author: Pee Citeiam.

text:
    THE BOARD OF PHARMACY OF THE STATE OF NEW JERSEY, PLAINTIFF-PROSECUTOR IN CERTIORARI, v. CHESLEY HUTCHIN, DEFENDANT-DEFENDANT IN CERTIORARI.
    Submitted May 16, 1931
    Decided May 9, 1932.
    Before Justices Tkenchabd and Donges.
    For the prosecutor, William A. Stevens, attorney-general, and Robert Peacock, assistant attorney-general.
    For the defendant, Carl Kisselman.

   Pee Citeiam.

The plaintiff below demanded of the defendant “the sum of fifty dollars, one penalty for violation of section two of an act of the legislature of the State of ISTew Jersey entitled ‘An act to regulate the practice of pharmacy in this state/ approved March nineteenth, nineteen hundred and one, for that whereas, heretofore, to wit, on the eighteenth day of March, nineteen hundred and thirty, at Gloucester, in the county of Camden and State of ISTew Jersey, said Chesley Hutchin was the owner and proprietor of a certain store, and that whereas, one Raymond Hutchin being on said last mentioned day in the employ of said defendant, at said store, did on said last mentioned day retail and dispense drugs, medicines and poisons, to wit, the said Raymond Hutchin did retail and dispense unto one Howard W. Gardner, of the city of Newark, county of Essex and State of New Jersey, twenty-five cents worth of' a drug and medicine known as ‘Essence of Peppermint’ and twenty cents worth of a drug and medicine known as ‘Sweet Spirits of Nitre,’ the said Raymond Hutchin not being then and there a registered pharmacist or a registered assistant of the State of New Jersey, within the meaning of said act, nor did the said Raymond Hutchin then and there retail and dispense said drugs and medicines under the immediate supervision of a registered pharmacist of the State of New Jersey, contrary to and in violation of said section two of said act; whereby the said Chesley Hutchin has incurred the penalty of fifty dollars, pursuant to the provisions of section seven of said act, as said section was amended by an act approved April twenty-ninth, nineteen hundred and twenty-nine.”

This writ brings up for review the proceedings and judgment for the defendant entered upon the verdict of a jury in the Camden City District Court.

The only question raised on this record is whether or not the judge should have directed a verdict for the state board.

It is claimed that he should have done so because there was no dispute in the evidence that the employe sold the essence of peppermint and sweet spirits of nitre, and that they were medicines.

The sole contention of the defendant was and is that these were not medicines, and that there was testimony tending to show they were not medicines.

Expert witnesses called by the board testified that sweet spirits of nitre is a medicine and prescribed by doctors to produce sweating, to allay fever, to dilate the blood vessels' to lower high blood pressure; that essence of peppermint is a medicine, and is prescribed by physicians as a carminative for the expulsion of gas from the stomach and as a local anesthetic action to overcome nausea.

We do not find any testimony that they were not medicines. The defendant said that he kept essence of peppermint and syreet spirits of nitre for flavoring and as household remedies.

We think it is immaterial for what purpose he kept them and that the testimony had no tendency to show that they were not medicines. True, one S. H. Poulks (not a physician) testified that essence of peppermint he classed as a household remedy, and that it could be used for flavoring, and that, if it was sold for flavoring, he would say that it was not medicine although doctors used it as a medicine. All that he had to say about sweet spirits of nitre was that it is used for the relief of temporary physical inconvenience or pain and that it could be used to reduce fever and for dilating blood vessels.

We think the only rational inference to be drawn from the evidence in this case was that these articles were medicines, and that required the direction of a verdict for the state board.

The defendant says that section 2 of the Pharmacy act (Comp. Stat., p. 3944) is unconstitutional because it is unreasonably discriminatory because of this language contained in section 9 of the act: “And nothing in this act shall be construed to apply to or in any manner interfere * * *

with the sale of simple non-poisonous domestic remedies by retailers in rural districts.”

It seems to us that the act is not unreasonably discriminatory in that regard, and moreover in this case there certainly was no interference with the sale of simple non-poisonous domestic remedies by a retail dealer in a rural district, for this sale was made not in a rural district, but at 711 Market street, Gloucester City, and so the defendant is not concerned with the provision of the act upon which he relies.

Because of failure of the trial judge to direct a verdict for the board on the undisputed evidence at the trial, the judgment under review will be reversed, and a new trial awarded— costs to abide the event.


source: Caselaw Access Project

author: Pee Cueiam.

license: Public Domain

text:
    SAMUEL SOMMER AND CHARLES SOMMER, CO-PARTNERS, TRADING AS GUARANTEE SILK COMPANY, PROSECUTORS, v. WILLIAM B. MACKAY, JUDGE OF THE CIRCUIT COURT OF PASSAIC COUNTY, AND E. GERLI & COMPANY, INCORPORATED, RESPONDENTS.
    Argued May 7, 1931
    Decided May 9, 1932.
    Before Justices Teen chard and Donges.
    Bor the prosecutors, Harry Joetson (Paul Rittenberg, of counsel).
    Bor the respondents, David L. Cole.

   Pee Cueiam.

This writ brings up for review an order of the Passaic Circuit Court directing the prosecutors to proceed to arbitration in accordance with the terms of a contract between them and E. Gerli & Company for the purchase of silk by the prosecutors.

The contract provided:

- “All the terms and provisions of the Baw Silk Buies of the Silk Association of America, approved or adopted by its board of managers are expressly understood and agreed to be a part of this contract the same as if they were herein set forth in full.

“Every dispute, of whatever character, arising out of this contract must be settled by arbitration to be conducted in the manner provided by the by-laws, rules and regulations of said association, governing arbitration.”

A dispute arose, prosecutors refused to submit, and pursuant to the Arbitration act (Pamph. L. 1923, ch. 134), Gerli & Company petitioned the Circuit Court, and it made the order requiring submission to arbitration.

The prosecutors say that the order is void because there was no evidence to support it. We think there was sufficient basis for the order. The petition was verified, and the affidavit filed by the prosecutors did not deny the making of the contract, the existence of the controversy, nor the failure to comply with the arbitration provision when that was demanded, but, as we read it, stated the conclusion of the affiant that the terms of the contract were rescinded or modified by parol, whether contemporaneously with or subsequent to the execution of the contract does not appear. We conclude that the making of the contract was not put in issue, there being no allegation of fraud or mistake. Parker v. Jameson, 32 N. J. Eq. 222. The court below so found and we think properly.

Prosecutors say that the parties were not heard in open court. The record is to the contrary. It shows that the court “heard counsel for the petitioners and for the respondents.”

Prosecutors say that it did not appear that the member of their partnership who signed the contract was authorized to bind his co-partners. The answer to this is that the making of the contract was in effect admitted.

Prosecutors say that the Arbitration act of 1923 is unconstitutional.

It is first said that it is so because it encroaches upon the jurisdiction of the Court of Chancery over specific performance of contracts of arbitration. That contention is plainly unsound. Davilla v. United Fruit Co., 88 N. J. Eq. 602; 103 Atl. Rep. 519.

It is lastly said that the act is unconstitutional because it embraces more than one object which is not expressed in its title. That is not so. The title is, “An act concerning arbitrations and awards/’ and is certainly broad enough to cover the outlining of the procedure by which arbitration .agreements are to be enforced.

The order under review will be affirmed, with costs.


author: Pee Ctjeiam.

text:
    WILLIAM ALLBRIGHT, PETITIONER-RESPONDENT, v. STANDARD ROOFING COMPANY AND JOSEPH HELLER, DEFENDANTS-PROSECUTORS.
    Argued January 20, 1932
    Decided May 6, 1932.
    Before Justices Tkenchaed and Donges.
    For the petitioner-respondent, Philip Dean Cohen (Frank Cohen, of counsel).
    For the defendants-proseeutors in certiorari, Nathaniel Weltcheh.

   Pee Ctjeiam.

A petition for compensation was filed with the workmen’s compensation bureau by William Allbright against Standard Roofing Company, and the trial before the deputy compensation commissioner resulted in a determination and judgment in favor of the petitioner. The matter was appealed to the Union County Court of Common Pleas and there the judgment below was affirmed, and the appeal dismissed. Thereupon the petitioner entered his judgment in the latter court against Joseph Heller, trading as Standard Roofing Company. Objection was made to the entry in this matter and a motion was made to vacate the judgment against Joseph Heller, and a counter-motion was made by the petitioner to be permitted to amend all pleadings nunc pro tunc so as to conform to the judgment as entered. The petitioner’s motion was granted and we think rightly. It was justified under section 126 of the Practice act of 1903 in the circumstances of the present case. The original answer filed in the workmen’s compensation proceeding was signed “Standard Roofing Company by Joseph Heller Respondent.” The affidavit attached thereto was sworn to by “Joseph Heller Respondent,” and states that “Joseph Heller, of full age, being duly sworn according to law, on his oath deposes and says: That he is the respondent named in the foregoing answer to claim petition; that he has read the same and is familiar with the contents thereof; and that the matters and things therein set forth are true according to the best of his knowledge and belief.” That affidavit was sworn to before a master in chancery who was at the time the attorney for the prosecutor of this writ. In view of Joseph Heller’s sworn statement that he was the respondent in the workmen’s compensation proceeding, the court below was entitled to assume, and did assume, that the Standard Roofing Company and Joseph Heller were identical. There was and is no contention that Standard Roofing Company is a corporation, nor was anything offered in the court below to dispute the claim that Standard Roofing Company was merely the trade name of Joseph Heller and that the latter is the real party in interest.

In view of these facts the amendment of the pleadings was properly allowed to the extent of completely naming the respondent as Joseph Heller, trading as Standard Roofing Company, and such order of the court below will be affirmed, with costs.


author: Pee Curiam.

text:
    HARRY J. KAPLAN, PROSECUTOR, v. ANGELIQUE REALTY COMPANY, A CORPORATION OF NEW JERSEY, AND MORRIS UMANSKY, JUDGE OF THE DISTRICT COURT OF THE FIRST JUDICIAL DISTRICT OF THE COUNTY OF HUDSON, DEFENDANTS.
    Argued May 7, 1931
    Decided May 9, 1932.
    Before Justices Teenciiabd and Donges.
    For the prosecutor, George J. Kaplan.

    For the defendants, Levenson, Gomen & Levenson (Leo Blumberg, of counsel).
   Pee Curiam.

Kaplan, the prosecutor, obtained this writ of certiorari to review a judgment of dispossession obtained by his landlord, Angelique Realty Company, in the District Court of the First Judicial District of the County of Hudson.

The prosecutor’s main contention is that three days’ notice to quit for non-payment of rent was not given by the landlord. This contention is ill-founded in point of fact. Such notice was given, and we think it sufficient in its terms, even if such notice was required in such case, which we do not stop to consider. In this connection it is contended that the notice does not show who was the landlord. A sufficient answer to that is that the notice stated in effect that the Angelique Realty Company was the landlord. In this connection it is further urged that the landlord’s affidavit did not show service of a demand for rent. We think it did in effect.

The next point made by the prosecutor is that there were defects in the service of the summons. We think that the return shows proper service. Moreover any defect in the service of the summons was immaterial because of the appearance of the prosecutor and his participation in the trial. The record shows that the prosecutor was sworn and testified. The plain implication from the record is that, though he stated he appeared “specially” he abandoned that purpose, and is deemed to have appeared generally and participated in a hearing upon the merits.

It is next said that the judgment should be reversed because no copy of the affidavit was served with the summons. The answer is that the statute does not require it in such an action as this.

The judgment will be affirmed, with costs.


author: Pee Cubiam.

text:
    BERNARD LAMB, MAYOR OF THE BOROUGH OF HO-HO-KUS, PROSECUTOR, v. A. D. McKEE, INCORPORATED, ET AL., DEFENDANTS.
    Submitted May 16, 1931
    Decided May 6, 1932.
    Before Justices Tbekchabd and Dokgbs.
    For the prosecutor, Jacob W. & Edgar A. De Yoe.

    For the defendants, De Turclc & West.

   Pee Cubiam.

This writ brings up orders of the Bergen County Court of Common Pleas, setting aside four convictions of the defendant A. D. McKee, Incorporated, for violations of the zoning ordinance of the borough of Ho-Ho-Kus.

The zoning ordinance was passed June 6th, 1923, and the Enabling act was passed in 1928. Pamph. L., p. 696. The defendant was the owner of a ten-acre lot of land in the borough, acquired in 1927. From this tract it was excavating sand and gravel, although only one. acre was being worked at that time. After the Enabling act was passed the defendant continued to make excavations from other portions of the tract, and complaints were made for the violation of the ordinance. The defendant company was convicted of nonconforming use of the land, non-conforming use of the building, use of the land without certificate of occupancy, and use of the building without certificate of occupancy.

Upon appeal the convictions by the recorder of the borough were reversed by the Court of Common Pleas, and the borough obtained this writ.

The situation presented is very similar to that passed upon by the Court of Errors and Appeals in Frank J. Durkin Lumber Co. v. Fitzsimmons, 106 N. J. L. 183; 147 Atl. Rep. 566, for the ordinance here in question is subject to the same infirmity as that there in question, and that case held that a con-conforming use that was lawful when instituted, and actively and constantly maintained, was entitled to be continued under the act of 1928.

The prosecutor of this writ admits that as to the one acre of the lot used before the passage of the Enabling act of 1928, the defendant is protected by the rule laid down in Durkin Lumber Co. v. Fitzsimmons. It, however, attempts to differentiate that case from the instant one by saying that the excavation from parts of the remaining nine acres was a new use commenced after the zoning ordinance became valid. The Common Pleas judge held that the tract was a unit and came within the definition of a lot in the sense that lot was used in section 11 of the act of 1928, citing Edwards v. Der rickson, 28 N. J. L. 45. That view we think is sound. We think the tract as a whole was used for excavating purposes even though only a part of it was actually being dug. Under prosecutor’s reasoning a land owner would be entitled to continue a previous non-conforming use only on the precise spot where it was being done. We think that is not so, and was not the intention of the legislature in enacting section 11 of the act of 1928. We think that the tract was a single unit and that it was put to a non-conforming use as a whole before the act of 1928 was passed.

The four orders under review will be affirmed and the writ dismissed, with costs.


author: Ackehson, S. C. C.

text:
    ALGROD REALTY COMPANY, A CORPORATION OF NEW JERSEY, PLAINTIFF, v. ROBERT H. BAYERL AND PAULINE BAYERL, DEFENDANTS.
    Decided May 13, 1932.
    Por the plaintiff, Plaioff, Saperstein & Plato ff.

    Por the defendants, Gross <& Gross.

   Ackehson, S. C. C.

The defendants move to strike out the complaint as not setting forth a cause of action. The complaint alleges, and for the purpose of this motion the allegations therein must be assumed to be true, that the plaintiff Algrod Realty Company purchased certain premises and, as part of the consideration therefor, assumed and agreed to pay a mortgage thereon; that the plaintiff thereafter conveyed said premises to the defendants, and in the deed defendants expressly agreed and assumed to pay the aforesaid mortgage as part of the consideration for the said conveyance. It is further alleged that a default having occurred in the performance of the terms of said mortgage, the mortgagees instituted proceedings in the Court of Chancery for the foreclosure of the said mortgage and that, upon demand, the defendants have failed, refused and neglected to pay the whole amount due upon said mortgage, wherefore the plaintiff demands said amount as damages for the breach of the aforesaid covenant. It thus appears that this action is by a mesne grantor against his grantee upon a covenant in the deed to pay.a mortgage upon the premises which the grantor had previously assumed.

It is to be noted that there is no allegation in the complaint that the aforesaid foreclosure proceedings have resulted in a decree and a sale thereunder resulting in a deficiency, nor that the plaintiff has paid or been called upon to pay the mortgage debt. The defendants, therefore, insist that no cause of action can arise in plaintiff’s behalf, at least until a deficiency is established by the foreclosure proceedings, especially in view of section 48 of the act entitled “An act concerning proceedings on bonds and mortgages given for the same indebtedness and the foreclosure and sale of mortgaged premises thereunder” (Pamph. L. 1880, p. 2551, as amended Pamph. L. 1881, p. 184; 3 Comp. Stat., p. 3421), which section provides as follows:

“That in all eases where a bond and mortgage has or may hereafter be given for the same debt, all proceedings to collect said deit shall be, first, to foreclose the mortgage, and if at the sale of the mortgaged premises under said foreclosure proceedings the said premises should not sell for a sum sufficient to satisfy said debt, interest and costs, then and in such case it shall be lawful to proceed on the bond for the deficiency, and that all suits on said bond shall be commenced within six months from the date of the sale of said mortgaged premises, and judgment shall be rendered and execution issue only for the balance of debt and costs of suit.”

It is, of course, settled that a grantee in a deed, by accepting the same, becomes liable on the covenants therein purporting to have been made by him just as though he had signed and sealed the instrument. Finley v. Simpson, 22 N. J. L. 311; Howell v. Baker, 106 N. J. Eq. 434; 151 Atl. Rep. 117.

The nature and extent of the liability of a grantee upon his covenant of assumption of a mortgage debt, as such liability existed in this state prior to the adoption of the foregoing statute in 1880, was settled in the case of Sparkman v. Gove, 44 N. J. L. 252. There the grantor brought an action against his grantee for the breach of the grantee’s covenant to assume a certain mortgage. The mortgage had matured but the grantor had not been called upon to pay it, and no deficiency had yet been established under any foreclosure proceedings. The court sustained the plaintiff’s action and allowed recovery of the full amount due on the mortgage. In the course of the opinion the court said:

“The covenant in the present case was one to pay the mortgage. Its language, ‘which mortgages are assumed by the party of the second part,’ imports that the grantee entered into a personal obligation, and took upon himself the duties of the covenantees with regard to the mortgage. Those duties comprised, in this instance, an obligation to pay the mortgage debt at its maturity, and this obligation must therefore be considered as assumed by the defendant. His covenant is not fairly capable of any less onerous interpretation.

“On the breach of such a covenant, the damages recoverable are a sum sufficient to put the plaintiff in the position in which he would have stood if the covenant had been kept, i. e., one of complete exoneration from the obligation which the defendant had agreed to discharge. Such sum is the whole amount of the plaintiff’s debt. The authorities to this effect are clear and weighty. They distinguish between cases growing out of the mepe liability of the plaintiff as surety for the defendant, or mere contracts to indemnify on the one side, and cases resting upon the express agreement of the defendant with the plaintiff to pay a debt for which the plaintiff or his property is hound. In the former class, payment hy the surety or actual loss must precede recovery, in the latter, the promisee, on breach, may recover the amount of the debt.” . The defendants argue that if they are held liable to the plaintiff under the circumstances set forth in the complaint herein, that they may be subjected to a double liability in that they may be compelled to pay the mortgage debt to both the mortgagee and the plaintiff. This point was raised in the Sparkman case, supra, and the court answered it in the following manner:

“Although this rule may occasionally expose the promisor to some danger of being twice compelled to pay the same debt, yet the risk can always be escaped by exact performance of his contract, and where he is in default, the instances will be rare in which the court rendering judgment against him will not protect him from loss, and even in these instances a timely resort to equity will afford him relief.”

Furthermore, whatever action the mortgagee might have against the defendants must be taken in the Court of Chancery. Crowell v. Hospital of Saint Barnabas, 27 N. J. Eq. 650, and that court would protect the defendants from double liability. In any event, a judgment for the plaintiff in the present .action and a satisfaction thereof would prevent the mortgagee from maintaining a suit in equity, because whatever right a mortgagee has against an assuming grantee is derivative and is limited by the rights of the grantor against his grantee at the time the mortgagee’s bill is filed. Crowell v. Hospital of Saint Barnabas, supra.

Although the case of Sparkman v. Gove, supra, was decided in 1882, it involved a mortgage which was executed prior to 1880 in which year section 48 of the “Mortgage act” was originally enacted, so that this section, which is quoted above, was not considered in that decision, but, unless said section has changed the rule laid down in the Sparkman case that case must still control the disposition of this motion.

A moment’s reflection will show that the foregoing enactment has not limited the scope of the Sparkman case. The statute by its terms refers only to an action on a bond to collect a debt secured by a mortgage. The present action is not an action on the bond or even against any party to the bond, it is an action against a stranger to the bond to recover damages for the alleged breach of a covenant made by him with his grantor, who is also not a party to the bond. National Bank of New Jersey v. Lefkowits, 107 N. J. Eq. 265; 153 Atl. Rep. 328.

The statute is in derogation of the common law and must be strictly construed. Callan v. Bodine, 81 N. J. L. 240; 79 Atl. Rep. 1057; Development Building and Loan Assn. v. Norock, 10 N. J. Mis. R. 23; 157 Atl. Rep. 452. So it has been held that an action can be brought on a note for which a mortgage was given as collateral prior to foreclosing the mortgage. Asbury Park et al. v. Giorano, 3 N. J. Mis. R. 555; 129 Atl. Rep. 202; affirmed, 103 N. J. L. 171; 134 Atl. Rep. 915. Nor does the statute apply to any bond except the bond of the complainant in foreclosure. Sivade v. Smith, 104 N. J. Eq. 528; 146 Atl. Rep. 364. It has also been held that the statute does not apply to an action by an assignee of a bond and mortgage against his assignor who guaranteed the mortgage In such a case the assignee can sue his assignor on the guaranty prior to foreclosure unaffected by the statute in question. Pfeiffer v. Crossley, 91 N. J. L. 433; affirmed, 92 Id. 638; 103 Atl. Rep. 1000.

It is apparent, therefore, that the foregoing statute has not changed the rule laid down in the case of Sparkman v. Gove, supra, which leads to the denial of the defendant’s motion.


text:
    THE BANCROFT SCHOOL, PROSECUTOR, v. STATE BOARD OF TAXES AND ASSESSMENT ET AL., DEFENDANTS.
    Submitted May 15, 1931
    Decided May 16, 1932.
    Before Justices Teenchaed and Donges.
    Bor the prosecutor, French, Richards <& Bradley.

    Bor the defendants, Patricia H. Harding.

   Pee Cubiam.

■' This certiorari brings up for review assessments by the Boroiigh of Haddonfield against the property of the Bancroft School for the year 1930 and the judgment of the state ■board of taxes and assessment affirming those assessments. The taxes assessed aggregate $1,700.16. The Bancroft School, located in the borough of Haddonfield, is a school for backward and mentally defective children and was established a number of years ago by Miss Bancroft. In 1928, the prosecutor was incorporated as an association not for pecuniary profit and all the assets of the prior corporation were turned over to the new corporation.

The property of this corporation from time to time has been exempt, and at other times failed of exemption as the provisions of the statute were changed.

The present application is based upon chapter 42 of the laws of 1929, under the paragraph providing that all buildings used for schools, when said school is not operated for profit but is a charitable institution, are exempt from assessment.

It appears that there are approximately ninety students and there are approximately eighty-four employes. Charges for the students are as follows: One free, thirteen $1,000 each, forty $1,200 each, twenty $1,500 each, and sixteen $2,000 or more each. It further appears that in the summer these pupils are taken to Maine for a three months’ outing at some additional cost to the students or their parents: Jt appears that at the present time there are no profits over and above the cost of operation. Testimony is submitted designed to establish that the primary motive is the education and improvement of the inmates. It seems to us, however, it cannot be said that this is a charitable or benevolent enterprise. The fees charged are very considerable. The fact that it may not from time to time result in profitable operation is beside the question. It has a commercial aspect. The amount of the fees charged indicates that it is commercial. The burden is upon the one claiming an exemption to establish the right. Carteret Academy v. State Board, 102 N. J. L. 525; 133 Atl. Rep. 886; affirmed, 104 N. J. L. 165; 138 Atl. Rep. 919. We conclude that the right has not been clearly established in this case, and that, therefore, the judgment of the state board of taxes and assessment should be affirmed and the writ dismissed, with costs.


author: Pek Cukiam.

text:
    ANDRI LaFORGIA, PROSECUTOR, v. CITY OF HOBOKEN ET AL., DEFENDANTS.
    Submitted October 16, 1931
    Decided May 16, 1932.
    Before Justices Trenchard and Donges.

      For the prosecutor, Sylvan S. Cohen.

    For the defendants, James A. Coolahan.

   Pek Cukiam.

This writ of certiorari brings up the conviction of the prosecutor by the recorder of the city of Hoboken for a violation of the sanitary code of said city. Prosecutor was arrested upon a complaint charging him with having kept ice in his cellar in violation of the ordinance. He was found guilty and fined $20 in accordance with the ordinance.

The sole question here argued is that the ordinance under which the conviction was had is invalid as contrary to the legislative enactments concerning the scope of city ordinances.

The ordinance prescribed a penalty of $20 upon each conviction, and provided for no other form of punishment. Prosecutor contends that this is in violation of the provisions of the Home Rule act (Pamph. L. 1917, ch. 152), because that act requires the fixing of a minimum and maximum penalty and requires the exercise of the discretion of the magistrate in the imposition of the sentence.

In Massinger v. Millville, 63 N. J. L. 123; 43 Atl. Rep. 443, an ordinance which provided for a fixed penalty was held invalid under the act of 1896 regulating city ordinances.

In Friedman v. Maines, 8 N. J. Mis. R. 703; 151 Atl. Rep. 472, such an ordinance was held invalid as contrary to the provisions of the Home Rule act.

It seems clear that the ordinance, by its terms, comes within the scope of the Home Rule act.

However, the defendants contend that, since the ordinance was adopted in 1891, it is not affected by the act of 1917. The Home Rule act provides that ordinances in force at the time of its adoption (1917) should remain in force “except in so far as they are inconsistent herewith.” This can be construed as nothing less than a condemnation of ordinances which do not meet the limitations contained in that act.

The conviction is set aside, but without costs.


text:
    STANDARD WATER SYSTEMS COMPANY ET AL., PROSECUTORS, v. NETTIE A. ORT ET AL., DEFENDANTS.
    Submitted October 16, 1931
    Decided May 16, 1932.
    Before Justices Teenohaed and Donges.

      For the prosecutors, McCarter ■& English.

    Bor the defendants, Gebhardt £ Gebhardt.

   Pee Ctjeiam.

This writ of certiorari brings up for review a judgment of the Hunterdon County Court of Common Pleas affirming a determination of the workmen’s compensation bureau awarding compensation .to the defendant for the death of her husband as the result of an accident found to have arisen out of and in the course of his employment. The record and briefs are lengthy and the case was closely contested. The contest turns over the question of whether or not there was proof of an accident.

The decedent, Walter E. Ort, was employed as a machinist by the prosecutor Standard Water Systems Company. On December 29th, 1928, he was working with one Sherman at the shop. He and Sherman were working on steel plates weighing from thirty to seventy-four pounds each. They were lifting them to a rolling machine. They carried them eighteen feet and then they hammered them to the proper shape by means of a seven-pound sledge hammer. Decedent carried and hammered one-half of the eighteen plates worked on during the morning.

This work was finished at about ten-thirty A. m. and neither during the work nor at its finish did the decedent complain of any accident, injury or pain. The testimony was that he was in good health up to this day and at the time of commencing work on this morning. He inquired if there was any more work to be done and then around eleven-thirty a. m. started to walk home, as was his custom. He very shortly returned to the shop and asked one of the officers of the company, a Mr. Eobert Bogart, to drive him home. During the drive he complained of pain, slumped down in his seat, and said something about having an attack of indigestion.

Hpon his arrival home he was attended by a Dr. Hunt, who lived with him. The doctor found his heart greatly dilated and treated him constantly during the balance of the day and night up to the time of his death around six o’clock the next morning. Dr. Hunt gave the cause of death as acute dilatation of the heart, but did not in the death certificate attribute it to trauma. In his testimony (page 56) he said it was traumatic.

Both the doctor and the widow say that the decedent told them he had been doing heavy lifting and “guessed he had hurt himself.” On January 4th, 1929, the widow inquired of an official of the prosecutor company if her husband had been doing heaving lifting and told him what her husband had said on the last day of his life.

The deputy commissioner and the Common Pleas judge both found that the death was caused by an accident. The prosecutor now urges that there was no evidence to sustain such finding. The question thus presented to us is a very close one.

In the first place it is argued by the prosecutor that the statements of the decedent to his wife and to Dr. Hunt that lie had been doing heavy lifting and guessed he had strained himself is of little or no probative value. Under the case of Le Grande v. Hubbard & Lange, 8 N. J. Mis. R. 470; 150 Atl. Rep. 575, this contention is sound. The statements were admissible and perhaps may be considered along with other evidence, but cannot be relied upon to prove the happening of an accident.

The prosecutor points out that the decedent made no outcry; did not complain to his fellow-workman of any injury; mentioned only indigestion as the cause of his discomfort on the way home; and then said he “guessed he injured himself by lifting.” It must be admitted that these things negative the idea of the happening of an accident.

On the other hand we have a situation where a man shown to be in apparent good health, arrives at work in good spirits and good condition; does heavy lifting and pounding with a heavy sledge on steel; and then is unable to walk home, and dies within eighteen hours of acute dilatation of the heart, a condition which, according to defendant’s expert testimony, may be and is produced by strenuous exertion which causes a sudden rush of blood to the heart, producing trauma in a weak heart.

Dr. Hunt testified that in his opinion the death was caused by dilatation produced by the heavy work done by decedent during the morning; and this testimony in no wise depends upon the statements made to him by decedent. It has a basis in the condition he observed in his patient and in the admitted fact that decedent had been doing the work described by the witness Sherman. The contradictory testimony of the other experts at most produced a question of fact to be determined, and two tribunals having already passed upon this question, this court should not disturb their finding when there is any evidence to reasonably support it. Pearson v. Armstrong Cork Co., 6 N. J. Mis. R. 976; 143 Atl. Rep. 449.

The other question argued is whether or not the proper notice was given to the employer within ninety days. It will he remembered that on January 4th Mrs. Ort told an officer of the employer that the decedent had mentioned a strain. Furthermore, on the day of the accident decedent told his superior of a complaint from which he was suffering. The language in Holzwarth v. Hedden, 1 N. J. Mis. R. 381, seems pertinent here:

“One point remains to be considered, that the respondent had neither notice nor knowledge of the injury. It is to be noted that the statute does not require notice or knowledge of an ‘accident,’ but merely of an ‘injury,’ so -that no responsibility would attach to decedent or petitioner to make a specific claim within the statutory period that the decedent had met with an accident.

“The respondent had, through its foreman, all the knowledge of the circumstances surrounding the collapse of the decedent, that the decedent had and that was offered before the court. This information the foreman, Jack Emmenberg, received the next day, * * *.

“Under these circumstances, the argument that the respondent did not possess knowledge of the injury is without merit. It may not have considered that the injury was the result of an accident for which it was responsible, but it seems clear to me that it knew the decedent had in fact been injured.”

The judgment is affirmed,, with costs.


text:
    STATE BOARD OF MEDICAL EXAMINERS, PROSECUTOR, v. EDWARD A. BAKER, DEFENDANT.
    Submitted October 30, 1931
    Decided May 16, 1932.
    Before Justices Tkenchakd and Donges.
    For the prosecutor, William A. Stevens, attorney-general, and Robert Peacock, assistant attorney-general.
    For the defendant, Lionel Isaacs and Herbert P. July (of the Few York bar).
   Pee Cueiam.

This writ of certiorari seeks a review of a judgment of the District Court of the city of Elizabeth, adjudging the defendant not guilty of a violation of the act regulating the practice of chiropody.

The defendant is not licensed as a chiropodist. The testimony of the several witnesses for the state board was that he examined their feet by feeling “around those bones in the feet;” took impressions of their feet; and, in each instance, recommended arch supports, and made such supports for them. The charge was $15 in each case. The defendant testified in substance as did the prosecutor’s witnesses. On behalf of the prosecutor, an expert witness was permitted to testify that the things admittedly done by the respondent constituted the practice of chiropody. We are not called upon to pass upon the competency of the testimony of this expert. The pertinent part of it was admitted without objection.

The situation thus presented is one where it appeared from the uncontradicted testimony of the factual witnesses and the admitted expert testimony that the respondent had practiced chiropody. There being no conflict in the testimony before the trial judge, we are of opinion that he was not at liberty to disregard the evidence and substitute his own opinion, unsupported by evidence, in place thereof. A verdict must be considered in view of the situation presented to the trial court. A verdict erroneous on the theory and proofs presented to the trial court cannot be sustained. First Caldwell Oil Co. v. Hunt, 100 N. J. L. 308; 127 Atl. Rep. 209; Flammer v. Morelli, 100 N. J. L. 314; 126 Atl. Rep. 307.

The judgment under review will be reversed, and a venire de novo awarded Costs will abide the outcome of the proceeding.


author: Per Curiam.

text:
    OWEN C. PEARCE ET AL., PROSECUTORS, v. BOROUGH OF MANASQUAN ET AL., DEFENDANTS.
    Submitted October 16, 1931
    Decided May 16, 1932.
    Before Justices Trenchard and Donges.
    For the prosecutors, Durand, Ivins <£ Gordon.

    For the defendants, Hoisted H. Wainwright.

   Per Curiam.

This writ of certiorari brings up for review a certain ordinance of the borough of Manasquan, approved March 29th, 1927, providing for the laying out, opening and improvement of a highway known as Stockton Lake Boulevard, and likewise brings up the report of the commissioners of assessment imposing assessments upon lots of land of prosecutors for work done under said ordinance.

It appears that the land incorporated in the highway was donated to the municipality as a public highway under an agreement entered into between the borough and Perrine, and others, by which it was, in general terms, agreed that the land should be donated and that any improvements thereafter should be made by the borough at its expense, and without expense to the donors. The facts appear to be without substantial contradiction.

Prosecutors make the following points:

1. “The assessment was not made in accordance with the notice of intention of the ordinance and an agreement referred to in the ordinance, and is therefore illegal.”

2. “No proceedings were taken to acquire the lands necessary for the improvement; the ordinance was not sufficient for such purpose and no award was made for damages for the lands taken.”

3. “The ordinance was passed both first and second reading at the same meeting. The ordinance was not published for the first reading. No notice of intention was mailed to any property owner to be affected by said ordinance. No copy of the ordinance was mailed to any property owner to be affected by said ordinance.”

4. “The mayor and council failed to instruct the commissioners of assessments of the terms of the Perrine agreement in connection with the assessments and also failed to hear the prosecutors relative to such agreement when the report of the commissioners was made before the borough council.”

5. “The prosecutors are not in laches.”

With respect to such of the foregoing points as seek to challenge the validity of the ordinance, it seems quite clear that it is too late for prosecutors to do so. They had both actual and constructive notice of the intention to pass the ordinance, which ordinance declared the contemplated improvement was a “local improvement” and that after completion thereof a just and equitable assessment for benefits conferred upon any lands and real estate in the vicinity thereof by - reason of such improvement would be assessed thereon in the manner provided by law, pursuant to the contract theretofore entered into, and further provided “if the benefit so assessed shall not equal the costs and expenses of the improvement, the balance shall be paid by the borough at large.”

The contract referred to as “theretofore entered into” was the so-called Perrine agreement, which provided for such change of location of Stockton Lake Boulevard as “the borough of Manasquan may deem advisable and for the best interests of the traveling public for use as a public thoroughfare, to be understood and agreed, however, by the parties of the first part hereto that they are to pay the extra expense for additional fill on the respective lands caused by this change in the location of said avenue.”

Pursuant to the actual and constructive notice to the prosecutors they attended the meeting at which the ordinance was considered. The present attack upon the ordinance and the assessment for the improvement is based upon the alleged statements of the mayor and one or more of the councilmen at the meeting at which the ordinance was considered that there would be no assessment against their lands for the contemplated improvement.

However, the testimony on behalf of the borough is to the contrary, and that on behalf of the prosecutors is too indefinite to outweigh the clear and explicit denials of the public authorities taken together with the plain terms of the ordinance.

The situation presented is one where the prosecutors, being thoroughly familiar with the provisions of an ordinance calling for the expenditure of moneys for an improvement and for assessments by reason of such improvement, without objection to any action until the assessments were imposed, now attempt to attack the proceeding. The prosecutors cannot now be heard to challenge the validity of the ordinance.

The prosecutors likewise attack the assessment as unfair and unjust.

In such case, it appears that appeal is the proper method of review. In Burstiner v. East Orange, 4 N. J. Mis. R. 280; affirmed, 103 N. J. L. 174; 134 Atl. Rep. 916, it was said:

“With respect to the objection now urged as to the amount of the assessment against the prosecutors it is sufficient to say that when an attack is made upon an assessment that it is unfair, the Home Rule act provides for a remedy by appeal; and a dissatisfied land owner must use this method before resorting to a writ of certiorari.

To the same effect as Graham v. Ocean City 98 N. J. L. 426; 119 Atl. Rep. 772; Breckenridge v. Newark, 94 N. J. L. 361; 110 Atl. Rep. 570.

The writ will be dismissed, with costs.


text:
    THOMAS GRAVES, PROSECUTOR, v. BURNS, LANE & RICHARDSON, DEFENDANT.
    Submitted October 16, 1931
    Decided May 16, 1932.
    Before Justices Tren chard and Donges.
    Bor the prosecutor, Arthur O. Dunn.

    Bor the defendant, Collins •& Corbin.

   Per Curiam.

This certiorari brings up for review a judgment entered in the Passaic County Court of Common Pleas reversing a judgment entered in the workmen’s compensation bureau on January 26th, 1931. The facts are that Graves, the prosecutor, was employed as a journeyman plumber and on November 18th, 1929, was working for the defendant on a building at the North Jersey Training School for Women at Totowa. He reported for work and with a helper was carrying a three-inch iron pipe from the place where it was stored up a hill about one hundred and fifty feet to the building where they were working. It appears that this pipe weighed one hundred and sixty to one hundred and sixty-five pounds, was twenty-two feet in length, and three inches in diameter. The helper lifted the end uphill and the petitioner endeavored to raise the lower end. As he did so he felt something “wrong inside.” He suffered pain and grew dizzy. His condition was apparent to another helper who relieved him of the pipe and carried it in the cellar with the assistance of the man who started with Graves. Thereafter the prosecutor began to spit blood and continued to do so for several days. Finally he was obliged to give up work and the doctors diagnosed his condition as tuberculosis and said that the extraordinary strain had induced activity in bacteria which had been dormant.

The sole question is whether the occurrence was an accident within the meaning of the statute. There is no question that it arose out of and in the course of the employment and there is no doubt about his condition.

The deputy commissioner found that the occurrence was an accident and awarded compensation. Appeal was taken to the Court of Common Pleas where it was held it was not an accident within the contemplation of the statute, and the finding of the compensation bureau was reversed.

This case is covered by the opinion of the Court of Errors and Appeals in Winter v. Atkinson-Frizzelle Co., 88 N. J. L. 401; 96 Atl. Rep. 360, where the Common Pleas Court awarded compensation in a case where a strain from heavy lifting had produced death from heart disease. In that case there was evidence that a month prior to the strain the decedent had suffered a fall which might have produced or aggravated the heart condition. However, it was held that a finding that the strain caused the condition which resulted in death was “a deduction or inference reasonably gathered from all the facts of the case.” The award was affirmed.

In the light of that case it seems that the finding of the deputy commissioner was correct.

Since the Court of Common Pleas reversed the decision of the compensation bureau, the question before us is whether the evidence reasonably supports the finding of the Common Pleas. As we view the record there was substantially no dispute as to the facts, although there was some conflict of opinion between the medical experts as to the presence of the alleged tubercular condition, and whether the strain would produce the condition complained of. However, both the deputy commissioner and the Common Pleas judge found that the condition which produced the employe’s disability was the result of strain caused by lifting the pipe. This finding, being supported by the evidence, is to be regarded as settling the question of fact. Armstrong Cork Co. ads. Pearson, 6 N. J. Mis. R. 976; 143 Atl. Rep. 449.

On the facts so found, we think the reviewing judge erroneously concluded as a matter of law that the prosecutor did not meet with an accident within the meaning of the compensation law. We conclude that the prosecutor met with an accident which caused his disability; that the accident happened while he was at work and therefore in the course of employment; and that it was brought on by the work and therefore arose out of the employment. Voorhees v. Shoonmaker, 86 N. J. L. 500; 92 Atl. Rep. 280; Jones v. Public Service Railway Co., 86 N. J. L. 646; 92 Atl. Rep. 397.

The judgment of the Passaic County Court of Common Pleas is reversed and the award of the compensation bureau is affirmed, with costs.


text:
    JOSEPH W. AUSTIN, PROSECUTOR, v. MAYOR AND COMMON COUNCIL OF THE BOROUGH OF UNION BEACH ET AL., DEFENDANTS.
    Submitted May 15, 1931
    Decided May 16, 1932.
    Before Justices Tbestchaed and Donges.
    For the prosecutor, Ezra W. Karhus.

   Pee Cueiam.

This writ of certiorari was allowed to review a certain ordi • nance of the borough of Union Beach “to fix the rates to be charged for the use of water, and to establish rules and regulations for the extension, use and protection of the water supply and water works and each and every part thereof,” together with the supplements thereto and amendments thereof, and the charges thereby imposed, and likewise to review certain proceedings thereunder which resulted in the sale of prosecutor’s property in satisfaction of an alleged municipal lien based upon an. unpaid bill'for water.

On March 22d, 1927, the borough passed an ordinance dealing with the subject of the water supply of the municipality. It purported to comprise a complete regulation of the water supply, including a schedule of rates. The prosecutor never used any of the water supplied by the borough and, in fact, had no connection with the water mains. Nevertheless, he was presented with a bill for water service, and, upon non-poyment thereof, his property was on September 3d, 1930, sold at tax sale by the collector.

It seems clear that the sale was improper. Under Jersey City v. Morris Canal, 41 N. J. L. 66; Karpenski v. South River, 85 Id. 208; 88 Atl. Rep. 1073; Ford Motor Co. v. Kearney, 91 N. J. L. 671; 103 Atl. Rep. 254; Olesiewicz v. Camden, 100 N. J. L. 336; 126 Atl. Rep. 317; and Lehigh Valley Railroad Co. v. Jersey City, 103 N. J. L. 574; 138 Atl. Rep. 467, it is established that a municipality engaging in the sale of water for profit is exercising proprietary and business powers and is governed by the same rules as control an individual or business corporation under like circumstances. There was no contract for service and none was furnished in this ease. Therefore, a charge therefor was unlawful.

The sale of prosecutor’s property was unwarranted and unlawful and must be set aside.

The prosecutor also challenges the validity of section 1, subdivision C of the ordinance which makes unlawful the use of any well or other source of supply in the borough. Inasmuch, however, as the record discloses that no action has been taken to require the closing of prosecutor’s well, and no reason is filed indicating in what respect prosecutor has been affected by such provision of the ordinance, we do not pass upon that question.

The proceedings and sale of prosecutor’s property for the collection of the claim for water or water service are set aside, without costs.


text:
    SIDNEY KAUFMAN, BY HIS NEXT FRIEND, PROSECUTOR, v. WILLIAM H. SMATHER, JUDGE, ETC., DEFENDANT.
    Submitted May 16, 1931
    Decided May 16, 1932.

      Before Justices Trenohard and Donges.
    Bor the prosecutor, Bourgeois & Coulomb and William, B. Hunter.

    Bor the defendant, Samuel Levinson and Plwood C. Weeks.

   Per Curiam.

The prosecutor was adjudged to be the father of a child in proceedings under the “act for the maintenance of bastards.” It is not necessary to review the facts, because they are not involved in the legal questions now raised.

The first point argued by the prosecutor for a reversal of the judgment below is that the court in which the trial was had, which prosecutor calls the “Atlantic County Juvenile Court,” did not exist.

In 1903, an act was passed entitled “An act establishing a court for the trial of juvenile offenders,” defining its duties and powers, setting forth the jurisdiction of said courts, and constituting the Common Pleas judge of the county the judge of the court. In 1912, an act was passed creating Juvenile Courts in counties of the first class, and this court was given jurisdiction over matters that were formerly cognizable in the “courts for the trial of juvenile offenders.” In the same year an act was passed providing “for the hearing and determination of disputes or matters affecting the domestic relation and conferring jurisdiction upon- the County Juvenile Courts.” By the provisions of the latter act, in all counties where there is or may be established a County Juvenile Court, said court is given concurrent jurisdiction in matters involving the domestic relation and welfare of children. A supplement to that act was passed in 1927 (Pamph. L. 1924, ch. 299), which provides: “In counties where there is or may be hereafter established a County Juvenile Court, said court is vested with concurrent jurisdiction to hear and determine disputes regarding the parentage, care, custody and maintenance of illegitimate children,” as provided for in the act entitled “An act for the maintenance of bastard children.”

Tlie prosecutor’s argument is that the jurisdiction to try-bastardy proceedings is confined to Juvenile Courts in first class counties. We think there is no merit in this contention and that there was established a Juvenile Court in Atlantic county and that said court had jurisdiction to hear and determine bastardy proceedings.

The next point is that if there was an “Atlantic County Juvenile Court,” it was not in existence at the time of the institution of these proceedings by reason of the act of 1929 (Pamph. L. 1929, p. 274), which established “Juvenile and Domestic Delations Courts” and defined their jurisdiction, powers and duties, and regulated procedure therein. By this act, a court was established in each county of the state and its jurisdiction clearly included proceedings for the maintenance of bastards. In counties other than those of the first class the judge of the Common Pleas Court was designated as the judge of the new court. While it is true that there is no express repealer of prior legislation, we are of opinion that the act of 1929 was a complete revision and that the Juvenile Courts theretofore created .were abolished by the said act. It follows that proceedings in the instant case were cognizable by the Juvenile and Domestic Delations Court of said county of Atlantic.

The objection of prosecutor, therefore, reduces itself to the simple one of whether or not the admitted fact that the proceeding was entitled in the “Juvenile Court of Atlantic County” instead of “Juvenile and Domestic Delations Court of Atlantic County,” requires a reversal of the order under review. There is no doubt that the Juvenile and Domestic Delations Court had jurisdiction over the subject-matter and had jurisdiction over the person of the defendant below, blor is there doubt that Hon. William H. Smathers was judge of said court. The mere inadvertent omission of a part of the name of the court should not be seized upon by this court to defeat a judgment otherwise beyond attack. In Schomp v. Tompkins, 46 N. J. L. 608, it was held that irregularities in procedure should not be permitted to defeat the order of filiation, if the jurisdictional facts can be gathered from the case, and that every intendment should be made in favor of the order. To the same effect is Overseer, &c., v. Eason, 92 N. J. L. 199; 104 Atl. Rep. 291.

The prosecutor recognized the jurisdiction of the court by entering into a bond in the sum of $1,000 and reciting therein that the defendant was “brought before the Hon. William H. Smathers, judge of the Atlantic County Juvenile and Domestic Eelations Court of the County of Atlantic,” and further that “the said judge in the said Juvenile and Domestic Eelations Court” made the order under review.

We conclude that the- omission of a part of the title of the court, it being clear that such court had jurisdiction of the case, did not render the order void.

Further, after a full and complete trial upon the merits, in which a jury was demanded and allowed, the defendant below secured from the trial judge a rule to show cause why a new trial should not be granted, without the reservation of any exceptions or questions of law, either as to the jurisdiction of the court or otherwise. A bastardy case is a civil and not a criminal proceeding. Overseer v. Eason, supra. The action of the prosecutor amounted to a waiver of any objection to errors in procedure. Schomp v. Tompkins, supra.

The next point is that the complaint was made by the mother and not by the overseer. Section 5 of the act of 1929 creating the court provides that a proceeding may be instituted by complaint or petition and verified by the person making same. It is sufficient to say, however, that this point was not raised before judgment in the court below, and appears to have been raised for the first time on the return of the rule to show cause. It is not now available to prosecutor.

As to the alleged error in the order requiring the defendant therein to pay to the probation officer, instead of to the overseer of the poor, this may be corrected by the entry of a suitable order when the case is remanded to the county court. Overseer v. Eason, supra.

We conclude that the order under review when so corrected should be affirméd, but without costs.


author: Backes, V. C.

text:
    Williams A. Hunt, complainant, v. Frederick M. Hunt, defendant.
    [Decided May 9th, 1932.]

      Messrs. Lindabury, Depue ■& Faulks, for the complainant.

      Mr. Merritt Lane, for the defendant.
   Backes, V. C.

The relief sought is three-fold: For an accounting of moneys received upon trust; for a partnership accounting, and for a restoration of the title to land.

The suit is by Williams A. Hunt, dull and, to all appearances, subnormal, against his brother, Frederick M. Hunt. The limit of Williams’ capacity is that of a hostler; he knows horses, and little else. Business experience he has none. Although possessed of an inheritance, he has never made a bank deposit or drawn a check; others did it for him, and had to. Fred is shrewd and unscrupulous. By inclination be is a horse trader; by occupation he was a broker on the produce exchange. ' The brothers lived with their mother until she died in 1908; thence with their sister, Mrs. Jaques, until the latter part of 1924, when Fred married and went his way. He dominated his slow-witted brother, who, confiding and easily led, followed him submissively.

In 1904, Williams and Fred formed Hunt Brothers, a partnership, to conduct a livery- stable business in Newark, which lasted until 1924, shortly before this bill was filed’. The partnership prospered; in later years it dwindled into insignificance, when the automobile came. Williams was the stableman. Fred conducted the business end, kept the books and handled the finances. He kept three Hunt Brothers’ accounts in as many banks in New York, against which he alone could draw, and did; and he was not always careful to confine the withdrawals to the firm’s transactions. With these accounts and the business affairs generally, Williams had no concern; he hadn’t the wit. In all the years he withdrew but $700, mostly in small lots, from the firm. In June, 1911, Fred gave him a check for $5,500, half the cash in bank, he taking the rest. It is a fair surmise that about this time Fred conceived the idea of concealing his assets in Williams’ name to cheat his creditors.

In December of 1911, Fred induced Williams to purchase a plot of land on Washington street, Newark, for a livery stable and garage. Williams paid the purchase price, some $11,500, out of his inheritance and assumed two mortgages, one for $15,000, and a second for $6,500. Fred engineered the deal. The holder of the $6,500 mortgage started foreclosure and Fred paid him off without consulting Williams, afterwards taking his note for the amount; that was the first hiding in the scheme of concealment.

Fred, then, in Williams’ name, contracted with William A. Blanchard Company, a builder, to erect the stable and garage. He negotiated the contract and supervised the construction. The total cost was approximately $38,000. Williams advanced some of the cost, about $8,000, and the rest was furnished by Fred out of his own and partnership funds. To cover up, Fred took Williams’ note for $9,000, for money supposedly advanced to him up to that time towards paying for the structure; his second step in the concealment.

Needing money to pay the bills, Fred obtained a loan of $10,800 from the Battery Park National Bank, New York, upon false pretense. That was on April 1st, 1912, and within the month he conveyed some of his seizable property to one Brown, and the rest to Williams, and, on September 11th following, filed a petition in bankruptcy in New York and a false schedule of his assets, of $9 cash and a worthless note of one Hedden for $7,686. His hidden assets, including the two notes he held of Williams, $15,500, and his partnership interest, were, of course, omitted. The day following, he was adjudged a bankrupt, and later a trustee was appointed. Shortly before the bankruptcy, the Battery Park National Bank levied an attachment, issued out of our supreme court, against the stable and garage property, and filed a bill in chancery in aid of the writ, in which the trustee later intervened and took over the prosecution of the suit which resulted in a decree declaring that Williams held the property in trust for Fred. Battery Park National Bank v. Hunt, 83 N. J. Eq. 521; 91 Atl. Rep. 804; affirmed, sub nom. Hunt v. Trask, Ibid. 680. Fred controlled the defense; his lawyers conducted the trial; Williams was his pawn. Fred and Williams flagrantly perjured themselves in the bankruptcy court and at the trial before Vice-Chancellor Lewis, in the telling of a fanciful story, concocted by Fred and his New York lawyer, that Williams paid for the plot of land and the cost of the stable and garage out of an $80,000 cache in a box in a trunk at his house. Absurd and grotesque, they stuck to the story. The truth would have saved Williams’ investment, but also would have exposed Fred’s concealment of his assets. A petition to file a bill for review, in which only half the truth was told, was denied and the denial was affirmed by the court of errors and appeals. 84 N. J. Eq. 501; 96 Atl. Rep. 1101.

Cornered, Fred capitulated and make overtures for settlement. His first proposition, prepared by Williams’ then recently retained lawyer, addressed to Fred’s New York lawyer for transmission to the trustee, was that Williams would pay all the debts and costs, over a period of years, and secure the payment by a mortgage on the garage. Mrs. Jaques held an $11,000 judgment, by assignment from the builder recovered on a mechanics’ lien on the garage, which was to be subordinated. Satisfaction of the chancery decree would have left the title to the stable and garage property in Williams. Fred saw the drift, and, while Williams’ lawyer was away on vacation, had his, Fred’s, New York lawyer draft another settlement agreement by which Fred, Williams and Mrs. Jaques were to pay the debts and costs, over a period fixed, and Fred was to procure Brown, in whose name he had concealed his Washington street house, to convey it to the trustee as additional security to the decree which had alreay vested the title to the garage property in the trustee; the trustee was then to convey both properties to Fred, who in turn, was to execute to the trustee a mortgage on them to secure the payment; Mrs. Jaques was to postpone her judgment and Williams was to hand over to the trustee some of the property Fred had concealed in his name. These things being done, all litigation was to cease. The conveyances were made to the trustee, and Mrs. Jaques canceled her judgment, but the deed by the trustee to Fred and the mortgage by him to the trustee were not executed. The trustee held on to what he had and after three or more years, when Fred had made all payments, conveyed the garage to Fred. Williams wants the title restored to him. He claims that he signed the settlement agreement under pressure by Fred, and upon the representation that it was demanded, in the form it was drawn, by the trustees’ solicitor, which was untrue, and that all would be lost unless he signed; he says he did not understand, but having confidence in Fred, he signed. We have no question that Williams did not see in the document Fred’s twist to the course of the title, or, seeing, that he understood it; a few hours observation of him in the witness chair is quite satisfying of his denseness.

In deciding what should be done, we are ever mindful that we are dealing with the testimony of confessed perjurers and consequently consider nothing proved unless by their statements against interest or by supporting documents, independent evidence or by circumstances well established; their conflicting testimony standing alone is rejected as unworthy.

The existence of the partnership is conceded, but Fred claims that there were periodic settlements during its continuance and a final settlement in June, 1911, when he gave Williams the check for $5,500, half the money in bank, and that the partnership came to an end. On May 16th, 1912, a certificate was filed in the Essex county clerk’s office, signed and sworn to by Williams, that he, Williams A. Hunt, was transacting and intended to transact the business under the name of “Hunt Brothers.” Fred had the certificate prepared and Williams signed on the dotted line. He opened an account in Williams’ name in a local bank, of which he had power of attorney, in which he transacted the partnership business and much of his own until 1920, when he felt able to resume in his own name, having paid off his bankruptcy debts. The continuance of the partnership to the time the family relationship ceased in 1924—actively in the earlier period until 1917, desultorily until 1920 and indifferently thereafter—is amply established by the transactions, the books, admission by Fred and by his conduct. The business had run down, we may say run out, but not the partner relationship; nor has there ever been an accounting. It is certain that Williams never got his share, and particularly the $19,500 he contributed toward the purchase price of the garage property and the cost of construction of the garage. He is entitled to an accounting.

The certificate was unquestionably false and a fraud upon the statute. The document was the hands of Williams, but its inspiration was the voice of Fred to cheat his creditors, and Williams in his stupid way knew and reluctantly aided. It does not lie in Fred’s mouth to raise a conventional estoppel nor to interpose the moral issue as a defense, but the court may and always does spurn a tainted complaint. Equity’s contempt is not of the sinning supplicant, but only of his sinful complaint. Williams can have nothing of his contract of co-partnership that occurred after he falsely certified that he alone owned the business, for to grant him relief as to that would countenance his fraud, but he is not to be denied his rights up to that time; they are not infected by his later iniquity. To refuse him that relief -would be disciplinary, and equity is not vengeful.

The proofs disclose a number of transactions involving, the handling of Williams’ funds by Fred, apparently distinct from the partnership but, in reality, they will be found to be partnership funds or so intermingled with them that most of them may be taken into the reckoning in the partnership accounting.

Fred, for a time, collected Williams’ income from the Samuel I. Hunt estate and, of a total of $30,000, has accounted for all but' one installment of $70.40. That this one, like the rest, was not deposited to Williams’ credit is not satisfactorily established.

Fred bought the homestead on Washington street in 1905. There can be little doubt that it was a family affair, for at that time Williams and Mrs. Jaques each advanced to Fred $3,000; the purchase price was $6,500. For the earnest money of $350, Fred drew a partnership check, which was not used. Williams’ cheek for $3,000 is in evidence and the endorsements seem to link it to the transaction, but whether it was a loan or a contribution towards the purchase price is not clear. Fred maintains it was a loan and Williams says it was given in the general line of business. We agree with counsel for Fred, without deciding, that “it was given to Fred M. Hunt in the usual course of the business of Hunt Brothers, for use in that business.” It will stand as an item in the partnership accounting.

The brothers purchased a home in Bahway, before moving to Newark, each contributing half the purchase price. After they moved to Newark in 1904 they sold it for $5,000, taking back a mortgage from Wheller, the purchaser, for $4,850. The mortgage was purchased by Mrs. Jaques shortly after Fred went into bankruptcy, and the proceeds found their way either into the partnership account then being carried on by Fred in Williams’ name in the Newark Trust Companjq or it was laid out in paying for the garage then in the course of construction. The item forms a part of the partnership accounting, as do the rents of the property colleeted by Fred before the sale to Wheller and used in the partnership business, of which he kept a record in the firm’s books.

There were two mortgages of $4,500 each taken in the names of Fred and Williams; Hunt, known as the Kandolph mortgages. These were investments, in part, of Hunt Brothers’ funds. When the mortgages were paid off, the proceeds went into Hunt Brothers’ account and formed part of the balance in bank of $11,000, which Fred split with Williams in June, 1911. The contention of Fred that this was a final accounting and a termination of the partnership, already adversely disposed of, finds rebuke in the fact that Williams gave Fred, out of his private fund, a check for $2,250, his one-half of the second $4,500 Kandolph mortgage, the other half being taken from the partnership. A proper apportionment required that Williams be repaid his individual advance and the balance divided. Fred must also account for the interest on these mortgages.

The Kandolph-Wright mortgage appears to have been a personal investment of Fred. It was assigned by him to the builder of the garage and was later purchased by Mrs. Jaques.

Fred admits making an investment of $1,250 out of Williams’ funds in a mortgage of Jettie Auerback, and that he later cashed it. He accounted for only $999. He is responsible for the difference and the interest.

The second Auerback mortgage of $4,000 made to Fred was his property, paid for by his funds.

An accounting of the rents of the Belmont avenue house will be eliminated. One Jeffrey executed to Williams a mortgage for $2,750 on the property. He owed the firm, Williams says, $1,250, and that $1,443.83 was drawn from his account in a Newark bank to make up the difference. Fred says that Jeffrey owed the firm but $300 and that the difference was made up by two checks, one for $1,000, the other for $1,443.83 drawn on Williams’ account for which he (Fred) had first deposited the cash. The firm’s books show that the mortgage debt was made up of $1,250 notes and the balance in cash. The mortgage was taken in Williams’ name and later, upon foreclosure of a prior mortgage, the title was taken in Williams’ name and he still has it. A new mortgage was given to the complainant in foreclosure for the principal debt, and the expenses were paid in cash. They were Fred’s transactions. The mortgage was taken while he was in the meshes of the bankruptcy litigation; the deed, after he had arranged the settlement. Williams wants an accounting of the rent collected by Fred since 1916. Williams apparently claims but a half interest in the property. Fred contends that he gave him a half interest in settlement of money he contributed toward the building of the garage. It is immaterial whether either is telling the truth as to the source of the mortgage-money, for the lien of the mortgage was spent by the foreclosure sale, and it is an outstanding fact that the title to the fee was taken in Williams’ name by Fred to conceal the property from his creditors; so we must leave the parties where they find themselves. Williams, in all likelihood, knew nothing of the mortgage, but it is felt that, though dense, he realized Fred was still hiding his assets from his creditors as he had previously done and in which Williams tried to help him even by perjured testimony.

The Churchman mortgage of $2,300, in the names of Williams and Fred, was an investment by each of 81,000, and of $300 due to the partnership. Fred fraudulently assigned his half interest to Williams before the bankruptcy. Fred caused the mortgage to be foreclosed and bought the property at sheriff's sale in Williams’ name, afterwards selling it at a profit., taking back a $2,000 mortgage. Williams claims Fred has not accounted for the interest or for Williams’ share of the profit. The proofs show that Williams’ received the entire proceeds of the $2,000 mortgage. The excess payment, Fred says, with the one-half interest in the Belmont avenue house just mentioned, was in settlement of moneys Williams spent on the garage. This is regarded as an explanation but nor a fact. Though Fred’s interest in the mortgage was assigned in fraud, and the title in the foreclosure suit was taken in Williams’ name to- defraud creditors, Williams should account for the excess in the general accounting he seeks from Fred. Fred is not a supplicant; he is not to be penalized.

The Delmarle mortgage was surrendered to Williams at the trial. Williams holds the tax title and further accounting is not required.

Williams’ claim to the ownership of the Washington street garage property by way of a resulting trust arising out of his payment of the purchase price of the land must be denied. A resulting trust would ordinarily arise in Williams’ favor from the payment of the purchase money (Phillips v. Phillips, 81 N. J. Eq. 459; 86 Atl. Rep. 949; 83 N. J. Eq. 345; 91 Atl. Rep. 1070), but circumstances may countervail the equitable doctrine of resulting trusts. It is not entertained when to maintain it results in harm. Like all other measures in equity, exact justice must flow from its exercise. To award it to Williams would be a greater injustice than to allow it to remain in Fred. He paid towards it approximately $20,000, while Fred’s contribution was $30,000 and more. Williams did not buy this property for himself. Fred directed the purchase and Williams understood that it was to be used for a costly stable and garage for which he knew he hadn’t the capital; he had exhausted his bank account in the payment of the purchase price. It is our opinion that the purchase was made for the partnership, that the stable and garage were to be used in carrying on the partnership business, and that the moneys laid out for the buildings were partnership contributions. Fred’s attitude is that he alone is the owner of the garage property, he having the title from the trustee in bankruptcy; and we may add with propriety, by again over-reaching his weakling brother. The stand is not unassailable. Under our decree in the Battery Park National Bank suit, title was declared to be held in trust for him by Williams and by force of the statute it vested in the trustee, but only to the extent that it was needed for creditors; anything over remained in Williams, the joint fraud-doer, and it is questionable whether the trustee had the power to reconvey the property to anyone but Williams. Williams’ authority to the trustee, in the settlement agreement, to convey it to Fred was special and limited, and obviously it was not exercised according to the strict letter of the power. Further, there is not much question that Williams was duped into signing the settlement agreement. Be that as it may, Fred’s claim of absolute ownership must be subordinated to Williams’ appeal for the money he advanced in the confidence of its security by reason of the purchase of the property in his name, and Fred will be ordered to account for the money advanced by Williams in its purchase and in its improvement.

Both counsel advance interesting arguments and cite a mass of authorities on the question of Williams’ right to recover, he having given perjured testimony in the bankruptcy hearings and before this court that the garage property and the structure were paid for by him out of cash he kept in a box in a trunk at his home. The perjury was Fred’s cunning idea, taught, and spoken parrot-like, to Williams. Williams’ perjury impeaches his veracity as a witness in this cause, but relief is not to be withheld if his rights are otherwise established and are not infected by his iniquity. The sinner, however corrupt, is not denied relief in equity unless the right he seeks to vindicate is tainted with sin. “The inequity which deprives a suitor of a right to justice in a court of equity is not general iniquitous conduct unconnected with the act of the defendant which the complaining party states as his ground or cause of action; but it must be evil practice or wrong conduct in the particular matter or transaction in respect to which judicial protection or redress is sought.” The unclean hands’ doctrine is applicable only to cases where the particular claim is tied up to the inequitable conduct as an element of its creation. Neubeck v. Neubeck, 94 N. J. Eq. 167; 119 Atl. Rep. 26. “It [the maxim of unclean hands] must be understood to refer to willful misconduct in regard to the matter in litigation, and not to misconduct, however gross, which is unconnected therewith and with which the opposite party in the cause has no concern.” Shotwell v. Stickle, 83 N. J. Eq. 188; 90 Atl. Rep. 246. “The maxim * * * is confined to misconduct in regard to, or at all events connected with, the matter in litigation, so that it has in some measure affected the equitable relations subsisting between the two parties, and arising out of the transaction.” Weidman Silk Dyeing Co. v. East Jersey Water Co., 88 N. J. Eq. 397; 102 Atl. Rep. 858. “Clean hands means a clean record with respect to the transaction with the defendant and not with respect to any third party.” American Association, Ltd., v. Innis (Ky.), 60 S. W. Rep. 388. In Woodward v. Woodward, 41 N. J. Eq. 224; 4 Atl. Rep. 424, Vice-Chancellor Van Fleet held that a husband could not be denied a divorce for his wife’s adultery, on the ground of unclean hands, because he connived in a second act of adultery by her. The doctrine of unclean hands has no applicability to the suit in hand. Williams’ wickedness in the prior suit, his perjured testimony as to the source of the money used to purchase and improve the garage property, manufactured by Fred, spoken by his puppet and perpetrated upon Fred’s creditors to defeat seizure of the property in satisfaction of their debts, did not make unclean the co-partnership obligations and Williams’ right, that springs from it, to an accounting from Fred for the money contributed by him and for his share of the profits. His misconduct was not an element in the creation of his rights in the partnership or in the consequent right to an accounting; it is unconnected with the present litigation and in no manner affects the equitable responsibility of Fred to account to Williams for partnership property. Williams’ falsehoods were inequitable to Fred’s creditors, but not to Fred’s co-partnership. Fred cannot cry unclean hands, nor is the doctrine to be invoked to his advantage. The circumstances that the garage property, concerning the ownership of which Williams gave false testimony, may eventually be requisitioned to satisfy a decree upon the accounting is purely incidental and not of the substance of the doctrine of unclean hands.

Fred also claims immunity from accounting because, as he contends, Williams is guilty of perjury in the giving of testimony in the pending cause, relying upon the doctrine of unclean hands as applied in Clickner v. Clickner, 95 N. J. Eq. 479; 123 Atl. Rep. 373; Gluck v. Rynda Development Co., 99 N. J. Eq. 788; 134 Atl. Rep. 363, and Pfender v. Pfender, 104 N. J. Eq. 107; 144 Atl. Rep. 333, and a long line of cases from other jurisdictions, wherein it is laid down that a suitor’s complaint will not be rejected for impropriety of conduct in the cause, as in Journal Plaza Holding Co. v. J. L. H. Co., 105 N. J. Eq. 290; 147 Atl. Rep. 581. The indictment is regarded as not established in point of fact. There is no evidence of willful false swearing. Williams, on occasion, in respect of some details, may not have spoken the truth, but it is not evident that the departures were intentional or malicious. His testimony and the manner of it put patience to the test, but, considering his mentality, it is not to be stigmatized as false or to be denounced as perjury.

It is contended that the decree in the Battery Park National Bank suit is res adjudicata and bars recovery of the garage and of a partnership accounting. The decree recites that Williams holds the property upon a resulting trust in favor of Pred, upon a finding of fact, upon the false testimony, that Pred paid the purchase price. It has already been held that Williams is not entitled to the property and his prayer in that respect having been denied, the question of res adjudicata is academic; but if it were involved, we fail to see that it would be an estoppel. The decree was entered on the issue charging that the property was held in trust for Pred in fraud of his creditors, and the recital that Pred furnished the purchase money was in demonstration of the fraud. While the finding of fact was essential to the conclusion of fraud, the recitals, however couched, permit of no broader construction than the issues raised and decided, and was not an adjudication of the rights and liabilities of the defendants inter sese, then not in issue, litigated or determined. The decree does not establish a resulting trust in favor of Pred, but, finding that it existed, condemned it as fraudulent as to creditors. It was not a ruling as between Williams and Pred, to the advantage of the latter. Upon satisfying creditors the decree would be spent and upon motion would be vacated, leaving the title in Williams. At all events, the decree does not work an estoppel upon the partnership accounting and an accounting of Williams’ private funds handled by Pred, to which the relief sought is confined.

Pred also seeks to estop Williams on the ground of laches. The continuity of the confidential relation between the two brothers, in which Pred dominated, and of the partnership, down to the time Fred left the common home in the fall of 1924, and the filing of this bill in January, 1925, alone are a complete answer. Fred’s reason that time has dimmed his memory as to some of the transactions does not excuse him from accounting. He should have kept a meticulous record of his fiduciary responsibility.

The elapse of time, as a factor in laches, is that which expires after the trust ceases and up to the bringing of the suit. That Williams is barred from an accounting of the partnership transactions after 1912, because of his false certificate, does not mark an interruption of the fiduciary relationship at that time.

There will be a reference to a master to state an account in accordance with the views herein expressed.


author: Backes, Y. c.

text:
    Carrie W. Jaques, complainant, v. Frederick M. Hunt, defendant.
    [Decided May 9th, 1932.]

      Messrs. Lindabury, Depue & Faulks, for the complainant.

      Mr. Merritt Lane, for the defendant.
   Backes, Y. c.

The bill is by the sister of the defendant to compel the defendant to execute to her a mortgage on the defendant’s garage property on Washington street, Newark, according to his promise. The cause was tried with the case of Williams A. Hunt v. Frederick M. Hunt, 10 N. J. Mis. R. 675, just decided, and the history leading to the promise now sought to be enforced is told there. Blanchard Company, the builder of the garage, filed a mechanics’ lien claim for the balance due on its contract and for extras, and recovered a judgment for the debt and costs of $10,720.63. The judgment was against Williams A. Hunt, who then held the title. To save the property from sale, Mrs. Jaques bought the judgment, and it was assigned to her December 1st, 1914. This was in the period when Fred was in the toils of bankruptcy. When Fred concluded to pay his debts and settle the controversy with his trustee in bankruptcy, it was stipulated that Mrs. Jaques.should subordinate the judgment to a mortgage to be given by Williams to the trustee, to secure the settlement, and in the agreement as finally executed, to which she was a party, whereby the trustee was to convey the garage property to Fred and he was to execute the mortgage, she stipulated to subordinate the judgment. The solicitor of the trustee insisted upon a cancellation and she canceled, but first obtained an agreement in writing from Fred that he would give her a mortgage to secure the judgment debt. Fred obtained title to the garage in 1919, after he had paid his debts, but failed to give the mortgage. By his answer he sets up that Mrs. Jaques paid the Blanchard Company but $6,520.62 and that he furnished the rest, $4,200, and by counter-claim he charges her with rent for the Hunt homestead, 519 Washington street, Hewark, at $50 a month from 1908 to 1915 and from thence to 1925 at $100 a month, a total far in excess of the judgment debt. Mrs. Jaques says she advanced $8,500 towards the purchase of the judgment; $5,500 from her own bank accounts, and $3,000 drawn from her mother’s estate of which she was administratrix and which, she says, she had in cash at home, having drawn it from the bank shortly before, and that Fred gave her $1,500; that she paid in all $10,000. Both witnesses are self-confessed perjurers, they having sworn falsely in previous suits, Mrs. Jaques, that she paid rent to one Brown, to whom Fred had conveyed the homestead to hide it from his creditors, and the unsupported affirmations of either will not be accepted as sufficient to sustain the claims against the other. Mrs. Jaques’ bank books show that she drew $5,500 when she bought the judgment, and as to the $3,000 from her mother’s estate, it is in evidence that Fred compelled her to account for it in the orphans court. The story that she had the sum in cash in the house is suspicious, and if she had, that it was used to purchase the judgment, we have but her word, as we have only Fred’s word that he advanced $4,200. Neither statement is reliable and we must look elsewhere for a decision. The judgment is conclusive evidence of the debt and, in the agreement to give the mortgage, Fred acknowledged that he owed Mrs. Jaques the full amount of the judgment. The burden is on him to show that he reduced it, and in that he has failed. It is held that he owes Mrs. Jaques $8,500, with interest.

The counter-claim for rent is not made out. The homestead was bought by Fred in 1905. His mother then ran .the home and Fred, Williams and Mrs. Jaques and her young daughter lived with her. When she died in 1908, Mrs. Jaques took up the holsehold cares and Fred and Williams continued on until Fred married in 1925. She kept house for them, they paying her $5 apiece board, later $6, and then $8. Fred’s claim that Mrs. Jaques agreed to pay him $50 a month rent in addition to paying the household expenses, and having the labors of the household, on an income from him and Williams of approximately $45 a month seems incredible. She never paid him rent and he never asked for any until the bill was filed, and good reason appears: When the house was purchased for $6,500, Williams and Mrs. Jaques each advanced $2,000. Williams was never repaid. Fred says he repaid Mrs. Jaques, which she denies. Some, if not all, the taxes, water rents, insurance and repairs were paid out of the funds- of Hunt Brothers of which Fred and Williams were partners. And there are' these refuting circumstances: why did Fred pay board weekly if rent was to be paid monthly; and why, if approximately $4,500 was due in 1915 when Fred acknowledges he owes Mrs. Jaques the amount of the Blanchard Company judgment and promised her a mortgage to secure the debt if she would cancel the judgment, was not this large accumulation adjusted and set off at least mentioned? We feel that the counter-claim is an emergency offset, that it is unfounded, and it will not be allowed.

Two technical defenses are offered; unclean hands and laches. Mrs. Jaques gave false testimony in another suit concerning a matter wholly unconnected with the purchase of the Blanchard judgment and Fred’s agreement to secure her by mortgage upon cancellation of the judgment; and it occurred more than two years before. Neubeck v. Neubeck, 94 N. J. Eq. 167; 119 Atl. Rep. 26. It is also claimed that Mrs. Jaques committed perjury in the pending litigation and relief should be denied on the authority of Clickner v. Clickner, 95 N. J. Eq. 479; 123 Atl. Rep. 373. The testimony characterized as perjury was unrelated to the contract which the complainant seeks to enforce; it had to do with the occasion when Mrs. Jaques signed the settlement agreement, two or three weeks before she canceled her judgment upon Fred’s promise to give her the mortgage, and, if untrue in fact, as to which we are not persuaded, it was due to mistaken recollection.

Laches is not shown. Fred paid up his debts and carne into the title to the garage, and was in position to give the mortgage in 1919. Mrs. Jaques first knew of it in 1922. Importuned, Fred put her off. It must be remembered that they were of the same household, and resort to suit would have caused a family disruption. While technically the suit is for specific performance, the rule of promptitude or an explanation of the delay, exacted as the price for specific performance of contracts for the sale of land, does not obtain. In such actions the parties are left to their remedy at law for damages; here there is no remedy but in equity.

A decree for complainants will be advised.


author: Backes, Y. C.

text:
    Ernest J. Dienst and Josephine Dienst, his wife, complainants, v. George J. Wagner et al., defendants.
    [Decided May 24th, 1932.]

      Mr. Arthur E. Dienst, for the complainants.

      Mr. Louis B. Zavin, for the defendants.
   Backes, Y. C.

Motion is made to strike the bill, which is in two counts, on the grounds that it discloses no equitable ground for relief and that the complainants have an adequate remedy at law.

It appears that the defendants owned a plot of ground fronting seven hundred and ninety and eighty-five-one-hundredths feet on Long avenue, Hillside township, Hnion county, plotted into lots facing Long avenue, thirty-five feet in width and one hundred feet in depth, as shown on a map of the plot designated the “Stoveken tract.” In August, 1926, the defendants sold to complainants lots 48, 49 and 50, with the dwelling thereon, and in October conveyed them, by an appropriate description, “one hundred and five feet along the northerly line of Long avenue and one hundred feet in depth.” The lots did not, in fact, abut on Long avenue, but on a strip extending along the northerly line of the avenue seven hundred and ninety and eighty-five-one-hundredths feet, the length of defendant’s plot, thirteen and eighty-four-one-hundredths feet in width at the easterly end and gradually diminishing to seven and fifty-one-hundredths feet at the westerly nnd of the plot. This strip, it is charged, the defendants agreed would be thrown into Long avenue to widen it to fifty feet and should be dedicated to the public as part of the highway to be used for a sidewalk, and the map so indicates. It is further charged that the complainants and defendants, in fact, widened the avenue, laid sidewalks, and dedicated the strip to public use, and that the complainants have ever since used the strip as part of the highway. In June, 1928, the defendants, in breach of their agreement to dedicate it, sold the fee to the strip to the township of Hillside for $8,587.50 “to be used for the purpose of widening Long avenue to be used for highway purposes in connection therewith” and the township has levied an assessment against the complainants for, among other things, the purchase price of the strip. The prayers are numerous, but none is for the relief to which the complainants are entitled. It may, however, be afforded under the prayer for general relief.

The complainants cannot defend as against the assessment; the township was an innocent purchaser and has the right to levy for the price it paid to the extent of the benefit conferred. The defendants are responsible for the complainants’ predicament; had they discharged their agreement to dedicate instead of selling the strip, the complainants’ land would not be assessable for the purchase price. Having broken their promise and the consequences being visited upon complainants, it is but just that the defendants indemnify them; that is the equity to which the complainants are entitled and which they seek to enforce. The defendants must answer the bill.

The motion to strike the bill is denied, with costs and $25 counsel fee.


text:
    First National Bank of Millburn, New Jersey, complainant, v. Carlisle C. Cahill, administrator cum testamento annexo of the estate of Florence E. Cahill, deceased, et al., defendants.
    [Decided May 27th, 1932.]

      Mr. Herbert M. TSUend, for the complainant.

      Mr. Louis Auerbacher, Jr., for the defendants.
   Backes, Y. C.

The complainant obtained a decree in foreclosure for '$14,996.45 on October 35th, 1931, and, upon execution to “the sheriff of Essex county, the property was advertised for ;sale December 15th, 1931. There were numerous adjournments upon the promise of the administrator defendant to pay the debt, and, on January 18th, he paid $1,000, securing a four weeks’ adjournment. No further payments were forthcoming, and, after more adjournments and promises of payment, the property was struck off to the complainant for $100.

Objection to confirmation is made by one of the defendants, William J. Trumble, because he was sued by the name of “Walter” Trumble. He was served with process. If he has not had his day in court, he is not barred by the decree. He has no standing to contest the sale on the ground assigned.

Cahill, the administrator defendant, objects to confirmation because the complainant accepted payment of $1,000 on account of the decree and failed to give credit for the amount, and sets up that, “by accepting said sum of one thousand dollars ($1,000) complainant did thereby become trustee for the said defendants, and does now hold said mortgaged premises in trust for the said defendants; and further, the complainant had no legal or equitable right to proceed with the sale of the said mortgaged premises under the said final decree as above set forth, after having accepted from the said Carlisle C. Cahill, .administrator cum, testamento annexo of the estate of Florence E. Cahill, deceased, payment of the sum of one thousand dollars, as aforesaid.”

The objection is not understood and its legal significance is not explained. Payment on account of the decretal debt surely does not bar execution for the balance and failure to> endorse the credit on the writ is in the circumstances inconsequential. Let the credit be now endorsed and let the objections be overruled.

If there were merit in the objections, it should have been presented by petition and brought on for hearing by order to-show cause or notice. Under objection, the single issue may be raised, that the property did not bring the highest and best price that could be obtained in cash; all other grounds-must be made by independent action by bill or petition. This has been a long and well established practice. Dunlop v. Chenoweth, 90 N. J. Eq. 85; 105 Atl. Rep. 592; affirmed,. 90 N. J. Eq. 601; 106 Atl. Rep. 890.

The'sale will be confirmed.