L. 379, 383; 19 Atl. Rep. (2d) 690, 692, the court sustained the right to maintain separate causes of action for separate breaches arising out of the same contract and said:

"The contract under consideration was susceptible of more than one breach. It was breached when Local 478 refused to arbitrate in the ease of the employee, Whitehead, and it was again breached in the refusal to arbitrate in the case of Wiatrosky. We therefore conclude that the District Court had jurisdiction to try this cause and that there was no waiver by failure of Schwartz Brothers to join the present cause of action in the suit which was nonsuited.”

The matter of convenience of the parties and the incident expense to two suits may be considered in due season as to its merits and wisdom in an application to consolidate these causes for the purpose of trial. If not so ultimately consolidated in the event of a judgment in both suits, the court will see that cumulative judgments shall not be used to compel double satisfaction.

The motion is denied and a rule may be presented.


author: Burling, 0. C. J.

text:
    Atlantic County Circuit Court.
    HARRY ROSENTHAL, PLAINTIFF, v. NATHAN LEVIN, DEFENDANT.
    Decided July 8, 1943.
    For the plaintiff, DresTcin <& Dreshin (David Maar, of ■counsel, of the ISTew York bar).
    For the defendant, Albert N. Shahadi.

   Burling, 0. C. J.

A petition by the plaintiff was filed in this court setting forth that the plaintiff, on the 1st day of December, 1927, recovered a judgment in this court against the defendant for the sum of $1,459.87, together with costs of suit, and praying an order requiring the defendant to appear and make discovery concerning his property and things in action. ■ An order was entered by this court on the 15th day of April, 1943, requiring the defendant to appear and make discovery, under oath, concerning his property and things in action before Baymond W. Hurter, Supreme Court examiner.

A petition was thereafter filed with this court praying that said order for discovery be vacated and dismissed.

• This matter now comes before this court upon its order to show cause why the prayer of the petition should not be granted and the order for discovery entered on the 15th day of April, 1943, be vacated and dismissed.

It appears that the plaintiff on the 1st day of December, 1927, recovered a judgment in this court for the- sum of $1,459.87, together with costs of suit; that on November 12th, 1927, an involuntary petition in bankruptcy was filed against the defendant herein, in the following style:

United States District Court

District of New Jersey

In the Matter of

Nathan Levin and Louis Levin, individually and as co-partners trading as Levin & Sons,

Bankrupt

In Bankruptcy

That an order in said United States District Court confirming a composition with respect to said bankrupt was made May 28th, 1928, in said court; that the plaintiff herein did not file any proof of claim in said bankruptcy proceedings, nor did he receive any part of the consideration disbursed as a settlement by the bankrupt. There is no dispute that the- amount of the judgment together with interest and costs remains unpaid. The defendant alleges that his liability upon such judgment-is discharged as a result of said bankruptcy proceedings.

The plaintiff opposes the order which is applied for and seeks .dismissal of the petition to the end that he may pursue the existing discovery order upon the ground that the claim of the plaintiff against defendant, being based in fraud, is not dischargeable under the Bankruptcy Act.

A debt may be such that it is not discharged in bankruptcy, even though it may he provable and share in distribution. Friend v. Talcott, 228 U. S. 27; 33 S. Ct. 505; 57 L. Ed. 718.

The Bankruptcy Act of July 1st, 1898, chapter 541, 30 Stat. 544, sometimes called the Nelson Act, was subsequently amended, 11 U. S. C. A., §§ 1, et seq., and the pertinent excerpt of the act relied upon by the plaintiff, in effect at the time of the tiling of the petition in bankruptcy in this matter and also at the time of the entry of the judgment in the state court is as follows:

“§ 35. Debts not affected by a discharge. A discharge in bankruptcy shall release a bankrupt from all of his provable debts, except such as * * *; (second) are liabilities for obtaining property by false pretenses or false representations, or for willful and malicious injuries to the person or property of another; * * The Code of Laws of United States of America, in force January 3d, 1935. 11 U. S. C. A., § 35.

The introduction into evidence of an order of discharge or its comparable order of composition, places upon the creditor the burden to show cause that because of the nature of the claim the debt sued upon was for statutory reasons excepted from the operation of the discharge. Freedman v. Cooper (Supreme Court, 1911), 126 N. J. L. 177 (at p. 179); 17 Atl. Rep. (2d) 609; Domato v. Ambrose (Supreme Court, 1939), 122 N. J. L. 539 (at p. 543); 6 Atl. Rep. (2d) 189. That burden has been met.

Neither the form of the judgment itself nor that of the complaint is finally determinative. Freedman v. Cooper (supra). The record may be resorted to in order to determine the primary nature and real foundation of the cause of action upon which the judgment is based, i. e., the liability is based. Ehnes v. Generazzo (Essex County Court of Common Pleas, 1941), 19 N. J. Mis. R. 393 (at p. 394); 20 Atl. Rep. (2d) 513, citing Paterson v. Smith, 72 Vt. 288; 47 Atl. Rep. 1088.

The cause of action contains two counts. The first count sounds in contract upon negotiable instruments; namely three checks of which the defendant was the maker and the plaintiff the payee, dated May 18th, 1937, for $500, May 21st, 1927, for $400, and May 23d, 1927, for $452, respectively. The second count sounds in tort whereby the plaintiff sustained damages as the result of the obtaining of property of the plaintiff by the defendant, by means of false pretenses or false representations, namely, the "delivery by the plaintiff as pledgee of certain commercial paper originally owned by the defendant, and which had been pledged with the plaintiff as security for money advanced by the plaintiff to the defendant, represented by the checks referred to in the first count of the complaint. Such commercial paper was collected by the defendant and the proceeds retained by the defendant, to the damage of the plaintiff.

No defense was entered to the cause of action, and judgment was taken by default and damages assessed. An examination of the record of the Atlantic County Circuit Court clerk offered in support of the opposition to the motion discloses the affidavit of the plaintiff filed in the application for judgment and it is therein set forth at length the details of- the transaction between the plaintiff and defendant and the admission of the defendant of the disposition by him of the commercial paper and the conversion of the proceeds thereof to his own use.

The judgment is general in nature against the defendant, based on the default of the defendant to answer the allegations with which he was confronted, and the resort to the record establishes that there existed a liability, within the meaning of the Bankruptcy Act, for obtaining property by false pretenses or false representations. In such a situation the bankrupt is deprived of the beneficent discharge of the debt and its 'mprint remains upon the defendant.

An appropriate rule may be presented.


author: Aokeeson, S. C. 0.

text:
    HELEN SWANSON, PLAINTIFF, v. WILLIAM F. PLOWFIELD, DEFENDANT.
    Decided May 13, 1943.

      For the plaintiff, Louis J. Greenberg.

    For the defendant, Albert B. Melnik.

   Aokeeson, S. C. 0.

Plaintiff, as assignee, sues upon a confessed judgment entered by her assignor, Jacques & Co., Inc., against defendant in the Supreme Court of Hew York on. April 22d, 1940, pursuant to a statement of confession dated March 20th, 1939.

Defendant’s answer consists of two defenses. The first of these is a general denial. The second alleges the discharge of the debt in bankruptcy on February 20th, 1940, for that, although the debt was not scheduled in said proceedings, nevertheless, the plaintiff’s assignor had full knowledge of such proceedings before the discharge and before the time limited for filing proofs of claim had expired, but took no steps to object to the discharge and, therefore, he and his assignee, the present plaintiff, are bound thereby.

In reply to this second defense the plaintiff filed a pleading consisting of four separate replies. The first being a general denial, and the other three being based upon the doctrine of res ad judicata or estoppel by judgment in that the question presented by defendant’s aforesaid second defense is alleged to have been disposed of as the result of certain proceedings undertaken subsequent to the discharge in bankruptcy therein mentioned. The defendant has rejoined with a general denial.

Plaintiff now moves to strike defendant’s said rejoinder (general denial) as sham.

Before proceeding to deal specifically with the questions presented by this motion it will be helpful to notice that the debt represented by plaintiff’s judgment was scheduled in prior bankruptcy proceedings initiated by defendant in 1932 in which no discharge was granted, and in the later proceedings referred to in defendant’s aforesaid second defense, initiated in 1939, this claim was not scheduled. The debt, however, is a provable one under the Bankruptcy Act (30 Stat. 544, 550; 11 U. S. C. A., §§ 1, et seq.). The provable debts which are excepted from a discharge by virtue of the express provisions of said act are set forth in six distinct classes in section 17 (30 Stat. 550, § 17; 11 U. S. C. A., §35). The debt in question does not fall within any of these excepted classes, unless it be the third, which class is defined as debts which “have not been duly scheduled in time for proof and allowance, * * *, unless such creditor had notice or actual knowledge of the proceedings in bankruptcy.” So, in so far as the express provisions of the bankruptcy statute are 'concerned, the debt here in question, not having been scheduled, was not discharged if the creditor, plaintiff’s assignor, had no notice or actual knowledge of the pendency of the second bankruptcy proceedings.

Aside from the statute, however, it is a well settled rule of the bankruptcy courts, that the denial of a discharge; failure to apply for a discharge within the time allowed by the act (30 Stat. 550, § 14; 11 U. 8. C. A., § 32(a)); withdrawal of the application, or the bankrupt’s action in permitting dismissal of the application, will bar the bankrupt from obtaining in later bankruptcy proceedings a discharge from the provable debts scheduled therein which were scheduled in the former proceedings, provided timely objection to the discharge thereof is raised in the later proceedings. Bluthenthal v. Jones, 208 U. S. 64; 28 S. Ct. 192; 52 L. Ed. 390; 13 L. R. A. (N. S.) 629, and note; Kuntz v. Young, 131 Fed. Rep. 719; In re Weintraub, 133 Id. 1000; In re Kuffler, 151 Id. 12; In re Pullian, 171 Id. 595; Pollet v. Cosel, 179 Id. 488; 30 L. R. A. (N. S.) 1164; In re Schwartz, 248 Fed Rep. 841; In re Bishop, 13 Fed. Supp. 905; In re Summer, 107 Fed. Rep. (2d) 396. A bankrupt’s failure to apply for his discharge is equivalent to the denial thereof. Kuntz v. Young, supra; In re Weintraub, supra.

The basis for the above mentioned rule is the doctrine of res adjudicata. It is apparent, therefore, that the bar—the non-dischargeability of such a debt—is not self-operative, as in the case of the classes of-debts excepted from a discharge by the statute (30 Stat. 550, § 17; 11 U. S. C. A., § 35), and its non-dischargeability must be raised in the later bankruptcy proceedings, if the debt is scheduled therein. Otherwise the debt, because of its character—being provable in the later proceedings, and not one excepted by.the express terms of the statute itself from the operation of the discharge— would be barred by the discharge. Bluthenthal v. Jones, supra; In re Bacon, 193 Fed. Rep. 34, certiorari denied; Bacon v. Buffalo Gold Storage Co., 225 U. S. 701; 32 S. Ct. 836; 56 L. Ed. 1264; Youngman v. Salvage, 21 N. D. 317; 130 N. W. Rep. 930; In re Zeiler, 18 Fed. Supp. 539; In re Cooper, 236 Fed. Rep. 298.

It is important, therefore, to observe that the right to a discharge as set forth in section 14 of the Bankruptcy Act (30 Stat. 550, § 14; 11 U. S. C. A., § 32) and the effect thereof as set forth in section 17 of said act (30 Stat. 550, § 17; 11 U. S. C. A., § 35) are distinct and separate propositions. The court of bankruptcy determines the right to and issues the discharge, but the effect thereof is to be passed upon exclusively in the court in which the discharge may be pleaded. Teubert v. Kessler, 296 Fed. Rep. 472; In re Bernard, 280 Id. 715; Youngman v. Salvage, supra. This proposition was modified to a liimted extent in the later case of Local Loan Co. v. Hunt, 292 U. S. 234; 54 S. Ct. 695; 78 L. Ed. 1230, so as to permit the bankruptcy court to determine the effect of a discharge in a case presenting unusual and special circumstances involving equitable considerations, such as the inadequacy of the remedy in the law courts, &c. Nevertheless, it still remains true that generally the effect of a discharge is to bo raised exclusively in the court in which the discharge ma,y be pleaded. In re Devereaux, 76 Fed. Rep. (2d) 522.

In re Zeiler, 18 Fed. Supp. 539, is illustrative of the class of eases involving unusual and special circumstances within the rule laid down in Local Loan Co. v. Hunt, supra. There a debt scheduled in former bankruptcy proceedings, where no discharge had been obtained, was again scheduled in later proceedings and discharged because of the inadvertent failure of the creditor to raise the defense of former adjudication. Upon timely application, after the discharge in the later proceedings, the bankruptcy court permitted an amendment of the discharge to exclude this claim. The special circumstance there present was the fact that the claim was scheduled in the later proceedings, and, being a provable claim, a general discharge, occasioned through the inadvertence of the creditor, would bar the collection of the claim in another court which must look alone to the judgment of discharge in the bankruptcy court, and give effect thereto according to the plain provisions of the Bankruptcy Act, since the debt is not one of a class which, on its face, is excepted from a discharge by the statute (30 Stat. 550, § 17; 11 U. S. C. A., § 35). Youngman v. Salvage, 21 N. D. 317; 130 N. W. Rep. 930; Bluthenthal v. Jones, 208 U. S. 64; 28 S. Ct. 192. Hence the bankruptcy court alone could except such a debt from the operation of the discharge by belated application, upon equitable considerations, of the doctrine of res adjudicata. Local Loan Co. v. Hunt, supra. The court in which the debt is later sought to be collected could not determine the question of former adjudication. Youngman v. Salvage, supra.

However, when such a debt is not scheduled in the second bankruptcy proceedings, the discharge does not affect it because it has become, on the face of the proceedings, one of a class excepted from the operation of the discharge by virtue of section 17 of the act, unless the creditor had timely notice or actual knowledge of the pendency of the proceedings (30 Stat. 550, § 17; 11 U. S. C. A., § 35 (third)). Whether he did have such notice or knowledge goes solely to the effect of the discharge, and involving no equitable considerations, does not present an exception to the general rule that such effect is solely for the determination of the court in which the debt is later sought to be collected.

With these principles in mind we turn to the consideration of the present motion.

Plaintiff’s second separate reply to defendant’s second defense (discharge in bankruptcy by reason of notice or knowledge of the pendency of the second proceedings) is to the effect that the defendant, subsequent to the aforesaid discharge, applied to the Supreme Court of Hew York (August 20th, 1940) to vacate the confessed judgment entered therein on April 22d, 1940, which judgment is the subject of the present action, and which application was denied September 6th, 1940, denial affirmed by the Appellate Division of that court on December 13th, 1940. That by virtue thereof said court has judicially determined that said judgment is excepted from the aforesaid discharge granted on February 20th, 1940. The argument is that defendant’s failure, in his' aforesaid application to vacate said judgment, to urge the-aforesaid discharge' in bankruptcy as a means to that end now precludes him from relying thereon.

Plaintiff has produced on this motion an exemplified copy of the opinion of the Justice of the Supreme Court of Yew York on the above application, but nothing has been produced to show that any order or judgment has been signed or entered thereon. The opinion of the court possesses no efficacy as a bar, however, unless an order or judgment is actually entered thereon. Rosenbaum v. Garrett, 57 N. J. Eq. 186, 190; 41 Atl. Rep. 252; 34 C. J. 767, § 1182 and p. 888, § 1296; Flanagan v. Lazerine, 175 Mo. App. 188; 157 S. W. Rep. 824.

However, it appears from said opinion that the application to the Yew York court was to “vacate” its judgment because of defects in the confession on which it was entered, not to bar its enforcement by reason of subsequent occurrences. The effect of a discharge in bankruptcy is not to extinguish a debt covered thereby, but simply to bar all subsequent legal proceedings for its enforcement. 1 Collier on Bankruptcy (14th ed.), §§ 17, 27; Villar & Co. v. Conde (1 Cir.), 30 Fed. Rep. (2d) 588; 13 Am. B. R. (N. S.) 532; Winter v. Hinden, 35 Del. 294; 136 Ail. Rep. 280; 9 Am. B. R. (N. S.) 359. Obviously the Yew York court, upon the motion before it, could not pass upon the effect of such discharge upon said judgment. That would be the prerogative of the court in which the judgment is sought to he enforced.

Defendant’s denial of plaintiff’s second separate reply is not, therefore, sham.

Plaintiff’s third separate reply, the allegations of which are denied by defendant’s rejoinder, is to the effect that on June 24th, 1940, the defendant applied to the referee in bankruptcy to “vacate” his aforesaid discharge in bankruptcy and to “amend the bankruptcy schedules” so as to include therein as a creditor, the plaintiff’s assignor, which application was denied by an order dated September 6th, 1940, the referee “holding that the debt of the plaintiff and her assignor is non-dischargeable.” The order was affirmed by the Judge of the United States District Court for the District of Yew Jersey on October 24th, 1940. Therefore, it is alleged that the judgment which is the subject-matter of the present action is, in effect, excepted from the discharge granted on February 20th, 1940, and, by reason of the denial of defendant’s said application, he is now precluded from maintaining that the plaintiff is barred from recovery against the defendant by virtue of the aforesaid discharge.

Plaintiff has produced duly certified copies of the referee’s aforesaid opinion, the order entered thereon and the affirming order of the District Court Judge, but has not supplied copies of the moving and answering papers on said application.

So far as appears from the evidence before us the defendant did not seek a ruling by the referee as to the effect of the existing discharge upon the plaintiff’s unscheduled judgment, but merely sought to “vacate” the discharge to permit an amendment of the schedules to include plaintiff’s aforesaid judgment. If granted, the only effect would have been to put the proceedings back in the position they were in at the time of the filing of the original schedules, at least in so far as the present plaintiff’s claim is concerned, with the right on her part, upon her claim being thus scheduled, to object to the discharge or have her claim excepted therefrom. In re Adams (D. C., Ga.), 242 Fed. Rep. 335; In re McKee (D. C., N. Y.), 165 Id. 269. In denying this application, the referee quite properly held, as appears from the memorandum of his opinion, that it would be futile to open the discharge to permit the scheduling of plaintiff’s claim, since plaintiff’s appearance in opposition to the motion indicated that she would object to the discharge thereof, if scheduled, on the ground that the claim was non-disehargeable by reason of its having been scheduled in prior bankruptcy proceedings in which no discharge has been obtained. Obviously the referee was not called upon to and did not decide the effect of the existing discharge upon this unscheduled claim, because, so far as appears, this was beyond the scope of the application. He merely held, in effect, that the existing discharge would not be vacated to permit the scheduling of a claim which, with this new opportunity, would immediately give the creditor the right to prove that it was non-dischargeable. The question of whether the holder thereof, the present plaintiff, had notice or knowledge of such bankruptcy proceedings in time for proof and allowance of the claim prior to the entry of the existing discharge, was not, so far as presently appears, presented to or considered by the referee, nor within the scope of the bankrupt’s aforesaid application, and was not decided by the referee nor the District Court Judge on the petition for review.

The denial of'defendant’s application to “vacate” the aforesaid discharge in bankruptcy and permit the scheduling of plaintiff’s claim was similar in scope and effect to the discharge of a rule to show cause why a default judgment should not be vacated. It did not pass upon the effect of or disturb the discharge already rendered, nor were the merits of the present controversy involved. In order that a judgment or determination may constitute a bar to another action, it must involve a determination of the merits of the controversy. Meier Credit Co, v. Yeo, 129 N. J. L. 82; 28 Atl. Rep. (2d) 227; Stambovsky v. Cohen, 124 N. J. Eq. 290; 1 Atl. Rep. (2d) 456; Taylor v. Betts (Arizona), 124 Pac. Rep. (2d) 764; Campanetta v. Campanella, 204 Cal. 515; 269 Pac. Rep. 433; Omaha Rd. Eq. Co. v. Thurston County, 122 Neb. 35; 238 N. W. Rep. 919. This the referee’s aforesaid order and the affirmance thereof did not do.

It follows, therefore, that defendant’s denial of plaintiff’s third separate reply is not sham.

Plaintiff’s fourth separate reply, which is also denied by defendant, is to the effect that on April 23d, 1941, plaintiff and her assignor applied to the referee to amend the aforesaid order of discharge so as to except from its operation the judgment which is the subject of the present action. That on May 27th, 1941, the referee denied this application, and on Pebruary 10th, 1942, upon a petition for review, Judge Dorman, of the United States District Court for the District of Uew Jersey, filed an “opinion” affirming the aforesaid order of the referee, in which the District Court Judge, “specifically held * * * that the plaintiff and her assignor were unscheduled in the bankruptcy proceedings and were not shown to have had notice thereof,” and in which “he also determined * * * that the debt of the plaintiff and her assignor is not dischargeable. * * * That by virtue” of the aforesaid application “the said court has judicially determined that the judgment, which is the subject-matter of this suit, is excepted from the discharge granted on February 20th, 1940.”

Certified copies of the referee’s opinion and order on the aforesaid application and of the opinion of the District Court Judge on the review thereof have been produced, but it does not appear that 'any order or judgment was ever entered on the latter opinion.

We are obliged, therefore, to disregard the aforesaid opinion of the District Court Judge because of the well settled rule, already referred to, that the opinion, decision or findings of the court do not constitute a bar to a subsequent action unless an order or judgment is actually entered thereon. Rosenbaum, v. Garrett, supra; 34 C. J. 767, § 1182 and p. 888, § 1296; Flanagan v. Lazerine, supra.

So far as the order of the referee is concerned, while it denied the application to qualify the discharge theretofore granted, nevertheless, the opinion of the referee upon which said order was entered (which opinion and order are properly before us) discloses that he denied the application on the ground that it was not within the province of the bankruptcy court to determine whether a particular claim is discharged or not discharged by the bankruptcy proceedings, except in the class of eases typified by In re Zeiler, supras where the claim, which was not discharged by former proceedings, was actually scheduled in the later proceedings. And since the claim, sub judice, was not scheduled in the later proceedings, and the holder thereof did not apply on behalf of a class of creditors but for himself alone, his claim did not fall within the class excepted by said case, and the referee refused to except the circumstances of the present claim from the general rule that the effect of a discharge is not to be considered by a court of bankruptcy. In other words, the referee merely held that the bankruptcy court could not exercise jurisdiction to determine whether plaintiff’s judgment was discharged or not under the circumstances. His action in this regard would have an effect similar to a nonsuit in a common law action which would not bar a subsequent action for the same cause. The referee did not attempt to decide whether or not the creditor had actual notice or knowledge of such bankruptcy proceedings, and expressly stated that he attached no importance to that question in view of the ground of his decision above expressed. While the referee’s aforesaid order is res adjudícala upon the proposition that the bankruptcy court could not disregard the general rule and exercise jurisdiction to pass upon the effect of the discharge, so far as this particular claim is concerned, nevertheless, it is not res adjudícala upon the question of notice or knowledge of the bankruptcy proceedings by said creditor or the undoubted right of this state court to consider such question in determining the effect of the discharge under section 17 of the Bankruptcy Act (30 Stat. 550, §17; 11 U. S. C. A., § 35) in accordance with the general rule applicable in such matters. Obviously the plaintiff would not be limited to an appeal from the referee’s order under such circumstances. Compare Monmouth, County Electric Co. v. Eatontown Township, 74 N. J. Eq. 578; 70 Atl. Rep. 994; Headley v. Leavitt, 65 N. J. Eq. 748; 55 Atl. Rep. 731.

Furthermore, since the referee’s order denying plaintiff’s said application was based solely upon jurisdictional grounds and did not involve the merits of plaintiff’s claim, it is not res adjudícala in the present action upon the effectiveness of the discharge in bankruptcy relied upon by the defendant in his second defense. Meier Credit Co. v. Yeo, supra; Stambovsky v. Cohen, supra; Taylor v. Betls, supra; Campanella v. Campanella, supra; Omaha Rd. Eq. Co. v. Thurston County, supra.

It therefore appears that defendant’s denial of plaintiff’s fourth separate reply is not sham.

The conclusion is that plaintiff’s motion to strike the defendant’s rejoinder is denied, with costs, and a form of order may be presented in accordance herewith.


author: Burling, C. C. J.

text:
    Atlantic County Circuit Court.
    JOSEPH L. BUCCI, PLAINTIFF, v. JOHN LaROCCA, DEFENDANT.
    Decided September 3, 1943.

      For the plaintiff, Harry M. Tonkin.

    For the defendant, William E. Stringer.

   Burling, C. C. J.

Petition was filed in this court by the defendant in the above entitled cause, setting forth that the plaintiff recovered a judgment in this court on the 9th day of July, 1927 (erroneously referred to in said petition as 1937), in the sum of $708.40 damages and $59.57 costs; that on March 26th, 1932, defendant herein filed a voluntary petition in bankruptcy, in the United States District Court for the District of New Jersey, and was adjudicated a bankrupt and by an order of said court on the 1st day of August, 1932, was granted a discharge of all debts and claims which were made provable by the Bankruptcy Acts of the United States of America which existed on the 26th day of March, 1932, excepting such debts as were by law excepted from the operation of the discharge in bankruptcy; that the judgment herein referred to was a listed and provable claim included within the purview of the order of discharge; that on June 1st, 1943, a writ of execution was issued out of this court and directed to the sheriff of the County of Atlantic, and thereafter a levy was made upon money on deposit of the defendant herein in the Ventnor City National Bank, in the County of Atlantic and upon the defendant’s automobile. The prayer of the petition is to restrain the sheriff of the County of Atlantic from proceeding further under the directions of said writ and restraining the plaintiff herein from taking any other or further steps toward the collection of said judgment against the defendant.

Rule to show cause based upon said petition was granted and made returnable before this court, directing the said Joseph L. Bucci and the sheriff of the County of Atlantic to show.cause why the prayer of said petition should not be granted.

Appearance was made by the plaintiff, Joseph L. Bucci, and evidence was received by the court as hereinafter referred to.

The plaintiff opposes the application on the ground that the debt is not discharged by the bankruptcy proceedings.

The pertinent provisions of the Bankruptcy Act effective at the time of the filing of the petition in bankruptcy relating to debts not affected by discharge, may be found in the Code of Laws of United States of America, in force January 3d, 1935, 11 U. S. C. A., § 35, and is as follows:

“A discharge in bankruptcy shall release a bankrupt from all of his provable debts, except such as * * * (third) have not been duly scheduled in time for proof and allowance, with the name of the creditor, if known to the bankrupt unless such creditor had notice or actual knowledge of the proceedings in bankruptcy * *

There was in effect, at the time of the filing of the petition in bankruptcy, the following pertinent provision with respect to the duties of the bankrupt in the preparation of his schedules:

“The’ bankrupt shall * * * (8) prepare, make oath to, and file in Court within ten days after adjudication, if an involuntary bankrupt and within ten days after the filing of a petition, if a voluntary bankrupt (unless in either case further time is granted) a schedule of his property showing the amount and kind of property, the location thereof, its money value in detail, and a list of his creditors showing their residence, if known; if unknown, that fact to be stated, the amounts due each of them, the consideration thereof, the security held by them, if any, and a claim for such exemptions, as he may be entitled to, all in triplicate, one copy of each for the clerk, one for the referee, and one for the trustee; * *

This provision may be found in the Code of Laws of United States of America, in force January 3d, 1935, 11 U. S. C. A., § 25, and was originally known as section 7 of the Act of 1898.

The schedules of the bankrupt were admitted into evidence and under the subdivision thereof, entitled “creditors whose claims are unsecured,” the following appears:

(N. B.) When the name and residence (or either) of any drawer, maker, indorser, or holder of any bill or note, &c., are unknown, the fact must be stated, and also the name and residence of the last holder known to the debtor. The debt due to each creditor must be stated in full, and any claim by way of set-off stated in the schedule of property.

Reference to Name of creditors Residence When and
Ledger or (if unknown where
Voucher that fact eon-Amount
must be tracted
stated)
* * * * :S # ♦
Note—Atlantic Safe Deposit & Trust Co., Atlantic City, N. J., note originally $750.00 endorsed by Joseph T. Bucci reduced to $670 by endorser. Interest to be added from December
8, 1926 $670.00

It is contended and it appears to be a fact that the judgment referred to in the petition herein is the outgrowth of the note referred to in the schedules. However, it appears from an examination of the file in this cause of action in the Atlantic County clerk’s office that the Atlantic Safe Deposit and Trust Company, on November 28th, 1926, assigned, transferred and delivered said note and the amount due thereon, to Joseph T. Bucci, the endorser, and the plaintiff herein, upon the payment to it, by the endorser of the amount due on said note. The plaintiff thereafter proceeded, as the holder thereof, to the entry of the judgment hereinbefore referred to more than three years prior to the date of the filing of the petition in bankruptcy.

There was introduced into evidence the order of discharge. At this point, it is appropriate to comment on the question of procedure in relation to the responsibility for the presentation of adequate proofs, and in this respect the defendant relies upon the principle asserted in Claflin v. Wolff (Court of Errors and Appeals, 1915), 88 N. J. L. 308; 96 Atl. Rep. 73, wherein the pertinent provisions of the Bankruptcy Act of 1898 as amended were under consideration, and where in the syllabus, it is stated:

“1. Section 17 of the Bankruptcy Act of 1898, as amended [11 U. 8. G. A., § 35], provides that “a discharge in bankruptcy shall release a bankrupt from all his provable debts, except such as * * * (3) have not been duly scheduled in time for proof and allowance, with the name of the creditor, if known to the bankrupt, unless such creditor had notice or actual knowledge of the proceedings in bankruptcy.” Held that in a suit against the bankrupt, subsequent to his discharge, upon a debt existing at the time of the filing of the petition, the production of a certified copy of the order of discharge makes a prima facie defense, and the burden is cast upon the plaintiff to show that his debt came within the exceptions.” and which case relies upon the case of Kreitlein v. Ferger (Supreme Court, 1914), 238 U. S. 21; 35 S. Ct. 685. This principle is subsequently referred to several times in the courts of this state. For instance, City Hall Building and Loan v. Star Corp. (Court of Errors and Appeals, 1933), 110 N. J. L. 570; 166 Atl. Rep. 223; Damato v. Ambrose (Supreme Court, 1931), 122 N. J. L. 539 (at p. 543); 6 Atl. Rep. (2d) 189; Freedman v. Cooper (Supreme Court, 1931), 126 N. J. L. 177 (at p. 179); 17 Atl. Rep. (2d) 609.

The file ’and proceedings in bankruptcy in the United States District Court for the District of New Jersey were offered and received in evidence and the testimony of Dorothy Campbell Culkin, formerly employed as a clerk in the office of the late Honorable Bobert E. Steedle, referee in bankruptcy, in said proceedings. The defendant bankrupt was not called as a witness by either of the parties.

The requirement of scheduling names and residences of the creditors is a most important one, and has been strictly interpreted. 1 Collier on Bankruptcy (14th ed.) 1626.

Under this exception only duly scheduled debts are discharged. “Due scheduling” means proper scheduling. Obviously, what is and what is not “due scheduling” must depend largely upon the facts in each case. 7 Remington on Bankruptcy (5th ed.) 832.

As in the case of scheduling names of creditors, great care must be exercised by the bankrupt in specifying residences of creditors. In this respect, “due scheduling” requires that the residences of creditors, if known to the bankrupt be set forth correctly in the schedule, if the bankrupt is ignorant of such information, such fact should be expressly stated in the schedule. Where the residence of a creditor has been designated as unknown but in fact the bankrupt by the exercise of reasonable diligence could have ascertained the creditor’s address, the debt will not be discharged. 1 Collier on Bankruptcy (14th ed.) 1631.

It is to be noted that the defendant was not a mercantile man. His vocation was that of a barber. An examination of the schedule of creditors whose claims are unsecured indicate that his gross liabilities were approximately $3,000, and these were distributed among only ten creditors. Three of his obligations were notes witli endorsers. The plaintiff conducted continuously a tailoring business in the City of Atlantic City and resided in said city since 1909. The defendant-resided continuously in the City of Atlantic City since 1915, and was employed there and had known the plaintiff since he moved there. The plaintiff conducted his business in the 2700 and 2600 blocks on Atlantic Avenue and 2600 block on Pacific Avenue, prior to the filing of the petition in bankruptcy and resided at the time of the bankruptcy proceedings at Montpelier and Atlantic Avenue, in the 3200 block. All within relatively narrow confines.

Discussions were had by the defendant with the plaintiff respecting the institution of suit by the plaintiff leading to the entry of the judgment in 1927, and subsequently in an attempt to purchase merchandise in the store of the plaintiff prior to the bankruptcy proceedings.

hTo attempt was made to offer into evidence on the part of the defendant, proof of his exercise of due diligence in attempting to ascertain the residence of the plaintiff.

It is apparent that in the exercise of reasonable diligence, the address of the residence of the plaintiff at the time of the institution of the bankruptcy proceedings was easily ascertainable, and I so find.

In the recent ease of Salmon v. Sarno (Supreme Court, 1942), 265 App. Div. 114; 37 N. Y. S. (2d) 870 (at p. 872), it is stated:

“Defendant admits that he did not list the creditor’s residence or his correct business address, and there is no proof that the residence was unknown. It is alleged and not denied that the lease upon which the claim sought to be discharged was based, showed plaintiff’s residence. The telephone directory gave his correct business address. The purpose of the statute is to prevent a bankrupt from keeping his creditors in ignorance of his proceedings without penalty to himself. See Gilbert’s Collier on Bankruptcy (4th ed). 376, 563. A holding that a bankrupt is discharged although he has failed to list either the residence or the correct business address of a creditor would enable a bankrupt to evade the provisions of the Bankruptcy Act while purporting to.comply therewith and obtain a discharge without having duly scheduled his known creditors. In Parker v. Murphy, 215 Mass. 72; 102 N. E. Rep. 85, 87, the Supreme Court of Massachusetts, holding that claims are not duly'scheduled unless the ■names of the creditors showing their residence if known are on the list of creditors filed, said: ‘The requirement for duly scheduling the names and residences of creditors is a most important one. It is in compliance with the generally recognized principle that one shall not be barred of his claim without the opportunity of having his day in court. It is for the benefit of the creditors and in the interest of fair dealing with them and is to be construed in harmony with this purpose. It is essential in order that notice in the bankruptcy proceeding may be sent him. It has been construed with some strictness. Birkett v. Columbia Bank, 195 U. S. 345; 25 S. Ct. 38; 49 L. Ed. 231; Custard v. Wigderson, 130 Wis. 412; 110 N. W. Rep. 263: 10 Ann. Cas. 740.’”

In 7 Remington on Bankruptcy (5th ed.) art. 3575, p. 841, it is stated:

“3575. Diligence in Ascertaining Correct Address. The bankrupt is bound to use reasonable diligence in ascertaining a creditor’s correct address; and failure to use due diligence in that regard will bar the excuse of lack of actual knowledge.

“Thus, failure to look in the city directory o£ a great city, both creditor and bankrupt being residents, is not due scheduling.

“And the plaintiff having proved the misstatement of his residence in the defendant’s schedules, the burden of proof is upon the latter to prove that he used due diligence in attempting to ascertain the plaintiff’s actual residence.”

Thus we are confronted with a situation where there is a void with respect to the residence of the plaintiff in the schedules.

In the case of Caldwell v. Eastman (Supreme Court, Massachusetts, 1924), 248 Mass. 332; 142 N. E. Rep. 765 (at p. 766), it was held:

“When the misstatement of the residence was proved by the plaintiff, the burden of proof still rested on the defendant to satisfy the court and jury that the defendant used due diligence and made proper effect to ascertain the actual abode and residence of the creditor, and the judge, in the absence of any explanation, was warranted in inferring a lack of diligence in this regard.”

The defendant relies materially upon the decisions in the cases of Claflin v. Wolff (ante), Kreitlein v. Ferger (ante), and Freedman v. Cooper (ante). These cases are readily distinguishable from the situation at hand. In them, the question was raised as to the sufficiency of the address. In the Claflin case it was a corporate plaintiff, and the address was given as Hew York City, and in the Kreitlein case, the address was given as Indianapolis, and in the Freedman case, the address was given as Hewark, Hew Jersey. Here no address was listed, either residence or business.

In passing it is to be noted the further carelessness and treatment of this claim by the bankrupt, in that the claim is listed as a note, whereas the defendant was aware that it had been assigned by the original holder, Atlantic Safe Deposit and Trust Company, of Atlantic City, in 1926, and reduced to judgment in July, 1927, by virtue of his having been made a party to the suit of the plaintiff in this court and the facts recited .in the complaint. Plaintiff should have been listed as the principal and only creditor in relation to this claim. There was an inaccuracy in the statement of the amount of the claim. Perhaps these features are not sufficient to constitute from the eases a failure to properly schedule. Claflin v. Wolff (ante). But the failure in relation to the plaintiff’s address is “jurisdictional.”

I find that the claim, now the judgment of the plaintiff, was not duly scheduled.

I find that the plaintiff had no notice or actual knowledge of the proceedings in bankruptcy.

After proof of lack of due scheduling has been met, the burden is upon the bankrupt to show actual knowledge or notice of the bankruptcy on the creditor’s part. 7 Remington on Bankruptcy (5th ed.), art. 3578, 843; Hill v. Smith (Supreme Court, 1923), 260 U. S. 592; 43 S. Ct. 219; S Corp. Jur. Secundum, Bankruptcy, 1585, § 586, subsec. b. And further enunciated in Birkett v. Columbia Bank (Supreme Court, 1904), 195 U. S. 345; 25 S. Ct. 38, 40, wherein the matter of the time of actual knowledge was under review. This pertinent comment was made:

“Actual knowledge of the proceedings, contemplated by the section, is a knowledge in time to avail a creditor of the benefits of the law—in time to give him an equal opportunity with other creditors—not a knowledge that may come so late as to deprive him of participation in the administration of the affairs of the estate, or to deprive him of dividends (Par. 65). The provisions of the law relied upon by plaintiff in error are for the benefit of creditors, not of the debtor. That the law should give a creditor remedies against the estate of a bankrupt, notwithstanding the neglect or default of the bankrupt, is natural. The law would be, indeed, defective without them. It would also be defective if it permitted the bankrupt to experiment with it—to so manage and use its provisions as to conceal his estate, deceive or keep his creditors in ignorance of his proceedings, without penalty to him. It is easy to see what results such looseness would permit— what preference could be accomplished, and covered by it.”

Also refer to Feld Lumber Co. v. Bornstein (Supreme Court, 1937), 118 N. J. L. 357 (at p. 358); 192 Atl. Rep. 738.

The testimony of the witness, Dorothy Campbell Culkin, clerk in the office of the late referee was not convincing and dispositive, not because the witness did not make an honest attempt to aid the court in the situation, but the lapse of years (1932—eleven years) made it difficult for her to rely solely upon her memory, as to the particular instance, since it was only one of the many tasks she was called upon to perform in her course of business, and there were no unusual circumstances or memorandums in the file of the late referee (which was also introduced into evidence) to single out this particular ease or to indicate that any special attempt was made to establish the address either by work of the referee or his assistants, or by his exercising his prerogative under section 35 of the Bankruptcy Act, in calling upon the bankrupt. The presumptions that were alleged in the Claflin case (ante) were not effective because in that case the proofs established that the notices were mailed as set forth in the schedule and an address was therein provided.

The affidavit of mailing in the file in this case states that the notice was mailed to “each of the creditors of the above named bankrupt, mentioned in the schedule filed herein at the respective addresses stated in said schedules, or where the creditor has designated an address other than that stated in the said schedules and in such case, to such designated address as on file in the office of said referee” and as heretofore stated there is no satisfactory proof of the filing of the void.

In conclusion the quotation from the dissenting opinion, in the Kreillein v. Ferger (ante), is pertinent:

“It seems to me that in this case there is an utter lack of that diligence to ascertain and state the residence of the creditor which is required to give the discharge the effect of barring this claim.”

It is immaterial whether the omission or failure to schedule “duly” the debt was innocent, or was fraudulent, willful, intentional or careless; the fact, not the intent, is controlling under the present law. 7 Remington on Bankruptcy (5th ed.) art. 3573, p. 841.

The petition is denied and an appropriate rule may be presented.


author: Lbydkn, C. C. J.

text:
    Bergen County Circuit Court.
    IN THE MATTER OF THE PETITION OF DOUGLAS G. HERTZ, THEODORE ELTONHEAD AND ARTHUR DELLAVA TO CONTEST THE NOMINATIONS OF NICHOLAS HARING, L. AMELIA GALLAGHER, GERTRUDE HUTCHEON AND MARIETTA SNEDEN AS DEMOCRATIC CANDIDATES FOR MEMBERS OF THE COUNCIL OF THE BOROUGH OF ROCKLEIGH.
    Decided October 14, 1943.
    For the contestants, Vincent F. X. (Jarisen.

    For the incumbents, George 8. Freeman.

   Lbydkn, C. C. J.

The question presented in this election contest is the eligibility of five residents of the Borough of Bockleigh to vote as members of the Democratic party in the primary election held on Tuesday, September 21st, 1943.

The undisputed facts as gathered from the stipulation of the parties and the evidence produced at the hearing are that Gordon Hutciieon, Eileen M. Parsells, Buth J. Van Strum, Mildred Carlson and L. Amelia Gallagher were admittedly members of the Democratic party, having consistently voted Re Democratic ticket for some years past, including the primary election now in question. Eileen M. Parsells voted the Democratic ticket in the primary of 1941. The other four failed to vote in the two prior annual primary elections. Thus if Eileen M. Parsells voted in the primary of 1943 she was compelled to vote the Democratic ticket while the others normally would have had the choice of voting any ticket.

However, in August of this year the five above mentioned whose votes are now contested signed petitions nominating candidates to be voted for by the voters of the Republican party for the office of councilman of the Borough of Rockleigh. Each such petition set forth that the signers thereof were qualified voters in the election district; that they were members of the Republican party; that at the last election for members of the general assembly preceding the execution of the petition they voted for a majority of the candidates of the Republican party and that they intended to affiliate with the Republican party at the ensuing election; and that they requested the names of the persons mentioned in the petition be printed on the official primary ballots of the Republican party as the candidates of that party for the office of councilman.

Thus by so signing they declared themselves to be members of the Republican party, a political organization, and likewise espoused the cause of the Republican candidates. Eileen M. Parsells, by so signing, disqualified herself as a voter for either the Republican or Democratic ticket. The others could legally vote only the Republican ticket. All five became ineligible to vote the Democratic ticket for the legislature in regulating balloting enacted, among others, the following provision of the election' law: "A member of any political organization espousing the cause of a candidate or candidates of any political party shall be ineligible to vote in the primary of another political party while such membership is in force or within one year thereafter; such person shall be deemed for all intents and purposes a member of the political party whose candidate or candidates such organization is espousing.” R. S. 19 :23-45; N. J. S. A. 19 :23-45.

The conclusion inevitably is that Gordon Hutcheon, Eileen M. Parsells, Ruth J. Yan Strum, Mildred Carlson and L. Amelia Gallagher were ineligible to vote in the primary ballot box of the Democratic party, and that their votes cast therein were illegal and should not have been counted.