author: Wabke, Jb., Special Master.

text:
    IN THE MATTER OF THE ESTATE OF ABRAHAM MARCH, DECEASED.
    Decided May 31, 1939.
   Wabke, Jb., Special Master.

This is an order to show cause why a decree heretofore entered in the Orphans Conrt of Atlantic eonnty allowing an accounting made by the Penn Norristown Trust Company in the matter of the estate of Abraham March, deceased, sur trust for George March, should not be vacated and set aside to allow the petitioner, Mary P. March, guardian ad litem of Janet March, Robert March, George March, Jr., and Mary Louise March, all minors, to file exceptions thereto in their behalf.

The facts are that the testator, Abraham March, left a will and in accordance with the provisions thereof, a trust estate was set up whereof the income is payable to George March during his lifetime, and the principal to his four children after his death, and upon their attaining majority if they have not become of age during his lifetime. The Penn Norristown Trust Company, Mary P. March and Paul March were named by the testator to he the trustees of this trust. Mary March withdrew from the administration of the trust, and Paul, the other trustee, not only did not join in the accounting which is the subject hereof but filed exceptions to it. He himself has never filed any accounting.

The exceptions to the accounting were heard by a master and upon the master’s report a decree was entered allowing the account in accordance with the findings of the master. No guardian had ever been appointed for these children until after the entry of this decree, and thereupon this petitioner had herself appointed guardian ad litem, and now prays that the decree ,be vacated so that she may take exceptions to the accounting in behalf of these children.

■ In preparing and filing its accounting the trustee bank complied with the provisions of the statute in such cases. R. S. 3:10-11 and rule 18 of the Orphans Court. This is not questioned, and there is no allegation of fraud or other irregularity in obtaining the decree.. The statute cited provides for advertisement of the settlement to be posted in three prominent places in the county and published in a newspaper, &c. Rule 18 of the Orphans Court provides in addition thereto the notice be sent by. mail to all persons interested therein, and “In case any person interested in the settlement of such account be a minor, such notice shall be mailed to the guardian of such minor, if any; if there be no guardian then to the parent or other person standing in loco parentis to said minor. Proof of such mailing shall be by affidavit filed in the office of the surrogate on or before the day on which said account is noticed for settlement.” ,

The contention of this applicant is that there having been no guardian of these children they were without representation when the account was offered for settlement, and that therefore they had no opportunity to be heard, and have not had their day in court.

It should be noted that the contention is not that notice was not given of the settlement of the account, but that these children were entitled to representation in the matter which they did not have, and that the decree therefore is not binding upon them. On the other hand, counsel for the trustee bank insists that having complied with the statute and the rules, the decree is valid and binding upon the children.

First as to the conclusiveness of the decree. To whatever extent it is conclusive, it is conclusive enough as to the trustee bank, since the other trustee, Paul and Mary, did not file an accounting. Such accountings, “Are in the nature of proceedings in rem and they are only conclusive on matters directly adjudicated, and those matters are exclusively the receipts of the assets and the disbursements in behalf of the estate. The question which of the accountants has in actual custody such assets, and who, therefore, are accountable for them, is not before the court, and it is not, therefore, decided.”

In the second place, although this is not a final account, it is conclusive against the parties thereto on all questions raised, or which might have been raised, and upon all parties to the accounting proceedings, or represented therein. City Bank Farmers Trust Co. v. McCarter et al., 111 N. J. Eq. 315; 162 Atl. Rep. 274. “Since the amendment to the Orphans Court act, Pamph. L. 1905, p. 300, §§ 2 et seq.; 3 Comp. Stat. 1910, p. 3856, §§ 124 et seq, the decree of the Orphans Court upon an intermediate accounting of a trustee has the same weight as a decree of the same court upon a final accounting. In re Slater's Estate, 88 N. J. Eq. 296; 102 Atl. Rep. 384; Beam v. Patterson, &c., Co., 96 N. J. Eq. 141; 126 Atl. Rep. 25; Id., 99 N. J. Eq. 427; 132 Atl. Rep. 921. The decrees axe conclusive on all questions which were raised or which might have been raised, and upon all parties to the accounting proceedings, or represented therein. Woolsey v. Woolsey, 78 N. J. Eq. 517; 76 Atl. Rep. 1076; Sherman v. Cameron, 78 N. J. Eq. 532; 80 Atl. Rep. 545.”

So much for the extent to which the decree is conclusive, and there remains to consider whether the minority of these children excepts them from the operation of the decree.

The sole question then is: Are these minors entitled to have this decree vacated to allow them to file exceptions to the accounting, simply because they were infants when the accounting was filed and no guardian was appointed to protect their interests in that proceeding? I am of the opinion that they are not so entitled.

This decree against these infants is neither erroneous nor void. Where a court has jurisdiction of the subject-matter and acquires jurisdiction of an infant by lawful service or process, a judgment rendered against such infant without the appointment of the guardian ad litem, while it may be erroneous, is not void. La Bell v. Quasdorf, 184 Atl. Rep. 750. . And a judgment against one under disability is not vacated as a matter of right, unless it is void. Ibid. See, also, Clayton v. Asbury Park and Ocean Grove Bank, 115 N. J. Eq. 480 (at p. 485); 171 Atl. Rep. 502.

Counsel for the petitioner relies strongly upon the case of Weining v. Selitto et al., 121 N. J. Eq. 60; 187 Atl. Rep. 368, in which case a decree against an infant in a foreclosure suit was vacated because it was erroneous. The decree was taken pro confesso against an infant for whom no guardian had been appointed in a foreclosure suit. The defect lay in the fact that the case against the infant was proved ex parte by affidavit which is permissible in foreclosure suits where there are no infant defendants but not permissible where there are such defendants. The complainant should have entered an order to take proofs against the infant instead of taking a decree pro confesso, and his failure to do so was clearly error in obtaining the decree, which was therefore vacated.

No such error is alleged in the entry of the present decree. On the contrary the proceedings preliminary to the entry of the decree are in perfect order.

Counsel for the petitioner guardian likewise relies greatly upon the language of Vice-Chancellor Backes in Clayton v. Asbury Park and Ocean Grove Bank, supra. The facts in this case were that the complainant was an infant at the time an account was filed by an executor of an estate in which the complainant had an interest. She was living with her stepfather at the time. As in the present case notice of settlement addressed to the infant complainant was mailed to her. stepfather with whom she resided, and who stood in loco parentis to her. The complainant’s bill alleged that her stepfather concealed from her all knowledge of the accounting, did not deliver the notice to her, and in fact kept her in complete ignorance of the proceeding. This was clearly fraud on the part of this stepfather, and evoked the following statement by the court “Aside from the alleged fraudulent procurement of the decree allowing the account, the Orphans Court would be moved to open the decree upon a showing that the complainant was an infant at the time of the allowance of the executor’s account, had no notice of the hearing and was without a guardian to represent her; the absence of a guardian having deprived her of timely contesting the account. It is the practice in the probate court in proceedings of this character to decree against infants, upon notice, without guardian representation. Such decrees are no doubt valid upon collateral attack (Ordinary v. Webb, 112 N. J. L. 395; 170 Atl. Rep. 672) but voidable at the instance of the infant on coming of age. No judicial determination is conclusive unless upon a hearing or an opportunity to be heard. Upon an executor’s or trustee’s accounting in equity, guardians are always appointed. See Heath v. Maddock, 81 N. J. Eq. 469; 86 Atl. Rep. 945.

“Counsel lays stress on his client’s infancy, the fact that she was represented by guardian, and that the decree was procured by fraud, as grounds for coming into equity. The Orphans Court should be allowed to purge its own record; it has, as already indicated, ample jurisdiction to relieve the complainant’s wrong suffered through her disability. A refusal would find its remedy in an appeal to the Prerogative Court. This court should not step in at this time, when the relief may be had for the asking in the Orphans Court.”

A desultory or hurried reading of this passage certainly gives the impression that it is authority for the proposition advanced by the petitioner, namely that the mere fact that the children were infants and no guardian was appointed for them is sufficient per se to entitle them to vacate the decree. Especially the statement that “Aside from the alleged fraudulent procurement of the decree allowing the account, the Orphans court would be moved to open the decree upon a showing that the complainant was an infant at the time of the allowance of the executors’ account, had no notice of the hearing and was without a guardian to represent her: the absence of a guardian having deprived her of timely contesting the account.” But this language must be considered in the light of the allegation before that court, that the notice to that infant had been fraudulently suppressed, and therefore it had neither actual or constructive notice of the settlement. This is not the situation in the present case. There is no allegation of fraud or suppression of the notice, and “A notice of settlement of the various trustee’s accounts which is given pursuant to Orphans Court act, 1898, as amended by Pamph. L. 1905, p. 299, operates as constructive notice to all parties interested in the estate, and in contemplation of law all such parties are before the conrt.”

In the present case it is admitted that these infants were before the court when the settlement was made. In the Clayr ton case on account of the suppression of notice, the infant was not before the court, according to the allegation in the bill.

It is elementary that an infant institutes proceedings by a next friend, and defends by a guardian ad litem. It is likewise established that the normal affairs of an infant during his minority are. to be handled for him by a guardian, but the proceeding to obtain a decree allowing an accounting in an estate in which an infant has an interest, is neither a usual business transaction in which an infant must have a guardian to represent him in all events, nor is it in the nature of a suit between party and party. It is analogous in its character to a proceeding in admiralty or other proceeding in rem, in which a decision between the parties before the court settles the rights of all parties to the property in question. Exton v. Zule, 14 N. J. Eq. 501. Weyman v. Thompson, 52 Id. 263 (at p. 269); 29 Atl. Rep. 685.

The rights of an infant are not superidr to those of an adult. The difference between the two classes of persons is that the rights of an infant must be protected by the court, while adults must protect their own. Caruso v. Caruso, 141 Atl. Rep. 16. The right of an adult in the present ease would be simply to have notice of the accounting and this is all that these infants were entitled to. It was given in the manner prescribed by the law. The legislature and the promulgators of section R. S. 3:10-11 of the Orphans Court act, and rule 18 of the Orphans Court were not unmindful of the possibility of an infant remaindermen in trust estates, and the court rule 18 provides the legal provision for-the protection of the interests' of infants where accountings are concerned. It was clearly the natural and permissible contemplation of those who formulated the rule that the parent of the child, being its natural guardian, or its legal guardian if it had one, or the person standing in loco parentis, or having custody of the child, would upon notice of an accounting in. which the infant was interested, take the necessary steps to protect the infant’s interests. It would seem that motives both of self interest and affection would move them to do so. Hale v. Hale, 33 N. E. Rep. 858.

It cannot be said in this ease as was said in the Clayton ease that there was no opportunity for these children to be heard. Ample opportunity was given to them as provided for by law, when the notice of the accounting was mailed to their father.. There is no statement in the application or the accompanying affidavits as to why that opportunity was not taken. There is no allegation that the failure to do so was the result of ignorance, mistake, indifference, or fraud on the part of the parent, and in the absence of such allegation and proof I believe the decree should not be opened to permit exceptions to be filed now in behalf of the children. It seems to me that section 127 of the Orphans Court act (R. S. 3:10-18; 3 Comp. Stat., p. 3857) controls the situation. This section reads as follows: “The decree of the ordinary or Orphans Court on the final account and settlement of a fiduciary shall be conclusive on all parties and shall exonerate and discharge the accountant from all demands of creditors, legatees or others, beyond the amount of the settlement, except for assets which may come to hand thereafter, and in cases where a person applying for resettlement proves fraud or mistake in the account to the satisfaction of the court.”

That this is an intermediary instead of a final accounting is immaterial. “Since the amendment to the Orphans Court act, Pamph. L. 1905, p. 300, §§ 2 et seq.; 3 Comp. Stat. 1910, p. 3856, §§ 124 et seq., the decree of the Orphans Court upon an intermediate accounting of a trustee has the same weight as a decree of the same court upon a final accounting.” City Bank Farmers Trust Co. v. McCarter, 111 N. J. Eq. 315; 162 Atl. Rep. 274.

In conclusion, I believe the correct rule is that in the absence of allegation and proof of error, fraud or mistake in the entry of a decree allowing an accounting by a fiduciary, the failure to obtain the appointment of a guardian either general or ad litem before the entry of the decree for an infant who has an interest in the accounting, is not in itself sufficient ground to vacate the decree for the purpose of allowing the infant to file exceptions to the accounting. The failure to have such guardian appointed before the entry of the decree is not in itself such error or fraud as will absolve the infant from the operation of the decree, or entitle him to have it vacated.

A decree of the Orphans Court allowing an accounting filed by a fiduciary is neither erroneous nor void as to an infant remainderman where such fiduciary has complied with the statute and rule 18 of the Orphans Court providing for notice of settlement of such account, although no legal guardian has been appointed to represent the infant. Such a decree may not be avoided by the infant except on a showing of fraud or such neglect as would amount to fraud against him on the part of the person to whom the notice of settlement addressed to the infant as provided by rule 18 has been delivered, and, further, that the interest of the infant in the estate has suffered or is jeopardized thereby.

The statement in the Clayton case that these decrees are voidable at the instance of the infant on coming of age might as well be noticed now. This statement may be regarded as holding that the infants in the present case are not entitled to take this proceeding until they come of age, but I am of the opinion that these children need not wait until that time to take this proceeding. They are of very tender years and by the time they come of age, their remedy, if they have any, might avail them nothing.

I advise that the rule to show cause why the decree should not be vacated, should be set aside.


source: Caselaw Access Project

author: Giordano, C. P. J.

license: Public Domain

text:
    Monmouth County Court of Common Pleas.
    LESTER HARVEY, EARLE O. BENNETT AND ALFRED WOOLLEY, CONSTITUTING THE TOWNSHIP COMMITTEE OF THE TOWNSHIP OF OCEAN, MONMOUTH COUNTY, NEW JERSEY, PLAINTIFF-RESPONDENT, v. HOWARD POOLE, DEFENDANT-APPELLANT.
    Decided June 8, 1939.
    For the plaintiff-respondent, Henry H. Patterson.

    For the defendant-appellant, Durand, Ivins & Carton.

   Giordano, C. P. J.

This is an appeal by a police officer, Howard Poole, from the action of the township committee in finding him guilty of certain charges preferred against him, resulting in his discharge as a member of the police department of the township of Ocean.

Counsel for plaintiff-respondent and defendant-appellant have agreed to submit to the court the question of whether or not the rules and regulations of the township governing the police department of said township are valid or invalid, and for this purpose have stipulated the following facts:

1. It is admitted and stipulated that the rules and regulations of the police force of the township of Ocean were never reduced to writing, either by ordinance or resolution.

2. It is admitted that what rules and regulations were established were promulgated by the chief of police of the township of Ocean, as the result of conferences held with various committeemen, acting in the capacity of chairman of the police department.

3. It is further admitted that the said rules and regulations were not established by the chief of police acting in conjunction with the township committee as a whole. It is stipulated further, however, that a properly authorized member of the township committee acted for the committee in the establishment of the said rules and regulations.

The statute, R. S. 40:149-1, permitting the establishment of a police department and powers of members, clearly defines the method to be pursued for the establishment of a police department and the regulations, control and government thereof. The suspension, removal, fines, reductions and the procedure concerning the removal from office or employment of any member of such police department is clearly stated in R. S. 40:47-6.

Howard Poole was in the employ of the township of Ocean as a police officer. On the 22d day of March, 1939, written charges were preferred against the said police, officer and-on said date the defendant-appellant was'suspended from duty. Hearings on said charges were conducted by respondent on the 20th day of April, 1939. On the 3d day of May, 1939, the defendant-appellant was found guilty of the charges and thereupon dismissed as a police officer of the township of Ocean.

It is apparent from the facts stipulated that there were no rules or regulations adopted at the time the police department was organized under the statute, nor is there any evidence before the court that rules and regulations to govern said police department were created subsequent thereto by ordinance or resolution.

The township committee, under the ordinance adopted December 21st, 1928, had the power to establish rules and regulations for the control and management of its police department, but there is no evidence before me, nor has it been stipulated, that such rules and regulations were ever adopted in the manner prescribed by law. An attempt was made to adopt rules and regulations in a manner contrary to the method prescribed by the statute. The township committee delegated its power to an individual member of said' township committee and the chief of police, and through this medium put into effect certain rules and regulations, which are not now before me. This action was illegal.

The law is well established that a governing body cannot delegate its power to an}? one. It is well settled law that a governing body can only act by ordinance or resolution, which was not done in the instant case. Dey v. The Mayor and Common Council of Jersey City, 19 N. J. Eq. 412; Green v. City of Cape May, 41 N. J. L. 45; City of Burlington v. Dennison, 42 Id. 165; Butler v. Passaic, 44 Id. 171, and Trenton and Mercer County Traction Corp. v. City of Trenton, 98 id. 297; 119 Atl. Rep. 31.

The action of the township committee in the dismissal of the police officer for having violated rules and regulations promulgated in the manner set forth was an illegal act, it having an illegal inception.

Therefore, the action of the township committee is reversed and set aside, and an order may be entered restoring said Howard Poole to his position as a member of the police force of the township of Ocean and requiring the township of Ocean to forthwith pay to the said Poole his salary since the date of his last pay.


text:
    New Jersey Lawyers and Bankers Conference Committee.
    IN THE MATTER OF THE CALDWELL NATIONAL BANK.
    Approved June 9, 1939.
   Conclusions.

The complaint in this matter was filed by John A. Bolger, Esquire, a member of the Bar of the State of New Jersey, with offices located in Newark, New Jersey, and deals with the retention by the Caldwell National Bank as executor of the last will and testament of Stephen J. Speer, deceased, of an attorney as proctor for the estate, other than the attorney who prepared the will. It was served upon the defendant bank, but no formal answer was made, although the Bank in a letter addressed to the Secretary of the Committee, generally denied any infraction of the principles applicable to corporate fiduciaries and refused to submit itself to the jurisdiction of the Committee. However, its Yice-President, E. T. Cramer, appeared at the hearing, although unofficially according to the aforesaid letter, and offered himself as a witness in connection with the transaction which was the subject-matter of the complaint.

The Statement of Principles applicable to corporate fiduciaries and members of the Bar has been approved and adopted by the New Jersey State Bar Association, by the Conference of County Bar Associations, and by the New Jersey Bankers Association, of which the Caldwell National Bank was and still is a member. Its action, therefore, in refusing to submit itself to the jurisdiction of the Committee in this case can only be construed to be a repudiation of its obligation to the Bankers Association. Such action cannot be too highly censured, in our opinion, not only because the Bank failed to perform its obligation to the Bankers Association, but also because such action contravenes the underlying motives which were responsible for the compilation and adoption of these principles by the Banks and the Bar of this State. .

The hearing in this matter disclosed that the complainant, Mr. Bolger, sometime during July of 1934, was retained by Stephen J. Speer, who was then the President of the Caldwell National Bank, to prepare his last will and testament; that Mr. Bolger prepared such a will, in which the Caldwell National Bank was named as executor and trustee; and that Mr. Speer then executed the will and subsequently died on December 14th, 1938.

It was also disclosed at the hearing that on December 19th, 1938, five days after Mr. Speer’s death, Mr. Bolger wrote to the Bank advising them that he had prepared the decedent’s will in which the Bank had been named as executor and trustee; that on December 20th, 1938, the Bank acknowledged this letter by a letter which was signed by E. T. Cramer, Vice-President, and in which it was stated that the decedent’s son, Eichard S. Speer, had requested the Bank to retain John A. Booth, Esquire, a member of the Bar of the State of New Jersey, with offices located in Newark, New Jersey, as proctor for the estate, because he had also been retained as proctor of the estate of Mr. Speer’s wife, who had died about two weeks prior to his death, leaving a will which had been prepared by Willard S. Muehmore, Esquire, Newark, New Jersey, and which had been admitted to probate; that on December 27th, 1938, Mr. Speer’s will was admitted to probate by the surrogate of Essex county, Mr. Booth appearing as proctor for the Bank, which qualified as executor and trustee of the decedent’s estate; and that on January 3d, 1939, Mr. Bolger again wrote a letter to the Bank.

•In this letter Mr. Bolger again stated that he had prepared the decedent’s will and told them that he had represented the decedent in other matters, the last one of which was as late as October of 1938, less than two- months prior to the decedent’s death. He also called their attention in this letter to section 10 (a) of the Statement of Principles applicable to corporate fiduciaries and members of the Bar, and to the approval of these principles by both the New Jersey Bankers Association and the New Jersey State Bar Association. He further stated in this letter that it was agreeable to him to have Mr. Booth act as associate counsel with him as provided for in this section of the Principles. On the same date he also wrote to Mr. Booth to the same effect. Ho reply was received from the Bank, although Mr. Booth wrote to him on January 6th, 1939, telling him that he had been appointed proctor at the request of the decedent’s son, Richard S. Speer, and that such a request, in his opinion, constituted “good reasons to the contrary” as set forth in section 10 (a) of the Statement of Principles. The said section 10 (a) reads as follows:

“a corporate fiduciary shall, in the absence of good reasons to the contrary, employ the attorney who drew the will, in legal matters affecting or arising out of the administration of the estate, trusteeship or guardianship under the will, but nothing in this paragraph contained shall prohibit the corporate fiduciary from employing or retaining associate counsel if the necessity therefor exists.”

It was also shown at the hearing that on January 4th, 1939, the day following the receipt of Mr. Bolger’s letter calling his attention to section 10 (a) of the Statement of Principles, Mr. Cramer, Vice-President of the Bank, wrote to the Secretary of this Committee requesting a copy of the Statement of Principles applicable to corporate fiduciaries be sent to him. It was further shown that shortly after the death of the decedent’s widow, Mr. Muchmore, who had prepared the will, also received a letter from the Bank in which it was stated that the decedent’s son, Richard S. Speer, had requested the Bank to retain John A. Booth, Esquire, as proctor for the estate because of Ms prior retention as proctor of the estate of Mr. Speer.

The hearing also disclosed that Mr. Bolger was thirty-one years of age and had been admitted to the Bar in April of 1930; that he had represented the decedent on three prior occasions, two of them in-connection with the collection of accounts receivable for the decedent’s coal business and one of them in connection with the preparation of a bond of indemnity, the latter occasion being about a month prior to the decedent’s death; that he had known the decedent’s family since childhood; that the decedent had stated to him at the time he requested him to prepare his will, that he did not want his family to know about it; that since his admission to the Bar he has represented fiduciaries in connection with the settlement of over thirty estates, two of which were approximately the size of the decedent’s estate.

An examination of Mr. Bolger by the various members of the Committee was extremely satisfactory in that he unhesitatingly, fully and completely answered all questions in a clear, concise and direct manner. An examination of Mr. Cramer, however, was somewhat unsatisfactory in that he did not recall whether the executive committee of the Bank had discussed the application of section 10 (a) of the Statement of Principles prior to the request for Mr. Booth’s retention; and also in that he was not at all clear as to whether the Bank had a copy of the Statement of Principles prior to the time he wrote for such copy immediately following the receipt of Mr. Bolger’s letter calling his attention to it. His testimony leaves considerable doubt in the minds of the Committee as to whether the Bank actually did have in its possession a copy of this Statement of Principles and, therefore, did examine it prior to its agreement to retain Mr. Booth as proctor for the estate. In fact, the only part of Mr. Cramer’s testimony which was entirely clear was to the effect that the decedent’s son had requested the retention of Mr. Booth; that he, the son, knew about the will and the designation of the Bank as executor; and that Mr. Cramer had discussed the Statement of Principles with the President of the Bank, although as to whether this discussion occurred prior to the receipt of the Statement of Principles from the Secretary of the Committee, or subsequent thereto, was not at all clear.

The question raised by this complaint is not new to the Committee in that a similar question was presented to it on June 18th, 1937, in the ease entitled “In the Matter of the Howard Savings Institution.” The facts in that case were that the beneficiaries of a decedent’s estate had requested the Savings Institution to retain an attorney as proctor for the estate other than the attorney who had prepared the will; that the Savings Institution refused to do this and retained the services of the attorney who had prepared the will; that the attorney selected by the beneficiaries thereupon filed a complaint with the Committee on the ground that the request of the beneficiaries constituted in itself a “good and sufficient reason” within the meaning of that clause as contained in section 10 (a) of the Statement of Principles. The Committee, in dismissing the complaint, said: “* * * the provisions of the paragraph were so worded that the bank might, if good reason appeared, appoint the attorney for the residuary legatees instead of the attorney who drew the will, but * * * in the first instance the Bank should give consideration to the appointment of the attorney who drew the will.”

There is, quite apparently, a disposition on the part of some corporate fiduciaries and some members of the Bar to examine these principles and if the act complained of is not explicitly proscribed, to proceed to follow the line of least resistance which, in this case, was to comply with the beneficiary’s request. It may be good business for a bank to acquiesce in a'beneficiary’s request of this nature, but such request by itself, most assuredly cannot be said to be a “good and sufficient reason.” In this connection there must not be lost sight of the fact that there may be a conflict between the desires of a beneficiary or beneficiaries of an estate, on the one' hand, and the desires and intention of the testator as expressed by his will, on the other; and that the testator may have had this thought in mind when he selected his attorney to draw his will. Indeed such may have been the situation in the instant case, because the testator told Mr. Bolger that he did not want his family to know about the will. In any event, the fact that a testator has selected an attorney to prepare his will should not be lightly east aside by an executor in considering the appointment of a proctor for the testator’s estate.

The spirit of the Statement of Principles, as indicated by the discussion of the original Committee who compiled them, was that there should be co-operation between the members of the Bar, on the one hand, and the members of the Bankers Association, on the other hand, to the end that the members of the Bar would recommend to their clients the appointment of corporate fiduciaries in their wills, and the members of the Bankers Association would appoint the attorney who drew the will as proctor instead of their own counsel. With respect to this particular section, these minutes clearly show that the phrase “in the absence of good reasons to the contrary” was not in the original draft, but was added to avoid the necessity of employing an incompetent or inexperienced lawyer to represent a Bank as proctor of an estate. At the same time there was also added to this section, the provision for the appointment of associate counsel. This was done, as these minutes show, for the express purpose of avoiding the necessity for appointing an attorney as proctor other than the attorney who drew the will, because of the latter’s inexperience.

The evidence presented at the hearing was not sufficient for the Committee to determine whether Mr. Booth, who was retained by the Bank as counsel for the decedent’s estate, was acquainted with all the facts and circumstances relating to this matter; and even if he were acquainted with such facts and circumstances, the Committee would not be in a position to make any pronouncement with respect to his conduct because he was not a party to the proceedings. It does, however, desire to express its views with respect to such a course of conduct, as it considers that if an attorney accepts an appointment as proctor for a decedent’s estate, in a case where the facts and circumstances are similar to those which have been found to exist in this case, and has full knowledge of such facts and circumstances, then his conduct in accepting such an appointment was improper.

With, these facts before us, the Committee must and does find:

1. That under paragraph 10 (a) of the Statement of Principles, it is not a "good and sufficient reason” to employ an attorney other than the one who drew the will, simply because a beneficiary or other person interested under the will, requested it.

2. That the Caldwell National Bank has violated the provisions of paragraph 10 (a) of the Statement of Principles.

Unanimously approved by the committee, June 9th, 1939.


author: Kinkead, C. C. J.

text:
    Monmouth County Circuit Court.
    IDA KLEINFUS, PLAINTIFF, v. JOSEPH N. SIRGANY AND CITY OF ASBURY PARK, DEFENDANTS. ROSE, INC., A BODY CORPORATE OF THE STATE OF NEW JERSEY, PLAINTIFF, v. CHARLES GROSSMAN, DEFENDANT.
    Decided June 21, 1939.
    On motion to strike answer of defendant Joseph FT. Sirgany.
    For the plaintiff, Franhel t& Franhel.

    For the defendant, Quinn & Doremus.

    On motion to strike answer of defendant Charles Grossman.
    For the plaintiff, Vincent P. Keuper.

    For the defendant, Levinson & Levinson.

   Kinkead, C. C. J.

The plaintiffs in each of the above cases filed complaints against the respective defendants in actions of ejectment. The cases each involve the same legal questions and will therefore be considered and determined together.

In each case defense counsel filed an answer of general denial and counsel for plaintiffs move to strike each answer on the grounds that the same is sham, false in fact and filed solely for the purpose of delay.

Each case involves the right of the plaintiff to assume possession of a store and premises on the boardwalk in the city of Asbury Park, by virtue of a lease executed to each plaintiff by the Beach Commission of Asbury Park, under date of November 29th, 1938, for a term of four years commencing January 1st, 1939.

The Beach Commission was created by chapter 160, Pamph. L. 1936 (R. S. 40:55A-1 to 12), and the constitutionality of said act was sustained in Hetrick v. Roberts, 117 N. J. L. 584; 190 Atl. Rep. 504, and affirmed, 118 N. J. L. 586; 194 Atl. Rep. 557.

Said act provided for the appointment by the governor of a beach commission of four members in every municipality which was under the control of the Municipal Einance Commission and which owned a beach and upland contiguous thereto.

On or about October 9th, 1937, the Beach Commission whose exercise of powers had been theretofore stayed, superseded the governing body of the city of Asbury Park and assumed actual and physical possession of the beach front with full and complete authority to manage and control all its properties and buildings.

On October 29th, 1938, in the Supreme Court, Mr. Justice Per side ruled that the city of Asbury Park would be discharged from the control of the Municipal Einance Commission as soon as it had held a complete public tax sale, and in addition had paid off certain bonds held by the county of Monmouth.

On December 10th, 1938, the court signed an order discharging Asbury Park from the control of the Municipal Einance Commission. On January 14th, 1939, Mr. Justice Perskie allowed a writ of mandamus in City of Asbury Park et al. v. Smock et al., 121 N. J. L. 487; 3 Atl. Rep. (2d) 608, and ruled in effect that inasmuch as the Municipal Einance Commission was no longer in control in Asbury Park, that the Beach Commission was no longer operative.

It is contended on behalf of the defendants that the Beach Commission was a fiduciary for the city of Asbury Park and that the position of the Beach Commission was analogous to that of a trustee in bankruptcy or a receiver of an insolvent corporation, and further that being a fiduciary it had no authority to make a lease which would begin at a date subsequent to the termination of its authority.

In determining this point the language of the act must be considered. R. S. 40:55A-5 provides:

“The beach commission in any such municipality wherein this chapter is or shall become operative shall, except as hereinafter provided, be substituted for and vested with all the powers and duties now vested in or exercised by the governing body of such municipality, relating to and in respect of the management and control of the beach, and the construction, maintenance, and use of the beach, and all properties and structures, piers, bulkheads and jetties owned by the municipality and located upon lands owned by the municipality contiguous to such beach, and shall lay out, embellish, improve, manage, and control the boardwalks, convention halls, bath houses, places of amusement, stores, buildings, and properties, and the portions of the beach owned and heretofore controlled by such municipality.
“Said beach commission shall have, possess, and exercise all the rights, powers, and privileges of the municipality in and for which it is appointed in respect of and pertaining to the construction, repair, maintenance, operation, and extension of the boardwalks, ways, streets, highways, convention halls, places of amusement, bath houses, stores, and buildings on the property owned by such municipality fronting on the Atlantic Ocean, including the rights, powers, and privileges to lease for adequate and proper revenues stores, properties, places of amusement, bath houses, and other facilities erected and provided on the beach property by such municipality, to sue for rents, in ejectment or in dispossession; and shall have the right to engage bands, orchestras, and entertainers; to provide guards for the protection of persons using the beach and bathing facilities, and generally to do all things necessary for the operation of the beach heretofore vested in the governing body of such municipality or any committee thereof. Such beach commission shall likewise make and establish rates and rents for the nse of property under the control of such commission, and shall enter into all contracts for the repair and improvement of properties and structures within its jurisdiction, and shall fix the rentals and terms of leases of tenants who shall rent stores and facilities under its jurisdiction.”

In addition to the very broad and general powers conferred, the commission is privileged to sue for rents in ejectment or dispossession. It is permitted to carry out and perform existing contracts entered into by the city affecting the beach front. The commission is empowered to prescribe penalties for the violation of any rule, order or regulation which it has the power to adopt under the provisions of the act, and it is conferred with police power to enforce its orders and maintain peace and quiet along the beachfront.

The powers and authority delegated to the Beach Commission by the legislature are manifestly broader than the powers of a receiver. If the legislature had intended that the status of a gwasi-receivership should exist it could have empowered the Municipal Finance Commission to have some supervisory control over the Beach Commission.

Mr. Justice Parker in speaking for the Supreme Court in Hetrick v. Roberts, supra, held: “It may be stated in a broad and general way, that the necessary effect of the act is to remove the owned beach front from the control both of the original governing body and the Municipal Finance Commission.”

Mr. Justice Perskie in City of Asbury Park v. Smock et al., supra, held: .“The statute creating the Beach Commission sets up an autonomous government within the applicable municipality. It vests in the commission among other things all the powers theretofore vested and exercised by the governing officials of that municipality in matters relating to management and control of the beach and beach property.”

The Beach Commission must therefor be construed as a governmental body substituted for and supplanting and replacing the governing officials of Asbury Park in all matters relating to the beach front of that city during its incumbency.

This leads to a consideration of the point as to whether or not the commission could execute a lease the term of which was to run beyond the time the commission was legally empowered to act.

Assuming but not deciding, that the legal existence of the Beach Commission terminated when Mr. Justice Perskie signed an order on December 10th, 1938, discharging Asbury Park from the control of the Municipal Finance Commission, the leases in question having been executed on November 29th, 1938, must nevertheless be held to be valid and binding despite the fact that their terms began on January 1st, 1939.

There is no case exactly in point in New Jersey but a similar case in City of Biddeford v. Yates, 72 Atl. Rep. 335, which held that one municipal body could bind the governmental body succeeding it, by a lease to operate “in futuro” at a time after the term of office of the body granting the lease had terminated.

Jones Co. v. Gultenberg, 66 N. J. L. 659; 48 Atl. Rep. 537, holds (at p. 670) : “The duty to issue the bonds being ministerial, and upon the board of councilmen, which was a continuous body, that duty could not be avoided because of a change of membership of the board, under a claim, after such change and after the bonds had been awarded, of a right to review the discretion of previous members, because the relators, by the acceptance of their bid, had acquired rights of which they could not be deprived in that way.”

Since the Beach Commission was substituted wholly and completely for the city council of Asbury Park, in so far as the beach front was concerned, and since the commission was authorized by the act upon assuming office to fulfill, perform, and carry out according to law, any and all contracts, agreements and obligations theretofore lawfully made and entered into by the governing body of Asbury Park, the Beach Commission must be regarded legally, as a continuous body, so as to bind the present city council of Asbury Park which succeeded to its1 authority.

I have considered the other points argued and find them to be without merit.

, The motion in each case is granted.


author: Oliehant, S. C. C.

text:
    FRED H. ALBEE, PLAINTIFF, v. JOSEPH KING AND IDA KING, INDIVIDUALLY AND AS NEXT FRIENDS OF RUTH KING, AN INFANT, OZER ARBITBLIT, AND ZURICH GENERAL ACCIDENT AND LIABILITY INSURANCE COMPANY, LTD., DEFENDANTS.
    Decided June 30, 1939.
    For the plaintiff, N. Louis Paladean.

    For the defendant Zurich General Accident and Liability Insurance Co., Ltd., George F. Lahey.

   Oliehant, S. C. C.

This matter is before the court for determination upon an agreed state of facts and a stipulation that it be heard by the court without a jury, upon argument had and briefs submitted.

The suit is brought to recover for medical services performed in the State of New York for the defendant Ruth King by the plaintiff Fred H. Albee, under chapter 109, Pamph. L. 1934.

The pertinent facts are as follows: Plaintiff is a licensed physician of the States of New Jersey and New York. The defendant Zurich General Accident and Liability Insurance Co., Ltd., was the insurer of the defendant Ozer Arbitblit against loss from liability imposed by law for any damages arising out of bodily injuries suffered by any person by reason of the control over and the maintenance of an apartment house known as 120 West Twenty-eighth street, Bayonne, New Jersey. On or about Hovember 30th, 1932, Ruth King, through her father and mother as next friends, instituted suit against the defendant Arbitbilt to recover damages sustained as the result of the negligence of that defendant. That suit resulted in the entering of a judgment in favor of Ruth King in the sum of $7,000. Subsequent to the entering of the aforesaid judgment, the defendant Zurich General Accident and Liability Insurance Co., Ltd., adjusted and settled the aforesaid judgment for the sum of $3,000 and paid same to the defendants Joseph King and Ida King, as next friends of Ruth King. Plaintiff rendered medical and surgical treatments to the defendant Ruth King in the city of New York between April 27th, 1932, and June 28th, 1934. The defendant does not contest the reasonableness, factually, of the charges amounting to $1,470, but denies the validity of the claim therefor under the statute.

On July 28th, 1934, plaintiff filed with the clerk of the county of Hudson, a notice as contemplated by the statute and on the same day sent a copy of the said notice to the defendants. On November 23d, 1934, the Hudson County Medical Society filed a schedule of charges under the Physicians’ Lien law, with the Court of Common Pleas of the county of Hudson. Notice of public hearing was published as provided under the statute but said hearing was never held.

The plaintiff has been paid $200 on account of his bill for medical services rendered Ruth King by the parents of the injured girl.

Numerous defenses are raised to the action. I am of the opinion that only one need be considered.

The act upon which the suit is predicated was approved April 30th, 1934. It provided that it take effect immediately. It can be assumed that the contract of employment for the services rendered by the plaintiff to the defendant Ruth King was made previous to or at the time of the first treatment, namely, April 27th, 1932. The services rendered by the plaintiff for which the alleged lien was filed were practically all rendered before April 30th, 1934. The second separate defense sets forth that “the statute not being retroactive or retrospective, the complaint does not set forth a cause of action as to the charges for said alleged services.”

Counsel have been unable to furnish me and I have been unable to discover any cases dealing directly with this question in reference to a Physicians’ Lien act. Counsel for the plaintiff contends that the Attorney’s Lien acts are analogous to the one in question here. I agree with that proposition to a certain extent, but there is one fundamental difference. An attorney at common law had a lien on moneys recovered through his efforts. It was a right, though called a lien. The Attorney’s Lien acts were therefore remedial in nature. As said by Vice-Chancellor Berry in St. John The Baptist Church v. Gengor et al., 124 N. J. Eq. 449; 2 Atl. Rep. (2d) 337: “Fundamentally, the statute in no sense affects the obligation of contracts, nor does it contravene any right guaranteed by state or national constitution. What it does is to affect the means of enforcing certain rights. The attorneys had a right to be paid for the services they had rendered. Of that there can be no question. The statute, then, is remedial in nature. It merely created a new remedy for the enforcement of an old right.” The Court of Errors and Appeals in Levy v. Public Service Railway Co., 98 Atl. Rep. 847; affirmed, 91 N. J. L. 183; 103 Atl. Rep. 171, in a suit brought under the provisions of the Attorney’s Lien act of 1914 said that the statute created a new remedy for the enforcement of an old right. •

The physician had no lien at common law; he had no right to payment for his services. At common law and before the enactment of the statute in question, the physician stood in the same position as any other creditor; he had no lien or right to payment out of the proceeds of any particular action brought by his patient or debtor.

A lien such as sought to be given by chapter 109, laws of 1934, is in effect an assignment of an interest in any judgment rendered or settlement made on account of personal injuries sustained in an accident as tire result of the negligence of another. It creates a substantial 'right in favor of the physician. It divests the patient of substantive rights he theretofore had. There having been no previous right or lien, the statute is not remedial in nature. This being so, it cannot have a retrospective operation. If it were held that the act was retroactive it would create a new contract between the physician and patient. Clearly, such a construction would affect the obligation of contracts and contravene rights guaranteed by the state and national constitutions.

Judgment will be entered in favor of the defendants.


author: Pope, D. C. J.

text:
    First Judicial District Court, Somerset County.
    WILLIAM C. WALLACE, PLAINTIFF, v. TERPIS GARAGE, DEFENDANT.
    Decided July 5, 1939.
    For the plaintiff in replevin, Philip J. Levin.

    For the defendant, lien claimant, George W. Allgair.

   Pope, D. C. J.

The essential facts involved are not disputed. The garage keeper furnished services and supplies to the automobile of the plaintiff in replevin. He released the car from his control although the bill was unpaid. Subsequently, the garage keeper acting through a bailiff, seized the car and took it into his possession and claims a lien on the car under the Garage Keepers’ Lien act, R. 8. 1937, 2:60-21, 2:60-22. The plaintiff in replevin demanded a statement of the amount claimed and a statement was furnished claiming $9.14 for services and an additional charge of $10 for fees and expenses claimed to have been expended by him in the seizure of the automobile.

The $9.14 due for services rendered is not disputed. Upon receipt of the bill the plaintiff in replevin tendered the garage keeper $9.14 and. demanded possession. The garage keeper refused to deliver the car without the payment of the additional $10 for fees and expenses. The only question involved is whether or not, under the act, the garage keeper is entitled to charge $10, or any other sum for bailiff’s fees and expenses of seizure.

Under the common law a workman had a lien on personal property for repairs and the right to retain possession of the property to enforce the payment of his bill. But he lost his lien if he allowed the chattel to leave his possession. He conld not thereafter seize it. The right of a garage keeper to enforce snch a lien in New Jersey is purely statutory and the statute being in derogation of the common law must be strictly construed. R. S. 1937, 2:60-23 provides that the owner upon learning of the detention of his property may immediately demand from the garage owner a statement of the true amount claimed to be due for the storing, maintaining, keeping or repairing of such motor vehicle, or for furnishing gasoline, accessories or other supplies therefor. (Italics mine.) If upon receiving such statement he considers the amount thereof excessive he may offer what he considers to be reasonably due and demand possession. If this be refused, he may obtain possession by depositing the amount claimed in the statement with the clerk of a court of competent jurisdiction, together with $10 to cover the costs of court. And under R. S. 1937, 2:60-24 may sue out a writ of replevin.

If no proceedings are taken for repossession the motor vehicle may be sold after the expiration of thirty days. R. S. 1937, 2:60-29.

R. S. 1937, 2:60-31 provides for the disposition of the proceeds of the sale. “The proceeds of the sale shall be applied to the payment of the lien and the expenses of sale. The balance, if any, shall be paid to the owner * * It is significant that in neither R. S. 1937,.2:60-23 nor in R. S. 1937, 2:60-31 is there any mention of expenses incident to the seizure of the motor vehicle. And in R. S. 1937, 2:60-31 the only expenses to be deducted are the expenses of the sale.

If the legislature intended that the garage keeper could also charge the owner for the reasonable expenses of seizure such authorization certainly would have been inserted either in R. S. 1937, 2:60-23 or 2:60-31, or in both. Being unable to find any authority in the statute for the imposition of the expenses of seizure, my conclusion is that they are unauthorized and should be disallowed.

The plaintiff in replevin is entitled to judgment for possession. The garage keeper is entitled to $9.14 less the costs of replevin to be taxed by the clerk. After deducting the costs, the balance of the $9.14 to be paid to the garage keeper.

An appropriate order may be entered.


text:
    New Jersey Department of Labor, Workmen’s Compensation Bureau.
    ROSE GELBART, PETITIONER, v. N. J. FEDERATED EGG PRODUCERS ASSOCIATION, RESPONDENT.
    Decided July 7, 1939.
    For the petitioner, Robert J. Nevins.

    For the respondent, James J. Skeffington.

   Eose Gelbart, the petitioner, seeks compensation and other items of expense from respondent, New Jersey Federated Egg Producers Association, by reason of the accidental death of her husband, Max Gelbart, an employe of respondent.

The accident, which occurred on Monday, August 29th, 1938, and the ensuing injuries received therefrom by the decedent as the result of which he died on August 31st, 1938, resulted from an automobile accident involving a car owned and operated by one, David Kosecoff, in which decedent was riding, and the car of a third party.

In order that a clear picture of the nature and duties concerning the employment of the decedent, Max Gelbart, with respondent may be shown and particularly as they relate to circumstances at the time of the accident in question, it would appear proper to briefly refer to the factual proofs submitted at the hearing.

It is undisputed that decedent was in the employ of respondent and was receiving a salary of $30 per week for the services rendered by him. He resided, at the time of the accident and for some time prior thereto, with David Kosecoff on the Lakehurst road near Toms River. Respondent’s place of business is.also located on Lakehurst road and about one mile east of the home of David Kosecoff.

The testimony of Fred Wiedeke, secretary-treasurer and manager of respondent’s business, indicated that there were two keys used in opening the place of business of respondent, one of which was kept by Wiedeke and the other by the dece- • dent. The business of respondent included the collecting of eggs from farmers, the taking of same to the grading station for inspection and candling and the subsequent delivery and sale of such eggs to buyers thereof.

The proofs further indicate that Wiedeke came to work between ten and ten-thirty A. M., that it was the usual event for Gelbart, the decedent, to open the station in the morning, he having the only other key. Moreover, Wiedeke testified that the decedent was subject to call by him during any hour of the day or night to open the grading station. The busy days during the week in respondent’s business were Monday and Thursday. On Monday, the decedent would have to get to respondent’s place of business between six and seven A. m. There were no fixed hours of employment for the decedent, it being understood that he worked longer on some days than on others.

It further appeared from the testimony that in order to get in the candling room where the decedent worked, it was first necessary for him to also open the grading station; that at the time of the accident, there were two other employes working in the grading station, to wit, Joseph Pulz and one Hurley, who came to work at about nine A. u.; and it was also necessary for. the truckers to get into the grading station. It would follow, of course, from this that the admission of these persons necessitated the opening of the station by the decedent.

How, in addition, it appeared that David Kosecoff, with whom the decedent was proceeding to the grading station of respondent at the time of the accident, also performed various services for respondent. He, Kosecoff, maintained trucks for the delivery of respondent’s eggs, bearing the name of respondent; that early in the morning in the course of his services for respondent, he picked up empty cases; and that he did prepare tags which would be presented to the farmers to enable him to get eggs; and that in order to get such eggs, it was necessary for him to first enter the grading station early in the morning by means of admittance by the decedent and long before Wiedeke, the manager, came to work. Kosecoff testified that the decedent gave him a receipt for each load of eggs brought in; and that on the day of the accident, at about eight A. M., and shortly before he met decedent, he was actually on his way to the grading station to commence his duties; that on this particular day, it was necessary for him to be there early. He further testified, in answer to a question by the court as to why he was going to the station on the morning of the accident in advance of his trucks, that he had to prepare the cases and the shipping tags for the farmers, which was in the course of his usual duties on such days; and further that he had been instructed by respondent, should he have occasion to get into the grading station at any time other than the usual business hours, to go to the decedent for the key.

On the day of the accident, it appeared that decedent had left his home very early in the morning, at about seven a. m., and some time before Kosecoff; that some time thereafter during the same morning, Kosecoff, who was then proceeding to the grading station for the purpose of performing the duties hereinbefore referred to, met the decedent on the road leading from Kosecoff’s house to the place of respondent’s business; that the decedent was walking back from the grading station to the house; that decedent stopped Kosecoff and explained to him that he had forgotten the key to the station and that it was in his other pants; that the decedent asked Kosecoff to take him home to get the keys, as there was no other way to get into the station and no one else could get in either; that it was necessary that Kosecoff get the key, as his duties required his admission to the station that morning; that he, Kosecoff, then took the decedent home where the decedent procured the key, after which both proceeded in the car of Kosecoff to drive back to the grading station; and that during the return trip, the automobile collided with that of the third person; and that the decedent sustained injuries from which he died; further, that immediately after the collision, Kosecoff procured the key from the decedent who had it in his watch pocket.

It is the contention of the petitioner that under the proofs submitted to the court in the instant case that the decedent, Max Gelbart, met his death from an accident arising out of and in the course of his employment.

From the testimony submitted, it appears that the decedent was entrusted with one set of keys to respondent’s place of business and that the terms of his employment charged him with the duty of opening the place of business in the morning. It is clear also that the opening of the grading station in the morning by decedent was, in fact, beneficial to the respondent for it enabled the other employes, Pulz and Hurley and the truckers, to gain admission to the place of business before the manager, Wiedeke, who had the only other set of keys, arrived. How particularly on the day of the accident, being a Monday and one of the busy days in respondent’s business, as testified to by its manager, it was necessary for decedent to arrive early and open the station. On that day Kosecoff had to enter the place of business and prepare the empty cases and shipping tags preparatory to the arrival of the trucks. And as has been heretofore mentioned, the other employes had to gain admission to the place of business. All of these functions were in the usual and customary course of the conduct of respondent’s business and necessitated an act by the decedent custodian of the keys, namely the opening of the building.

It is contended that the custody of the key by the decedent and its personal transmission by him each morning to the place of business where he performed the act of opening the station, constituted, at every stage from his leaving his house, an act for the benefit of his employer and was within the course of his employment. For without the key and without the operation of opening the place of business, the activities of respondent’s business would be suspended until the arrival of Wiedeke at ten A. M.

It is to be borne in mind also in this connection that the decedent as custodian of the key was subject to call at any time to open the grading station — an obligation of employment on his part only beneficial to respondent itself.

In construing the Workmen’s Compensation act, it should be remembered that the statute is remedial and should be liberally and broadly construed. O’Mara v. Kirsch, 106 N. J. L. 151; 147 Atl. Rep. 511; Schmid v. Stanton Forging Co., 104 N. J. L. 471; 142 Atl. Rep. 4; Bodnarik v. Empire Floor, &c., Co., 8 N. J. Mis. R. 718; 151 Atl. Rep. 908; Steers, Inc., v. Turner Construction Co., 104 N. J. L. 189; 139 Atl. Rep. 42. Therefore, what accidents should be held compensable “as arising out of the course of employment” have been given a broad interpretation.

In this connection a construction has been placed upon our statute that it is not necessary that the employe be actually engaged, at the time of an accident, in prosecuting his designated work in order to obtain compensation. He need only be doing some act reasonably necessary and incidental to his employment. Stellas v. Western Union Telegraph Co., Inc., supra; Bryant v. Fissell, 84 N. J. L. 72; Foley v. Home Rubber Co., 89 Id. 474.

And as was stated in Raferty v. Dairymen’s League, &c., Association, Inc., 16 N. J. Mis. R. 363 (at p. 366); 200 Atl. Rep. 493, by Stahl, C.:

“The words ‘out of’ relate to the origin or cause of the accident; the words ‘in the course of,’ to the time, place and circumstances under which the accident takes place. The former words relate to the character of the accident, while the latter words relate to the circumstances under which the accident takes place. An accident comes within the latter words if it occurs while the employe is doing what a man so employed may reasonably do within a time during which he is employed and at a place where he may reasonably be during the time to do that thing. The accident, in order to arise ‘out of’ the employment, must be of such nature the risk of which might have been contemplated by a reasonable person when entering the employment, as incidental to it. A risk is incidental to the employment when it belongs to or is connected with what a workman has to do in fulfilling his contract of service.”

And. as was stated by Perskie, J., in Dubit v. Sheffield Farms Co., Inc., 118 N. J. L. 411 (at p. 418); 193 Atl. Rep. 546:

“As we have seen, the result of decedent’s making deliveries in his own car was a practice which was obviously beneficial both to the employer and employe. It was, therefore, only natural that it should have developed into a common practice — a practice which had for its objective the fruits of the contract which each party made for himself. Death resulting from an accident which occurred under such circumstances is one arising out of and in the course of the employment; it is compensable. Rubeo v. Arthur McMullen Co., 117 N. J. L. 574; 189 Atl. Rep. 663.”

And further as was stated by Heher J., in Rubeo v. Arthur McMullen Co., 118 N. J. L. 530 (at pp. 531, 533); 193 Atl. Rep. 797:

“When the accident happened, the essential statutory relation, in popular understanding and intent, had not been terminated. The line of delimitation is not so finely drawn. The provision of transportation, if not the subject of an express or implied undertaking binding under any and all circumstances, was plainly within the contemplation of the parties, at the time of the making of the contract of employment, as the thing to be done when in special circumstances the common interest would thereby be subserved. But, however this may be, the furnishing of this accommodation grew, with the knowledge and acquiescence, if not indeed the direction, of the employer, into a practice grounded in mutual convenience and advantage. The deceased employe, while not directly concerned, in the journeys to and from, with the performance of the work for which he was employed, was yet engaged in that which, by mutual consent, was considered as incidental to the employment. It was a thing so intimately related to the particular service contracted for as to be deemed, in common parlance, a part of it. This is the legislative sense of the term ‘employment.’ The requisite relation of master and servant continued during the journey; and the hazards thereof are therefore regarded as reasonably incident to the service bargained for.”

In cases containing analogous circumstances recovery has been held for acts of employes occurring outside the place of business of the employer and under circumstances very similar to the instant case.

In Kromley v. Board of Education, 13 N. J. Mis. R. 627; 180 Atl. Rep. 546, compensation was allowed to a school janitor returning home from evening church services, who decided to look after the school fires because of a sudden fall in temperature. He suffered injury while going home for the school keys. The Kromley case would appear to be on all fours with the liberal construction placed upon the statute by the courts of this state in permitting an award for injuries received while performing services incidental to the employment and which appeared to have occurred during acts of performance by the injured party beneficial to the employer as has been heretofore pointed out in the decisions above.

In Barkman v. Meyer, 12 N. J. Mis. R. 287, recovery was permitted to the petitioner who had been struck by an automobile while carrying pails back to the farm, it being shown that it was part of the petitioner’s duties to take milk pails home and wash them.

Other cases concerning the allowance of compensation for injuries received during acts incidental to furthering the employment at times when the employe was actually doing some act purely for his own personal convenience, but which was closely connected with his employment are also probably familiar to the court. Ramsey v. Leahey, 102 N. J. L. 513; 134 Atl. Rep. 91; affirmed, 103 N. J. L. 501; 135 Atl. Rep. 919; Rachels v. Pepoon, 5 N. J. Mis. R. 122; 135 Atl. Rep. 684; affirmed, 104 N. J. L. 183; 139 Atl. Rep. 923.

It is interesting to note that the argument claimed by the respondent in the instant case, that the decedent, Max Gelbart, cannot recover through the petitioner in that at the time of the accident, he /was in the same category as the traveling public and, consequently, respondent is not liable for injuries on a public highway, was raised in the case of Dubit v. Sheffield Farms Co., Inc., supra, but that Perskie, J., in liberally construing the statute of this state disregarded such argument in holding that the act of the employee at the time of the accident was beneficial both to the employer and employe as’ hereinbefore mentioned.

In the recent case of Grotsky v. Charles Grotsky, Inc., 121 N. J. L. 461; 2 Atl. Rep. (2d) 149, Case, J., while stating the general rule that compensation will not be awarded for injuries resulting from accidents happening to a workman while he is on his way to or from work, inferentially held that the decedent, who had been instructed to return the keys of the store in which he was working to the owner, would have been entitled to a recovery had the factual proofs indicated that at the time of the accident he was actually on his way to his employer’s home with the keys. In denying compensation in the Grotsky case the court, of course, found as a fact that at the time of the accident, the decedent was not in the act of returning the keys to the owner, but was actually returning to his own home.

It is a reasonable inference and I find as facts: That the custody of the keys by the decedent in the instant case was an act obviously beneficial to the employer; that the accident occurred while he was traversing the direct route from his home to respondent’s place of business and while he was in the act of procuring the keys — an act beneficial only to the respondent; and that in the procuring of the keys entrusted to his care and custody, he was performing an act incidental to his employment and for the benefit of his employer; that the accident occurred at a time when he was performing duties within the course of his employment; and that the accident arose out of and in the course of such employment and within the construction of the statute of this state as annunciated by the decisions of this and the other courts of this state; that the decedent’s wages were $30 a week; that the petitioner was, at the time of said accident, the wife of the decedent, living together with him and totally dependent upon him.

It was stipulated on the record that there is no dispute respecting the medical facts and that the decedent, Gelbart, died of the injuries due to the accident hereinbefore described. The respondent, however, questions the reasonableness of the medical charges for services rendered to the decedent during his last illness resulting from said accident.

There is no doubt in this case, and I so find, that the respondent had knowledge of the injuries received by the decedent and of his death, within the time prescribed by the Workmen’s Compensation act.

It is, therefore, ordered on this 7th day of July, 1939, that judgment final be entered in favor of the petitioner and against the respondent.

Harry S. Medinets,

Deputy Commissioner.


author: Matthews, A. M.

text:
    Elizabeth D. Smith, petitioner, v. Harold W. Smith, defendant.
    Decided January 17th, 1939.
   Matthews, A. M.

The petitioner, Elizabeth D. Brown, formerly Elizabeth D. Smith, seeks the custody of her infant son, William Dabney Smith, who presently is in the custody of his paternal grandmother, Grace W. Smith.

Elizabeth D. Brown, formerly Elizabeth D. Smith, brought suit for divorce against her husband, Harold W. Smith, on the ground of desertion. The defendant in this divorce proceeding, Harold W. Smith, filed an answer denying his desertion, and a counter-claim for divorce alleging that the aforesaid former- Elizabeth D. Smith deserted him.

In December, 1936, a decree nisi on the counter-claim of said Harold W. Smith was advised by Advisory Master Matthews, and a final decree was entered on March 15th, 1937.

The decree nisi made the following provision as to the custody of William Dabney Smith:

“It is further ordered, adjudged and decreed, that until the further order of this court, the care and custody of William Dabney Smith, the infant child of said marriage, be awarded to the defendant, so long as said defendant continues to reside at the home of his parents, subject to the right and privilege of the petitioner to visit her said child as she may desire, for such reasonable time as shall not interfere with or prejudice the child’s health, welfare, schooling, pleasure or necessary regular habits of life, and provided such visitation be made at times not unduly inconvenient to the said defendant or defendant’s mother, and should the petitioner desire to take said child to her home in Eutley, Eew Jersey, occasionally over the week-end, she may do so by arrangement with the defendant or with defendant’s mother.”

Harold W. Smith, to whom custody of his said infant son was granted as aforesaid, died in July,-1938.

Elizabeth D. Brown, formerly Elizabeth D. Smith, now petitions this court to give her the custody of the aforesaid infant son who has remained with his paternal grandmother, Grace W. Smith, since the death of his father.

At a hearing held on this petition for custody, and answer filed to said petition, the following pertinent facts of testimony were disclosed:

William Dabney Smith, the infant whose custody is sought, by the petitioner, his mother, was born on March 6th, 1928, and is presently approximately ten years and eight months, of age. He has lived at the home of Grace W. Smith and her husband, his paternal grandparents, since his birth. His. father, deceased in July, 1938, and his mother, the petitioner,, lived with him at the aforesaid grandparents’ home until September, 1934, when the parents separated, and his father lived with him at the said grandparents’ home until the father’s death in July, 1938.

It will thus be seen that this boy never had any other home since his birth than with his grandparents.

The testimony at the hearing further showed that in July, 1934, when William Dabney Smith was six years old, the-petitioner, his mother, took him on a vacation with her to-Gloucester, Virginia. She returned in September, 1934, with the boy, and sent him to the home of his grandparents, his regular home, while she went to her parents’ home.

Two years after the petitioner’s return from Virginia, to wit, in October, 1936, she instituted suit for divorce against her husband charging desertion, to which petition for divorce her husband, as aforesaid, filed a counter-claim for divorce on the ground of desertion.

A decree nisi was advised for the husband on his counterclaim in December, 1936, which became final on March 15th, 1937.

On March 25th, 1937, ten days after her husband’s decree became final, the present petitioner married William T. Brown, whom, she testified, she had started to meet socially in February, 1936, at which time, February, 1936, she testified the said William T. Brown was being sued for divorce by his then wife, in Florida, the said wife obtaining her decree from Brown in June or July, 1936.

The testimony further shows that the petitioner’s present husband, William T. Brown, is obligated under his former wife’s decree of divorce to pay to her twenty dollars ($20) a week for the support of their two minor children, a boy eight years old, and a girl six years old; that the said former wife lives with the two children aforesaid in Oceanport, Flew Jersey, and that the said William T. Brown is a bond salesman who has a drawing account of sixty dollars ($60) a week, and that he makes as high as forty dollars ($40) a week in addition to his drawing account, depending on business conditions.

The petitioner further testified that she and her present husband occupy an apartment consisting of one big living room which is also used as a bedroom, a dinette, and a kitchen. She said that if she got custody of her son they would move from those quarters, for which they pay forty dollars ($40) a month rent. She testified that she had taken care of her child while she lived at the grandparents’ home, and that while she has never been refused permission to see her son since he was given by the decree nisi to his father, nor since the father died, nevertheless on a few occasions she had difficulty in seeing him at the time she wanted to do so because of his, the child’s engagements to go swimming, or for some other child’s pleasure or engagement cause.

On cross-examination the petitioner admitted that the child had called up his grandparents and asked them to come for him to his mother’s home on a lew week-ends because he was so unhappy where his mother lived.

The testimony of the paternal grandmother was in direct contradiction of the petitioner as to petitioner’s care and concern for her son. The grandmother, Mrs. Grace Smith, testified that the boy had a nurse until he was four years old, and during those years his mother gave him very little care, and that this lack of care continued after the nurse was dispensed with; that the child’s mother would go out and remain out late at night and sometimes would stay away all night, without asking anyone to look after the boy, and that she did exactly as she pleased, with very little consideration for the boy, and that the grandmother had to look after the boy.

The grandmother further testified that her husband, the boy’s grandfather, gave the petitioner the opportunity, the spring before she deserted her husband, to take the boy to Carteret Academy, a private school, for the spring term, but the mother did not do so, though the child was of school age; that she, the grandmother, started the boy in public school the following fall, but that the boy was very nervous, and she took him to Carteret Academy where he has done wonderfully well, and where he attends school at present, the gran-mother taking him to and from school.

The grandmother’s testimony in general showed that she has been the real mother to this boy, not only prior to the petitioner’s desertion of her husband, but since then. In answer to a question on cross-examination, “You think you can substitute, as grandmother, for the real mother for the child ?” Mrs. Grace Smith replied, “I do. I think that child loves me more than anyone else in the world. * * * The child has loved me without my doing anything about it. * * *” When further asked about the mother having custody of the child, the grandmother replied, “I think it would ruin the child’s health for life.”

The testimony further shows that Mrs. Grace Smith is sixty-seven years old, and that her husband is seventy. Both of the grandparents were before the court and both are healthy looking people who do not appear to be the ages they are. They live in a private one-family house at No. 260 Harrison, street, Bast Orange, New Jersey, with a son thirty-five years old. The house is a fifteen-room dwelling with garage.' The Smiths have three in help.

In addition to the testimony of the witnesses which I have summarized above, the court had the benefit of the testimony of the child, William Dabney Smith. The child’s testimony clearly revealed that not only is he happy in his present home, but that he Ciloves his grandmother best,” as he put it, and that he does' not under any circumstances want to be taken from the only home he has known all his life. His tears on the stand and his veritable shaking with fear at every question intimating his being taken from his present home, clearly indicated that his happiness and his health depend upon his remaining with his grandparents.

Prom all the testimony in the case, and from my observation of the witnesses on the stand, it seems to me that the custody of this child should be given to the grandmother, Mrs. Grace Smith, with whom the child has lived since birth.

As was said by the court of errors and appeals in Richards v. Collins, 45 N. J. Eq. 283 (at p. 287):

“The court will not regard the parental right as controlling, when to do so would imperil the personal safety, morals, health or happiness of the child. In determining this delicate and often difficult judgment, the court looks at the character, condition, habits and other surroundings of claimants.
“In resolving the general question of what will best sub-serve the interest and happiness of the child, its own wish and choice may be consulted and given weight, if it be of an age and capacity to form a rational judgment. There is no fixed age which capacitates such choice. It depends upon the extent of its mental development.
“The wishes of children of sufficient capacity to form them are given especial consideration, where the parents have for a length of time voluntarily allowed their children to live in the family of others, and thus form home associations and ties of affection for those having their care and nurture, and when it would mar the happiness of the children to sever such ties.”

The child in the case sub judice appears to be of more than ordinary intelligence for his years, and certainly of sufficient capacity to form the wish and desire, repeatedly expressed by him on the stand, of living with his grandmother. It would in my opinion not only mar the happiness of this boy to take him from the only home he has ever known, but it would make the child a nervous wreck.

Moreover, the boy’s mother is now married to another man who has two children to support. They are married but a short time and there is no present telling what permanency there may be to this reconstructed home. To take this child from the grandparents and put him into such a reconstructed home would, to my mind, at his age of immediate preadolescence, not only ignore the rights which this child has, it might also have a deleterious effect upon his character and outlook on life.

From all of the testimony and circumstances of this case I am of the opinion that the infant, William Dabney Smith, should be allowed to remain in the custody of his grandmother, Grace Smith. Provision should be made for fulsome visitation by the petitioner with her son.


author: Jayne, C. C. J.

text:
    Cape May County Circuit Court.
    EDMUND O. HOWELL, Jr., RECEIVER OF THE FIRST NATIONAL BANK OF OCEAN CITY, NEW JERSEY, AN INSOLVENT NATIONAL BANKING CORPORATION, PLAINTIFF, v. A. RANDOLPH FOGG, DEFENDANT.
    Decided July 7, 1939.
    For the plaintiff, Benjamin M. Cohen.

    For the defendant, August 8. Goetz.

   Jayne, C. C. J.

The controversial issue of law in this action has been submitted by stipulation of counsel to the court for determination. The basic facts essential to the consideration of the issue are admitted.

An examination of the complaint discloses that this action is prosecuted by the plaintiff as receiver of the First National Bank of Ocean City, New Jersey, an insolvent national banking association, to recover from the defendant, a stockholder, an assessment levied by the comptroller of the currency of the United States on February 1st, 1933, upon the stockholders of the insolvent institution.

In defense, the defendant has averred that more than six years have elapsed since this cause of action accrued and that by reason thereof the prosecution of this action is prohibited. This is the sole issue. It is now acknowledged that the comptroller made the assessment upon the shareholders on February -1st, 1933, to be paid by them on or before March 8th, 1933. The writ in this action is tested January 30th, 1939. Together with the complaint, it was received by the sheriff on January 31st, 1939, and the process and complaint were served personally upon the defendant on February 2d, 1939.

The statutes enacted by Congress which create and regulate the individual liability of the stockholders of a national bank for the debts of the bank and which empower the comptroller of the currency to levy an assessment upon the stockholders of an insolvent bank, prescribe no period of limitation for the commencement of an action to enforce such liability. Accordingly, in an action instituted for such purpose in the courts of law of this state our own statutory period of limitation is applicable. Campbell v. Haverhill, 155 U. S. 610; 15 S. Ct. 217; 39 L. Ed. 280; McClaine v. Rankin, 197 U. S. 154; 25 S. Ct. 410; 49 L. Ed. 702; 3 Ann. Cas. 500; Curtis v. Connly, 257 U. S. 260, 262; 42 S. Ct. 100; 66 L. Ed. 222; Pufahl v. Estate of Parks, 299 U. S. 217; 57 S. Ct. 151; 81 L. Ed. 133; Mann v. Kleisdorff (C. C. A.), 16 Fed. Rep. (2d) 997.

It is stipulated that the bank discontinued business because of its insolvency on November 17th, 1932. Whereupon the comptroller assumed charge of its affairs. It seems to be the contention of the defendant that the present cause of action accrued upon the closing of the bank on November 17th, 1932, and that the action is barred because more than six years thereafter elapsed before this action was instituted. This contention is without merit. Assuredly no such cause of action arises until the assessment is made by the comptroller. Kennedy v. Gibson, 8 Wall. 498, 505; 19 L. Ed. 476, 478; Casey v. Galli, 94 U. S. 673, 677; 24 L. Ed. 168, 169; Germania National Bank v. Case, 99 U. S. 628, 634, 635; 25 L. Ed. 448, 450, 461; United States v. Knox, 102 U. S. 422, 425; 26 L. Ed. 216, 217; Bushnell v. Leland, 164 U. S. 684; 41 L. Ed. 598; 17 S. Ct. 209; McDonald v. Thompson, 184 U. S. 71, 72, 76; 46 L. Ed. 437, 440; 22 S. Ct. 297; McClaine v. Rankin, supra; Rankin v. Barton, 199 U. S. 228, 232; 50 L. Ed. 163, 166; 26 S. Ct. 29; Drain v. Stough, 61 Fed. Rep. (2d) 668; Anderson v. Abbott, 23 Fed. Supp. 265.

Although unnecessary to the decision of the present case, it is not inapposite to the general, subject to state that where the comptroller in the exercise of his power has made an assessment upon the stockholders and has designated a definite future date on which payment of the assessment shall be made, the cause of action to enforce the individual liability of the stockholder does not accrue under the provisions of our statute of limitations until the liability of the shareholder has matured, that is, become due in accordance with the demand or decree' of the comptroller.

Observant of the provisions of our statute of limitations, this construction of the statute seems to be rational and feasible and finds support, in several authoritative decisions. Deweese v. Smith (C. C. A.), 106 Fed. Rep. 438, 441; 66 L. R. A. 971; King v. Pomeroy (C. C. A.), 121 Fed. Rep. 287; Rankin v. Miller, 207 Fed. Rep. 602; Hall v. Ballard (C. C. A.), 90 Fed. Rep. (2d) 939, 944; Strasburger v. Schram, 93 Fed. Rep. (2d) 246.

Upon examining the reported decisions upon this subject, it will become manifest that the divergency of opinion is ascribable to the materially different provisions of the statutes in those jurisdictions. Donald v. Bird, 85 Fed. Rep. (2d) 663; Johnson v. Greene, 88 Id. 683, are typical.

In Strasburger v. Schram, supra, Judge Groner obseryed: “We take judicial notice of the fact that for many years it has been the general practice of the -comptroller, after determination that an assessment on stockholders in a national bank is necessary and of the amount thereof, to fix a date when payment must be made. The practice is a reasonable one, since it furnishes time and opportunity to the debtor to pay without suit and in some cases opportunity for reorganization and resumption of business; and we have been referred to no law and have found none ourselves to challenge the authority of the comptroller to fix the time of payment, and to extend it within reasonable limits from time to time. Uor have we any doubt that when this is done the receiver cannot commence an action against the stockholder until after the date fixed, for the simple reason that until such date the assessment is not due; or, in other words, does not exist as a complete right which the owner may enforce by going into court.” See, incidentally, French v. Higgins, 66 N. J. L. 579, 581; 50 Atl. Rep. 344.

The accrual of the cause of action is under our statute the prescribed event from which the period of limitation is to be computed. By the accrual of the cause of action is to bo understood the right to institute and maintain a suit. Where the comptroller for whom the receiver is acting has adjudged that the required assessment shall be payable on a designated date, it would seem that a full and complete cause of action to collect the assessment from the stockholder does not accrue until the assessment becomes due and payable.

Judgment for plaintiff.


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

text:
    Essex County Circuit Court.
    MAY C. HERBERT, EXECUTRIX OF THE ESTATE OF ELLEN A. HERBERT, DECEASED, PLAINTIFF, v. EMILY CORBY AND EUGENE A. KELLY, DEFENDANTS.
    Decided July 14, 1939.
    Eor the plaintiff, Howe <& Davis.

    Eor the defendant Emily Corby, Alfred J. Grosso.

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

This comes on a motion to strike the answer filed by the defendant Emily Corby as in part sham and in part insufficient in law.

The suit is for deficiency on a bond given by the defendant Eugene A. Kelly, and secured by a mortgage on a piece of real property, payment of which bond, the plaintiff maintains, was assumed by the defendant Corby, grantee of the said property.

The answer denies assumption of the mortgage, and further sets forth that when the plaintiff foreclosed the mortgage in the Court of Chancery, and caused to be served upon this defendant, a subpoena with a ticket annexed, she failed to make known to this defendant, by means of the said ticket, that she, the complainant, intended to hold this defendant Emily Corby liable for the payment of the bond.

The defendant has filed no answering affidavits, and from the affidavits attached to plaintiff’s moving papers, it appears without contradiction, that Eugene A. Kelly, predecessor in title of the defendant Corby, executed the bond in question, for a payment of $8,000, giving as security, the mortgage on the property subsequently foreclosed; that on September 28th, 1926, the said Eugene A. Kelly entered into an agreement in writing with the defendant Emily Corby for the sale of the property in question, for the sum of $14,500; under the terms of this agreement, the defendant Emily Corby agreed to. assume the said mortgage, in the sum of $8,000, and this $8,000 mortgage was computed as a part of the purchase price.

Subsequently, on October 27th, 1936, the property in question was conveyed by Eugene A. Kelly and his wife, to Emily Corby; the said Emily Corby paying the agreed purchase price, and deducting therefrom, the sum of $8,000, the amount of the said mortgage.

The affidavit of Eugene A. Kelly further states that at the time of the conveyance, “it was always understood and agreed that the said Emily Corby should assume the payment of the said mortgage.”

As above stated, no affidavits have been filed refuting or contradicting the above. The sole contention of the defendant is that the deed containing no assumption clause, the defendant has not assumed the first mortgage, despite the fact that she had agreed to do so, and despite the fact that the said sum of $8,000 was deducted from the purchase price. The rule is established that where the purchaser of land encumbered by a mortgage, agrees to pay a particular sum as a purchase price, and on the execution of the contract of purchase, the amount of the mortgage is deducted from the consideration, and the land is conveyed subject to the mortgage, the purchaser is bound to pay the mortgage debt, whether he expressly agreed to do so or not. See Heid v. Vreeland, 30 N. J. Eq. 591; Reeves v. Cordes, 108 Id. 469; 155 Atl. Rep. 547; Torrey v. Thayer, 37 N. J. L. 339.

It appears, therefore, that that part of the answer which denies the assumption of the mortgage, is sham, and will be stricken out.

As to the contention that the ticket accompanying the subpoena did not advise this defendant of the plaintiff’s intent to hold her liable on the bond, this defense is insufficient in law for that there is no duty upon the complainant in a chancery action, to so advise the defendant. R. S. 1937, 2:65-15, provides that the complainant “shall cause a ticket, in writing, shortly making known for what cause the said defendant is made such a party, to be issued,” the said ticket being served with the subpoena. All that this requires is that the defendant be advised why she is made a party; as owner, as mortgagor, as a junior mortgagee, or whatever the cause may be. If this defendant was made a party as owner, her liability .on the bond followed, as a matter of law, from the circumstances attending her purchase, and the section above quoted ■does not require that the complainant advise any defendant to what extent he intends to pursue his remedies.

In Camden Safe Deposit and Trust Co. v. Warren, 121 N. J. Eq. 141; 187 Atl. Rep. 651, Vice-Chancellor Davis held that where the purchaser of a mortgaged property, having .assumed the mortgage, was made a party defendant, he cannot ■disclaim and be dismissed. The vice-chancellor said:

“The complainant is entitled to retain him as a party and "have his position adjudicated with respect to the matters in the bill.”

It appears then, that all that is necessary is to make him . ¡a party and show why he is made a party, without the necessity of disclosing the intent to pursue the full remedy after foreclosure. That follows as a matter of right.

For the reasons stated, an order will be entered striking the answer as in part sham and in part insufficient in law.


text:
    New Jersey Department of Labor, Workmen’s Compensation Bureau.
    MARY DRELICH, PETITIONER, v. OKONITE CO., RESPONDENT.
    Decided July 31, 1939.
    For the petitioner, Patlen & Amlicke.

    For the respondent, Reginald V. Spell.

   It is alleged in the petition filed in the above cause that decedent while working in the heat was prostrated and died. The answer filed by respondent is a general denial of the allegation. Employment was stipulated.

Weather report of Department of Agriculture reflects temperature July 10th, 1937, as maximum temperature ninety-eight degrees, minimum seventy-seven degrees, mean temperature eighty-eight degrees, mean humidity thirty-nine degrees.

Dependency is admitted; as is expense of funeral exceeded statutory allowance. Decedent — a male, white individual, weighing two hundred pounds — was employed by respondent as an operator on a machine. Within a short distance from machine there was a wax box which kept contents heated.

A fellow employe, Adam Bak, testified to petitioner’s duties, watching machine set upon a platform necessitating climbing up and down three steps. He testified room was hot due to heat from machine as well as from wax box. Decedent after working about two hours took a glass of water, stated he did not feel well. He saw him stagger like a drunken man and could not walk straight. Suggested he be sent home. Hext seen one-half hour later dead.

One, Anthony Drelich, son of petitioner, testified of previous good health of petitioner. He stated he took him to work day of occurrence and he had no complaints.

Hospital records were testified to by custodian. Dr. Pasquale Statile, an interne of Passaic General Hospital, examined man on his admission to hospital and made diagnosis of heat prostration. His appearance, when examined, was cynotic with purplish skin. He died within fifteen minutes after admission. Miss Claudin Stark, a student nurse, testified of seeing decedent. Body was very hot, respiratory heavy, and labored. She applied ice cap and cold pack to entire body. Decedent’s temperature was one hundred.

Death certificate signed by Dr. Butterfield gives as cause of death “heat prostration.” He testified that he was called by respondent and found decedent’s body hot and wet with perspiration. Dr. Adolph Kroll and Dr. J. Koppel in answer to hypothetical question were of opinion that death of decedent was causally related to his employment.

Respondent produced two witnesses, one a fellow employe of decedent and an assistant foreman, who testified at length as to condition of room where decedent worked. Copy of payroll was also introduced by respondent.

After careful consideration 'of testimony I am of the opinion that decedent’s death was incidental to his employment and that petitioners are entitled to compensation.

$$$$$$$

John C. Wegner,

Deputy Commissioner.