author: Matthews, A. M.

text:
    ANNA KREYLING, petitioner, v. DANIEL KREYLING, defendant.
    [Decided January 6th, 1942.]

      Messrs. Hobari, Minará & Cooper (by Mr. Charles V. Webb, Jr.), for the petitioner.
   Matthews, A. M.

This is a suit for divorce brought by the petitioner, Anna Kreyling, against the defendant, Daniel Kreyling.

The petition in this case charges the defendant with desertion through his willful, continued and obstinate refusal to have natural sexual intercourse with the petitioner for a period of two years. The defendant, although personally served, entered no defense and the matter was heard as uncontested.

The petitioner testified that the parties were married on September 13th, 1936, by Eev. T. T. Tucker, a minister of the Gospel; that from the beginning of their married life the defendant insisted on using a contraceptive device during intercourse; that shortly after their marriage she spoke to her husband, the defendant, about having a child but he refused to have sexual intercourse without the contraceptive device which he used; that she repeatedly, over a period of three years, during which time they indulged in intercourse about twice a week, requested her husband to have natural intercourse but that he insisted on using his contraceptive device, she submitting to its use.

The evidence further shows that during the aforesaid three years the parties occupied the same bed and that they lived in an apartment in the same house in which the petitioner’s parents lived upstairs.

The petitioner also testified that the defendant and she had sufficient family income, and that both she and her husband were physically healthy.

In August, 1939, because, as the petitioner testified, the constant refusal of her husband to allow her to have children was getting on her nerves, she began, what the evidence shows, was a determined and constant effort to induce her husband to have natural uncontracepted sexual intercourse with her in order that they might have a child. She said that all during the month of August, 1939, though submitting to contraeepted intercourse, she kept requesting her husband for natural intercourse until finally toward the end of the month of August he told her that he would never consent to have natural intercourse with her, and that as a result of this final and definite refusal by the defendant, she had a bed brought downstairs from her mother’s apartment and she set up her own separate bedroom in their own apartment, taking all of her clothing and personal effects into this separate bedroom.

The petitioner further testified that the defendant continued to occupy the bedroom formerly occupied by both of the parties until July 3d, 1941, when he left the home, the petitioner thereupon moving upstairs to her mother’s apartment ; that the defendant has never since returned to his wife nor has he ever asked her to return to him; that from the end of August, 1939, to July 3d, 1941, and since then until the filing of her petition for divorce on October 22d, 1941, thé. defendant has never sought, by word or deed, to have sexual intercourse with the petitioner, nor has he ever indicated by word or act that he had changed or would éhange his mind' and attitude about the matter of natural sexual intercourse, but that on the .contrary, from August, 1939, until he removed from the home, he acted toward the petitioner in an unsocial manner and in everjr Avay indicated that he was adamant in his refusal to have natural sexual intercourse with the petitioner. The petitioner also testified that the only reason the defendant ever gave her for his refusal to have natural intercourse was that he did not want children because he would rather have the luxuries of life like a ear every year.

The petitioner was asked by the court whether she requested her husband to have natural sexual intercourse with her after she had taken a separate bed and bedroom at the end of August, 1939, and she said “no,” and. she gave as her reason that she had asked the defendant so many times that she felt it would be useless to importune him further.

The petitioner further testified that she was greatly nervously distraught upon finding out in August, 1939, that her husband would never allow her to have a child by him, and as a result of her condition she consulted a doctor. The doctor was not produced in court to testify, but the married sisters of the petitioner did testify to the nervous and distraught condition of the petitioner as they observed her after August, 1939, at about which time they said the petitioner disclosed to them the fact of the defendant’s refusal to ever have natural sexual intercourse with her.

When the petitioner was Asked by counsel why she submitted to contracepted intercourse as long as she had submitted, she said that she did so in the hope that the defendant would discontinue the practice, but that she finally withdrew from such intercourse in August, 1939, because she was convinced that her husband would never consent to natural intercourse.

Finally the petitioner testified that the defendant said on the occasion of a family gathering in 1939, at which the defendant’s mother was present, in response to the expressed desire of defendant’s mother that she would have a grandchild, that he, defendant, didn’t want any children; that on another occasion during a discussion about birth control, at which petitioner’s married sister, Mrs. Olga Lewis, and Mrs. Lewis’ husband were present, the defendant said that his method of birth control was “fool proof.”

The petitioner’s married sister, Mrs. Olga Lewis, and a friend, Mrs. Mildred Middleton, corroborated the fact and date of marriage of the parties and their living arrangements prior to August, 1939, and also the fact that after August, 1939, the petitioner occupied a separate bedroom. Mrs. Lewis also testified that the petitioner was upset after August, 1939, at about which time the petitioner confided to Mrs. Lewis the fact of the defendant’s refusal to ever have natural intercourse with the petitioner, and that it'was shortly after the petitioner thus confided in Mrs. Lewis that the petitioner took up separate sleeping quarters.

Mrs. Lewis further testified that the defendant had told her and her husband that he did not want children of his own, that children were nice hut that lie didn’t want to he burdened with them. She likewise corroborated the petitioner’s testimony about the family gathering at which the defendant’s mother expressed the desire that she have grandchildren, whereupon the defendant said that he and his wife were not going to have any children, that he didn’t want any children. Also Mrs. Lewis corroborated the petitioner’s testimony about the occasion when birth control was being discussed between the defendant and Mr. and Mrs. Lewis, the petitioner being present on this occasion, Mrs. Lewis had spoken of a new method of birth control described in a booklet of some Birth Control League, whereupon the defendant said that he wasn’t interested in any other method than the one he used because his method was “fool proof.” Mrs. Lewis also testified that the defendant made no secret of his practice of birth control and that he discussed it in the presence of his mother and others.

Mrs. Mildred Middleton, a friend of the petitioner, corroborated the petitioner’s testimony as to the living arrangements of the parties prior and subsequent to August, 1939. She also testified about an occasion when the defendant was driving Mr. and Mrs. Middleton home after, an evening out, at which time Mrs. Middleton expressed concern about her child whom she had left in someone’s care during her absence, whereupon the defendant said that he would never have to worry about children because he and his wife would never have any children. Mrs. Middleton also corroborated the unsocial attitude of the defendant toward the petitioner subsequent to August, 1939.

In arriving at a decision in this case I have not onty considered all of the testimony but also the fact that the defendant has failed to file an answer to the petition or to appear to contest or deny any of its allegations, which are very specific as to the details of the defendant’s continued refusal of natural intercourse with the petitioner. I have also considered what has been aptly called in such cases “the atmosphere of the case” as well as the appearance, demeanor and attitude of the petitioner and her witnesses on the witness stand. The witnesses and the petitioner appeared entirely worthy of credence and there appeared not the slightest tinge of collusion in the case.

The question to be decided in this case is, as far as I have been able to determine, one of novel impression in our state, namely, is the unjustified refusal by the defendant of natural sexual intercourse, persisted in willfully, obstinately and continually for a period of two years, for the purpose of preventing the petitioner from giving birth to a child, a ground for divorce for the cause of desertion, both parties being physically capable of having natural uncontracepted intercourse.

Our Court of Errors and Appeals has held in the case of Rains v. Rains, 127 N. J. Eq. 328; 12 Atl. Rep. (2d) 857: “It is well established in this state that unjustified refusal of sexual intercourse persisted in willfully, obstinately and continually for a period of two years is a ground for divorce for the cause of desertion, which rule is laid down in the case of Parmly v. Parmly, 90 N. J. Eq. 490; 106 Atl. Rep. 456, and Raymond v. Raymond, 79 Atl. Rep. 430.”

It will be noted that in the ease of Rains v. Rains, supra, and fn the cases cited by the Court of Errors and Appeals in its decision in the Rains Case, that there was an absolute refusal by the defendant of any sexual intercourse. In the case sub judice there was a refusal of natural sexual intercourse, the defendant insisting upon contraceptive intercourse. And while it is a fact that the Raymond, Case was decided before birth control had become widely known and practiced, nevertheless the fact that the Court of Errors and Appeals in Rains v. Rains, supra, decided April 25th, 1940, cites the Raymond Case, is indicative that our court of last resort considers the legal reasoning and philosophy upon which the Raymond Case was decided as the basis for its reiteration of the Rains Case of what the court called the established rule as to the unjustified refusal of sexual intercourse laid down in the Raymond, Case.

In Raymond v. Raymond, supra (at p. 431) the court said:

“The controlling purpose of marriage is to enable the sexes to gratify lawfully the natural desire for procreation which has been implanted in them, that the race may be preserved upon the earth.”

Moreover this same fundamental principle finds expression in these words of our late Chancellor Walker in his decision in the case of Turney v. Avery, 92 N. J. Eq. 473; 113 Atl. Rep. 710:

“Lord Penzance has observed that the procreation of children is one of the ends of marriage. * * * I do not hesitate to say that it is the most important object of matrimony for without it the human race itself would perish from the earth.”

Likewise in the case of Davis v. Davis, 90 N. J. Eq. 158; 106 Atl. Rep. 644, the court says:

“Procreation if not the sole, is at least an important reason for the existence of the marriage relation. Raymond v. Raymond, 79 Atl. Rep. 420; Rector v. Rector, 78 N. J. Eq. 386.”

Now in the case of Rains v. Rains, supra, the defendant refused to have any sexual intercourse with the petitioner because he said he had a “germ” and didn’t want her to become a mother-. In the case sub judice the defendant did not want the petitioner to become a mother because he preferred what he called “the luxuries of life” to children, and he accomplished his purpose of not wanting the petitioner to become a mother not by refusing his wife any sexual intercourse, but by using a contraceptive device. Certainly the result of the defendant’s conduct in the instant case was the same as the result of the defendant’s refusal to have any intercourse in the Rains Case. The defendant in the case sub judice apparently regarded the married state as mere licensed concubinage and not a relation “the controlling purpose” of which, is “to enable the sexes to gratify lawfully the natural desire for procreation which has been implanted in them that the race may be preserved upon the earth.”

Moreover I think it may be said that in all of the cases in our state which lay down and follow the rule that unjustified refusal of sexual intercourse for the statutory period is a ground for divorce for the cause of desertion, the decisions rest on the principle that refusal of sexual intercourse prevents the procreation of children and thereby deprives marriage of what the late Chancellor Walker in Turney v. Avery, supra, called its “most important object.” As Charles Y. Webb, Jr., Esq., for Hobart, Minard & Cooper, solicitors for the petitioner in the instant case, said in his brief filed before trial: “It has never been held nor has it ever been suggested that either party may enter into a contract of marriage merely to legalize the performance of an act which without the marital status would be illegal. Such a construction would be tantamount to the establishment of legalized fornication.”

Married persons in normal health are, by the contract and “controlling purpose” of marriage, entitled to “gratify lawfully the natural desire for procreation which has been implanted in the sexes that the race may be preserved upon the earth.” In the ecclesiastical terminology of the law in olden days, marital sexual intercourse was called the “debbtum ” the debt owed by husband and wife, each to the other.

Prescinding, however, from all except bare legal considerations, we must recognize the modern fact that contraception to prevent or to space the birth of children for alleged therapeutic, economic, and what are modernly called “social” reasons and conveniences, is a widely accepted practice to-day. Erstwhile statutory prohibitions of the sale and use of contraceptive devices, medical or otherwise, for birth prevention and birth control, and the dissemination of information about birth prevention and birth control have been more or less removed in many jurisdictions. In jurisdictions where there are statutory prohibitions against the dissemination of such information and the purveying of contraceptive devices, such prohibitions are often more obeyed in their breach than in their observance.

Where both husband and wife willingly indulge in birth prevention no legal problem arises, the matter being solely one for the individual consciences of the parties, honestly formed according to their religious and moral beliefs. Where, however, as the evidence in the instant case shows, one of the parties, the defendant, solely for his own personal selfish convenience, or, as he puts it, so that he may enjoy the luxuries of life, insists upon contraception to prevent his wife from becoming a mother, he being the active agent in the use of the contraceptive device over her continued protests and against her will, it must be said that such conduct persisted in willfully, obstinately and continually for two years is cause for divorce on the ground of desertion.

It is unthinkable that a wife, as in this case, in full health, her maternal instinct clamoring, as the evidence shows, for the realization of her desire to become a mother, may, because of the selfishness of her husband be condemned during her marriage to him to a life of frustration of that maternal instinct and desire, with all of the deleterious physical, emotional and mental effects that follow such frustration. Such conduct by a husband is a violation of both human and Divine law.

. Nor does the fact that the petitioner did not, after she left the defendant’s bed in August, 1939, seek further to request or persuade him to have natural sexual intercourse with her, indicate a,failure of proof of defendant’s obstinacy. All of the evidence, including the statements by the defendant that he and his wife would never have a child, as well as his continued refusals to have natural intercourse with the petitioner from the very beginning of their married life, refusals culminating in his statement to the petitioner in August, 1939, that he would never indulge in natural uncontracepted intercourse with her, warranted the petitioner’s statement that she finally realized, at the end of August, the absolute futility of any further requests. Moreover, I think it may be said that there are reasonable limits bejumd which a wife or a husband need not go, in self-respect, in seeking such intimate relations. Under all of the evidence, I consider that the petitioner fulfilled her legal duty in this respect.

I will advise a decree of divorce for the petitioner on the ground that under the evidence the unjustified, willful, obstinate, continual refusal of the defendant over a period of two years to have natural uncontracepted intercourse with the petitioner in order to prevent her from having a child constitutes a desertion of the petitioner by the defendant.


source: Caselaw Access Project

license: Public Domain

text:
    New Jersey Department of Labor, Workmen’s Compensation Bureau.
    EDWARD JACKSON, PETITIONER, v. SACKS BARLOW FOUNDRY, INC., NEW JERSEY MANUFACTURERS’ CASUALTY INSURANCE CO., RESPONDENTS.
    Decided January 19, 1942.
    For the petitioner, David Roskein (Roger F. Lancaster, of counsel).
    For the respondent, George F. Meredith (Walter W. Ilubley, Jr., of counsel).
   Petitioner was called and testified that he had gone into the office of the respondent on the morning of June 18th, 1941, seeking employment. He stated that he had interviewed a Mr. Davies and that this party had referred him to the foreman of the plant, a Mr. Bush. He further testified that he had interviewed Mr. Bush and had been questioned as to whether or not he had had any experience as an iron pourer, and after replying in the affirmative had been advised to return to the plant of the respondent at 3 p. m. He testified that he had been told by Mr. Bush that he would then be given work. He gave some testimony relative to a possible wage and hour schedule, but was not very definite as to this. Petitioner then testified that he had returned to the plant at 3 p. m. and had been given a ladle and told to pour iron, and that while pouring the first or second ladle he had spilled same over his right foot, badly burning same. Following this he was given a card and was taken to the clinic of the respondent’s insurance carrier, where he was treated for some period of time.

On cross-examination the petitioner was questioned as to whether or not he had, on applying for employment, been told that he would be given a test at 3 p. m. to see whether or not he was, as alleged, an experienced iron pourer, and whether or not he had- been told that if he passed the test lie would be hired by the respondent. Petitioner denied this allegation as well as various other allegations, with which he was confronted.

The respondent called as its witness Mr. Bush, foreman of the respondent plant. This witness testified that the petitioner had come to him on the morning of June 18th; that he had given a story that he was an experienced iron pourer; that due to the danger of the work the petitioner was told that he would first have to show that he was competent to handle such a job, and had been advised to return at 3 p. m., at which time he would be tested; that due to the danger of the work to the individual and to the co-workers such a test was generally done; that the petitioner had returned at 3 p. M. and had been tested by the assistant foreman; that the assistant foreman had advised Mr. Bush that the petitioner was unfit to be hired; that following this the petitioner had insisted that he had not been given a fair test, and thereupon Mr. Bush, himself, tested him, and that on handling the first ladle of molten iron the petitioner showed his inexperience so clearly that Mr. Bush tried to take the ladle away from him, but before he could get to the petitioner he had spilled the molten metal on himself; that in view of the two tests petitioner was not hired and would not have been hired. The party in charge of the payroll record of the respondent was called as a witness and testified that as far as his knowledge went, there had been no hiring of the petitioner.

Joseph Vennard, assistant foreman of the respondent plant, was called as a witness. He testified in similar vein to the testimony of Mr. Bush.

Mr. Davies was called as a witness and testified that he had first interviewed the petitioner on the morning of June 18th and had referred him to Mr. Bush; that this was a rule of the plant and that he, Mr. Davies, had no authority whatsoever to hire or fire employees. This witness was called upon to explain the card which was offered into evidence by the petitioner that was given by Mr. Davies at the time the petitioner was injured. This card bore the notation that the petitioner was an employee and that the respondent was the employer, same being a printed card. Mr. Davies explained that the petitioner was in need of immediate medical attention following his accident, and that the card was used in order to facilitate his getting same without delay, but that it, in nowise indicated employment, inasmuch as a similar card would have been gven to anyone who was injured in the plant of the respondent, even a visitor.

At the conclusion of the respondent’s case counsel for the respondent moved for a dismissal of the petition on the ground that the petitioner had failed to sustain the burden of proving that he had suffered an accident arising out of and in the course of his employment with the respondent, inasmuch as he was no emplo_yee of the respondent, but had suffered his accident while trying out or while being tested for a job. Counsel for the respondent argued that the hiring of the petitioner was dependent on his successfully passing the tests, and from the testimony there was no such result.

Counsel for the respondent cited in support of his argument section 175 of 71 Corp. Jur. 434 and the cases cited in support of the ruling laid down in that section, and also cited the case of Criscione v. Iacono, 14 N. J. Mis. R. 915; 188 Atl. Rep. 441; 119 N. J. L. 452; 197 Atl. Rep. 48.

After careful consideration of this case this court is satisfied that the petition should be dismissed. The petitioner’s testimony was unsupported, and against his testimony the respondent produced the testimony of several witnesses, whose testimony this court had no reason-to disbelieve. The testimony of the petitioner, if I am to believe the testimony of the respondent’s witnesses, and as I said above, their testimony impressed this court as being most truthful, cannot be considered as accurate and honest as one might desire. It clearly appears from the overwhelming weight of evidence that the petitioner was being tested for a job which he had stated he was competent to handle and which, even from his own testimony, would appear to have been questionable. During the. course of this test it likewise clearly appears that the petitioner was not competent for the job, and as testified to by respondent’s witnesses, would not have been hired even if he had not had an accident.

I, therefore, find that the petitioner was not an employee of the respondent at the time of the accident and that, therefore, of course, the accident did not arise out of and in the course of his employment, there being no employment. The petition is, therefore, dismissed.

John C. Wegner,

Deputy Commissioner.


author: Quinn, President.

text:
    State Board of Tax Appeals.
    GIRLS FRIENDLY SOCIETY OF PENNSYLVANIA, PETITIONER, v. CITY OF CAPE MAY, RESPONDENT.
    Decided February 10, 1942.
    .For the petitioner, Frederic M. P. Pearse (by George B. Pearse).
    For the respondent, Samuel F. Fldredge.

   Quinn, President.

Petitioner is a New Jersey non-pecuniary corporation whose certificate of incorporation states as its purpose: “to provide health and recreational facilities for women and girls under the guidance of the Protestant Episcopal Church in the United States of America.” It owns a building in the respondent taxing district which was assessed for 1940 taxes, and it asserts that its use of same entitles it to exemption from taxation for that year, under the provisions of R. S. 54:4-3.6; N. J. S. A. 54:4-3.6, exempting property “actually and exclusively used in the work of associations and corporations organized exclusively for the moral and mental improvement of men, women and children, or for religious, charitable * * * purposes, or for one or more of such purposes * * * provided in case of all of the foregoing, the buildings, * * * or the * * * corporations * * * using them * * * are not conducted for profit * *■

An appeal for exemption was dismissed by the Cape May County Board of Taxation.

We suppose it may be said that in a broad sense the petitioner has been organized exclusively for the mental and moral improvement of women and female children, or for charitable purposes, since it provides in the building under appeal, a boarding house for summer vacations for some girls who cannot afford to pay for same, as well as for regular members of the society, who can and do pay. It cannot be likewise concluded, however, that the property is exclusively used in the work and for purposes of the petitioner, as set forth in its certificate of incorporation. Its facilities are made available to persons who are not its members, at rates in excess of those charged to members, and in addition it permits others to conduct activities in the building. Petitioner thus obviously fails to satisfy the statutory prerequisite that the property for which exemption is sought shall be “exclusively” used in the work and for the purposes of the owner organization. Exemption must be denied under the authority of Trustees of Young Men’s and Young Women’s Hebrew Associations v. State Board (Supreme Court, 1938), 119 N. J. L. 504; 197 Atl. Rep. 372; affirmed (Court of Errors and Appeals, 1938), 121 N. J. L. 65; 1 Atl. Rep. (2d) 367.

Judgment accordingly.


author: Cafpbey, C. C. J.

text:
    Essex County Circuit Court.
    MILDRED L. HENDERSON AND ANNA L. LITTLEFIELD, EXECUTRICES OF THE ESTATE OF CHARLES W. LITTLEFIELD, DECEASED, AND BENJAMIN H. LITTLEFIELD, PLAINTIFFS, v. WILLIAM H. A. WEBER, DEFENDANT.
    Decided February 11, 1942.
    For the plaintiff, Kearns cC Bruder.

    For the defendant, Meyer M. Semel.

   Cafpbey, C. C. J.

The plaintiffs here were the complainants in foreclosure proceedings instituted in the Court of Chancery, the original defendants in that cause being William H. A. Weber (the defendant in the case sub judice), Beryl Weber, his wife, William Vanderdeclcer, Edward Diner and Charles Bingwald, the latter three named individuals being the alleged tenants of the mortgaged premises. A decree of dismissal was, on November 39th, 1940, entered as to Kingwald, and on December 3d, 1940, an order was entered, on application of complainant’s solicitors, permitting them to amend their complaint “as they may be advised their title and interest may require, and that in case such amendment be made, the defendants have twenty days after service upon them of a certified copy of this order and of the amended bill of complaint or amendments to said bill, in which to answer the said bill as amended, * * *.” The amended bill was the same as the original bill, except that one James Gallagher (a tenant) was substituted as a defendant in place of Bingwald.

Subpoenas were duly served upon all of the defendants. Service of a copy of the order permitting amendment, together with a copy of the amended bill to foreclose, was made upon all defendants, except Gallagher. The Chancery proceedings continued to sale by the sheriff of the mortgaged premises for $100, whereupon an order was made on June 21st, 1941, confirming said sale—without any objection on the part of any defendant—and the sheriff’s deed delivered to the purchaser—the complainants.

On August 15th, 1941, suit was instituted in this (Circuit) court for deficiency on the bonds of the defendant, said bonds having accompanied the mortgages under foreclosure aforesaid. Thereupon, the defendant, through his attorney, served notice of motion for an order to strike the complaint, reciting as the grounds therefor that (1) the suit for deficiency cannot lie for that the tenant-defendant Gallagher was not served with a copy of the order permitting the amendment to the bill of complaint and a copy of the amended complaint, as required by said order and by rule 80 of the Court of Chancery, “thereby failing to completely exhaust the mortgage security,” said notice of motion alleging further (2) that the complaint here fails to specifically apprise the defendant which of the bonds and mortgages they were foreclosing and “have in the Chancery proceedings, waived their right to sue upon the deficiency,” and (3) that the plaintiffs have failed to institute the foreclosure proceedings in their proper capacities and have failed to join therein, a cestui que trust, “by reason of which * * * the proceedings are fatal.” This matter, therefore, now comes on for my consideration, on this notice of motion.

I have read and considered the complaint, affidavits and briefs submitted in behalf of the respective parties. I am not impressed with the objection raised by the defendant, that one Geiser, who appeared in the title as the purchaser of the mortgaged premises (or a part thereof), and who subsequently reconveyed the same to his original grantor, should have been made a defendant in the Chancery proceedings, or in the suit now pending before me. Neither am I impressed with the question raised before me, on point 2 of defendant’s motion, as it appears that both mortgages were foreclosed, and the suit here, is on deficiency of the two bonds accompanying said foreclosed mortgages. The complaint recites these facts with sufficient particularity, so as to acquaint the defendant with the same. On a motion, I cannot consider the question raised as point 3 in the notice of motion. This brings me to the consideration of point 1, i. e., that the defendant, Gallagher, was not served with a copy of the order which permitted the filing of the amended complaint, and that he was not served with a copy of the amended complaint, as required by the tenor of said order and the rules of court.

Eeferring to the procedure to be followed, where an order to amend is entered, rule 80 of the Court of Chancery, requires the complainant to “serve on the defendants a true copy of the order allowing the amendment and of the amended bill or amendments.” This requirement was also embodied in the order permitting amendment, entered in these present Chancery proceedings. Bule 80 of the Court of Chancery provides that:

“No filed bill shall be amended by erasure, or writing made thereon, or by the removal therefrom, or the insertion therein of sheets or pages, but the amendment shall be made either by filing an amended bill or by filing amendments to the bill.
“When a filed bill, that has been sworn to, is amended the amended bill shall be engrossed anew, sworn to and filed.
“Before subpoena issued the complainant may amend the bill of complaint of course and without motion or rule and without costs, and the subpoena thereafter issued shall call upon the defendant to answer the amended bill or the bill as amended, as the case may be.
“After subpoena issued, or appearance entered, the complainant may without notice, unless upon application for the order notice is directed to be given, obtain an order to amend his bill at any time before ansAver filed or notice of objection served and upon such terms as may be imposed by the court; and the order alloAving such amendments shall provide that complainant shall serve on the defendants a true copy of the order allowing the amendment and of the amended bill or amendments and if subpoena has issued or appearance has been entered that the defendants shall file ansAver to the hill as amended Avithin such time after such service as the court shall direct -by said order.” The Avord “shall” is used in an imperative—mandatory—sense, and not in a permissive one. Haythorn v. Van Keuren & Son, 79 N. J. L. 101; 74 Atl. Rep. 502.
Gallagher admittedly Avas not served Avith either a copy of the order permitting amendment, neither Avas he served Avith the amended bill or amendments. I, therefore, am of the opinion that the complainant has not met the requirements of the rule laid doAvn in American-Italian Building and Loan Association v. Liotta, reported in 117 N. J. L. 467; 189 Atl. Rep. 118, Avith respect to the necessity of making tenants parties to foreclosure suits, in order that the security and all interest therein be entirely exhausted before there could be suit at laAV for deficiency. There Avas a duty to properly bring Gallagher into court, as required by the tenor of the order and of Chancery rule 80, not merely to name him as a defendant in the amended foreclosure bill and to servé him Avith the subpoena ad respondendum alone. One of the terms or conditions of the order permitting amendment Avas to serve all of the defendants Avith a copy of that order and of the amended bill of complaint or amendments, R. S. 2:29-5; N. J. S. A. 2:29-5. It Avas admittedly not done in the instant case. I am not unmindful of the decision of the court as rendered in the case of The Equitable Life Assurance Society of the United States v. Laird and Others, reported in 24 N. J. Eq. 319; affirmed in 26 Id. 532. HoAvever, Chancery rule 52 as mentioned therein has now been substantially changed by what is now known as Chancery rule 80.
Legislative trend indicates an attempt to protect mortgagors from deficiencies on bonds. LaAvs of 1933, chapter 82; Laws of 1935, chapter 88.
The' decisions of this state are in accord that deficiency suits are not the favored policy of our courts. The statute relating to these suits must be strictly complied with. The statute, in that respect, was not complied with in the instant case, for that the defendant Gallagher was not brought into court as required by law. Deal Park Co. v. Bennard, 2 N. J. Mis. R. 194; Langlotz v. Traverso, 102 N. J. Eq. 144; 140 Atl. Rep. 229; Security Building and Loan Association v. Risick, 179 Atl. Rep. 680; Guardian Life Insurance Co. v. Lowenthal, 13 N. J. Mis. R. 849; 181 Atl. Rep. 897; American-Italian Building and Loan Association v. Liotta, supra; Lit Bros. v. Bauman, 19 N. J. Mis. R. 351; 19 Atl. Rep. (2d) 804.
The court must keep in mind that statutes of this nature are “in derogation of the common law and must be strictly construed.” Callan v. Bodine, 81 N. J. L. 240 (at p. 243); 79 Atl. Rep. 1057. While in this cited case, the quoted language was used in preservation of the plaintiff’s claim, and the point raised therein is not in controversy here, still that language may be now utilized as indicating the necessity of a strict construction.
In a recent pronouncement by the United States Supreme Court (Gelfert v. National City Bank of New York, 313 U. S. 221-236; 85 L. Ed. 1299) the court did indicate that “mortgagees are constitutionally entitled to no more thán payment in full. Honeyman v. Jacobs, 306 U. S. 539; 83 L. Ed. 972; 59 S. Ct. 702, supra. They cannot be heard to complain on constitutional grounds if the legislature takes steps to see to it that they get no more than that. As we have seen, equity will intervene in individual cases where it is palpably apparent that gross unfairness is imminent. * * * But there is no constitutional reason why in lieu of the more restricted control by a court of equity the legislature cannot substitute a uniform comprehensive rule designed to reduce or to avoid in the run of cases the chance that the mortgagee will he paid more than once.”

The motion to strike the complaint will be granted, without costs. An order majr be presented accordingly.


author: William A. Smith, C. C. J.

text:
    Essex County Circuit Court.
    CHANNEL LUMBER COMPANY OF BELLEVILLE, NEW JERSEY, PLAINTIFF, v. MAURICE S. TROTTA ET AL., ETC., DEFENDANTS.
    Decided February 25, 1942.
    Eor the plaintiff, Milton J. Finkelstein.

    Eor the defendants Trotta, Stanley J. Gedney, Jr.

   William A. Smith, C. C. J.

This is a suit brought to enforce a mechanics’ lien claim on premises situate in Essex County, the plaintiff having furnished material for the erection of the building upon the property described and having filed a notice of intention and a mechanics’ lien claim.

The defendants Trotta, who are sued as the owners, are now moving to strike out the summons because they charge that all the persons having any interest in the real estate sought to be impressed by the lien whose interest might be affected by a sale thereunder, have not been joined as parties defendant. The effect of this motion is to set up non-joinder of parties, and the persons claimed as non-joined as developed on the argument, were other parties who have given notice of intention or who have filed lien claims thereunder pursuant to the statute.

The basis for this claim as to non-joinder is R. S. 2:60-135; N. J. S. A. 2:60-135, which is the section of the Lien Claim Act which provides for the enforcement of the lien claim by statute. That act provides with regard to the parties, after referring to the action being brought against builder, owner and mortgagees oí records, as follows: “* * * or other person, whose interest in the property would be affected or cut off by judgment and sale thereunder.”

It is my view that other lien claimants are not contemplated as parties whose interest would be affected or cut off by a sale was referred to, as these lien claimants will share equally with the lien claimants prosecuting the lien claim suit. B. 8. 2:60-163; N. J. S. A. 2:60-163. The parties contemplated by that section are parties whose interest may be adverse to the lien claimants’ and who may be affected by reason oE sale which would divest the interest of the owners pursuant to R. S. 2:60-161.

The other lien claimants are not in this category, as they are taken care of by a separate proceeding, as is provided for in R. S. 2:60-164; N. J. S. A. 2:60-164. That act provides that the sheriff conducting the sale shall pay the proceeds thereof to the clerk of the Circuit Court and that then there shall be a distribution by the court among the claimants; and the section also provides for the filing of a caveat where a claimant’s claim is disputed.

The case of Posnak, &c., v. Neswil Realty Co., 108 N. J. L. 126 ; 156 Atl. Rep. 484, in effect decides that a sale under a mechanics’ lien cuts off the right of another lien claimant to have the property sold, though not a party to the lien claim suit; and I think Mr. Justice Parker in the case of Naidech v. Hempfling, 127 N. J. L. 430, recognized the impropriety of making as a part}'' another materialman who had filed notice of intention where a mechanics’ lien suit was being prosecuted. He said at the conclusion of that opinion (at p. 433) : “The point is not before us, but we notice in the second count of the complaint a claim that the lien of the plaintiffs is superior to that of a certain plumbing supply company, which filed a ‘notice of intention’ a week after that of the plaintiffs. As to this, we content ourselves with a citation of the section numbered R. S. 2 :60-163; N. J. S. A. 2 :60-163, which seems to provide that all lien claims on the same building are concurrent.”

The defendants’ motion will therefore be denied.


author: Haetshoene, C. P. J.

text:
    Essex County Court of Common Pleas.
    JAMES REYNOLDS, PETITIONER-APPELLANT, v. PASSAIC VALLEY SEWERAGE COMMISSIONERS, RESPONDENT-APPELLEE.
    Decided February 19, 1942.
    For the petitioner-appellant, George W. Wolin (Samuel J. Marantz, of counsel).
    For the respondent-appellee, McCarter, English & Egner (Verling C. Enteman, of counsel).
   Haetshoene, C. P. J.

The issues'here are both of fact and of law, the former whether petitioner’s fall, resulting in the injuries for which he seeks compensation, was due to his tripping over a chair, or to an epileptic fit, the latter whether, even if the cause of the fall were epilepsy, it is nonetheless compensable, due to the contributing causal effect of the conditions of his employment. This issue of law has not been expressly settled in this state, and is one as to which the courts of other jurisdictions differ.

We turn to the facts: On February 1st, 1940, petitioner was a watchman for respondent, and as such used a small shanty, furnished him by respondent, to keep warm in winter, where there were an arm chair, a pot stove, and one or two stools and pails of coal. Previously thereto, petitioner had had certain fainting spells, had suffered one or more paralytic strokes, affecting his entire right side, and had also suffered several epileptic fits, one on August 20th, 1938, another on October 11th, 1938, a third, after the fall, on March 25th, 1940, and possibly others. On the day in question he was seated in the arm chair in the shanty, when he claims he got up, or started to get up therefrom, to look outside, and was thereafter found by his superior, Callery, lying on his right side with his face pressed against the stove, which was searing his entire forehead and right cheek, while his left hand was waving the air. In fact, due to the cramped quarters of this small shanty, but five by six feet over all, petitioner seems to have become wedged in his fall, with the upper part of his body between the stove and the wall, which were but a foot apart, his legs, alone movable, in addition to his left arm, being pressed against the door. (Eecord, pages 102, 115, 116.) Despite this constant searing of his face, there is nothing to show he made a single outcry. In fact, the only reason he was found at all by Callery was due to the barking of a dog outside the shanty, the dog being evidently startled by the noise of the man’s fall inside.

Petitioner himself offers the only direct testimony as to the cause of his fall. He says he had his left foot, his good one, hooked around the chair leg, and thus tripped when he started to get up. (Eecord, pages 151, 151.) But not only was the chair found undisturbed by Gallery, as it probably would not have been had he thus tripped, but petitioner’s physical demonstration before the Bureau, as indicated in the record, and as found by the Commissioner, does not show a tripping, but that he was upright on both feet before he fell. Indeed, it would seem improbable that a man with one good leg, his left, and one bad one, his right, would have sought to rise on the bad one rather than on the good one. In addition, not only is there substantial medical evidence, opinion to be sure, to the effect that it was petitioner’s physical condition, specifically an epileptic fit, which caused his fall, but while petitioner’s witnesses are unfortunately somewhat vague as to his physical condition following the accident, the fact that he made no outcry whatever, while this hot stove was burning into his face, would certainly seem to indicate he was in a fit, as the doctors say. For while his speech was affected by his paralysis, he certainly could use his voice to make a noise. Somewhat to the same effect is the fact that he remained constantly on his right side, with his face pressed against the stove, despite this burning of his flesh. Though here it must be remembered that he could move only with difficult}1, due to the paralysis of his right side. In short, with these inconsistencies, both in his own words and actions, as well as his physical demonstration before the Bureau as to how the accident occurred, this court must concur with the Bureau in finding that petitioner has not borne the necessary burden of proof that the accident was due to his tripping over the chair in the performance of his duties, rather than to an epileptic fit.

But even so, petitioner claims compensation on the ground that, though the immediate cause of the fall itself was one personal to him, the injuries were contributed to by the conditions of his employment. For not only was the hot stove dangerous in itself to anyone who might fall against it, but stationed as it was, in this tiny shanty, but five by six feet over all, with but a foot on either side between the stove and the wall, it is small wonder that petitioner, when he fell, had his head practically wedged against the stove, with his feet against the door. And though petitioner’s paralytic and epileptic condition of course rendered him less able to extricate himself, this wedging, which increased the severity of his burns, might well have occurred to anyone who fell there. Thus even assuming, for the sake of argument, that petitioner might have been in the same room with such a stove while out of his employment, a purely supposititious situation, nevertheless the cramped quarters which caused the wedging were peculiar to his employment, rendering the conditions of his employment, with the stove, peculiarly dangerous to him or any other employee.

Hence it is claimed that “the employment was one of the contributing causes, without which the * * * [injuries] would not have happened.” Ciecwirz v. Public Service Electric and Gas Co., 128 N. J. L. 16. Similarly, the test has been stated to be whether “the employment contributed to the injury or death.” Ciocca v. National Sugar Refining Co. (Court of Errors and Appeals), 124 Id. 329, 335; 12 Atl. Rep. (2d) 130. And again, “The injury or death is related to or affected by the employment, that is to say, if but for the employment, it would not have occurred. * * * The work and the disease together contributed to the death.” Bollinger v. Wagaraw Building Supply Co. (Court of Errors and Appeals), 122 N. J. L. 512, 520; 6 Atl. Rep. (2d) 396; Molnar v. American Smelting and Refining Co., 127 N. J. L. 118; 21 Atl. Rep. (2d) 213; affirmed (Court of Errors and Appeals), 128 N. J. L. 11.

By the above, and many other cases, our courts have firmly established the principle that the test of compensability is the causal relationship, in whole or in part, between the employment and the injuries or death. While possibly in most cases it is the character of the work done, as distinguished from the conditions of the employment, which is in fact the causative compensable factor, this is by no means always the case. For instance, in the very last opinion rendered by our courts on this entire subject-matter (Ciecwirz v. Public Service Electric and Gas Co., supra) while the workman’s pre-existing weak heart, a cause personal to him, was one of the factors contributing to the injury, the award was upheld because his employment, “shoveling up soil from a deep trench in an atmosphere of escaping gas,” also contributed to his death. And „while it was expressly found there, due to other evidence, that the workman was not overcome by gas, but by the strain of his exertions on his weakened heart, it would appear clear that had he, with this weak heart, been overcome by gas, compensation undoubtedly would have been awarded. Manziano v. Public Service Gas Co., 92 N. J. L. 322; 105 Atl. Rep. 484; Ridgeway v. Real Estate Operating Co., 15 N. J. Mis. R. 477; 192 Atl. Rep. 392; 121 N. J. L. 585; 3 Atl. Rep. (2d) 584; Pierce v. Jersey Central Power and Light Co., 127 N. J. L. 71; 21 Atl. Rep. (2d) 311. If such were the case, the situation would then be on all fours with the case at bar, i. e., where one of the contributory causes was personal to the workman, but the other, the conditions of his einplojunent, rendered the case compensable. And while the courts in the other cases above cited do not specifically speak of the compensation cause as involving the conditions of employment, as distinguished from the character of the work done, it is nevertheless clear that in some, at least, the conditions of employment yrere the causative compensable factor. For instance, the contributing cause was sunstroke in the Ciocca case, supra, and in the Bollinger case, supra, the sand and ashes constantly under foot. Thus in both cases, the sun overhead and the sand under foot, were simply dangerous conditions of employment, which constituted the causative compensable factor.

In addition, in several earlier cases, involving a somewhat different state of facts to be sure, the courts of this state have expressly held the conditions of employment to be a compensable factor. In Zabriskie v. Erie Railroad Co., 86 N. J. L. 266, 270; 92 Atl. Rep. 385, our Court of Errors and Appeals held, “The act of the automobile driver, and the conditions of employment that required the deceased to cross a street, were proximate causes, the latter of which was an actual risk of the employment. * * * The fact that the accident may have been and probably was due to the negligence of the driver of the automobile, and perhaps also to the contributory negligence of the deceased [employee], tends to cloud the issue, but does not differentiate the situation from that of any workman who is required, in- the performance of his work, to go into a dangerous place and incur the dam. gers connected with that place.” In the Zabrislcie case, in order to obtain toilet facilities, a necessity equivalent' to warmth in winter, the workman was compelled to cross the street, where he was hit by an automobilist, disconnected from the employment. In Mountain Ice Co. v. Durkin, 6 N. J. Mis. R. 1111; 144 Atl. Rep. 6; 105 N. J. L. 636; 147 Atl. Rep. 451, the court held the injuries from a fall from a 35-foot platform, maintained by the employer, to be compensable, despite the fact that the immediate cause of the fall was unknown. But since such a place of danger was totally lacking in Johnson v. Ulster Iron Works, 9 N. J. Mis. R. 239; 153 Atl. Rep. 95; 109 N. J. L. 267; 160 Atl. Rep. 635, where petitioner fell on a bare floor, from a cause personal to himself, no compensation was there found to lie. Again, in Newark Hair, &c., Co. v. Feldman, 89 N. J. L. 504; 99 Atl. Rep. 602, it was solely the conditions of the employment which gaye rise to compensation, since the fire, the initial cause, was disconnected with the employment.

In fact, our highest court, in Hulley v. Moosbrugger, 88 N. J. L. 161, 164; 95 Atl. Rep. 1007, has approved the principle laid down by the Massachusetts cases to the same effect, that: “It [the accidental injury] ‘arises out of’ the employment when there is apparent to the rational mind, upon consideration of all the circumstances, a causal connection between the conditions under which the work is required to be performed and the resulting injury.” McNichols’ Case (Mass.), 102 N. E. Rep. 697. This principle, as appears later, is the law not only in Massachusetts, but in England, and in the bulk of these United States where the question has arisen. Eor instance, in Caswell’s Case (Mass.), 26 N. E. Rep. (2d) 328, the court expressly says, “An injury arises out of the employment if it arises out of the nature, conditions, obligations, or incidents of the employment; in other words, out of the employment looked at in any of its aspects.” Similar is the language of the English courts: “The expression ‘arising out of the employment’ is not confined to the mere ‘nature of the employment.’ The expression, in my opinion, applies to the employment as such—to its nature, its conditions, its obligations, and its incidents. If, by reason of any of these, the workman is brought within the zone of special danger, and so injured or killed, it appears to me that the broad words of the statute, ‘arising out of the employment,’ apply.” Simpson or Thom v. Sinclair (1917), A. C. 127; 10 B. W. C. C. 220, 235. “Where conditions of the employment, including the location of the place of work, constitute a factor, which in combination with other conditions produces accidental injury, the risk of such an injury is incident to the employment.” Connelly v. Samaritan Hospital (N. Y.), 181 N. E. Rep. 76.

Eor 'is this consideration by the courts of the conditions of employment, as well as of the character of the work done, or of any other factors directly connected with the employment, at all surprising. For we must remember that we are not dealing with the technical tortious concept of proximate cause, in considering those matters “arising out of the employment.” Our courts have held, as far back as Newcomb v. Albertson, 85 N. J. L. 435; 89 Atl. Rep. 928, that “the cause of the injury under section 2 was the cause sine qua non, as distinguished from the proximate cause,” i. e., the “if but” rule, as more recently expressed. Ciocca v. National Sugar Refining Co., supra. To the same effect is McDonough v. Sears, Roebuck & Co., 127 N. J. L. 158; 21 Atl. Rep. (2d) 314, where the court says, “Though this statutory cause of action is not predicated upon a violation of duty classable as negligence, and so the principle of liability for the natural and proximate results of such misconduct has no application, it is yet requisite that there be a chain of physical causation * * *.” And so we return to the test as stated in the Ciecwirz case, supra—whether “the employment [in any of its factors] was one of the contributing causes, without wdiieh the * * * [injuries] would not have happened.” (Bracketed words added.)

And yet even here the weight of authority has noted a distinction. The conditions of the employment, which contribute to the injury and render it compensable, must not only contribute thereto in fact, but they must contribute thereto in greater degree in, than out of, the employment. In other words, these employment conditions must constitute a hazard peculiar to the employment, either in that they do not exist out of the employment, or if they do exist out of the employment, in that the risk of danger therefrom is greater in the employment than out of the employment. If not, such risk, and the injury therefrom, cannot be said to “arise out of” the employment.

In fact, this principle has apparently been approved by our highest court through its quotation, in Hulley v. Moosbrugger, supra, of the following from the opinion in McNichols’ Case, supra (at p. 164) : “[The injury which arises out of the employment] excludes an injury which cannot fairly be traced to the employment as a contributing proximate cause, and which comes from a hazard to which tlie workman would have been equally exposed apart from the employment. The causative danger must be peculiar to the work and not common to the neighborhood [or if common to the neighborhood, the employee must be peculiarly exposed thereto by reason of his employment.]” The bracketed words are supplied by this court, as in line with the great weight of authority. See, for instance, the rule laid down by the United States Supreme Court: “The fact that * * * the danger is one to which the general public is likewise exposed, is not conclusive against the existence of such causal relationship, if the danger be one to which the employee, by reason of and in connection with his employment, is subjected peculiarly or to an abnormal degree.” Cudahy Co. v. Parramore, 263 U. S. 418, 424. In this case the court cites a series of English and American cases, quoting from Anderson & Co. v. Adamson, 50 Sc. L. R. 855, as follows: “If the position which the workman must necessarily occupy in connection with his work results in excessive exposure to the common risk, or if the continuity or exceptional amount of exposure aggravates the common risk, then it is open to conclude that the accident did not arise out of the common risk, but out of the employment.”

In accordance with the above principle, and its restrictive distinction, the courts of this country and England have accordingly held compensable the following situations, where the initiatory cause of the incident, which ripened into the accident, was a disease personal to the employee and disconnected from the employment, but where the conditions of the employment were a definite contributing factor to the injuries or death: the fall of an epileptic, the conditions of whose employment caused him to fall down a flight of stairs (Cusick’s Case (Mass.), 157 N. E. Rep. 596); the fall of an epileptic who was compelled to work near an open hatchway of a ship, the which fall contributed to the serious character of his injuries (Wicks v. Dowell & Co. (1905), 2 K. B. 225) ; the fall of a paralytic watchman into a fire, which he had built just outside his shanty to keep himself warm (a situation practically on all fours with the case at bar) (Ervin v. Industrial Commission (Ohio), 4 N. E. Rep. (2d) 22); the fall of an epileptic, while using a hot water hose, whose epileptic fit caused the hot water to spray over and burn him (President and Directors of Georgetown College v. Stone (Court of Appeals, District of Columbia), 59 Fed. Rep. (2d) 875); the fall of an epileptic, who in his fall hit the welding machine at which he was working, causing a brain concussion (Industrial Commission v. Nelson (Ohio), 186 N. E. Rep. 735); a fall, due to personal illness, from a staging, elevated above the ground (Gonier v. Chase Companies (Conn.), 115 Atl. Rep. 677); the fall of an epileptic into a pit of hot cinders (Rockford Hotel v. Industrial Commission (Ill.), 132 N. E. Rep. 759); a fall, due to a cardiac condition, causing the workman to strike his head against the side of a table (Connelly v. Samaritan Hospital, supra); a fall incident to a personal disease, which caused the employee to be injured by the machine on which he worked' (Dow’s Case (Mass.), 121 Id. 19); a fall, due to personal illness, through a glass partition in the employees’ rest room (Sullivan’s Case (Mass.), 134 Id. 406). See, also, Baltimore Towage and Lighterage Co. v. Shenton (Md.), 199 Atl. Rep. 806.

On the other hand, and in accordance with the above distinction, compensation has been held not to lie in the following cases, where the conditions of employment did not differ from those to which the employee was exposed outside his employment, or where, if the conditions were the same, the employee’s exposure thereto in his employment was not greater than on the outside. Lander v. British United Shoe Machinery Co., Ltd., 26 B. W. C. C. 411, where an epileptic fell on the hard floor of a urinal in his place of employment, the floor having-been expressly found to be not a “dangerous place,” but one of “perfect safety.” Similar cases of falls, due to physical ailment, where the injury resulted from mere contact with .the ground or floor, are Cimino’s Case (Mass.), 146 N. E. Rep. 245; Rozek’s Case (Mass.), 200 Id. 903, cited in a note in Caswell’s Case, supra. Of course, the theory of the above distinction is not that the employer is to be held responsible for his default or negligence in permitting a special danger to the employee to arise in the employment. For the Workmen’s Compensation Act specifically eliminates liability because of default, and bases it upon the causative effect of the employment on the injury, regardless of personal fault. The theory of this distinction is that the conditions of employment do not substantially contribute to the injuries, if they do not increase such injuries beyond what would have followed the epileptic fall, had it occurred outside the employment. In other words, if the resultant injuries would have followed the epileptic fall anyway, even outside the employment, then the employment did not contribute thereto as a distinct, additional, causative factor, leaving the initiatory cause of the fall as the sole substantial cause, which, being personal to the employee, left the injuries non-compensable.

True, there are certain decisions which appear to override this distinction, and hold that the employment conditions contribute to the injury, and render it compensable, where they affect such injuries in fact, and regardless of whether the same injuries would have resulted outside the employment. Savage v. St. Asden’s Church (Conn.), 189 Atl. Rep. 599. And to such point is certain of the language of the court in the Connelly case, supra, where it indicates compensation would lie “though risk of similar injury is no greater in that employment than otherwise.” Though the court elsewhere in the opinion enunciates the above distinction.

To the other extreme, on the contrary, are a few cases which look solely at the cause of the fall, and refuse to consider the employment itself in its effect on the injury or death, with the consequent conclusion that in all cases of the above character no compensation is permitted. VanGorder v. Packard Motor (Mich.), 162 N. W. Rep. 107; Brooker v. Industrial Commission (Cal.), 168 Pac. Rep. 126. But these cases are clearly contrary to the weight of authority, both English and American, and overlook the common-sense principle that in every-day life, most occurrences, accidental injuries or otherwise, are the result not of the single initiatory incident, but of several contributing factors.

Beverting, then, to the case at bar, it would appear that compensation should here lie, whether we apply the pragmatic rule of the effect in fact of the conditions of employment as a contributing factor to the injuries, regardless of the fact that the same injuries would have resulted outside the employment, or whether we apply the rule enunciated by the great weight of authority throughout this country and England, which, in principle at least, has already been approved by the New Jersey courts. For it is indubitable that this hot stove created a definite danger to any watchman - who might fall while at work in the shanty, and that this danger was increased by the cramped quarters of the shanty, which not only could, but did, serve to wedge the employee against the burning stove. This hot stove, in such peculiarly cramped quarters, thus created a risk peculiar to the employment, of particular danger to petitioner or any employee. True, it was more difficult for this particular employee, paralyzed and epileptic, to extricate himself from this wedging and continued searing of his face. But this wedging would have occurred, at least, initially, even to a well employee who might fall. Thus, it seems unnecessary to stress the decisions in this state and elsewhere, holding the health of the particular employee to be immaterial, since the act presupposes the employment of employees, diseased as well as healthy. Hall v. Doremus, 114 N. J. L. 47; 175 Atl. Rep. 369; Bernstein Furniture Co. v. Kelly, 114 N. J. L. 500; 177 Atl. Rep. 554; affirmed, 115 N. J. L. 500; 180 Atl. Rep. 832; Cusick’s Case, supra.

Compensation will accordingly be awarded the petitioner, but since the amount of same has not yet been determined, counsel will be heard thereon on notice.


text:
    New Jersey Department of Labor, Workmen’s Compensation Bureau.
    SADIE KATTACK, PETITIONER, v. WRIGHT AERONAUTICAL CORP., RESPONDENT.
    Decided February 14, 1942.
    Dor the petitioner, Ward & McGinnis {Nathan Babinotvitz, of counsel).
    Dor the respondent, John W. Taylor.

   The present proceeding is grounded upon a claim arising from the death of Kajeib Kattack, husband of the petitioner and father of her ten children, seven of whom are under the age of sixteen years. The issue in controversy is limited to a single question, to wit: Did Kattack’s death on July 31st, 1940, following a coronary attack on that day, result from an accident on July 23d, 1940, arising out of and in the course of his employment with the respondent, Wright Aeronautical Corporation.

The burden of proof rests upon the petitioner to establish her right to compensation. The rule applicable to the present case is clearly and succinctly stated by Mr. Justice Trenchard in Bryant v. Fissell, 84 N. J. L. 72; 86 Atl. Rep. 458, that “the burden of proof of furnishing evidence from which the inference can be legitimately drawn that the death of an employee was caused by ‘an accident arising out of and in the course of his employment’ rests upon the claimant.”

Such burden of proof, however, is not discharged if the evidence is as consistent with the theory that the death was due to natural causes, as that it was due to an accident. An award of compensation or judgment cannot rest upon imagination, surmise or conjecture, or upon a choice between two views equally compatible with the evidence. The court, in the final, analysis, cannot speculate as to which of several causes may have produced the death of an employee. See Curran v. Newark Gear Cutting Machine Co., 37 N. J. L. 21; Gilbert v. Gilbert Machine Works, Inc., 122 Id. 533; 6 Atl. Rep. (2d) 213.

The proofs in this case are barren of a single scintilla of evidence which tends to establish that Kattack’s death was due to an accident, compensable or otherwise, while in the respondent’s employ. The evidence discloses without dispute that for three months prior to July 23d, 1940, Kattack had been unemployed, part of which period he spent in convalescing from a siege of pneumonia contracted during the month of May of that year; that on July 23d, 1940, he was hired by the respondent to work at its Paterson plant in the remelt department as a foundry helper; and that he reported for dut3r on that day and worked on the 5 :00 p. m. to 1:30 A. M. shift. The foundry-room in which the petitioner worked was a large well ventilated room in the basement, and contained two oil-burning furnaces for the remelting of scrap-aluminum. The duties of a foundry helper, in which capacity Kattack served, consisted of collecting scraps of aluminum in wooden boxes from the various departments on the upper floors of the respondent’s plant; combing the loaded boxes to the foundry-room by means of a freight elevator; loading the furnaces with scraps of aluminum by throwing pieces ranging from ten to fifteen pounds, by hand, into the melting compartment; and, after the molten metal was poured into moulds by the gang foreman, assisting in moving the moulds away by means of a rod, dumping the ingots from the moulds and stacking them in piles. The temperature in the foundry, as might be expected, was rather high, comparable to foundries of this character; however, to afford some measure of comfort, the foundry workers were clad appropriately to the occasion and were furnished with an ice water cooler by the respondent. On the day in question, Kattack engaged in very little active work during the entire shift, because, being a new man, he had been instructed by his foreman to take things easily and to devote most of his time in watching the experienced men in the performance of their various tasks. During the shift, Kattack was observed by his foreman as well as by several of his fellow-workers, on at least three occasions, to vomit; the first occurrence taking place at six o’clock, the second one at eight o’clock and the third one shortly after nine o’clock. It was during one of these vomiting spells that Kattack appeared pale and weak, perspiring freely and experiencing difficulty in breathing; and that it became necessary for him to leave the foundry room and to go outside in the yard for fresh air. Upon his return he felt somewhat better and indulged quite freely in the drinking of ice water during the night. At the 1:3() A. *r. quitting time, Kattack and the other members of the shift left for fheir respective homes; and in parting, the foreman, Thomas J. Lee, inquired of Kattack how he felt and Kattack replied all right. An hour later he arrived at his home and from the observations of members of his family, who remained up awaiting his arrival home, he appeared gravely ill, possessing a marked pallor, dyspnea or shortness of breath, glassy eyes, sweatty appearance, and vomitus all over his clothing. After being undressed and cleansed, he was put to bed, but, owing to continued pains in the region of the chest and difficulty in breathing, he slept very little during the night. Having shown no improvement in his condition by noon of July 24th, 1940, Dr. Herbert I. Katz, the family physician, was summoned, reaching the bedside ■ about 3:00 n. M. On examination the doctor found the patient acutely ill, noting the following objective findings: dyspnea, pallor of the mucous membranes, respiratory rate of 40, pulse rate of 120, temperature of 97 3/5, blood pressure 110/88; loud rales throughout lungs, and faint heart sounds. He made a diagnosis of coronary thrombosis and arranged for the removal of the patient to St. Joseph’s Hospital in Paterson. A similar diagnosis was made at the hospital upon his admission at 5 :00 T. m. on July 24th, 1940, by Dr. Prank P. McDede, under whose care Kattack remained until July 31st, 1940. On the morning of July 31st, 1940, Kattack suffered another acute coronary thrombotic attack, and, failing to respond to treatment, he died at 9 :25 a. m. on that day.

A review of the medical testimony in the case discloses a definite contrariety of opinion between the doctors of the respective parties with respect to causal relation. Drs. Herbert I. Katz, Alvin E. Córtese, Adolph Kroll and A. Hobson Davis, appearing in behalf of the petitioner, expressed the opinion that Kattack died from coronary thrombosis, super-induced by over-exertion and heat exhaustion as a result of his emplojmient with the respondent on the night of July 23d, 1940. Testifying in a diametrically opposite vein were’ Drs. J. Allen Yager, Asher Yaguda and George P. Olcott who appeared as medical experts in behalf of the respondent. While they, too, expressed the opinion that the decedent died as a result of coronary thrombosis, they emphatically denied that the condition was brought about by any act of physical exertion or by heat exhaustion growing out of his employment on the night of July 23d, 1940, insisting that the coronary thrombosis—the initial attack on the night of July 23d, 1940, and the fatal attack on the morning of July 31st, 1940, were solely the end result of a diseased condition in the coronary vessels, to wit: arterio-sclerosis.

In order to make a decision in this case, it becomes necessary to accept the medical view which seems more credible, logical and weighty. In my judgment, I feel that the greater weight of the medical testimony with relation to cause and effect preponderates in favor of the respondent.

The medical authorities are now in accord that coronary thrombosis is a closure or occlusion of one of the coronary arteries or its branches brought about by a diseased condition of the vessel, known as arterio-sclerosis; and that most of coronary thrombotic attacks, fatal or otherwise, come during sleep or during periods of relaxation. It is also conceded that physical over-exertion or strain may be a competent cause in hastening and precipitating the development of coronary thrombosis. Like any other diseased condition, arteriosclerosis of the coronary vessels may, under certain circumstances, be aggravated by such trauma, resulting in final occlusion.

There are many cases in which the courts of this state have found coronary thrombosis to be due to trauma and in which compensation awards were sustained. Hertzberg v. Kapo Dyeing and Printing Co., 19 N. J. Mis. R. 201; 18 Atl. Rep. (2d) 736; Wagner v. Lewis, 13 N. J. Mis. R. 807; 181 Atl. Rep. 394; Hayes v. Bloomfield Church,, 18 N. J. Mis. R. 139; 11 Atl. Rep. (2d) 417; Cooke v. Cooke & Cole Co., Inc., 17 N. J. Mis. R. 581; 21 Atl. Rep. (2d) 853; Hentz v. Janssen Dairy Co., 122 N. J. L. 494; 6 Atl. Rep. (2d) 409. It is a circumstance, however, to be noted that in each of the above cited cases the uncontroverted evidence reveals a physical collapse while in the act of strain or exertion or occurring a short time thereafter. The only exception thereto is the Iientz case, supra, where the physical over-acts and exertion took place in the early morning—victim being a milk delivery man—and the physical collapse occurred in late afternoon of that day.

The evidence in this case, in my opinion, fails to establish that Kattack sustained an accident within the contemplation of the act, or that his death was the result of such accident. It was incumbent upon the petitioner to prove that his death was due to a compensable accident and not to natural causes. Proof of death overtaking a workman either during his accustomed work or following the cessation thereof is insufficient, in and by itself, to constitute such accident. An accident cannot be inferred simply from the death alone. Armstrong v. Union County Trust Co., 14 N. J. Mis. R. 648; 186 Atl. Rep. 522; affirmed, 117 N. J. L. 423; 189 Atl. Rep. 138; Johnson v. Ulster Iron Works, 9 N. J. Mis. R. 239; 153 Atl. Rep. 95; affirmed, 109 N. J. L. 267; 160 Atl. Rep. 635.

Viewed in the light most favorable to the petitioner, the evidence merely discloses that the few tasks performed by Kattack in pushing around moulds during the night in question, together with the heat and working conditions surrounding his employment, were too strenuous for him to withstand and caused him to become ill—a man who had been without employment for three months just prior to his hire by the respondent and who had just recently recovered from a siege of pneumonia.

■Upon carefully considering the entire evidence in this case, .1 am satisfied that the petitioner has failed to sustain the burden of proof in -establishing that the death of her husband, Uajeib Kattack, resulted from an accident arising out of and in the course of his employment. I am not unmindful of the many decisions in this state, declaring that the Workmen’s Compensation Act is remedial and beneficent in its scope and should therefore be construed liberally. Gliewe v. Mulberry Metal Stamping Works, 16 Atl. Rep. 812; affirming 18 N. J. Mis. R. 461 and 14 Atl. Rep. (2d) 58; Sack v. Ocean City, 125 N. J. L. 138; 14 Atl. Rep. (2d) 517; affirmed, 125 N. J. L. 509; 17 Atl. Rep. (2d) 172; Bollinger v. Wagaraw Building Supply Co., 122 N. J. L. 512; 6 Atl. Rep. (2d) 396. However, such liberal construction was never intended to relieve the claimant of the primary duty to establish proof of a compensable accident as a condition precedent to a right of recovery under the act. This was pointed out recently by Mr. Justice Case, speaking for the Supreme Court when he said: “Tlie principle that the compensation statute is remedial and should be broadly and liberally construed .has to do with construction and application and does not operate to distort proofs or to make facts other than as they are.” Grotsky v. Charles Grotsky, Inc., 121 N. J. L. 461; 2 Atl. Rep. (2d) 149. It must be remembered at all times that the primary purpose underlying the Workmen’s Compensation Law is to compensate employees for industrial injuries sustained as the result of accidents arising out of and in the course of employment. To be liberal in construing what are such accidents is commendable and wise; to extend that liberality beyond reasonable limits by judicial interpretation is unwise and arbitrary.

This is a case where human impulses compel one to go the limit to palliate in some small measure the unfortunate circumstances of the present petitioner—widowed and left destitute with seven small children, and which make a person regret not being possessed with power enough to believe what seems far from warranted by the evidence in the case.

It is, therefore, * * * ordered that the petition be and the same is hereby dismissed.

John J. Stahl,

Deputy Commissioner.


author: Quusnsr, President.

text:
    State Board of Tax Appeals.
    TOWNSHIP OF SADDLE RIVER, PETITIONER, v. SLAVONIAN CATHOLIC CHURCH OF THE ASSUMPTION OF PASSAIC, RESPONDENT.
    Decided February 10, 1942.
    Bor the petitioner, Ralph W. Ghandless.

    Bor the respondent, Thomas J. Kennedy.

   Quusnsr, President.

These proceedings involve two tracts of land in the petitioner taxing district, designated on its assessment tax map as Block ISA, Lot 1 and part of Block 12, Lot 1. These tracts were originally part of a single irregularly shaped tract, comprising approximately thirty-six acres, acquired by the respondent in 1903. The original tract contained an area of approximately 25 acres fronting on Westminster Avenue, which, for the sake of clarity, we refer to as tract III, and a rear section of approximately 11 acres, westerly of tract III, and contiguous therewith to the extent only a line of about 125 feet. The said rear section was intersected in 1936 for State Highway Ho. 6, and the two segments resulting, are the parcels involved in this appeal, of which we shall designate the westerly part as tract I, and the easterly as tract II. It is tract II which adjoins tract III to the extent of 125 feet, as stated above. Tracts I and II are each roughly five and one-half acres in area. The question before us is whether these latter parcels were properly subject to taxation by the petitioner taxing district for the year 1940. Respondent asserts a right to exemption for the lands, as used for cemetery purposes. We are, of course, controlled by the situation which existed upon October 1st, 1939, the assessing date.

The case is before us upon appeal from a judgment of the Bergen County Board of Taxation, declining to grant a petition of the taxing district which had prayed for the setting aside by the board of an entry of exemption made for this property upon the tax list for the year 1940 by the township assessor. This procedure was clearly available under B. S. 54:3-21; N. J. S. A. 54:3-21. It is our duty to disregard any error by the assessor and to make a determination as to the taxability of the property upon the merits. B. 8. 54:4-58, 54:4-59; N. J. S. A. 54:4-58, 59. Ridgewood Elks Holding Co. v. Village of Ridgewood (Court of Errors and Appeals, 1941), 127 N. J. L. 295; 22 Atl. Rep. (2d) 266.

Respondent seeks to justify the original entry of exemption as warranted under the terms of B. 8. 54:4-3.9; N. J. S. A. 54:4-3.9, providing for exemption from taxation of cemeteries. Under cases construing that and related legislation exempting cemetery lands of associations organized under the Rural Cemetery Associations Act, the right to exemption of property alleged to constitute cemetery lands, depends upon whether the proof in the particular case shows a “plain indication that the property” is, as of the assessing date, “being actually used as a cemetery,” or is “within reasonable contemplation” therefor. West Ridgelawn Cemetery v. Clif ton (Court of Errors and Appeals, 1932), 109 N. J. L. 146; 160 Atl. Rep. 534. A recital of the facts reflected bjr the testimony herein will make it apparent that the parcel under appeal was not in actual use as a cemetery, and that the problem before us is to determine whether it was plainly within reasonable contemplation therefor, upon the assessing date.

As stated above, this property, together with tract III, was acquired by. the Church in 1903. Its then officiating priest testifies that the entire parcel was intended for, and consecrated to use for the burial of deceased persons of the Roman Catholic faith. However this may be, and we have no reason to doubt it, it is quite clear that the development of the cemetery, as such, was limited to the twenty-five acre tract III. Burials were made in this portion of the property only. These were at the rate of some 60 to 100 per year, so that on October 1st, 1939, there were in. excess of 2,000 interments there. Ho interments had then been made in tracts I and II, and, as a matter of fact, that area was always wild and uncleared brush and swamp acreage, separated for many years past by a cyclone wire fence from the confines of the cemetery grounds in tract III. The original officiating clergyman of the church testified that no one was buried in that area, and it was never mapped for cemetery use, because it was wooded and swampy and “nobody wanted to go over there.” It is thus obvious that, whatever may have been the original design for, the acquisition of this property, that portion of if here in question was always in disuse, and respondent had clearly segregated and developed as its cemetery only tract III.

Respondent contends, however, that it never abandoned an original intention to devote the entire thirty-six acres to cemetery use, and in support of its position it points to the fact that it made two interments in tract I and three in tract II in August, 1940. It appears that these were paupers, and it is frankly conceded on behalf of respondent that these burials were made only after an assessment for taxation was entered thereon by the taxing district, and for the purpose of showing the township officials that it was intended ultimately to use this property for cemetery purposes. These burials do not, in our opinion, serve to establish any right which respondent did not possess on October 1st, 1939. They were mere token interments, and not contemplated in October, 1939. As of the assessing date, there is no indication that respondent intended, within the reasonably anticipated future, to devote this property to cemetery uses. It is fairly clear that it did not require any more than the twenty-five acre tract for its own burial purposes. It had taken a space of thirty-six years to encompass some 2,000 odd interments. Respondent’s family plots devote 120 square feet to four persons. At this rate, twenty-five acres of land will serve for 36,300 burials. Making all normal allowances for waste space, roads, walks, &c., it is obvious that respondent’s legitimate needs, at its present rate of sixty interments a year, will not, in any reasonably foreseeable period, or for centuries, require the use of the property under appeal.

It is further urged, on behalf of the taxing district, that respondent could not have had the property under appeal within reasonable contemplation for cemetery uses upon the assessing date, since it did not possess the statutory municipal consent for the location or enlargement of a cemetery. Under R. S. 8:3-2; N. J. S. A. 8:3-2, originally enacted as Pamph. L. 1885, ch. 129, p. 166, and amended from time to time thereafter, it is, and was in 1903, when respondent purchased this land, unlawful to locate any new cemetery, or enlarge an existing one, without the consent and approval of the governing body of the municipality where same was situated. Applications for that purpose are required to be made in writing, accompanied by a map of the area to be used for cemetery purposes. It was testified that an examination of all of the minutes, ordinances and resolutions of the municipality since 1898 failed to indicate that consent for the operation of a cemetery was ever granted to respondent. Respondent offered no proof to the contrary, and the fact must therefore be regarded as established. It further appears that an ordinance of the township in 1932 revoked any outstanding unused cemetery permits. We have heretofore held, and the ruling is applicable here, that the lack of the requisite municipal consent militates against any expectation that a landowner could reasonably entertain as to the potential future use of property for cemetery purposes. City of Clifton v. East Ridgelawn Cemetery (New Jersey Tax Reports, 1934-1939), 725; Borough of Leonia v. Church of the Madonna, Id. 779. This is especially true here in view of the evidence which is afforded by the 1932 ordinance, referred to above, of the fact that the grant of permits for cemetery use in the future is unlikely.

We are not to be understood as expressing any opinion herein as to the right of exemption of tract III, actually in use for cemetery purposes, or as to the effect thereon of the failure to obtain a permit. The only matter before us is the taxability, for the year 1940, of tracts I and II. Any neutralization of the failure to obtain a permit which it might be argued must result from thirty-six years of acquiescence by the municipality, could only apply to the portion of the property in actual cemetery use. If that contention could be sustained, then the property under appeal would clearly be in the category of lands intended for use in enlarging an existing cemetery, and we have seen that for such a purpose a municipal permit would be indispensable. These tracts we find, as a matter of fact, were regarded and treated by respondent as separate and distinct from tract III, were fenced off from its cemetery in tract III, were left wild and unimproved, and, upon the assessing date, were not within reasonably contemplated use by respondent for cemetery purposes, since tract III can serve its legitimate burial needs indefinitely. The exemption must be denied upon the authority of the principles set out in Fairview Heights Cemetery Co. v. Fay (Supreme Court, 1917), 90 N. J. L. 427; 101 Atl. Rep. 405.


text:
    State Board of Tax Appeals.
    BOROUGH OF PARK RIDGE, A MUNICIPAL CORPORATION, PETITIONER, v. PASCACK VALLEY POST NO. 153, RESPONDENT.
    Decided February 24, 1942.
    Por the petitioner, George W. Maclcay (by Charles C. Freint).

    Por the respondent, Harry Randall (by George Freeman).
   Quinn, President.

Respondent is a war veterans’ organization owning a parcel of land in the petitioner taxing district, whereon are situated a two-story building and a small structure appurtenant to a gasoline station. A tenant occupies one floor of the two-story building at a monthly rental of $60, while the other is rented by another tenant at $25 per month. The respondent uses the second story of the larger structure for its meetings. All income derived from the rentals is devoted exclusively to the uses of the organization. An appeal from an assessment for taxes on the property, levied for the year 1940, resulted in an exemption from taxation granted by the Bergen County Board of Taxation. The taxing district applies for a restoration of the assessment.

The claim for exemption is rested, in the alternative, upon the provisions of R. 8. 54:4-3.5; N. J. S. A. 54:4-3.5, and R. S. 54:4-3.25; N. J. S. A. 54:4-3.25. These provide, respectively, as follows:

“54:4-3.5. Eeal estate or personal property owned and used for military purposes by any organization under the jurisdiction of' this state, or of the United States, shall be exempt from taxation under this chapter on condition that all income derived from the property above the expense of its maintenance and repair shall he used exclusively for such military purposes; and any building, real estate or personal property used by an organization composed entirely of veterans of any war of the United States shall be exempt from taxation under this chapter.”
“54:4-3.25. All real and personal property used in the work and for the purposes of one or more bona fide national war veterans organizations or posts, or bona fide affiliated associations, whether incorporated or unincorporated, existing and established on June eighteenth, one thousand nine hundred and thirty-six, shall be exempt from taxation under this chapter if the legal or beneficial ownership of such property is in one'or more of said organizations, or posts, or affiliated associations.”

Eespondent points to the reference to the income derived from the property, in R. 8. 54:4-3.5; N. J. S. A. 54:4-3.5, as an indication of a legislative intention that the renting of a part of the premises of such an organization shall not affect its statutory right of exemption. Without conceding that the said reference is intended to sanction such a situation as is here shown to exist, it is sufficient to point out that it is not shown that the property in question is used for military purposes.

As for any reliance upon the second clause of section 54:4-3.5 or upon R. 8. 54:4-3.25; N. J. S. A. 54:4-3.25, the respondent’s situation is controlled by our adjudication in The Sons of Veterans Building Association v. City of Paterson (State Board, 1941), 19 N. J. Mis. R. 106; 17 Atl. Rep. (2d) 554, to the effect that the permanent devotion of a portion of a building to rental for a public barber shop would deprive a war veteran’s organization owning same of the exemption accorded by the statute, since in such circumstances it could not be said that the property was being used in the work and for the purposes oi the veteran’s organization. City of Asbury Park v. Harold Daley Post No. 1333, New Jersey Tax Reports, 1934-1939, p. 734, relied upon by respondent, is distinguishable, the holding there being only that the absence in an exemption statute of any specific requirements that the property be exclusively devoted to the uses of the exemption claimant, or that it be free from use for pecuniary profit, will operate to confer the right of exemption in an otherwise proper case, even though the property is devoted to commercial pursuits prosecuted in the building by the owner organization itself. The distinction lies in the fact that in such cases there is no permanent or continuous devotion of a part of the property to the uses of persons or entities other than the owner organization. See Cranford v. Cranford Legion Holding Co., Inc., Id. 293.

The judgment of the Bergen County Board of Taxation is reversed, and the assessment ordered restored.


text:
    State Board of Tax Appeals.
    MORRIS GRANGE NO. 105, PATRONS OF HUSBANDRY, PETITIONER, v. TOWNSHIP OF PARSIPPANY-TROY HILLS, RESPONDENT.
    Decided February 24, 1942.

      For the petitioner, Joseph J. Mcwaziti.

    For the respondent, John H. Grossman.

   Quinn, President.

Petitioner is a fraternal organization, seeking exemption from taxation for its building and a five-acre tract of land upon which the former is situated, in the ■Township of Parsippany-Troy Hills. An appeal from an assessment for the year 1940 was denied by the Morris County Board of Taxation, and this appeal is taken from that determination.

It is clear that petitioner is within the scope of the classification set up by R. 8. 54:4-3.26; N. J. S. A. 54:4-3.26, of fraternal organizations entitled to exemption from taxation on property used for the purposes and in the work of such organizations. Acquackanonk Grange, No. 183, v. City of Clifton, New Jersey Tax Reports, 1934-1939, p. 659. The issue upon which exemption is resisted by the township is that the property does not qualify under the statutory proviso that “no part of such property is used for pecuniary profit.” The basis for the objection is rested upon these facts.

One of the principal functions of the Morris Grange is the running of an annual agricultural fair. For this purpose, the agency»- of the Grange is the Morris County Fair Association, whose directors are all members and officers of the Grange. It was conceded by- the treasurer of the Grange that the Fair Association is its subsidiary. The annual fair is run on a fair grounds consisting principally of the tract under appeal, and partly of land rented for the purpose. The general admission is charged the public for admission to the grounds, and many amusement concessions are operated in conjunction with the fair, some by the Fair Association and others by commercial concessionaires who pay the association for the privilege. In addition there are refreshment and parking concessions, all of which contribute to the Fair Association. The proceeds of the fair, after satisfying the expenses of its operation, are turned over to the Grange. These operations took place both in 1939 and in 1940 and are material to the issue herein, as of the assessing date, October 1st, 1939.

We are clear that this regular and annual enterprise, to which the property of the petitioner was in part devoted, is attributable to the petitioner. The relationship between the Grange and the Fair Association is clearly that of principal and agent, if not that of principal and subsidiary. The pecuniary aspects of the fair consist both of the income to the Grange, and the profit-making activities of the concessionaires. Under given circumstances, the first aspect may amount to, or fall short of constituting, a use for pecuniary profit. If the income is only incidental to a proper and normal fraternal activity, as for example, the operation of a bar restricted to members and their guests, the exemption is not lost. Hoboken Lodge No. 74, Benevolent Protective Order of Elks, v. City of Hoboken, New Jersey Tax Reports, 1934-1939, p. 643; affirmed (Supreme Court, 1939), 123 N. J. L. 509; 9 Atl. Rep. (2d) 783. If the income is the result of a designedly profit-making activity, not incidental to normal fratemalism, and conducted in the maimer of commercial operators generally, there is no exemption. Trenton Lodge No. 164, Loyal Order of Moose, v. City of Trenton, New Jersey Tax Reports, 1934-1939, p. 761. In the second aspect referred to, there is unquestionably an operation for profit, prohibited by the section to exemption claimants. Id., Moorestown Grange v. Township of Moorestown, Id. 680. In this aspect, clearly, there has been a use of petitioner’s property for pecuniary profit. See, also, Centro Espanol of Elizabeth v. City of Elizabeth, Id. 675; Township of Ridgewood v. Ridgewood Lodge B. P. O. E. No. 1455, Id. 647. Annually the various concessionaires of refreshments, parking lot, entertainment and amusements of various types plied their commercial activities on petitioner’s property. These activities are obvious uses of the property or part of it, for pecuniary profit, and since they are not incidental to any proper fraternal purpose, and are regular in their occurrence, they bring the case within the rulings cited hereinabove, which define the scope of the statute in this regard.

The assessment is affirmed.


author: Brown, C. C. J.

text:
    Hudson County Circuit Court.
    HATTIE PHILLIPS, PLAINTIFF, v. LUCY SINGER KLEIN, DEFENDANT.
    Decided March 16, 1942.
    For the plaintiff, Abraham Lieberman.

    For the defendant, Schumann & Schumann.

   Brown, C. C. J.

A trial of the above entitled cause resulted in a verdict by the jury in favor of the plaintiff. The defendant obtained a rule to show cause why the verdict should not be set aside and a new trial granted for the reasons “that the verdict was excessive and that the verdict was against the weight of the evidence.” Exceptions taken at the trial were reserved in the rule. The exceptions covered motions for a nonsuit and for a direction of a verdict. In the briefs filed on the argument of the rule the plaintiff and the defendant argued but one ground, that is, “the verdict was excessive.” The defendant made no reference to the remaining ground and the plaintiff stated she assumed the defendant abandoned this ground. After considering both reasons the court discharged the rule. The defendant appealed to the Supreme Court on the exceptions reserved. The Supreme Court held that it was well settled that where a rule to show cause attacks a verdict as being against the weight of the evidence the consideration and disposition of the rule covers the ground of a motion to nonsuit and a motion to direct and operates as a bar to any argument or consideration of such grounds on appeal. (Phillips v. Klein, 127 N. J. L. 517; 23 Atl. Rep. (2d) 290.) This point is well settled and if reservations of exceptions are contained in the rule they avail nothing to the party obtaining the rule on appeal. Robins et al. v. Mack International Motor Trust Corp., 113 N. J. L. 377 and cases therein cited; Margolies v. Goldberg, 101 Id. 74; Bennett v. Hinrichsen, 107 Id. 373. In the case of Simons v. Lee, 117 Id. 370, it was held that the discharge of a rule to show cause makes res adjudicata every reason argued in support of it and no language inserted in the rule can save to the prosecutor the benefit for appeal of an exception that goes to a point assigned and argued under the rule; citing the case of Dombroski v. Metropolitan Life Insurance Co., 126 N. J. L. 545; 19 Atl. Rep. (2d) 678; 20 Id. 441. Upon filing a remittitur the defendant obtained another rule to show cause for the purpose of amending nunc pro tunc the original rule by eliminating from it the reason assigned therein “the verdict was against the weight of the evidence.” On the argument of the second rule to show cause the defendant states in her brief that this court has absolute discretion to change the original rule to show cause by eliminating the reason above mentioned. No case is cited in support of this theory. Where a reason is assigned in a rule to show cause why a verdict should be set aside and the party who obtained the rule fails or neglects to argue the reason assigned, his failure and neglect amounts to a waiver and a discharge of the rule is res adjudicata. In the instant case while the defendant failed to argue one of the reasons assigned in her original rule to show cause her adversary called attention to the failure and assumed that it was waived. The trial judge considered the reason notwithstanding the failure of the defendant to argue the reason abandoned. The court’s determination of the rule had the effect of a final judgment on all points assigned under the rule. It appears from the transcript of the record on appeal to the Supreme Court that the failure to argue the reason on the rule to show cause was not overlooked by the plaintiff in her brief. Under those circumstances as well as the decisions of our upper courts the defendant is bound by the discharge of the original rule on all reasons assigned therein. This court is without discretion and power to amend nunc fro tunc any of the reasons assigned in the original rule to show cause. This conclusion is reached because of the res adjudicada status of the record and in addition our Court of Errors and Appeals has in effect so held in the ease of Hemmendinger v. McGann Co., 98 N. J. L. 265; 118 Atl. Rep. 452. The rule to show cause is discharged and an order may be entered accordingly.