source: Caselaw Access Project

author: Oliphant, C. C. J.

license: Public Domain

text:
    Middlesex County Circuit Court.
    FREDERICK F. RICHARDSON, CONTESTANT, v. THOMAS G. RADICS, INCUMBENT.
    Decided November 9, 1943.

      For the contestant, Frederick F. Richardson and Walter C. Sedam.

    Fox the incumbent, Paul W. Ewing.

   Oliphant, C. C. J.

On May 11th, 1943, a municipal election was held in the City of Hew Brunswick for the selection of five city commissioners. The incumbent Radies received 4,393 votes and the contestant Richardson 4,384, a majority of nine for the incumbent. The contestant filed a petition to contest said election under R. S. 19 :29-l, et seq.; N. J. S. A. 19 :29-l, el seq.

Several amendments to the petition were allowed by the court, one of which challenges the legality of the soldier vote received and counted in said election.

As the decision on this question might be dispositive of the matter it was agreed by counsel that it should be determined before taking testimony on the other questions involved and the following stipulation was entered into relative to the counting of votes received from those in military service:

“It is stipulated between the respective parties in open court that the Act respecting absentee voting of men in the military service was in all respects complied with by the Adjutant-General and by the County Clerk.

“It is further stipulated that 244 ballots were returned by men in the military service to the County Board of Elections; that upon examination of the envelopes the County Board of Elections determined that three of the ballots were from men who did not reside in the City of Hew Brunswick. These three ballots were rejected. The County Board then proceeded to count, and did count, the remaining 241 ballots. This count showed that 113 ballots were voted for the incumbent Radies and 83 ballots were voted for the contestant Richardson.

“Upon receipt of the ballots, the County Election Board cheeked the names and addresses shown on the outside of the envelopes with the list certified by the Adjutant-General, and ascertained that 241 of the ballots received by them were shown upon the Adjutant-General’s list, and that three of the ballots showed that the soldiers were not resident of the City of New Brunswick. The County Board of Elections then proceeded to count and did count all of the 241 votes, with the result stated above.

“Before proceeding with the opening of the 241 ballots received as aforesaid, the County Board did check the names and addresses appearing on the 241 ballots with the permanent registry list on file in its office, and ascertained that of said 241, 63 were not registered, and the remaining number, namely, 178 were registered.

“The Board counted all of the soldier vote pursuant to opinions given by the Honorable Adrian Lyon, Judge of the Middlesex County Common Pleas Court, to the Board by letters dated October 28th, 1941, and September 14th, 1942, copies of which letters are to be made part of this record.

“It is further stipulated between the parties that there is no factual dispute, the matter here submitted is one of law for the court.”

Article 2, paragraph 1, of the Constitution of this state, N. J. S. A., provides as follows: “Every citizen of the United States, of the age of 21 years, who shall have been a resident of this State one year, and of the County in which he claims his vote for five months next before the election comes, shall be entitled to vote for all officers that now are, or hereafter may be elective by the people * * and •provided further that in time of war no elector in the actual military services of the State, or of the United States, in the army or navy thereof, shall be deprived of his vote, by reason of his absence from such election district; and the legislature shall have power to provide the manner in which, and the time and place at which, such absent electors may vote, and for the return and canvass of their votes in the election district, in which they respectively reside.”

'T'he provision is that “no elector in actual military service” shall be deprived of his vote and the first inquiry therefore, is what is an elector? Bouvier says an elector is “one that has a right to vote;” Webster defines it as “a person entitled to vote in favor of a candidate for office.” One entitled to vote is a duly qualified voter and what the constitution protects is the right of that duly qualified voter to cast his ballot even though he may be in the military service and absent from his election district. It 1ms long been settled law that the legislature has the right and duty to determine who are legal qualified voters or electors. In Ransom v. Black, 54 N. J. L. 446 (at p. 461); 34 Atl. Rep. 489, 1031, Mr. Justice Dixon said: “It must be conceded that legislation is necessary to determine who are legal voters, to provide for them the means of voting, to prevent all others from voting and to ascertain the result of the vote. All legislation conducive to these ends is, therefore, permissible.” To the same effect is the opinion of Mr. Justice Reid in the same case.

In State v. Wrightson, 56 N. J. L. 126; 28 Atl. Rep. 56, and McArdle v. Jersey City, 66 N. J. L. 590; 49 Atl. Rep. 1013, it was held that the constitution guaranteed the right of suffrage to every qualified, voter. The Supreme Court, In re Freeholders of Hudson County, 105 N. J. L. 57; 143 Atl. Rep. 536, said: “It is quite clear from the decisions of the courts of this state, that although an individual falls within the class of those entitled to vote by virtue of the constitutional declaration, nevertheless, the manner in which and how he shall become entitled to exercise the right extended to him or her is left to the sound discretion and wisdom of the law making power of this state.” In that same case the court defines a qualified voter and says after setting out the constitutional qualifications, “And in addition to this constitutional qualification, he or she must be registered in the election district where his or her place of residence is, &c.” In failing to comply with the requirements alluded to, no right to vote has been acquired. The court in Public Service v. Camden, 13 N. J. Mis. R. 693; 180 Atl. Rep. 778, 779, again defined a legal voter as “one possessed of the constitutional requirements and also duly registered.”

Judge Van Riper in the Essex County Court of Common Pleas lately ruled on the point involved here and said. “It is my conclusion that where the state act refers to the right of a person to vote who is a legally qualified voter it means a person who has complied with all the requirements of the election law necessary to vote, including registration, in so far as it refers to state or county or municipal offices, but not federal office.”

It would seem to be established, therefore, that an elector is a qualified or legal voter and that a qualified or legal voter is one that has duly registered in compliance with the statutory requirements.

The Commission Government Act under which the City of Hew Brunswick operates itself defines in R. S. 40:70-2; N. J. S. A. 40 :70-2, “Electors” as “citizens of the municipality as were registered as voters at the last general election.” It further piovided that the official registry list “shall be the official signature copy register or official registry list, as the ease may be, containing the names of those persons qualified to vote at the last preceding general election. R. S. 40:75-12; N. J. S. A. 40:75-12.

The legislature having the right and power to determine who are entitled to vote under the constitutional mandate has conferred that right upon those in the military forces who are legally qualified voters. B. 8. 19:54—25; N. J. 8. A. 19 :5A-25. Specific attention should be called to paragraphs 27, 28 and 33 of that act, N. J. 8. A. 19:54-27, 19:54r-28, 19:54^33. All of them refer only to “qualified electors.”

It is important to note that in paragraph 35 of that act, N. J. S. A. 19 :54-35, the legislature directs that it is the duty of the County Board of Elections to determine whether the ballot of one in the military service is that of a legally qualified voter which we have heretofore seen is one duly registered.

Under the stipulation it is admitted that 63 of the 244 ballots returned by men in the military services were from persons not registered. Three ballots were from non-residents of the City of Hew Brunswick. With the exception of the latter, they were nevertheless all counted and the votes of those who were not registered were not segregated hut mixed with those ballots from registered voters so that it is now impossible to separate them. If they had not been co-mingled it would have been possible to invalidate the votes of those not registered and determined for whom they were voted.

The counting of the 63 palpably illegal votes and the confounding of them with the 178 apparently valid ones taints the whole soldier vote with illegality. It is impossible to segregate the legal votes from those which were illegal. The number of these illegal votes were in number sufficient to change the result.

The whole soldier vote must be rejected on account of the co-mingling and mixing of the legal and illegal votes above referred to.

This is the reasoning of the Supreme Court in Burkett v. Francesconi, 127 N. J. L. 541; 23 Atl. Rep. (2d) 780. The effect of that decision is that where illegal votes cannot be separated from legal ones the rejection of the whole unit is necessary. The case of Sterner v. Bonahay, 21 N. J. Mis. R. 360, is directly in point. There Judge Kinkead rejected the soldier vote in toto for the failure of: the County Board of Elections to determine as required by R. S. 19:51-35; N. J. S. A. 19:5!-35, whether those ballots were from registered voters. That case was not as persuasive as the instant one, where though the examination was made and some ballots were found to be from unregistered persons, they were nevertheless counted. The incumbent cites the case of Lehlbach v. Haynes, 54 N. J. L. 77; 23 Atl. Rep. 422, in support of his contention. The court there was dealing with the sufficiency of a pleading and the decision is not authority for the proposition that before ballots can be rejected it must be shown for whom they were voted a,nd in that manner determine if the result would be changed. Such a rule would be an absurdity in a case such as presented here where it is an impossibility to determine for whom the illegal votes were marked. While that ease dealt with fraud on the part of the members of an election board, the same rule would apply in a ease such as the instant one. What was there said by Chief Justice Brogan is very applicable to the present state of facts. The court said “The learned trial judge found that the fraud was extensive enough to challenge the result, that is, he found it was not possible to segregate the ballots that should be given legal efficacy from those which had been tampered with and which consequently could not be given any effect, in which circumstances he was justified in rejecting the vote in such district or districts in toto.”

The rejection of the votes of those in military service as a unit leaves the result as 4,300 for the contestant Eichardson and 4,281 for the incumbent Eadics or a majority of 19 for the contestant.

Counsel for the incumbent maintains that contestant having asked for a recount under R. S. 19:28-1; N. J. S. A. 19:28-l, is bound thereby and estopped from availing himself of the present proceeding. A candidate can avail himself of both statutory remedies, one, a recount under R. S. 19 :28—1; N. J. S. A. 19 :28—1, the other for fraud or the receipt of illegal votes under R. S. 19 :29—1; N. J. S. A. 19 :29-l. Each is a distinct and separate proceeding for the remedy of separate and distinct wrongs. The fact that a judge of the Court of Common Pleas of Middlesex County in a communication to the County Board of Elections in another matter advised that board to count all votes received from those in military service, whether duly registered or not, can have no binding effect upon the court in the instant case.

While it is not necessary to decide the question here, it is an opportune time to call to the attention of the legislature the fact that there is grave doubt whether under the present statutes those in the military forces are entitled to vote in municipal elections. The act R. S. 19:54-27; N. J. S. A. 19:54r-27, refers alone to primary, general or special elections, under none of which can a municipal election be classified. Before the question can again arise, this discrepancy should be corrected.

Por the foregoing reasons it is the judgment of the court that the contestant was duly elected as a city commissioner of the City of Mew Brunswick. A proper order may be presented annulling the certificate of election of the incumbent and providing that one be issued to the contestant in conformity with the statute.


author: Hartshorns, C. P. J.

text:
    Essex County Orphans Court.
    IN THE MATTER OF THE ESTATE OF JOHN A. SHERIDAN, DECEASED.
    Decided November 24, 1943.

      Por the proponent, Anthony A. Gicchino.

   Hartshorns, C. P. J.

Since the surrogate has adjudged that doubts arise upon the face of the proposed will, the cause was referred to this court. The issue is whether a testamentary letter, written by a soldier, since deceased, under conditions hereafter stated, constitutes what is commonly known as a soldier’s will.

^ On August 13th, 1943, John A. Sheridan, the decedent, was inducted into the Army of the United States under the Selective Service Act, 50 U. S. C. A. Appendix, §§ 301, et seq. The same day he was released from active duty till August 36th, under orders providing that he proceed on that day to Port Dix for active duty. On August 30th, while still at his home in Newark, he wrote the letter, testamentary in character, disposing of his personal estate, which is now offered as his will. This letter was entirely informal, simply being signed by him, without witnesses, seal or attestation clause.

Subsequently, he obeyed 'the above orders, and was thereafter-transferred in the military service to the State of Washington, where he was drowned April 4th, 1943.

The decedent’s above letter is offered as a will under the provisions of our statute that:

“Disposition of movables, wages and personal estate may be made as heretofore by a soldier while in actual military service or by a mariner or seaman while at sea, and nothing contained in this chapter shall affect such dispositions.” (R. S. 3:3-7; N. J. S. A. 3:3-7. Administration of Estates.)

Thus, personal property may be willed either orally, as a non-cupative will, or in writing, without compliance with the usual safeguards provided by the law (R. S. 3 :2-3, 3 :2-6; N. J. S. A. 3 :2-3, 3 :2-6) to protect against fraud and imposition after the lips of the testator are sealed by death, if, “made as heretofore by a soldier while in actual military service or by a mariner or seaman while at sea.”

The principles as to the essential characteristics of such a will, made by such an individual under such conditions, have come down to us from early Boman law. As to a written will, with which we now deal, it is settled that nothing further is required than the establishment of the testamentary intention and the handwriting of the testator. Ho witnesses, attestation or seal is requisite. Re Straulina, 4 N. J. Mis. R. 599; 134 Atl. Rep. 88. The authorities are so far clear and uniform.

But as to the requisite character of the soldier’s military service, such clarity and uniformity are lacking in several respects, largely due to the variant states of fact presented to the courts, both as to the actions of the proposed testator himself and the conditions of warfare surrounding him at the time he executed the instrument. Bor instance, in the time of Julius Caesar, when the doctrine of “soldier’s wills” arose, Borne was the ruler of the then civilized world, her armies being actively engaged in conquests on various fronts, as unhappily known to so many school boys. With practically all her military engaged in offensives against the enemy, every soldier, per se, was freed from the formal restrictions, existing even then, in the making of a will. But by the time of the accession of the Emperor Justinian, these conquests by Borne had largely ceased, and her military were generally stationed in fixed camps at home or in her conquered colonies. Hence, most of her soldiers were well able to execute a formal will. Since the need had thus largely ceased for this soldier’s exception to the general rule as to wills, the exception itself was restricted, pari passUj to cover only those, as the Code of Justinian stated, who were “in expeditionibus i. e., on a warlike expedition against the enemy, and not in camp in friendly territory.

Thereafter, the rule as to soldiers’ wills, as so restricted, was adopted bodily not only by the ecclesiastical and probate courts of England, but by the courts .of Germany, Russia, and other continental countries. Re Smith, 6 Phila. 104.

In short, the law is settled that every soldier cannot make a “soldier’s will.” And this follows in Hew Jersey because of the rule adopted “heretofore,” and because of the above requirement of our statute, substantially identic with that of our sister states and the English common law, that for a soldier to execute such an informal will be must, in addition, be “in actual military service.” In view of the constant use of this language previously at the common law, our legislature, in adopting it, must of course be presumed to have intended it to bear its accepted legal meaning.

But between the. time of the Roman conquests and the present, the conditions of warfare, let alone their techniques, have largely changed. To the Roman soldier, defensive warfare was largely unknown; not so to the English and continental soldier. His “actual military service” was quite as much defensive as offensive. Hence, the rule, previously restricted, was in turn broadened, in line with its reason. This reason was, of course, that a soldier could not be expected, amidst the stress attendant upon actual operations against the enemy, either offensive or defensive, to have either the time or the opportunity to obtain the aid of a legal draftsman and witnesses. Thus, we find cases arising in England down through World War II, where soldiers, even while in training camp, and not engaged in offensive operations or under orders therefor, were held empowered to make informal wills, due to the fact that they were under the stress of, not only possible, but actual, bombing and death. Dalrymple v. Campbell, 120 L. T. R. 160; Re Spark (1941), 165 L. T. (N. S.) 234.

Eor similar reasons the rule was relaxed as to those who-were-under the stress of orders to proceed shortly on expedition against the enemy, even though they had not yet set forth, and whether in training camp or on their last furlough, this principle having been applied both in this country and in England. Re Straulina, supra; Thorne’s Goods, 11 Jur. 569; Leathers v. Greenacre, 53 Me. 561; Re Zaiac, 162 Misc. 642; 295 N. Y. S. 286; affirmed, 255 App. Div. 709, 718; 5 N. Y. S. (2d) 897; 279 N. Y. 545; 18 N. E. Rep. (2d) 848; Re Stein’s Will, 119 Misc. 9; 194 N. Y. S. 909; Re Mallery’s Will, 127 Misc. 784; 217 N. Y. S. 489; affirmed, 247 N. Y. 580; 161 N. E. Rep. 190; Hiscock’s Goods [1901], Prob. 78; Gatiward v. Knee [1902], Id. 99; Re Booth [1926], Id. 118; Re Gordon’s Goods [1905], 21 Times L. R. 653; Estate of George Bigner, (Surrogate’s Court, New York County, 1924, unreported); Re Kitchen [1919], 35 Times L. E. 612. Those familiar with the nervous tension and hustle and bustle which arises in camp on receipt of sailing orders, will well understand the practical impossibility of having a will formally drawn and executed under such circumstances.

Indeed, there are certain recent decisions which have gone even further, and upheld informal wills made by a soldier when merely in training camp in America, without proximate orders to sail on the AEE or otherwise, and when far from possible attack, i. e., in the Province of Saskatchewan. Re McLennan (1940), 1 West Weekly Reporter 465 (Sash.); Re Miller’s Will, 134 Misc. 671; 236 N. Y. S. 529. But the weight of authority is to the contrary (Van Deuzer v. Gorden, 39 Vt. 111; Grey’s Estate, L. R. [1922], Prob. 140; Drummond v. Parish, 163 Eng. Reprint 812; Bovles v. Jackson, 164 Id. 170; cases cited in above paragraph, supra) as is the basis of the many eases holding that a soldier on ordinary furlough, as distinguished from his last leave before sailing on an expedition, is not acting under such warlike stress as to validate an informal will. Re McGarry’s Estate, 242 Mich. 287; 218 N. W. Rep. 774; Re Dumont, 170 Misc. 100; 9 N. Y. S. (2d) 606; affirmed, 257 App. Div. 952; 13 N. Y. S. (2d) 289; 282 N. Y. 606; 25 N. E. Rep. (2d) 388; Re Zaiac, supra; Re Smith, supra; compare Re Kitchen, supra.

The reason of the rule as well would indicate that one in training camp, far from the stress of either actual or proximate operations against the enemy, either offensive or defensive, would not fall within its coverage. Particularly would this seem to follow in the United States at the present time, where both the War and Uavy Departments have, in every military cantonment, set up legal assistance offices with the aid of every bar association in the country, at which formal wills, on prepared forms, can be readily executed by both our soldiers and sailors. Under such circumstances, while there is no danger of a soldier being unable to have his will formally executed, there is a substantial danger, if he possesses property, that, after his lips have been sealed by death, some skilled penman may forge a simple, unwitnessed letter, and thus fraudulently despoil his entire estate. To extend the rule to this latter extent would thus seem to be doing the soldier a distinct disservice.

Turning to the facts in hand, we find that the decedent at the time he wrote the above letter was clearly a soldier and subject to military discipline, even though he had never yet donned the uniform. Franke v. Murray, 248 Fed. Rep. 865; Ex parte Thieret, 268 Id. 472. On the other hand, his proximate orders were to proceed, not on an expedition against the enemy, but to a training camp, where he was not subject to the stress and fear of imminent enemy attack, but where he, and all with him, had every facility for the execution of a formal will. Furthermore, he was still on his initial furlough at home, accessible to ordinary legal advice, and not yet in uniform. Thus, because, while a soldier, he was not “in actual military service,” as known to the law the letter, which he then wrote, cannot be admitted to probate.


author: Caeeeey, 0. 0. J.

text:
    Essex County Circuit Court.
    MICHAEL I. SIENTZ, PLAINTIFF, v. SPOTTISWOODE-CUSACK CO., A CORPORATION OF NEW JERSEY, DEFENDANT.
    Decided October 15, 1943.
    For the plaintiff, Abraham M. Herman.

    For the defendant, Howe & Davis (Edward L. Davis'),

   Caeeeey, 0. 0. J.

This matter came to the court by way of a written stipulation supplemented by statements in open court which were to be deemed part of the stipulation. The suit was by a realtor against the defendant upon the following contract:

“Exclusive Contract, M. I. Sientz, 360 Main Street, East Orange, IT. J., September 8, 1942.

“In consideration of your listing and undertaking to sell the property herein described, the undersigned hereby authorizes you to sell said property at the price and upon the terms set forth, or at any other price or terms the undersigned may agree to accept therefor, and upon your procuring a purchaser agrees to pay you a commission of 5% of the purchase price.

“Your authority hereunder shall be sole and exclusive for the period of six months from the date hereof, and shall not terminate at the expiration of said' period unless you are notified in writing to that effect.

“Your commission shall also be considered earned in the event said property is sold, contracted to be sold, by any one before the termination of your exclusive authority hereunder.”

After the reading of this, contract the following colloquy between court and counsel occurred:

“Mr. Herman: That is right, and the price listed is $35,000.

“The court: You -are trying it under the theory that it is an exclusive agency?

“Mr. Herman: That is right, sir, under the second paragraph there where it states, cYour commission shall also be considered earned in the event said property is sold, contracted to be sold, by anyone before determination of your exclusive authority hereunder.’ ”

The written stipulation was presented subject to a ruling by the court as to the relevency of the reference to J. Fred Berstecher, an attorney of the firm of Howe & Davis, counsel for the defendant. It was agreed that Mr. Berstecher would testify that the grantees in the deed from the defendant to Louise Lindsley et al., dated February 2d, 1943, and recorded in Book H-100, page 516, had been threatening to foreclose the mortgages on the property covered by said deed. I hold that this evidence would be and is relevant as forming part of the res gestee. Hunter v. State, 40 N. J. L. 495.

There is nothing in the stipulations that would suggest that the plaintiff listed the property or performed any undertaking to sell the property which is mentioned as a consideration for the right to sell and collect commissions. I take it this was an oversight on the part of counsel.

" Considering it as a fact established that the defendant corporation did convey to the mortgagee the property in question for the purpose of considering the controverted issue in this case, I am finding in favor of the defendant.

The plaintiff is a realtor and the contract upon which he sues is in the usual form used by realtors. It will be read by me in the light of the language of Professor Williston on Contracts, revised edition, section 660:

“It is sometimes asserted that usage must be general in order to he effectual; but even custom, as distinguished from usage, might be local, and still binding; and it seems clear that usage likewise may he. The real question where usage is concerned is whether the parties contract with reference thereto. This- will depend not merely on actually expressed assent to the adoption of the usage but on the justifiable belief of each party that the other was adopting it. A habit of business confined to the two parties to a contract may by implication be adopted as an unexpressed part of it * *

Section 661: “* * * A person entering into a contract in the ordinary course of business is presumed to have done so in reference to any existing general usage or custom relating to such business. And this is so whether he knew of the custom or not.”

Mr. Justice Heher in Zurich, &c., Co., Ltd., v. American Mutual, Sc., Co., 118 N. J. L. 317 (at p. 320); 192 Atl. Rep. 387 (at p. 388), in facts wholly dissimilar, gave recognition to this principle in the following language:

“While the intention of the parties to an integrated contract is the objective of judicial exposition, it is not the real intent hut that expressed or apparent in the writing that controls. * * * the standard of interpretation of an integrated agreement is The meaning that would be attached to the integration by a reasonably intelligent person acquainted with all operative usages and knowing all the circumstances prior to and contemporaneous with the making of the writing, other than oral statements by the parties of what they intended it to mean.’ ” Quoting Corn Exchange National Bank and Trust Co. v. Taubel, 113 N. J. L. 605; 175 Atl. Rep. 55.

It seems to me that from the nature of the contract the parties contemplated a binding obligation on the part of the defendant to pay commissions would only arise in the usual and ordinary sale or contract to sell of real property. I do not believe the defendant obligated itself to pay commissions to the broker in the event that the property would he conveyed to the mortgagee to avoid the consequence of a foreclosure.

I'hrthermore, in the light of the statement by counsel for the plaintiff that this was a contract classified as an exclusive agency, the case of Ettinger v. Loux, 96 N. J. L. 522; 115 Atl. Rep. 384, might be pertinent.

However, I am resting my determination on the theory that a transfer of property by deed ,by the defendant to its mortgagee was not such a sale as contemplated by the parties as would. justify the collection of commissions from the defendant.


author: John M. Ejerner, Deputy Commissioner.

text:
    New Jersey Department of Labor, Workmen’s Compensation Bureau.
    IDA WINGLER AND MICHAEL WINGLER, INDIVIDUALLY, AND IDA WINGLER AS NEXT FRIEND OF CATHERINE WINGLER, PETITIONERS, v. NEW JERSEY FULGENT COMPANY, INC., RESPONDENT.
    Decided November 18, 1943.
    Dor the petitioners, John G. Btockel.

    Dor the respondent, Gox & Wdlburg.

   The petitioners herein, Ida Wingler and Michael Wingler, individually, and Ida Wingler as next friend of Catherine Wingler, filed their dependents’ claim petition seeking death benefit compensation. It is admitted by the parties that the decedent, Joseph Wingler, on September 1st, 1942, was in the employ of the respondent and on that day met bis death by accident arising out of and in the course of his employment. It is not disputed that the decedent left him surviving, as full dependents, his mother, Ida Wingler, and his father, Michael Wingler. It is further admitted and the proofs showed that the decedent also left him surviving, a sister, Catherine Wingler; that at the time of the fatal accident she was 24 years of age, that she was wholly dependent upon the decedent and that she was then and is now a mentally deficient person.

It was the contention of the respondent, and this is the only question for determination here, that decedent’s sister, Catherine, is not entitled to death benefit compensation by virtue of the provisions of R. S. 34:15-13 (j) ; N. J. S. A. 34:15-13 (j), which reads as follows:

“j. Payments to such physically or mentally deficient persons as are for such reason dependent shall continue during the full compensation period of three hundred weeks. In computing compensation to those named in this paragraph, except husband, wife, parents and step-parents, only those under sixteen or over forty years of age shall be included and then only for that period in which they are under sixteen or over forty.”

Prior to the adoption of the Revised Statutes of 1937, Pamph. L. 1928, ch. 135, section 2 (j) was controlling in a disposition of the problem here presented, and read as follows:

“(j) In computing compensation to those named in this paragraph, except in the ease of husband, wife, parents and step-parents only those under sixteen, or over forty years of age, shall be included, and then only for that period in which they are under sixteen or over forty; provided, however, that payments to such physically or mentally deficient persons as are, for such reason, dependent, shall be made during the full term of compensation payment of three hundred weeks.”

R. S. 1:1—4; N. J. S. A. 1:1—4, provides as follows:

“The provisions of the Reviséd Statutes, not inconsistent with those of prior laws, shall be construed as a continuation of such laws.”

In view of this section, an examination should be made of the prior statutory enactments.

It is interesting to note that in the basic Workmen’s Compensation Law, Pamph. L. 1911, ch. 95, the statute is divided by law into “Section I” (which includes what would generally be referred to as “sections” 1 to 6); “Section II” .(which includes what would generally be referred to as “sections” 7 to 22) ; and “Section III” (which includes what would generally be referred to as “sections” 23 to 27). When reference is made to the numbered parts of an act, the reference to them is generally as “sections” hut because of the use of the word “section” in the 1911 act to designate what is usually referred to as “Article,” it will he noted that in each amendment of the original section 12 of Pamph. L. 1911, ch. 95, viz.: Pamph. L. 1913, ch. 174, § 2; Pamph. L. 1914, ch. 244, § 1; Pamph. L. 1919, ch. 93, § 2; Pamph. L. 1921, ch. 85, § 1; Pamph. L. 1923, ch. 49, § 2, and Pamph. L. 1928, ch. 135, § 2, the introductory sentence always referred to “paragraph” 12 of the original act instead of “section” 12, as is usually used in the ease of amendment or reference. This explains, in Pamph. L. 1919, ch. 93, § 2, the reason for the use of the phrase “those named in this paragraph” in the body of the act, which obviously referred to the whole of what would ordinarily he referred to as “section” 12.

Under the provisions of Pamph. L. 1928, ch. 135, § 2 (j), supra, it appears that the provision for payments to physically or mentally deficient persons was not restricted by any age limitation. The language used in R. 8. 34:15-13 (j); N. J. 8. A. 34:15-13 (j), is not as clear as the provisions in the 1928 act, but in view of R. 8. 1:1-4, supra, and the history of this legislation, it is apparent that the two sentences in subdivision (j) of R. 8. 34:15-13; N. J. 8. A. 34:15-13, should be considered as separate qualifications upon the whole “paragraph,” as this word is used throughout this Workmen’s Compensation legislation, which means and refers to the whole “section” R. 8. 34:15-13, and that the second sentence should be considered as affecting all dependents other than those expressly provided for in the first sentence. Certainly, it is evident, that any other construction upon these two sentences would result in gross inconsistency.

The opinion of Mr. Justice Heher in Crater v. County of Somerset (Court of Errors and Appeals), 123 N. J. L. 407; 8 Atl. Rep. (2d) 691, 696, in construing a section of the Revised Statutes of 1937 in the light of the language in the source statutes, is pertinent. After citing, with approval, the provisions of R. 8. 1 :l-4, supra, he says :

“There is a presumption against a, legislative intention, by a revision of general laws, to effect a change of substance. That presumption is not, ex necessitate, overcome by mere change of •phraseology, or the addition or omission of words in the revision; the intention to alter the essence must be expressed in language admitting of no reasonable doubt of the purpose.” Citing, King v. Smith, 91 N. J. L. 648; 103 Atl. Rep. 191; Newark v. Tunis, 81 N. J. L. 45; 78 Atl. Rep. 1066; affirmed, 82 N. J. L. 461; 81 Atl. Rep. 722; Trenton v. Standard Fire Insurance Co., 77 N. J. L. 757; 73 Atl. Rep. 606; State v. Anderson, 40 N. J. L. 224; In re Murphy, 23 Id. 180; Hendrickson v. Fries, 45 Id. 555; O’Hara v. National Biscuit Co., 69 Id. 198; 54 Atl. Rep. 241.

In addition to these observations, it should again be pointed out that our courts have time after time emphatically stated that the Workmen’s Compensation Law is remedial legisla-» tion enacted for the benefit and protection of the workingman and his dependents and as such should be liberally construed so as to carry out the humanitarian and beneficent purposes and intent of the law. Certainly, the objects of this progressive and worthwhile legislation and the rights conferred thereby upon men and women in industry should not be defeated by resort to technical objections such as that interposed here by the respondent, which is without merit.

3?or the reasons stated, I find and determine that Catherine Wingler, as well as Ida Wingler and Michael Wingler are full dependents of the decedent and as such entitled to death benefit compensation within the meaning and intendment of section 34:15-13 (j) of the Eevised Statutes of 1937, derived from chapter 135 of the laws of 1928.

Judgment is hereby entered in favor of the petitioners and against the respondent.

John M. Ejerner, Deputy Commissioner.


author: Burling, C. C. J.

text:
    Atlantic County Circuit Court.
    SADIE BERNSTEIN AND WILLIAM BERNSTEIN, PLAINTIFFS, v. SOPHIA KARR, DEFENDANT.
    Decided November 18, 1943.

      For the plaintiffs, Lloyd, Horn & PersJcie (by Herbert Horn).

    For the defendant, DeBrier & Shahadi (by Harry Miller).

   Burling, C. C. J.

This is an action ex delicto for negligence against a landlord arising from a fall suffered by an invitee of the tenant upon a stairway, leading from an alley to the second floor apartment occupied by the tenant, and located in the back of an apartment house building.

Motion is made by the plaintiffs to strike the defendant’s .answers to the eighth and ninth, interrogatories which are in effect refusals to answer upon the ground that they are improper, namely, incompetent, irrelevant and immaterial, and to compel responsive answers thereto. There is hereby expeditiously reached a crux of one of the legal phases of this ease. The guide of the landmark, Watkins v. Cope (Supreme Court, 1913), 84 N. J. L. 143 (at p. 147); 86 Atl. Rep. 545, of the characteristics of interrogatories affirms the fact they should be of such character that with a responsive answer, they would be relevant and competent evidence for the party propounding them and directed to matter material to the issue.

The interrogatories are:

"8. State whether the defendant caused the rear stairway leading to the second floor apartment No. 223 Madison Avenue, Atlantic City, New Jersey, to be repaired after December 16th, 1942.

“9. In the event that the answer to the preceding question, is in the affirmative, state when said repairs were made.”

The general rule is that where there is an absolute demise of the entire premises without any reservation by the landlord of a right of entry or control, the use and occupancy of the premises are pursuant to an estate vested in the tenant and áre exclusive of the landlord. Pyle v. Fidelity-Philadelphia Trust Co. (Circuit Court, 1940), 18 N. J. Mis. R. 54 (at p. 57); 10 Atl. Rep. (2d) 48.

The relation of landlord and tenant at common law, in the absence of a continuing nuisance, or an express contract imposed the duty of repairing the demised premises upon the tenant. Barthelmess v. Bergamo (Court of Errors and Appeals, 1926), 103 N. J. L. 397; 135 Atl. Rep. 794; Schwartz v. Federal Deposit, &c. (Court of Errors and Appeals, 1941), 127 N. J. L. 556; 23 Atl. Rep. (2d) 583.

In the case of LaFreda v. Woodward (Court of Errors and Appeals, 1940), 125 N. J. L. 489 (at p. 492); 15 Atl. Rep. (2d) 798 (at p. 800), the general rule is stated thus:

"It is the established general rule in this state that, upon the letting of a house or lands, there is no implied warranty or condition that the premises are fit and suitable for the purpose specified, or for the use to which the lessee proposes to devote them, or indeed for any purpose; and the landlord is therefore under no liability for injuries sustained by the tenant, or his family, by reason of the, ruinous condition of the demised premises, unless there has been. fraudulent concealment of a latent defect. The doctrine of covenants implied from the letting ‘has been held in great strictness in this- state.’ ”

To this rule there is an exception as defined in the A. L. I., Restatement of the Law of Torts 976, § 360, as follows:

" ‘‘Section 360. Parts of Land retained in Lessor’s control which Lessee is entitled to use. A possessor of land, who> leases a part thereof and retains in his own possession any other part which the lessee is entitled to use as appurtenant to the part leased to him, is subject to liability to his lessee and others lawfully upon the land with the consent of the lessee or a sub-lessee for bodily harm caused to them by a dangerous condition upon that part of the land retained in the lessor’s control, if the lessor by the exercise of reasonable care could have discovered the condition and the unreasonable risk involved therein and could have made the condition safé.”

It .is the application of these general rules to the pleadings that provides the controversy.

The gravamen of the complaint is set forth in two counts (First and, Second). The first count is grounded in the failure of the lessor to exercise reasonable care with relation to the condition of a certain stairway located in back of an apartment house building located at 223 Madison Avenue, Atlantic City, New Jersey, and referred to in paragraph one of the count

. The second count pleads the same status between the lessee and the defendant, but the gravamen is founded on an alleged nuisance.

‘ ' The law in this respect was recently declared in the case pf Trondle v. Ward (Court of Errors and Appeals, 1942), 129 N. J. L. 179 (at p. 184); 28 Atl. Rep. (2d) 509 (at p. 512), as follows:

“The common law concept of a nuisance for which a landowner was liable has indeed undergone marked changes. No longer is his liability limited to cases in which the effect of the nuisance extended beyond the boundaries of his land (see article by Mr. Laurence H. Eldredge, Adviser, 84 Restatement, Torts (1934); U. of P. Law Review 461). But under the common law, as to-day, a landowner is liable who creates and maintains a nuisance or who buys into a subsisting and continuous nuisance created by one of his predecessors in title.”

Two positions are taken from the pleadings:

(a) By the plaintiff — the direct charge of control of the stairway as being in the landlord, regardless of its use in common with other tenants.

(b) By the defendant — that the doctrine of “reserved control” is limited to and only applicable where the stairway is used in common by other occupants of apartment houses and the like.

This doctrine is set forth in Barthelmess v. Bergamo, supra (at p. 398), thus:

“The sole departure from this fundamental rule, except where the locus in quo was in essence a nuisance, has been necessitated by the construction of tenement or apartment houses, intended for the habitation of many tenants, in which situation differing entirely from any comprehended by the rural conditions of habitation at the common law, the courts have found it necessary to recognize the novel housing requisites incident to modern life, by treating hallways and stairs as common ways or appurtenances, kept and maintained by the landlord, for the purpose of affording reasonable entrances and exits to and from the demised premises; and for a failure to reasonably maintain which, in the event of damage to occupants and others lawfully using the premises, the landlord has by the general trend of authority been made liable.”

The defendant attacks the sufficiency of the pleadings as a ground of refusal, namely that the lack of allegation of use in common prevents the arise of defendant’s responsibility from reserved control^

The ease of Schwartz v. Federal Deposit, &c., supra, strongly relied upon by the defendant is distinguishable in its facts. In that case the court held that the proofs clearly indicated that the landlord had not retained control over .the staircase in question in that case. A reading of the case does not limit the doctrine as being applicable only where there is a reserved control to a situation where there is a use in common. In such a situation the exception arises, but that does not prevent the responsibility of the landlord where control as a fact is generally reserved. At this stage of the present case and for the purposes of this motion, the allegations of control in the complaint must be accepted.

It is noteworthy, however, if the complaint does not state a cause of action and properly pled, that a demurrer, either general or special, in the form of a motion to strike, was not presented and it may be assumed that the defendant conceded a well pled cause of action.

This control and right of entry become part of the material and relevant proofs of the plaintiffs and subsequent repairs are competent evidence thereof. Perry v. Levy (Court of Errors and Appeals, 1915), 87 N. J. L. 670; 94 Atl. Rep. 569; Taylor v. Majestic Building and Loan Association (Supreme Court, 1936), 14 N. J. Mis. R. 699; 186 Atl. Rep. 594; Dubonowski v. Howard Savings Institution (Court of Errors and Appeals, 1940), 124 N. J. L. 368; 12 Atl. Rep. (2d) 384; Trondle v. Ward (Court of Errors and Appeals, 1942), 129 N. J. L. 179; 28 Atl. Rep. (2d) 509.

The present answers will he stricken and the defendant is directed to responsively answer. An appropriate rule may be presented.


author: Fulop, D. C. J.

text:
    Second Judicial District Court of Union County.
    FLORENCE L. TONER, PLAINTIFF, v. WILLIAM BRUHNS, DEFENDANT.
    Decided December 6, 1943.
    For the plaintiff, David B. & Moe Silver.

    For the defendant, Abraham, D. Londa.

   Fulop, D. C. J.

This is a suit by a landlord against a tenant to recover possession of premises situated at Ho. 300 Delaware Avenue, Union Township. The landlord desires the premises for her own occupancy. The tenant does not question the landlord’s bona fides and does not assert any right to remain under O. P. A. regulations. He claims to be a tenant from year to year until March 1st, 1944. The parties have submitted the case on the landlord’s affidavit and the original lease, for decision on the law.

On February 1st, 1940, the parties entered into a lease for the period beginning February 15th, 1940, and ending March 1st, 1941. The lease contained an option to renew for an additional year and this option was exercised. After March 1st, 1942, the tenant remained in possession and paid rent without further agreement and he is still in possession. On September 23d, 1943, the tenant received notice in writing from the landlord of the termination of the tenancy on November 1st, 1943, and demand for possession on that date. The tenant has not moved.

On August' 4th, 1941, chapter 317 of the Laws of 1941, R. S. 46:8-10; N. J. S. A. 46:8-10, became law. That statute sought to abolish holdover tenancies from year to year and to replace them by tenancies from month to month, by operation of law in the absence of agreement to the contrary. The purpose of the statute was to abolish an archaic legal booby trap. Prior to this statute, a tenant under a lease for one year who held over and paid rent at the expiration of the term of the lease became a tenant from year to year. To terminate this tenancy, three months’ notice to the end of a year by the landlord, six months’ notice by the tenant, was required. The law was not generally understood and many persons believed that monthly tenancies terminable on one month’s notice came into effect under the above mentioned circumstances. The 1941 statute conformed the law to the general understanding.

In Shack v. Weissbard (1943), 130 N. J. L. 472; 33 Atl. Rep. (2d) 571, the Supreme Court held that the statute of 1941 did not affect a tenancy from year to year which had come into being prior to the effective date of the statute. The court held that the statute could not alter the terms of a prior contract and is confined to prospective operation. In that case, the particular year of tenancy dealt with had become binding upon the landlord and tenant before the enactment of the statute. The decision should be confined to its facts and should not be extended to any particular tenancy year beginning more than six months after August 4th, 1941. Otherwise, the evil of the old law might be preserved against the will of the legislature for twenty or fifty years after the enactment of the 1941 statute.

The present case is clearly distinguishable from Shack v. Weissbard. Here, on August 4th, 1941, the tenant held under a written lease. No holdover tenancy came into being until March 1st, 1942. The new law was then in force and a tenancy from month to month came into being. The landlord has effectively terminated that tenancy as of November 1st, 1943, and is entitled to possession. Judgment will be entered accordingly.


author: Giordano, C. P. J.

text:
    Monmouth County Court of Common Pleas.
    ROBERT F. PIERCE, PETITIONER-APPELLEE, v. WILLIAM D. LAYTON, RESPONDENT-APPELLANT.
    Decided December 15, 1943.
    For the petitioner-appellee, Quinn & Doremus.

    For the respondent-appellant, Collins & Corbin.

   Giordano, C. P. J.

This matter is before the court on an appeal by the respondent-appellant from a determination of facts and rule for judgment of the Workmen’s Compensation Bureau, dated January 15th, 1943, in favor of petitionerappellee.

The decisive question is whether an accident concededly suffered by the employee arose out of and in the course of his employment.

The accident occurred on January 14th, 1941. The petitioner-appellee was then, and had been for several months, in the employ of the respondent-appellánt as a night watchman. As such, he was under a constant duty to walk around the building of the respondent-appellant and inspect a group of signal flares and to see to it that they were constantly lit, and also to inspect and keep running pumps that were in use by the respondent-appellant in a construction job which was under way.

There had been provided by respondent-appellant for the convenience of the petitioner-appellee a small shanty referred to as a tool shop in which there was placed a kerosene stove.

The claim petition filed March 29th, 1941, alleged that the petitioner-appellee sustained an accidental injury while in the employ of the respondent on January 14th, 1941, as a result of being struck by an automobile.

The respondent-appellant filed an answer to the claim petition on April 25th, 1941, in which it was admitted that the petitioner did sustain an accident arising .out of and in the course of his employment. While said claim was pending the respondent-appellant supplied the petitioner with medical care and paid compensation for temporary disability and also had started to pay compensation for permanent disability.

On April 21st, 1942, the respondent-appellant filed a supplemental answer in which he specifically alleged that since the filing of the original answer he, the respondent-appellant, had learned that petitioner had not sustained such an injury while in the course of his employment.

The matter came on for hearing before Deputy Commissioner Umberger in Asbury Park, New Jersey, on November 13th, 1942, and was completed on December 11th, 1942, and resulted in the judgment in favor of the petitioner-appellee heretofore referred to.

The respondent-appellant contends that the petitionerappellee left his place of employment and, in fact, abandoned the work for which he was hired, and consequently the injuries sustained by him did not arise out of and in the course of his employment.

The petitioner-appellee on the night in question reported for work at 5:30 o’clock in the evening and the evidence discloses that some of the flares were-.not lighted. He was informed by another employee that there was no oil for the flares. At approximately six o’clock Mr. Layton, Sr., arrived on the job and was so informed. Layton, Sr., according to the testimony, said that he had intended to bring some oil but had forgotten it and was going to send his son down with some that night. The petitioner used some of the kerosene which was intended for the oil stove in the shanty for the flares and so informed Mr. Layton, Sr. Mr. Layton, Sr., promised to send some kerosene to him. At about 8 :30 that same evening no kerosene had arrived so the petitionerappellee left his shanty to go to a gas station to purchase some. To do so he had to cross Lake Avenue, in the City of Asbury Park, and while so crossing he stepped from behind a bus and was struck by an automobile.

The evidence further discloses that once a week or once every two weeks petitioner-appellee had been obliged to purchase kerosene to use for his oil stove; that it was customary for him to go down the street and procure kerosene when the supply had to be replenished.

The respondent-appellant contends that every night he brought a can of oil to the shanty which was to be used for the flares and the stove, and that there was no necessity for petitioner to leave the premises to seek fuel. Mr. Layton, Sr., admitted, however, that he had forgotten to bring the kerosene on the night in question and had promised to send it by his son, who had not arrived at 8:30 o’clock at night when the petitioner-appellee deemed it advisable to obtain it himself.

The respondent-appellant in his supplemental answer relies upon the testimony of one Cramer who stated that the petitioner-appellee had told him on the night in question that he was going down the street to get a bottle of wine and not for the kerosene.

I have read carefully Cramer’s testimony and I am led to the very definite conclusion that his testimony is not to be believed. There can be no doubt that the trial court was fully justified in finding that the accident occurred in the course of petitioner’s employment. The proof is sufficient and establishes that the employment was the contributing cause without which the accident which actually happened would not have happened.

To hold that the petitioner-appellee, who was without oil and kerosene on the night of January 14th, 1941, should not have crossed the street as it had been his custom to do on other occasions for the purpose of replenishing his supply in order to perform the duties which were imposed upon him, is to say that the petitioner-appellee should be penalized for having exercised his initiative. It must be borne in mind that the petitioner-appellee had been hired as a night watchman with specific duties to see to it that his employer’s property was protected and that the flare lights were properly lighted in order to give notice to pedestrians and travelers on the highway that there was a repair job under construction.

To say that the petitioner-appellee should not have gone after the oil himself when his employer, as late as 8:30 in the night had failed to deliver it, is too narrow an interpretation of the intention of the parties to this contract of hire. In seeking for the intention of the parties to this contract ■tii general hiring — necessarily the controlling consideration— regard must be had to the attendant circumstances and the object in view, and also the course of practice of the parties in its execution, since that is significant of the common purpose respecting the nature and scope of the hiring. And reason should, of course, govern in the interpretation.

The employee who gives more than required by the strict letter of the contract of employment would be, as regards the extra service, beyond the protection of the Compensation Act, even though there be an acceptance of the service. To say that such was within the contemplation of the parties would be a wholly arbitrary interpretation distortive of the plainest implications.

The evidence adduced by the respondent-appellant does not satisfy this court that the petitioner-appellee was “on his own,” as in Gullo v. American Lead Pencil Co., 119 N. J. L. 484; 196 Atl. Rep. 438; Compare also Terlecki v. Strauss, 85 N. J. L. 454; 89 Atl. Rep. 1023; affirmed, 86 N. J. L. 708; 92 Atl. Rep. 1087; Bolos v. Trenton Fire Clay, &c., Co., 102 N. J. L. 479; 133 Atl. Rep. 764; Lehigh Navigation Co. v. McGonnell, 120 N. J. L. 428; 199 Atl. Rep. 906; affirmed, 131 N. J. L. 583; 3 Atl. Rep. (2d) 581.

In the circumstances, there was indubitably a causal connection between the injury and the employment. The relationship was such as to warrant classification of the risk as reasonably incident to the employment. The hazard was a natural consequence of what the employee was obliged to do in the fulfillment of his contract of service. His failure to carry out his responsibility would primarily be classable as a breach of duty. It is pertinent to note here that it suffices if the employment was substantially contributory to the injury. Vide, Cudahy Packing Co. v. Parramore, 263 U. S. 418; 43 S. Ct. 153; 68 L. Ed. 366; 30 A. L. R. 532; In re Madden, 222 Mass. 487; 111 N. E. Rep. 379.

Judgment of the court below is accordingly affirmed.


text:
    Monmouth County Court of Common Pleas.
    SARAH ELIZABETH BACON, PETITIONER-APPELLEE, v. TOWNSHIP OF NEPTUNE, RESPONDENT-APPELLANT.
    Decided December 15, 1943.

      For the petitioner-appellee, Thomas F. Shebell.

    For the respondent-appellant, Durand, Ivins & Garton.

   Giordano, C. P. J.

This is an appeal from the decision of the Workmen’s Compensation Burean allowing the payment of compensation to the petitioner-appellee’s grandchild,’ Sarah Laura Bacon, as a total dependent of her grandfather, Louis Bacon, who.died on June 4th, 1941, as a result of an accident arising out of and in the course of his employment.

The proofs show that said grandchild, Laura Bacon, was bom on November 18th, 1934, and that she was under the age of sixteen years at the time of her grandfather’s death and that she was a member of -his household, at the time of his decease.

The respondent-appellant on this appeal does not contest the death of the said Louis Baeon as a result of the accident, nor does the respondent-appellant contest that portion of the determination which found that his widow, Sarah Elizabeth Baeon, was totally dependent upon the decedent.

, The subject-matter of this contest is whether the said Sarah Laura. Bacon is a dependent at all of the decedent, and further, if a dependent, was she a total dependent or only a partial dependent.

R. S. 34:15-13; N. J. S. A. 34:15-13, is dispositive of who is a dependent.

Although the grandchild in the instant ease had a father and mother living at the time of the decedent’s death, the testimony conclusively shows that the grandchild had been from at least two weeks from the date of her birth a member of the decedent’s household and had been entirely supported from the income derived by her grandparent, without contribution from her living father or mother.

In face of the evidence, as I have examined it, I am of the belief that the court below was justified in his conclusion .that Sarah Laura Bacon, the grandchild of said decedent, was totally dependent upon the deceased, and that she was a member of his household at the time of his death.

The statute is remedial' and should at all times have a liberal construction. Whether the grandchild’s living parents were financially able to support their child has no hearing upon the uncontroverted fact that said grandchild, under the proofs, was not supported by them, but was instead fully supported by the decedent.

ISTothing in the statute makes doubtful the right of the petitioner to recover compensation based on the degree of dependency that really existed when death, compensable under the law, corns to that member of the family to whom the grandchild was obliged to look for support.

Chief Justice Brogan, in his decision affirming the Common Pleas Court in re: Cliewe v. Mulberry Metal Stamping Works, Inc., 125 N. J. L. 555; 16 Atl. Rep. (2d) 812, very properly said:

"The statutory mandate that a widow and natural children under sixteen years of age, actually part of the decedent’s household at the time of his death, are conclusively presumed to be his dependents, is a sound, sociological principle. That it may be contrary to fact in many cases does not make it any the less sound public policy. It does not follow' that because there be a legal presumption of dependency, under our statute, supra, in favor of a widow on the death of her husband, she may not, as here, have been entirely dependent on her son while her husband was living.”

Under the proofs as they are before me, and for the reasons herein given, the judgment of the court below, in so far as this appeal is taken is affirmed.


author: By the Board.

text:
    Hudson County Board of Taxation.
    CITY OF JERSEY CITY v. LOUIS F. BETTCHER. (29 Cases) CITY OF JERSEY CITY v. KATHERINE RYER. (1 Case) CITY OF JERSEY CITY v. JAMES X. WARREN. (1 Case) CITY OF JERSEY CITY v. ANTOINETTE LAURIA. (2 Cases)
    Decided November 15, 1943.

      For the motions, John Warren.

    For Jersey City, Charles A. Rooney, Arthur C. Mullen and John F. Lynch.

   By the Board.

Applications have been made to the Hudson County Board of Taxation to dismiss 34 separate petitions of appeal from assessments against real property situate in the City of Jersey City upon the grounds that: (a) the City of Jersey City was without legal right to take such appeals, and (b) said petitions of appeal are not sufficient upon their face to confer jurisdiction upon the Hudson County Board of Taxation.

Hearings upon said applications were had before this Board on October 9th and October 12th, 1943, in the presence of Commissioners Ziegener, Donovan and Wilkens, Commissioners Rosenblum and Doherty having voluntarily disqualified themselves from participation. All of the applications hereunder were consolidated at such hearings, and all determinations of law and fact are applicable to each application.

Considerable testimony was produced at the hearings by the proponents of the applications. The City of Jersey City offered no testimony in its own behalf, relying as it did upon its position that the taxpayers’ applications lack sufficiency in law. The pertinent facts do not appear to be in dispute and are supported principally by public records of the Hudson County Board of Taxation and the City of Jersey City.

On January 11th, 1943, the Jersey City assessor, in pursuance of the provisions of R. S. 54:4-35; N. J. S. A. 54:4-35, filed that taxing district’s assessment list for the year 1943 with the Hudson County Board of Taxation. The proposed real property assessments for that year, as originally submitted by the city assessor, consisted of land, $188,237,551, buildings, $243,721,776, total, $431,959,327. Thereafter, as permitted by R. S. 54:4-47; N. J. S. A. 54:4-47, the county board revised and corrected the proposed tax lists, and by resolution of March 31st, 1943, decreased the proposed real estate assessments for the year 1943 by $95,816,335. This aggregate reduction represents the toal of 34,431 separate reductions granted to individual taxpayers, the board having corrected and revised each 'of their separate assessments in the performance of its duties. Jersey City’s tax duplicate for 1943 was then gertified, as revised, by the county board, and returned to the collector of the taxing district of Jersey City,- and in July, 1943, final 1943 tax bills were forwarded to taxpayers upon the basis of the decreased assessments as revised by the county board.

Prior to the issuance of the final tax bills, and on May 18th, 1943, the Board of Commissioners of J ersey City passed a resolution in the following language:

“Besolved, that the Director of Revenue and Pinance, or his deputy, be and they hereby are authorized and directed to take such appeals from assessments or actions of the Hudson County Board of Taxation, which effected reductions in valuations of real or personal property in the City of Jersey City for the year 1943.”

It is to be noted that this resolution was adopted subsequent to the delivery to the city collector of the certified tax lists as revised and corrected by the county board, and prior to the issuance of final 1943 tax bills by the taxing district.

Arthur Pott'erton, Director of Eevenue and Finance and Assessor of the City of Jersey City, testified that Jersey City’s 1943 tax rate, as estimated in the proposed budget, was $53.52 per thousand, but that the 1943 tax rate, as certified by the Hudson County Board of Taxation, was $57.45 per thousand. The difference between the estimated tax rate and the certified tax rate was occasioned by the revision downward of Jersey City’s proposed assessments.

On February 24th, 1943, Jersey City’s Board of Commissioners adopted the final 1943 budget by resolution which provided that said budget shall constitute “* * * an authorization of the amount of $10,167,130.89 for local purposes, and $6,766,273.94 for school purposes, to be raised by taxation * * *.” In addition, that taxing district was authorized to raise county taxes for 1943 in the sum of $6,409,028.38 (exclusive of bank stock taxes) and $1,626,-954.90 for state school taxes for the same yeai. All of the taxes authorized to be raised were calculated on the basis of the decreased total of real estate ratables, as revised, and upon the increased tax rate of $57.45 per thousand, and not upon the proposed assessment aggregates and the estimated tax rate of $53.52 per thousand. Although the Director of Eevenue and Finance of Jersey City, or his deputy, were authorized and directed to take appeals from the action of the county board revising 1943 real estate assessments downward, it is clear that no review was sought by Jersey City either by application for certiorari or by appeal to the State Board of Tax Appeals, but that the only attack against the county board’s action was made by filing 34,431 petitions of appeal with the Hudson County Board of Taxation seeking increases in each one of those assessments, part of which .are the direct subject-matter of these applications. Each of the 34,431 petitions is identical in form and alleges an assessment, “at which assessment your petitioner (City of Jersey City) feels discriminated against for the reason that said .assessment is below the true value of said property as of November 10th, 1942.” Each petition concludes with the •following prayer:

“Your petitioner therefore prays that the said assessment for the year 1943 be increased to the true value of the said ■property as of November 10, 1942, to wit: Land $...... Building $...... Total $.......”

Among other things, the City of Jersey City urges that the county board has no power or jurisdiction to hear motions .and that it has no right to extend its hearing beyond the value of property, the assessment of which is the subject-matter of appeal. This contention is without merit. All courts are empowered to determine the extent of their own .jurisdiction, and this has been extended to gmsi-judieial bodies. See Oradell v. State Board of Tax Appeals, 125 N. J. L. 37; 13 Atl. Rep. (2d) 479. We therefore turn to a consideration of the application upon the merits.

As heretofore noted, the City of Jersey City, prior to the filing of the subject appeals, prepared and delivered' 1943 final tax bills and proceeded to make collections thereon. ’Those tax bills are admittedly predicated upon decreased realty assessments and an increased tax rate of $57.45 per thousand dollars of valuation.

Computation of the municipal tax rate does not involve the exercise of discretion by the county board. The rate is determined by mathematical calculation, and the result is reached on the one hand, by the sum of money authorized to be raised by taxation in the municipal budget and by state and county requirements, and on the other hand, by the aggregate ratables or assessments certified- by the county 'board. Thus, an increase or decrease in ratables after final adoption of the budget will, of necessity, increase or decrease the tax rate in direct proportion.

Jersey City’s 1943 assessments were revised downward, and ■ certified and returned to that taxing district by April 1st. The tax rate was fixed on April 9th by resolution of the ■county board. The tax bills were sent out in July. The 34,431 petitions, including the subject appeals, were filed shortly before August 15th, after taxpayers had been billed, and collections made, on the basis of the increased tax rate. By this procedure, Jersey City accepted the decreased assessments and increased tax rate without appeal, and set about ■collecting the sum authorized by its budget and county and state requirements.

Jersey City, by filing 34,431 appeals now seeks to raise its 1943 realty assessments from $336,142,992 to $431,959,327, an increase of $95,816,335. If successful, its taxpayers will become obligated to pay $5,504,648.45 in taxes in excess of the sum of money authorized to be raised by the Jersey City 1943 budget resolution.

Municipalities are prevented by law from arbitrary or indiscriminate levying of taxes. Taxpayers cannot be burdened by taxes in excess of the sum of money necessary for the operation of the municipality. The amount of taxes to be levied for municipal purposes is prescribed and limited by the budget resolution. This is in keeping with the provisions of R. S. 40:2-19; N. J. S. A. 40:2-19:

“The amount to be raised by taxes, as stated in the budget, shall be the amount to be raised by taxation for local purposes, other than schools (except as provided in section 40:2-20 of this title), in the case of a municipality, and for county purposes in the case of a county. The governing body of each county and municipality shall have power to assess, levy and collect taxes in support of any budget adopted pursuant to this chapter and for all other lawful purposes.”

Upon adoption, it is the budget that constitutes an appropriation of the sums therein set forth as appropriations, and an authorization of the amount to be raised by taxation for the purposes of the municipality. R. S. 40:2-11; N. J. S. A. 40:2-11.

Jersey City’s 1943 appropriations are now fixed by the budget. The tax rate of $57.45, levied as it is against all of the Jersey City ratables certified by the county board, will produce all of the money necessary to defray the expenses of the city’s operation under that budget. By filing its 34,431 appeals, Jersey City seeks an opportunity to ©reate a theoretical surplus fund of $5,504,648.45. And this surplus is to be created not by the collection of revenues unanticipated at the time of the striking of the tax rate, but by taxation in a sum unauthorized by the budget. The authorization for the levying and collection of taxes is contained in the tax resolution appended to the budget. The attempted levy of more than $5,000,000 in additional taxes, not required for 1943 municipal operations, is contrary to law, and can only result in the creation of a surplus fund in a manner other than that contemplated by statute.

Against this, the city advances the argument that any excess taxes so levied and collected in 1943, will be treated as surplus cash and credited toward the reduction of taxes in the 1944 budget. The point is made that even though taxes are levied and collected in 1943 in excess of the sum required to operate the municipality in that year, the taxpayers will ultimately benefit because such surplus fund will be applied in 1944 in reduction of the amount required to be raised by taxes in that year. Thus, the city defends the propriety of its action by the result to be achieved in 1944.

But this argument overlooks and fails to satisfy the statutory requirement of R. S. 40:2-5; N. J. S. A. 40:2-5:

"Annual Budget. The governing body of each county and municipality shall adopt a budget for each fiscal year. The budget adopted for a county shall be designated ‘county budget.’ The budget adopted for a municipality shall be designated ‘municipal budget.’ ”

An excessive and improper tax levy in 1943 will not be corrected by a compensating impropriety in 1944, for such procedure cannot be adopted without violating the foregoing requirement that municipal budgets be set up on an annual basis. Moreover, there is no assurance that Jersey City will appropriate its surplus tax moneys in reduction of 1944 taxes for it is not required by law to do so. It may collect these excess funds and maintain same as cash reserve without making any appropriation therefrom in the 1944 budget. This specific question was dealt with in In re City Affairs Com mittee of Jersey City, 129 N. J. L. 589; 30 Atl. Rep. (2d) 581, where, upon an application by a taxpayer to compel the inclusion of the municipality’s entire cash surplus in reduction of taxes for the ensuing budget year, Mr. Chief Justice Brogan held that the failure of a local governing body to include its entire cash surplus in the budget is in accord with statutory provisions generally, and that the question rested in the discretion of the governing body.

In connection with the subject cases, Jersey City was aware of its position as early as April 9th, 1943, on which date the 1943 tax rate was certified by the county board. The municipal tax bills were not made up and delivered until July. During the interim, Jersey City could have appealed to the State Board of Tax Appeals from the action of the county board in revising its realty assessments downward. This remedy is provided by R. S. 54:2-35; N. J. S. A. 54:2-35, as follows:

“Any action or determination of a county board of taxation may be appealed for review to the state board of tax appeals under such rules and regulations as it may from time to time prescribe, and it may review such action and proceedings and give such judgment therein as it may think proper.”

By this provision, there is made available the machinery for appeal from any action or determination of a county board. And this appellate procedure was adopted effectively in Camden v. Camden Board of Taxation, N. J. Tax Reports (1912-1934) 436, on an appeal from an analogous county board action revising assessments downward. Under that section, Jersey City could have appealed as well from the tax rate of $57.45 per thousand, as certified by the county board. Park Ridge v. Board of Equalization (Supreme Court), 86 N. J. L. 39; 90 Atl. Rep. 1019.

But the municipality apparently adopted the view that it would accept the revised assessments, without appeal, for it then proceeded to make up its 1943 tax bills on the basis of the decreased assessments and increased tax rate. It elected to collect its annual taxes in the sum required to be raised by its annual budget, based upon the county board’s certified assessment lists.

The municipality was concerned with the collection of sufficient tax moneys to defray its annual operating expenses. The collection of those taxes was provided for by the increased tax rate. The municipality, prior to the issuance of the tax bills, could have adopted one of two procedures. It could have appealed to the state board from the decreased assessments and the increased tax rate, and, if successful, it would have been permitted to make up its tax bills on the basis of the higher assessments and lower tax rate. In the alternative, it could have accepted the county board’s revised assessments, and made up its tax bills on the basis of the increased tax rate. In either event, Jersey City would have theoretically collected the amount of taxes required to be raised by its budget resolution, and no more. In the exercise of its judgment and discretion, the governing body saw fit to adopt the latter procedure. They are now without legal basis in their attempt to maintain a position whereby they will collect their taxes and still maintain the increased assessments.

By its action in issuing 1943 tax bills on the basis of the increased tax rate, the municipal officials elected, as far as municipal assent by officials in such cases can elect, that the assessments as fixed and confirmed by the county board met with their approval. Thus, their action constituted a waiver of the right of Jersey City to appeal. Kenilworth v. Board of Equalization, 78 N. J. L. 302; 72 Atl. Rep. 966; affirmed (Court of Errors and Appeals), 78 N. J. L. 439; 74 Atl. Rep. 480; Hoboken v. Lamport & Holt Line, N. J. Tax Reports (1934-1939) 398; City of Garfield v. Hayden Chemical Corp., Id. 738.

Paimess to the other municipalities in the county and the orderly administration of the tax laws require that a municipality should object promptly if it questions the certification by the county board of its assessment books and tax rate. Mindful of the fact that the adjustment of the assessments of the taxing districts contemplated by the legislative act is necessary for the proper fiscal administration of state and county taxes, adjusted as they are on the basis of the original assessments, we are of the opinion that the present Jersey City assessments, as revised downward, cannot now be disturbed.

Counsel for the taxpayers urges also that the county board is without jurisdiction to entertain a petition of appeal by a taxing district under the provisions of R. S. 54:3-21; N. J. S. A. 54:3-21, unless such petition is founded upon discrimination. In this connection, it is contended that all of the Jersey City appeals, including the subject appeals, are filed, solely for the purpose of increasing each assessment. These appeals, it is argued, are not based upon discrimination and therefore the filing of same is without authority in law. We are in accord with this view.

Jersey City’s petitions of appeal were filed with the Hudson County Board of Taxation immediately prior to August 15th, 1943, the statutory deadline for filing of tax appeals. This procedure is authorized and limited by R. S. 54:3-21; N. J. S. A. 54:3-21, as follows:

“A taxpayer feeling aggrieved by the assessed valuation of his property, or feeling that he is discriminated against by the assessed valuation of other property in the county, or a taxing district which may feel discriminated against by the assessed valuation of property in the taxing district, or by the assessed valuation of property in another taxing district in the county, may on or before August fifteenth appeal to the ■county board of taxation by filing with it a petition of appeal. A copy thereof shall also be filed with the clerk or attorney •of the taxing district, setting forth the cause of complaint, the nature and location of the assessed property and the relief sought. The petition shall be signed and sworn to by the petitioner or his agent, and shall be in such form and contain ■such further information as may be from time to time prescribed by rule of the board, for the better understanding and determination of the appeal.”

By this section, the legislature has distinguished the jurisdiction of county boards with respect to appeals of taxpayers and taxing districts. In the case of taxpayers, appeals to the county board are permitted when the taxpayer is either '“aggrieved by the assessed valuation of his property,” or is “discriminated against by the assessed valuation of other property in the county.” With respect to a taxing district, the right of appeal to the county board is limited to those cases wherein the taxing district feels “discriminated against by the assessed valuation of property in the taxing district, or by the assessed valuation of property in another taxing district in the county.” Jurisdiction with respect to taxing districts is thus limited to cases of discrimination.

The Hudson County Board of Taxation is a statutory body and as such, is limited strictly to the authority bestowed upon it by statute. Washington Township v. Mercer County Board of Taxation, 85 N. J. L. 547; 89 Atl. Rep. 1028.

The language of the petitions is unmistakable in meaning and purpose. In each of the 34,431 cases, Jersey City maintains that it is, in effect, aggrieved by the action of the county tax board in revising each assessment downward to a valuation which, in the opinion of Jersey City, is less than the true value of each of such properties as of November 10th, 1942, the 1943 assessment date. Upon this state of facts, Jersey City concludes that it is “discriminated” against. Discrimination, by the very nature of the term, must relate to the conduct of the assessor, or of the county board, not with respect to the subject-matter of the appeal exclusively, but with respect to the assessment of other property in the taxing district or another taxing district in relation to the assessment of the appellant’s property.

This finds support by the definition of “discrimination” in Webster’s Universal Unabridged Dictionary:

“To divide, to distinguish, to observe the difference between, to treat differently

Mr. Potterton testified that all of the appeals by Jersey City were filed for the purpose of raising each separate realty assessment. This is further indicated by the following allegation in each petition:

“* * * the said assessment is below the true value of said property as of November 10th, 1942.”

And the petitions conclude with this prayer:

“Your petitioner therefore prays that the said assessment for the year 1943 be increased to the true value of the said property as of November 10th, 1942. * * *”

Thus it is clear that the petitions do not allege any facts-constituting discrimination.

On the other hand, our courts have frequently interpreted “discrimination” as used in the statutory sense. In Royal Manufacturing Co. v. Board of Equalization of Taxes (Supreme Court), 76 N. J. L. 402; 70 Atl. Rep. 978, Mr. Justice Parker is quoted:

“Any taxpayer who considers that other property in the same taxing district is undervalued, is entitled to go to the county board and apply to have the valuation of such other property raised.

$ $ $ * $ * $

“* * * By that act, the county boards are required to secure taxation of all property at its true value; so that the fact that the property of A is assessed at its true value and the property of other taxpayers within the same district is assessed below its true value, affords A no ground for demanding a reduction of his valuation, though it does entitle him to apply for an increase in the valuation of others * *

In Post v. Warren Point Volunteer Firemen’s Association, 19 N. J. Mis. R. 367; 19 Atl. Rep. (2d) 636, an appeal was taken to the Bergen County Board of Taxation under R. S. 54:3-21; N. J. S. A. 54:3-21, charging discrimination. There the State Board of Tax Appeals held that:

“Petitioner certainly has been discriminated against as a taxpayer if an improper exemption has been allowed by the assessor in favor of property owned by others.”

By force of numerous other decisions in this state, an allegation of discrimination should always rest upon the validity of an assessment against property other than that owned by the appealing taxpayer. See Kloz v. Armenian Center, N. J. Tax Reports (1912-1934) 597; Diorio v. Atlantic City, 20 N. J. Mis. R. 105; 25 Atl. Rep. (2d) 26; Wayne v. Laflin, 76 N. J. L. 176; 68 Atl. Rep. 909; Hakes v. Chatham, N. J. Tax Reports (1912-1934) 115; Hackensack Water Co. v. Woodcliffe Lake, 104 N. J. L. 46; 139 Atl. Rep. 410.

A taxpayer has no control over the making of his or any nther assessment. The authority to make assessments is limited to public officials, assessors in the first instance, and thereafter to county boards as a eorrectory authority. A taxpayer may complain of, hut can never practice discrimination. That, by limitation of statute, is a vice peculiar to public officials. This the legislature seemingly knew and contemplated when it enacted R. S. 54:3-21; N. J. S. A. 54:3-21, for it therein limited the service of a copy of the-petition of appeal to the "clerk or attorney of the taxing district.” There is no provision in that section for the service of a petition upon a taxpayer for the reason that taxing districts, limited as they are to county board appeals only in cases of discrimination, seek redress for discrimination only against other taxing districts.

We have made exhaustive research of the authorities in this state and have been unable to locate any ease wherein a charge-of assessment discrimination has been sustained unless predicated upon the relative assessments of two or more properties^

Por the reasons expressed herein, we are of the opinion that each and every one of the petitions of appeal filed herein, by Jersey City seeking increases of 1943 assessments should' be dismissed.


text:
    Hudson County Board of Taxation.
    IN THE MATTER OF ALL APPLICATIONS BY THE CITY OF JERSEY CITY FOR THE INCREASE OF TAX ASSESSMENTS FOR THE YEAR 1943, ON REAL PROPERTY SITUATE IN THE CITY OF JERSEY CITY, COUNTY OF HUDSON AND STATE OF NEW JERSEY.
   Jersey City has filed with this Board in excess of 34,000-petitions of appeal praying individual increases in assessments of the real property involved in each of such appeals.

The law and facts applicable to each of those appeals is identical in Jersey City v. Bettcher, 22 N. J. Mis. R. 16;

Atl. Rep. (2d) , wherein we dismissed Jersey City’s appeals.

Por the reasons expressed in the Bettcher case, we are of the opinion that each and every petition of appeal filed with, this board by the City of Jersey City'for the increase of 1943 assessments should be dismissed.


author: Barison, J.

text:
    Hudson County Juvenile and Domestic Relations Court.
    PEARL MEZEI v. ANDREW MEZEI.
    Decided December 21, 1943.
    For the complainant, Anna B. Hogan.

    For the defendant, Newmark & Boehm (of the New York bar).
   Barison, J.

This matter comes before this court on complaint made and filed by Pearl Mezei against her husband Andrew Mezei.

The complaint alleges that her husband has willfully refused and failed to provide adequate support and maintenance for his family, consisting of herself, and that for the-past two years has not supported his wife, contrary to “An Act concerning the Juvenile and Domestic Relations Court, Pamph. L. 1929, ch. 157,” N. J. S. A. 9:18-1, et seq., and the supplements and amendments thereof, and contrary to-the provisions of “An act for the settlement and relief of poor, Pamph. L. 1924, ch. 132,” N. J. S. A. 44:1-1, et seq, and the supplements thereto and amendments thereof.

The proofs submitted show that the wife is a resident of New York, is ill, unemployed, has neither income nor money,, and is presently obtaining financial aid and support from her relatives; the husband is a resident of Hudson County, New Jersey, is employed here and has not supported his wife for the past two years. She is willing to live with her husband, he, however, refuses to live with her.

The defendant moved to dismiss the complaint on the ground that the Juvenile and Domestic Delations Court is without jurisdiction in that the wife is not a resident of the State of New Jersey.

The revision of the act creating the Juvenile and Domestic Delations Court (Pamph. L. 1929, p. 274, amended Pamph. L. 1935, p. 914, now R. S. 9:18-14; N. J. S. A. 9:18-14) provides, under the heading, “Concurrent Jurisdiction:” “The court shall have jurisdiction to hear and determine disputes and complaints involving the domestic relation where the gravamen of the complaint is the failure to provide support or adequate support, or desertion,” pursuant to which the present proceedings are instituted. It is further provided: ' “It shall have jurisdiction to hear and determine complaints for the violation of the following laws: sub-title 15 of the title “Administration of Civil and Criminal Justice” (sections 2:201-1, et seq.), chapter 1 of the title “Poor” (sections 44:1-1, et seq.), chapter 6 and chapter 17 of this title (sections 9:6-l, et seq., and sections 9:17-1, et seq.) and article 4 of chapter 5 of the title “Institutions and Agencies” (sections 30:5-33, et seq.).

Section 5 of the act of 1929 and by R. S. 9:18-21; N. J. S. A. 9:18-21, provides under the heading “Instituting Proceedings :” “Proceedings before the court shall be instituted by a complaint or petition and shall be verified by the oath of the persons making same, which complaint may be made on information or belief.”

Section 6 of the act of 1929, chapter 157, and by R. S. 9:18-15; N. J. S. A. 9:18-15, provides under the heading' “Powers of Court:” “The court shall be vested with all the powers, rights, and privileges incident to the hearing, determination and final disposition of all cases coming before it under the provision of section 9.T8-14 of this title as are or may be exercised or enjoyed by any court having jurisdiction over such cases, and the process to secure the appearance of parties .and witnesses shall be, as nearly as may be, the same as is required in such other courts in such matters, and shall be served as in other cases before the Juvenile and Domestic Eelations Court.”

In Hall v. Corio, 122 N. J. L. 73; 4 Atl. Rep. (2d) 46, the Supreme Court held, that pursuant to the revision of the act to establish the Juvenile and Domestic Eelations Court (adopted in 1929, Pamph. L., p. 274; N. J. S. A. 9:18-1, et seq.) the Juvenile and Domestic Eelations Court had jurisdiction to enter an order requiring the husband to pay $10 weekly upon a duly verified petition alleging desertion and non-support, and that the overseer of the poor need not make the complaint. The residence of the wife was not in issue in the case.

In Coffey v. Coffey, 125 N. J. L. 205; 14 Atl. Rep. (2d) 485, the wife, a resident of Pennsylvania, made and filed a complaint in the Juvenile and Domestic Eelations Court against her husband, a resident of New Jersey. The Supreme Court held that the revision of the act to establish the Juvenile and Domestic Eelations Court (adopted in 1929, Pamph. L., p. 274; N. J. S. A. 9:18-1, et seq.) enlarged upon the jurisdiction of such courts as defined in the pre-existing enactments. The court, however, vacated the order of the Domestic Eelations Court for lack of jurisdiction since the order was entered prior to the adoption of the revision of the act, which then required the complaint to be made by the overseer of the poor, and the case of Hall v. Corio, was therefore held not in point.

In Fried v. Fried, 99 N. J. Eq. 106; 132 Atl. Rep. 674, a separate maintenance proceeding was instituted by the wife, a resident of New York, against her husband, a resident of New Jersey, pursuant to the Divorce act. The court decided it had jurisdiction, and held: “A bill for maintenance is an action in personam. Being a personal action, it must needs be brought in the state where the husband is located. The husband was served here, and admittedly resides here, and has appeared and defended generally. That this court has jurisdiction of the proceedings, as a suit for maintenance, is not challenged nor could it be successfully. It has jurisdiction over the persons, as has been noted; assuredly it also has jurisdiction over the subject-matter, fof the bill alleges (and concededly, if defendant and complainant are still husband and wife, there has actually been) an abandonment and refusal to support, as specified by the statute. Moreover, if this indeed be requisite, the abandonment and refusal to support were acts committed by the husband in this state, being acts continuing during the period of his actual residence here.” It is noted that the proceeding in the Fried case is a Chancery proceeding and the case at bar is a law court action. Both proceedings are for support, but are pursuant to distinct statutes, and are entirely different, as distinguished in Heirs v. Heirs, 132 N. J. Eq. 610; 29 Atl. Rep. (2d) 615.

The Juvenile and Domestic Relations Court, pursuant to the revision of the act (Pamph. L. 1929, p. 274; R. S. 9:18-14; N. J. S. A. 9:18-14) has jurisdiction to hear a complaint alleging the failure of the husband to provide support or adequate support or desertion. The revision of the act (Pamph. L. 1929, ch. 157, now R. S. 9:18-21; N. J. S. A. 9 :18-21) has also provided a direct relief for the neglected wife by permitting her to make the complaint. Hall v. Corio, supra. The verified complaint in the case at bar complies with the revision of the act, charging that the husband for the past two years has not supported his wife. The failure of the husband to support his wife was committed in this state and continued during the period of his residence here.

The Juvenile and Domestic Relations Court, pursuant to the revision of the act (Pamph. L. 1929, ch. 157, now R. S. 9:18-15; N. J. S. A. 9:18-15) has the power to hear, determine and dispose of all cases pursuant to R. S. 9:18-14; N. J. S. A. 9:18-14, of the revision of the act, and to secure the appearance of parties and witnesses by process. The defendant, in the ease at bar, resides in New Jersey, is employed here and process was served upon him in this state.

Therefore the court has jurisdiction of the present proceedings. The motion of the defendant to dismiss the complaint is therefore denied and an order will be accordingly entered.