text:
    J. RUSSELL DOYLE, PLAINTIFF, v. COUNTY OF WARREN, DEFENDANT.
    Decided May 17, 1937.
    For the plaintiff, Saul N. Schechter.

    For the defendant, John H. Pursel.

   Lawrence, C. C. J.

Plaintiff seeks in this suit to recover of defendant the balance of his statutory salary as sheriff of the county of Warren, amounting to $930.41, alleging that it was illegally deducted during his term by the board of chosen freeholders under an unconstitutional statute, and against his protest. The matter was submitted to the court, without a jury, on a stipulation of facts.

He was duly elected sheriff of the county on November 8th, 1932, qualified on November 15th, following, and served until November 12th, 1935, when his term expired. The annual salary provided by law at the time of his election was $3,500. Pamph. L. 1927, p. 389, based on the federal census of 1920, which disclosed the population of the county then to be forty-five thousand and fifty-seven (see Legislative Manual of 1937, p. 225). The census of that year rather than that of 1930 controlled, because the legislature so ordained in Pamph. L. 1931, ch. 271, p. 681; N. J. Stat. Annual 1931, § 48-*420M.

The law required the payment of the salary by the county in equal semi-monthly installments. These payments were made, pursuant to resolution of the board of chosen freeholders, until March 15th, 1933, from which date to November 12th, 1935, the board, by resolution, caused ten per cent, to be deducted from the stated salary, by virtue of “An act respecting the salaries or compensation of officers and employes of and persons holding positions under the government of this state, whose salaries or compensation are paid by counties or municipalities,” approved February 4th, 1933. Pamph. L. 1933, ch. 17, p. 32; N. J. Stat. Annual 1933, § *136-1320A(10), and the amendments; Pamph. L. 1933, ch. 446, p. 1244; N. J. Stat. Annual 1934, § *136-1320A (10), and Pamph. L. 1935, ch. 3, p. 13; N. J. Stat. Annual 3935, § *I36-3.320A(10). The deductions so made aggregate the amount here involved.

At the time of plaintiffs election as sheriff the act of 1927 fixing the annual salary at $3,500 in counties having a population of less than forty-eight thousand, on the basis of the federal census of 3920, included in the classification not only Warren but six other counties in the state, and it is urged in behalf of plaintiff that the delegation of power by the legislature to the board of chosen freeholders in the original act and the amendments was without constitutional sanction and in violation of: article IY, section 8, paragraph 11, inhibiting the legislature from passing private, local or special laws regulating the internal affairs of towns and counties and (among other things) creating, increasing or decreasing the percentage or allowance of public officers during the term for which said officers were elected or appointed. The argument is, of course, made to rest on the decision of the Court of Errors and Appeals in the ease of Delmar v. Bergen County, 117 N. J. L. 377; 189 Atl. Rep. 75, in which the act in question was held unconstitutional for that reason as to a Common Pleas judge and inferentially as to a county prosecutor.

The conclusion in the cited case was that the act was special and not general and a delegation of discretionary power not permitted by the fundamental law of the state. It was also said that no precedent had been found for such legislation, doubtless because the law making body had invariably exercised the power, through the medium of general laws, of determining the annual salaries of Common Pleas judges and prosecutors of the Pleas, even though paid by the counties, on the rational basis of population, to which, it may be said, sheriffs may also be added, as they are recognized constitutional officers (see state constitution as amended, article YII, section 2 paragaph 6) and their salaries have likewise been provided for by general laws of like character.

Counsel for defendant suggests, however, that there is a distinction between a public officer, such as a sheriff elected by the people in a county, and a Common Pleas judge or a prosecutor appointed to serve in a county by the governor, with the advice and consent of the state senate. But what the distinction is is not pointed out. As a matter of fact the constitutional provision here invoked prohibits private, local or special laws increasing or decreasing the percentage or allowance of public officers during the term for which they were elected or appointed. It may also be said that the evidence of the authority of the sheriff to act, after his election, is a commission issued to him by the governor. It is sufficiently clear that a sheriff, although chosen by the voters to serve in a county, is a public officer in the state government. The duties he performs include services rendered not alone to. the inhabitants of the county, but to the people of the state as well.

Pinally, counsel for defendant argues that plaintiff is now estopped from recovering, because he accepted the salary cheeks issued to him semi-monthly, after the deductions had been made. The stipulation indicates, however, that he did so under protest. Even though he had agreed, it would seem that he would not have been bound. Public policy would intervene. It is so indicated in Geddis v. Westside National Bank, 7 N. J. Mis. R. 245; 145 Atl. Rep. 731; S. C., 106 N. J. L. 238; 148 Atl. Rep. 917, and in Kip v. Peoples Bank and Trust Co., 110 N. J. L. 178; 164 Atl. Rep. 253; the holding apparently being that the amount of the compensation of a public officer as fixed by law may not be changed by agreement. It is to be observed, though, that the controlling factor here is that the original act and the amendments run counter to the constitutional prohibition and must be regarded as void and of no effect from the date of enactment. Delmar v. Bergen County, supra. The principle will also be found discussed in Hyman v. Long Branch Kennel Club, Inc., 115 N. J. L. 123; 179 Atl. Rep. 105.

It follows that plaintiff was entitled to receive the full statutory salary during his term of office, without deductions.

Judgment may accordingly be entered in favor of plaintiff and against defendant for $930.41. No interest or costs will be allowed.


source: Caselaw Access Project

author: Lloyd, J.

license: Public Domain

text:
    BARNET SHAIMAN, PROSECUTOR, v. THE MAYOR, BOARD OF COMMISSIONERS OF THE CITY OF NEWARK, AND BOARD OF ADJUSTMENT OF THE CITY OF NEWARK, DEFENDANTS.
    Argued January 20, 1937
    Decided April 27, 1937.
    Before Justices Parker, Lloyd and Dozstgbs.
    For the prosecutor, Mortimer Eisner.

    For the defendants, Frank A. Boettner.

   Lloyd, J.

Prosecutor, failing to obtain a permit to convert a part of an apartment house into a store contrary to the zoning ordinance of the city of Newark, appealed to the board of adjustment. That body recommended to the board of commissioners, the governing body of the city, that the application be granted. The governing body, however, denied the application and passed a resolution to that effect. It is this resolution to which the writ was directed.

Subparagraph 4 of paragraph 9 of the Zoning act of 1928, chapter 274, page 702 (Supp. Comp. Stat. 1935-1930, § *136-4200J(9) subdiv. 4), provides that upon its presentation the “governing body * * * may, by resolution, approve of such recommendation,” &c. Failing approval, the application falls.

The exercise of authority thus clearly given cannot he set aside except upon adequate grounds, and of such grounds we find none either in procedure or in the final result.

The adjournment of the hearing before the board as applied for by the prosecutor was properly denied. He had already had one adjournment and gave no adequate grounds for a second.

As to the merits, it was incumbent on the prosecutor to establish that the board’s refusal was either illegal in law or unreasonable in fact. Neither is shown.

While there is a stipulation that the affidavits filed on the application for the writ in this case might be deemed sworn testimony, and that the prosecutor might use the minutes of the meeting of the board of commissioners, neither of these aid the prosecutor. Whether the board was right or wrong must depend upon what appeared before it, and the minutes show nothing more than a discussion of the various phases of the subject-matter with neither stipulation nor sworn proofs to show any reason why that body should make an exception to the requirements of the zoning ordinance and approve the recommendation of the board of adjustment.

Of the suggestion that there were other commercial uses in the neighborhood there was no proof, and even if proven nothing to show that the uses did not exist before the zoning ordinance was adopted. The affidavits filed on the application for the present writ are obviously not available to convict the board of error.

The writ is dismissed, with costs.


author: Oliphant, C. C. J.

text:
    BALDWIN LUMBER-JUNCTION MILLING INCORPORATED, A CORPORATION OF NEW JERSEY, PLAINTIFF, v. BENJAMIN B. MOSKOWITZ, TRUSTEE IN BANKRUPTCY OF ACE CONTRACTING COMPANY, BUILDER, AND ROSACELLA, OWNER, DEFENDANT.
    Decided May 13, 1937.

      For the motion, McDermott, Enright & Carpenter and Thomas L. Parsonnet, amicus curiae.

      Contra, George Clotl (Murray Greiman, of counsel).
   Oliphant, C. C. J.

This is a motion by the defendant Eosa Celia to strike plaintiffs complaint on the ground that section 1 of the Mechanics’ Lien act of 1930 was repealed, abrogated, nullified and made ineffective by chapter 171 of the laws of 1934. N. J. Slat. Annual 1934, § 126-1.

It is the contention of the defendant that the effect of the title and enacting clause of chapter 171 of the laws of 1934 is to substitute section 1 as therein set forth in the place and stead of section 1 of the Mechanics’ Lien act as amended by chapter 212 of the laws of 1930, so that section 1 of the Mechanics’ Lien act in its entirety now reads as it appears in chapter 171, laws of 1934. In other words, that the enactment of chapter 171 of the laws of 1934 has destroyed the right of lien in all cases except that of well diggers.

Chapter 171 of the laws of 1934 is clearly violative of article 4, section 7, paragraph 4 of the state constitution, as amended, which reads as follows: “No law shall be revived or amended by reference to its title only, but the act revived or the section or sections amended shall be inserted at length.” The vice of the amendment is that it does not restate section .1, chapter 212 of the 1930 act. Supp. Comp. Stat. 1925-1930, § 126-1.

The clear intention of the legislature was to “extend” the “lien given by this act.” The amendment presupposes the continued existence of the liens. If, as the defendants contend, this very amendment destroys all rights to liens, as against the explicit intention of the legislature to the contrary, then the amendment must fall under the constitutional prohibition herein before set forth. The 1934 amendment does not in itself create a lien for “sinking, driving, digging or drilling * * * wells,” but merely “extended the lien already given by this act.” If this very amendment wipes out the Hens previously created by section 1 of the 1930 act, then there is no lien to extend, and the amendment is unconstitutional for extending such non-existing liens to a further subject.

It is well settled that the reason for article 4, section 7, paragraph 4 of our constitution is to prevent covert, incautious and fraudulent legislation. Evernham v. Hulit, 45 N. J. L. 53; Bradley & Currier Co. v. Loving, 54 Id 227; 23 Atl. Rep. 685. It is further well recognized that every supplement and amendment need not set out at length every prior statute altered or modified but the cases are uniform that unless the amending act is complete and perfect in itself — the purpose, meaning and full scope of which are apparent on its face — it comes within the prohibition. To circumvent the. provision of the constitution, the act must be completely intelligible in itself, without examination of and a comparison with the act to which it refers. Campbell v. Board of Pharmacy of New Jersey, 45 N. J. L. 241 (at p. 245); Bradley & Currier v. Loving, supra; Board of Education of Newark v. Civil Service Commission, 98 Id. 417; 119 Atl. Rep. 875; 59 Corp. Jur. 865.

The 1934 amendment is unintelligible standing by itself, its meaning and full scope are not apparent on its face and without reference to the act of 1930 is meaningless. The amendment cannot both recognize as in existence section 1 of the Mechanics’ Lien act as amended by chapter 212 of the laws of 1930, which creates the lien it expressly recognizes apd extends, and nevertheless stand constitutionally so as to be given the effect of a repealer of the only section creating the lien.

Chapter 171 of the laws of 1934 being unconstitutional, the right to the lien claimed in the complaint is in force and effect and the motion will be denied. An order in conformity with this opinion may be presented.


text:
    MANSFIELD & SWETT, INCORPORATED, PROSECUTOR, v. TOWN OF WEST ORANGE, THE MAYOR AND BOARD OF COMMISSIONERS OF THE TOWN OF WEST ORANGE, AND THE PLANNING BOARD OF THE TOWN OF WEST ORANGE, RESPONDENTS.
    Submitted October term, 1936
    Decided May 8, 1937.
    Before Justices Pakkek, Lloyd and Donges.
    Por the prosecutor, Edward B. McGlynn.

    Por the respondents, Alfred J. Grosso and Milton M. Unger.

   Lloyd, J.

The writ in this case was issued to review “resolutions and proceedings” taken by the board of commissioners of the town of West Orange and by the planning board of the town concerning a certain plan presented by the prosecutor for approval.

The town of West Orange by its board of commissioners adopted the Planning act of 1930, chapter 235, page 1039 (Supp. Comp. Stat. 1925-1930, § *136-4100D(1)), and in pursuance of the authority of that act a planning board was chosen. This board adopted a master plan for the town as contemplated by the act and the prosecutor presented to the board for its approval a plan called Plan of Shadow Lawn for the development of a large tract of land by division into lots and the creation of streets thereon. Public hearings were had and the plan, first approved by the board, was later rejected and so reported to the board of commissioners of the town, which body placed the report on its file without further action.

From the proofs presented we gather nothing but that the plan was rejected by the planning board and that the board of commissioners was advised that no action on its part was required.

The act under which the commissioners acted requires that the “grounds of disapproval of any plat submitted to the planning board shall be stated upon the records of such board.” No such reasons are stated.

The whole planning board scheme is attacked by the prosecutor on the ground that it is violative of the rights of private property and therefore unconstitutional. We have examined the act and consider that grave constitutional questions are involved, particularly with respect to the control given by the act to the plotting of lands by the owners of private property. The act prescribes in its twenty-first section that the unconstitutionality of any section or provision of the act shall not affect any section or provision that shall be separable therefrom.

That the legislature may create a planning board for a municipality, which board may adopt a master plan and control the creation or adoption of highways in the municipality may not be open to question, while the further exercise of such control by the planning board over private property beyond that authorized by the constitutional amendment of 1928 may not be within the police or other power possessed by the legislature.

In the absence of statement of the grounds of disapproval no adequate consideration can be given to the problem sought to be presented. To meet this deficiency the record will be remanded to the planning board in order that the grounds of disapproval may be “stated upon its records” as required by the statute.


author: Per Curiam.

text:
    IN THE MATTER OF HENRY SMITH, ATTORNEY-AT-LAW.
    Decided May 3, 1937.
    Argued before Justices Parker, Lloyd and Donges.
    For the ethics committee of the Passaic County Bar Association, Abram, Kleneri.

    For the respondent, Henry Marelli.

   Per Curiam.

After a careful consideration of the evidence in this matter as taken before the Passaic county committee, the court is of opinion that the respondent was guilty of unethical conduct as an attorney in his transactions with one Carey, complainant before the committee; and particularly in the matter of borrowing $2,000 from Carey with a usurious bonus connected therewith, and in inducing Carey to transfer his security to a secondary interest in a mortgage represented by Smith to be a first incumbrance which was later foreclosed, the property sold, and Carey’s security lost without Smith taking reasonable measures to protect Carey’s interests.

The court concludes that said Smith should be suspended from the practice of law in this state for a period of six months, and thereafter until the further order of the court, dependent upon the making of restitution to the complainant Carey of the money borrowed from him as above.

Let a rule be entered accordingly.


author: Pee Oueiam.

text:
    JOSEPH VARBALOW, JUDGE, ETC., PROSECUTOR, v. CIVIL SERVICE COMMISSION ET AL., DEFENDANTS.
    Argued January 19, 1937
    Decided May 14, 1937.
    Before Justices Paekee, Lloyd and Donges.
    For the prosecutor, Barry Crossman.

    For the defendants, Clifford A. Baldwin.

   Pee Oueiam.

This writ brings up an order of the civil service commission setting aside an order of the judge of the Camden District Court dismissing from his position as sergeant-at-arms of that court, the defendant, Edward PL Martin, upon charges of insubordination, interference with the work of the District Court, unbecoming conduct in the office of the court, and improper certification of records. The civil service commission ordered him reinstated and imposed, in lieu of dismissal^ a penalty of temporary suspension.

Martin was appointed sergeant-at-arms on April 25th, 1927, by Frank F. Neutze, then judge of that court. His appointment was in accordance with the civil service rules and was registered with that commission. His name was certified to the judge of the District Court following examination by the civil service commission. Heutze was re-appointed judge in 1933 and resigned in 1934, when Varbalow was appointed District Court judge.' Martin continued to fill the position of sergeant-at-arms from his appointment in 1927 until February 25th, 1936, when he was suspended. He was never reappointed after the expiration of the term of any judge.

The first point raised is that the civil service commission was without jurisdiction to hear the appeal of the defendant because he did not hold a position within the classified civil service. The argument is that his appointment was not for an indefinite term but for a definite one terminating with the term of the District Court judge who appointed him.

The sections of the statute in question, sections 12 and 13a, 2 Comp. Stal., p. 1957, provide: “Sergeants-at-arms so appointed shall hold office during the pleasure of the judges appointing them,” and “Sergeants-at-arms, respectively, when appointed, shall hold office during the pleasure of the judge appointing them.”

Two cases are cited dealing with somewhat similar but by no means identical statutory language. The first is De Camp v. Harrison, 108 N. J. L. 51, where it was claimed that the position of deputy register of deeds came within the provisions of the civil service law because the appointment was for an indefinite term. The language of the statute was “any register of deeds and mortgages * * * may, in his discretion, from time to time, select and appoint some competent person as deputy register * * *, which deputy shall hold his office during the pleasure of the register * * * for the time being.” It was held by the Supreme Court that an appointment under this statute was for a term ending with the term of the register making the appointment, and therefore the position did not come under the jurisdiction of the civil service commission. This case is relied upon by the prosecutor here, but the statutory language is quite different. The court in that case laid emphasis on the words “for the time being” as indicating the intention of the legislature that it was the pleasure of the person holding the office of register when the appointment was made rather than anyone holding the office at another time, that controlled the incumbent.

The other case is Wilson v. District Court,, 93 N. J. L. 103; 107 Atl. Rep. 589; affirmed, 95 N. J. L. 265; 111 Atl. Rep. 927, where the office in question was that of clerk of the District Court. There the language of the statute was “the clerks of each District Court shall he appointed by the judge thereof, and shall hold office during the pleasure of the judge * *

It was held that an appointment under this section was for an indefinite term, and the position was within the civil service jurisdiction.

The question then is, was the appointment of the defendant one for a term at the pleasure of Judge Neutze as the appointing person, or one for a term at the pleasure of the judge of the District Court as the appointing power? We are of the opinion that the language of the statute does not clearly indicate the former, and that in the absence of any such clear indication, the latter interpretation should be adopted. Indeed, that seems to have been the practical interpretation put upon it.in the Camden District Court since this question is now raised for the first time in this court. There was no objection to the jurisdiction of the civil service commission before that body and Judge Yarbalow followed the civil service rules in dismissing the defendant. We see no reason for believing that the legislature intended to make the position of sergeant-at-arms of the District Court one of such confidence and trust that new persons should be chosen by each incoming judge, when the position of clerk of the court has been held not to be such a position but one protected by the provisions of the Civil Service act. The position of sergeant-at-arms is not as important a one nor one involving confidence and trust to the extent that the position of clerk does. We are, therefore, of the opinion that the civil service commission had jurisdiction to hear the defendant’s appeal.

It is next argued that the commission was without jurisdiction to change the penalty imposed on defendant from dismissal to suspension. The commission took the view that Martin was in the state service and was not a municipal officer and therefore it had jurisdiction under chapter 176, Pamph. L. 1930, and with this we agree. Pierson v. O’Connor, 54 N. J. L. 36; 22 Atl. Rep. 1091, holds that a City District Court is created by statute, and its clerk and judge, although paid by the city, are not municipal officers but hold office under the state government.

The final point is that the order under review was an arbitrary and unlawful exercise of power by the commission, but a reading of the evidence persuades us that the order is reasonably supported by the testimony.

The writ is dismissed, but without costs.


author: John C. Wegnek, Deputy Commissioner.

text:
    New Jersey Department of Labor, Workmen’s Compensation Bureau.
    ROSE MATARAZZO, PETITIONER, v. ALDERNEY DAIRY COMPANY, RESPONDENT.
    Decided March 30, 1937.
    For the petitioner, Pesin <& Pesin.

    For the respondent, Gox <& Walburg.

   # # # i}: iff % #

It is alleged in the formal petition that Carmen Matarazzo was an employe of the respondent and while delivering milk on January 27th, 1936, about three-thirty A. m:., he slipped in a truck and fell on his spine; that he worked about four days afterward, ceasing employment on February 1st, 1936, and that he died April 18th, 1936, and that his wages were approximately $7 per week.

The respondent denied that the decedent was an employe and denied that the decedent suffered death as the result of an accident arising out of and in the course of employment.

Considerable testimony was introduced on the question of employment. There appeared to be no dispute on the question of dependency as alleged in the petition but there was considerable dispute as to the question of employment and the relationship between the alleged accident and death. It was claimed through the testimony of witnesses to wit, the petitioner herself, and a Mr. Blanke, former driver for the respondent company, that Mr. Blanke had engaged the decedent as a helper on his milk route in Hoboken, paying him $1 a morning or $7 a week, and that the decedent early in the morning would report to the milk truck in Hoboken, help with deliveries of milk and then return to his home. The driver stated that the company’s drivers are allowed to have helpers and that he, in fact, had informed his superiors that he had a helper and no objection was made.

On this point, various witnesses from the respondent testified that the rules and regulations of the company do not permit the hiring of helpers by drivers, although there are some instances, according to the route inspector, Hose, that the drivers do have helpers without the knowledge of the main office.

As to the occurrence of the accident, the driver, Blanke, testified that on January 21th, 1936, just as he and the decedent were starting to make their deliveries, the decedent slipped on the truck and fell to the floor of the truck. The decedent rubbed his back and complained that his back hurt him and later in the morning complained that his head ached. He continued to work on the route that morning and each morning thereafter until February 1st, when Blanke, the driver, was discharged. The petitioner testified that on the morning of January 21th, 1936, the decedent came into the house about eight-thirty after the route was finished and that he looked ill and went into his bedroom where he undressed and she saw that his back seemed to be bruised. She rubbed his back and when he complained of headache, put a cloth on his head and put some mecurochrome on a place on his knee where there was a bruise. He worked the following morning and thereafter until February 1st.

She stated that ho began to look different, appeared ill, downhearted and depressed and was restless at night, but that shortly before Easter he procured a job with a firm in New York which made poeketbook frames and worked there approximately three days, leaving his home at six-thirty in the morning and returning five-thirty in the evening. He returned at five-thirty on the evening of April 14th, 1936, very ill and she called the hospital and he was taken to a hospital.

The testimony of Dr. D’Alessio was presented by the petitioner who stated that he saw the decedent at his office on January 38th, and 30th, 1936. On his physical examination, he found a contusion and bruise in the lumbar region of the back and there were complaints of pain on pressure in the back and complaint of severe headache. He advised the taking of X-rays because of the back condition but the decedent did not have an X-ray taken. When the decedent returned on January 30th, he found the same complaints and gave him some medicine for his headache. The doctor stated that he did not see the decedent thereafter. In answer to a hypothetical question, he stated that the contusion of the lumbar sacral region could have produced a contusion in the cord or membrane in that region and that thereafter a meningitis could have developed.

There was also produced the testimony of Dr. Sirkin who had not examined or even seen the decedent. His testimony was produced either as part of the direct case or rebuttal. In any event, in answer to a hypothetical question, he stated that the accident could have been a predisposing cause of the death from meningitis on the theory that the decedent by reason of the injuries could have been rendered susceptible on contact with the meningitis organism.

On the medical aspects of the case, the respondent produced the hospital records which were placed in evidence. Also the testimony of Dr. Grimes, who was the resident physician at St. Mary’s Hospital, where the decedent was a patient from April 14th, to April 18th, was taken. He testified that after a spinal puncture was made, a physical examination made, the spinal fluid analyzed and microscopic examination made, that a diagnosis of cerebro spinal fluid fever or purulent meningicoccus meningitis was made and the regular acute course of the disease followed. The decedent was removed to the infectious disease branch of the hospital and there came under the care of Dr. Kelly. Dr. Grimes testified that the diagnosis was decisive and ruled out any and all other diseases or forms of meningitis as the meningicoccus organism was definitely found. This definitely ruled out tuberculous, pneumococcal, or any other form of meningitis. The doctor stated that this meningicoccus type comes from the particular organism, entering through the nose or throat passages only, and has an incubation period of from two to eight days. The infection then travels through the blood stream and affects the coverings of the brain. It is an acute, specific, infectious disease and attacks the weak and the strong without favor. The doctor stated that in his opinion, by reason of the incubation period of the particular form of meningitis, and the fact that it attacks individuals without regard to their general physical health, there was absolutely no connection between any injury, especially the injury described by the witnesses, in January, with death from meningicoccus meningitis in April.

The respondent also produced Dr. Harry Kelly, who testified as to his contact with the case at the hospital. He stated that it was definitely determined by a microscopic examination that a meningicoccus organism was the cause of the condition and diagnosed the case as meningicoccus meningitis, an acute, specific, infectious disease. He stated that the organism enters the body through the nose or throat and within approximately two days invades the blood stream and shortly thereafter attacks the brain covering or the meninges. He stated that the incubation period is from two to eight days, so that if an accident occurring January 27th, 1936, were to be the cause of a meningitis, the meningitis symptoms would appear within two to eight days and the course of the meningitis is such that a cure is effected in a short space of time or the disease, within a short space of time, develops into an acute condition often terminating in death. He stated that this type of meningitis is differentiated from the other forms which are caused by other organisms or conditions. He stated in his opinion that there was no relation between the accident in January of 1936 and the death in April of 1936 for the reason that the condition was an acute, specific and infectious disease; because of the fact that the injury described was not of any type sometimes referred to in cases complicated by a meningitis at the time of injury: because the accident of January occurred almost three months previous to the definite symptoms of meningitis, which ruled out conclusively the accident as a predisposing or contributing factor in any way; and finally, the incubation period of the particular organism is from two to eight days and that, therefore, the organism entered the decedent’s system no more than eight days prior to the onset of his illness in April.

The respondent also produced Dr. Blumberg, a neurologist, who testified in general as to meningitis and different classifications and causes. He testified that in his opinion a meningitis of this type is not caused by injury and medically, cannot be caused by injury especially where the alleged injury is at such a remote time from the period when the meningitis developed. He stated that the injury was in no way a contributing or predisposing or causative factor.

I have examined the hospital records and considered carefully the medical testimony and the testimony of all the witnesses presented in this case. I have considered the medical theories advanced on the question of death and its cause and the possible connection with the alleged accident. I have also considered the testimony relative to the question of employment and considered the legal situation presented on that question.

As before stated, it appears that there are two major issues involved in the case, the first issue being the question of employment, the second being whether or not the death was related in any way to the accident of January, 1936. I find it unnecessary to pass upon the first question because after a consideration of all of the exhibits and testimony on the medical aspects of this case, I am satisfied that the petitioner’s decedent did not die as a result of an accident arising out of and in the course of employment. It appears that there is no dispute on the question of diagnosis in this case and it appears definitely that the petitioner’s decedent died of meningicoccus meningitis sometimes known as cerebro spinal fever and I so find as a fact. There appears to be no argument that this condition is caused by a definite organism and that this organism, aside from an injury causing an opening of the skull exposing the meninges, enters through the nose and throat. The injuries claimed and testified to, of course, in this case are not those of a fractured skull or opening of the skull exposing the meninges and, in fact, it appears from the testimony of the petitioner and Dr. D’Alessio that there was no laceration or breaking of the skin on any portion of the body and I so find as a fact. In any event, there certainly was no exposure of the meninges. It appears then that this particular organism entered through the nose and throat. It appears also that there is no dispute that the incubation period of this organism is from two to eight days, and that at the time the decedent entered the hospital he was acutely ill. At most, therefore, this organism invaded the system approximately eight days, if not less, before April 14th, 1936. The alleged accident was testified as occurring on January 27th, 1936. The petitioner certainly did not acquire the organism at the time of the accident; and even on the petitioner’s theory that there might be a quiescent period, such period is still far shorter than eight or ten weeks, for if it had lasted that long, it would not have been a quiescent period, but a cure. The other medical theory advanced seems to be that the accident caused the decedent to have a lowered resistance and that he, therefore, was predisposed to being attacked by the particular organism. It appears, however, that like infantile paralysis, this particular form of meningitis is no respecter of health or wealth and that there is no connection between the accident of January, 1936, and death in April, 1936, by reason of that theory.

I find as a fact, therefore, that the petitioner’s decedent died as a result of a specific, acute, infectious disease known as meningieoccus meningitis, which was in no way connected with the accident of January, 1936, and, therefore, the death of the petitioner’s decedent was in no way the result of an accident arising out of and in the course of employment with the respondent.

John C. Wegnek, Deputy Commissioner.


author: John C. Wegnee, Referee.

text:
    New Jersey Department of Labor, Workmen’s Compensation Bureau.
    RUDOLPH BOEHME, Jr., PETITIONER, v. TOWN OP SECAUCUS, RESPONDENT. HATTIE BOEHME, EXECUTRIX OF THE ESTATE OF RUDOLPH BOEHME, Jr., DECEASED, PETITIONER, v. TOWN OF SECAUCUS, RESPONDENT.
    Decided May 11, 1937.
    For the petitioners, FLirschberg, Nashel, Zorn & Cronson (by Louis L. Cronson).

    For the respondent, Cox & Walburg (by Arthur V. Mead).

   This is a proceeding brought on a formal petition by Rudolph Boehme, Jr., during his lifetime, as petitioner, and against the town of Secaucus, a municipal corporation in the county of Hudson and State of New Jersey, as respondent, and on a supplemental petition by Hattie Boehme, executrix of the estate of Rudolph Boehme, Jr., deceased, as petitioner, and against the town of Secaucus, a municipal corporation in the county of Hudson and State of New Jersey, as respondent, under and by virtue of the provisions of an act entitled “An act authorizing and requiring municipalities and fire districts to provide compensation insurance for volunteer firemen,” chapter 172, laws of 1931, approved April 21st, 1931.

After hearing the entire testimony, depositions and evidence in the matter on the merits, including the testimony of the witnesses and the physicians for and on behalf of both the petitioner and the respondent, and after duly considering the same, I conclude, determine and find as follows:

That the petitioner Eudolph Boehme, Jr., during his lifetime, was a member of the volunteer fire company in the town of Secaucus, county of Hudson and State of New Jersey, and was engaged in the private employment of an upholsterer, and earned an average of forty dollars ($40) per week.

That on the 29th day of June, 1934, the said Eudolph Boehme, Jr., was involved in an accident arising out of and in the course of his performance as a volunteer fireman for the respondent, as a result of which accident he sustained injuries to his left leg, left shoulder, chest, abdomen and traumatic shock to his physical system, all of which injuries disabled the said petitioner and required medical aid and attendance therefore;

That the said petitioner received from the respondent on or about August 31st, 1934, compensation for temporary disability for five and four-sevenths weeks at a weekly rate of $20, the total sum of $111.43;

That the aforesaid accident, resulting in the aforementioned injuries to petitioner Eudolph Boehme, Jr., during his lifetime, was the proximate cause of his continued and increased disability from the said injuries, and that the said accident was the proximate cause of materially aggravating and accelerating a pre-existing, latent and undeveloped cancerous condition in the abdominal region of the said Eudolph Boehme, Jr., which caused his death on the 22d day of September, 1936;

That the said petitioner, Eudolph Boehme, Jr., was in good health prior to the accident, but from that date until the time he died he suffered a gradual decline in health with a marked loss of physical function which detracted from the former efficiency of his body, or its members, in his ordinary pursuits, and resulted in an appreciable loss of earnings from his private employment;

That as the result of said decline decedent was compelled to stop any activity in connection with his business about April 1st, 1936, and same was closed June, 1936.

That the said petitioner required and received for his injuries medical aid and attendance from physicians during the period of his continued and increased disability, from the date of the accident up to and including the date of his death, with the bills for said professional services still outstanding and unpaid;

That the formal petition for compensation filed in this cause by Rudolph Boehme, Jr., during his lifetime, as petitioner, against the town of Secaueus, as respondent, for increased disability, was filed within the statutory period and that the petition filed by Hattie Boehme, executrix of the estate of Rudolph Boehme, Jr., deceased, as petitioner, against the town of Secaueus, as respondent, for the death of the said Rudolph Boehme, Jr., was a supplemental petition to the aforesaid formal petition of Rudolph Boehme, Jr., and merged with it to form one cause of action;

That I have considered the testimony of Dr. Joseph A. Angelo who treated decedent at various intervals from date of accident to March 24th, 1936, Dr. Leo Brandenberg who treated decedent from April 11th, until his death, both of • whom are of the opinion that the accident aggravated a preexisting cancerous condition. Also the testimony of Dr. H. B. Kaplan who performed autopsy on September 22d, 1936.

Dor the respondent we have the testimony of Drs. Watman, Cuccinelli and White who believe in that school of thought that trauma will not aggravate a pre-existing cancerous condition.

My views are fully expressed in Beerman v. Public Service, 15 N. J. Mis. R. 318; 191 Atl. Rep. 297.

That the events subsequent to the accident of June 29th, 1934, are merely coincidental I cannot reconcile. The decedent was in good health prior to that date, the accident was of such force as to cause some inward disability, the general decline, inability to perform his work and various other symptoms that followed are sufficient for me to conclude that the trauma did play an important part in his illness and death.

It is, therefore, on this 11th day of May, 1937, ordered that judgment be entered in favor of the petitioners.

Hs * H* ❖ ❖ * *

John C. Wegnee, Referee.


author: John C. Wegner, Referee.

text:
    New Jersey Department of Labor, Workmen’s Compensation Bureau.
    SAMUEL TUTT, PETITIONER, v. CALCO CHEMICAL COMPANY, INCORPORATED, RESPONDENT.
    Decided May 11, 1937.
    Por the petitioner, Theodore Strong & Son.

    Por the respondent, Gilbert E. Crogan.

   Hs H< H* H* H* & H*

It is undisputed that the petitioner was employed by respondent from July 12th, 1933, to and including June 11th, 1936; and that petitioner was employed on the iron borings gang in respondent’s aniline shop from the date of his employment to Pebruary 17th, 1936, as a general laborer assigned to tending condensers in that shop from Pebruary 17th, 1936, to April 15th, 1936, and in other parts of the plant not operated in conjunction with the aniline shop from April 15th, 1936, to the date he last worked for respondent.

The petitioner testified that except for a mastoid operation in the summer of 1935, he enjoyed good health until Pebruary, 1936, when he first noticed some physical weakness but that there was not much distress until May, 1936, when shortness of breath accompanied by pains in the chest and inability to sleep at night developed; that in June, 1936, his family physician recommended that he take a short rest from work which he did, but has not returned to work since that time.

The petitioner testified that during the course of his employment with respondent he was never forced to take any time off because of having been overcome or made sick from aniline or its vapors.

It appears from the testimony that when complaining of illness in February, 1936, petitioner went to the medical department of respondent where he was examined by Doctors D. O. Hamblin and A. F. Mangelsdorff who diagnosed his difficulty as bronchial asthma and administered adrenalin, whereby petitioner secured relief; that a complete physical examination at that time disclosed no other pathology; and that the bronchial asthma cleared up within a few days as subsequent check by these doctors revealed that petitioner was relieved by the treatment given and no further complaints were made'by petitioner although he was examined on several occasions thereafter prior to June, 1936. The testimony further shows that in June, 1936, the same doctors again examined the petitioner upon his complaint and found that he had a recurrence of bronchial asthma and since petitioner stated that he was under the care of his family physician at that time referred him to that doctor for treatment; that a complete physical examination at this time likewise disclosed no other pathology.

Dr. A. F. Mangelsdorff further testified that two routine medical examinations conducted by him in accordance with the regulations of respondent on January 2d and October 16th, 1935, showed that petitioner was in normal health.

Dr. E. Gaylord Howell, petitioner’s family physician, in June, 1936, testified that he diagnosed the petitioner’s ailment as bronchial asthma and treated him for same whereby his patient secured relief. The petitioner testified that in August, 1936, he changed doctors and placed himself in the care of Dr. Neil S. McLeod of New Brunswick. This doctor diagnosed his ailment as “poisoning due to exposure to nitro benzene compound, oil of myrbane, oil of aniline, &e.”

Dr. McLeod, testifying on behalf of petitioner, stated that petitioner at the time he first saw him was suffering from bronchial asthma but that his condition had cleared up; that petitioner had an anemia but admitted that it was only a low grade secondary anemia and that many persons having an anemia of like degree which might well result from many causes wholly unrelated to employment were working day in and day out, performing their work satisfactorily and without bodily ill effects; and that because X-rays taken of the petitioner were negative for pathology of the heart and lungs, upon learning of his place of employment, he immediately concluded without further investigation or consultation with any doctor experienced in industrial poisoning cases that petitioner had poisoning “due to exposure to nitro benzene compound, oil of myrbane, oil of aniline, &c.” The testimony on behalf of respondent reveals that oil of myrbane and nitro benzene are one and the same. The testimony further reveals that petitioner never worked in contact with benzene. In his testimony Dr. McLeod admitted that he had never treated a case of aniline poisoning during the course of his practice, that he did not consult any other physician acquainted with this type of ease, and that the only reference he investigated was Thompson on “Occupational Diseases,” which was published in 1914. It should be pointed out that substantial advances have been made in medical knowledge and information concerning the toxic effects of chemicals since the publication of this work. In fact, the making of certain industrial diseases compensable under the Compensation act was not adopted in this jurisdiction until 1924. See Pamph. L. 1924, oh. 124; Cum. Supp. Comp. Stat. 1911-1924, p. 3883, § **236-26.

Dr. Harrison S. Martland, a leading clinical pathologist of wide experience with industrial poisoning, particularly benzene and aniline, testifying on behalf of respondent stated that he examined petitioner and blood smears taken of petitioner’s blood on March 12th, 1937, at which time it was his opinion that petitioner was in normal health having no anemia and was not then suffering from aniline poisoning or any other industrial poisoning and that he could find no evidence based on his examination on said date that petitioner had ever suffered from aniline poisoning or any other type of industrial poisoning.

Doctors D. O. Hamblin and A. F. Mangelsdorff, testifying on behalf of respondent, stated that they had examined the petitioner as above set forth during 1935 and 1936 and that at no time did petitioner evidence any symptoms of aniline poisoning or any other type of industrial poisoning.

Doctors Howell and McLeod testifying on behalf of petitioner, and Doctors Martland, Hamblin and Mangelsdorff testifying on behalf of respondent, agreed that asthma is caused by sensitivity to certain things but that upon removal of the patient from exposure to the substance causing the asthma, relief is usually promptly obtained. Petitioner was not working in the aniline shop of respondent at the time he suffered a recurrence of bronchial asthma in June, 1936, and had not been for approximately two months prior thereto.

I find and determine, therefore, that petitioner’s bronchial asthma was not due to or in any way connected with his employment in the aniline shop of respondent. This finding is amply supported by the testimony of Doctors Martland, Hamblin, and Mangelsdorff, all of whom stated that aniline or its fumes have never been known to cause asthma.

I further find and determine that petitioner is not presently suffering and has not suffered from aniline poisoning or any other industrial poisoning arising out of or acquired during the course of his employment with respondent.

John C. Wegner, Referee.


author: Herr, A. M.

text:
    Ethel W. Hatch, petitioner, v. Herbert Harriman Hatch, defendant.
    [Decided May 13th, 1937.]

      Mr. John L. Ridley, for petitioning defendant.

      Messrs. Biro & Strell, for the petitioner.
   Herr, A. M.

Ethel W. Hatch filed her petition for divorce in this court on April 5th, 1927. Defendant counter-claimed for divorce and was successful. Decree nisi was entered on October 11th, 1928, dismissing the petition and granting a divorce to the defendant on his connter-claim. Pinal decree was entered accordingly on January 12th, 1929.

There was included in the decree nisi an order awarding the custody of Vivian, one of the infant children of the marriage, to the petitioner, Ethel W. Hatch, subject to certain provisions for visitation, and providing that the defendant should pay petitioner the sum of $8 per week for the support and maintenance of the child.

The defendant alleges that petitioner has intentionally kept the child at Boston and at other places, whereby he has been substantially deprived of his rights of visitation as provided in the order, that she has alienated the child’s affections from him and that the welfare of the child as well as his own rights as parent require that he now be awarded her custody. He complains further that petitioner has brought suit against him in the courts of New York to recover unpaid installments under the maintenance provision of the order amounting to some $2,500, and prays that the order be modified to eliminate the maintenance provision, not only as to future but as to past due installments, on the ground that under all of the circumstances it is inequitable that he be required to pay any money for the maintenance of his child beyond what he has already actually paid. He prays also for an order revising the original order by awarding the child’s custody to him and for an order enjoining the petitioner from the further prosecution of her New York action.

The defendant’s application presents in limine objections which in my judgment require the denial of his application for change of custody and for the retroactive elimination of the maintenance order, without respect to the merits of his contentions.

-1. Change of custody. No question is raised as to the court’s jurisdiction to make the original order. That order was included in the decree nisi, as an incident of the divorce, by virtue of the provisions of section 25 of the Divorce act. P. L. 1907 p. IjSl; 8 Comp. Stat. p. 8035. Jurisdiction to make it was inherent in the court’s jurisdiction to grant the decree of divorce, as defined by sections 6 and 7 of the Divorce act. P. L. 1907 p. k71; 8 Comp. Stat. pp. 2080, 8032. Section 25 contains no provisions respecting domicil or residence, either of the child or of the parents. Where both of the parents, or only one of them, is domiciled in this state under the conditions prescribed by sections 6 and 7 at the time of instituting a suit for divorce, the court has jurisdiction to provide by order for the custody of children of the marriage although they may never have resided in New Jersey and although both of the parents may have become domiciled and resident elsewhere pending the suit.

The change in domicil and residence of the parties and of the child after the entry of the original custodial order does not affect the court’s jurisdiction to entertain the present application. No change in the condition, residence or domicil of the parties can take away a jurisdiction which has once attached. ' White v. White, 65 N. J. Eq. 741; 55 Atl. Rep. 739; Upton et al. v. New Jersey Southern Railroad Co., 25 N. J. Eq. 372; Dunn v. Clarke, 8 Pet. (U. S.) 1; 8 L. Ed. 845; 15 C. J. 822.

The statute (section 25, 2 Comp. Siat. p. 2035) provides that:

“® * * after a decree of divorce, it shall be lawful for the Court of Chancery to make such order touching the * * * custody * * * of the children, or any of them, as the circumstances of the parties and the nature of the case shall be rendered fit, reasonable and just; * * orders so made may be revised and altered by the court from time to time as circumstances may require.” (Italics mine.)

The statute creates a continuing jurisdiction. The physical removal of the child and its parents, their acquisition of domicil in New York and the circumstance that they are thus beyond the reach of the process of this court are considerations which can have no effect upon the jurisdiction of this court to exercise the reserved and continuing power to change its determination defining the status of the child from time to time at the instance of either parent. Recognition of such changed determination will be given at least within this state. It is quite conceivable that occasions may arise where such recognition may prove of practical value and importance. The original order was by the express terms of the statute made subject to the possibility of future change. The petitioner received it with all the limitations and implications attaching thereto. She cannot now question the jurisdiction of the court to exercise the very power reserved in its original order in her favor, by which she has profited and which she has continued to enjoy. On any proper notice of application for a change, the petitioner is bound wherever she may be. Although she may not personally be within the jurisdiction of the court, the suhject-matter is, so that any order revising the original order will be valid and binding upon her. White v. White, supra; Hersey v. Hersey, 271 Mass. 545; 171 N. E. Rep. 815; 70 A. L. R. 518.

But the petitioner argues that, assuming the court’s jurisdiction to revise its original order, it should refrain from so doing, not only because the evidence shows that it would be inequitable and. unsuitable to order a change of custody (which it is unnecessary to pass upon), but because for practical reasons and out of considerations of comity and propriety the determination of such questions should be left with the courts of the State of New York, the state of the parties’ present domicil and residence.

The jurisdiction conferred by section 25 is not mandatory on the court, but subject to the same discretion in its exercise as the court uses in the exercise of its inherent jurisdiction. The court “may” revise the original custody order “as circumstances may require.” If the circumstances do not require the exercise of this court’s reserved jurisdiction, therefore, such jurisdiction ought not to be exercised.

The outstanding and controlling circumstance in the case at bar is that both parents and the child have removed from this state and have all become domiciled and resident in the State of New York. That state is now primarily concerned with the domestic relations of the parties. There are no special circumstances shown which indicate that the domestic relations of these parties can be dealt with more effectively by this court than by the courts of New York. Practical considerations, as well as principles of propriety and comity, require that this court keep hands off. See In re Caruso, 101 N. J. Eq. 215, 218; 137 Atl. Rep. 154; Dixon v. Dixon, 72 N. J. Eq. 588, 591; 66 Atl. Rep. 597; Id. 76 N. J. Eq. 364; 74 Atl. Rep. 995; Hersey v. Hersey, supra; In re Erving, 109 N. J. Eq. 294, 301; 157 Atl. Rep. 161. See notes, 20 A. L. R. 815; 72 A. L. R. 441; 70 A. L. R. 526; 59 L. R. A. 177; 7 L. R. A. (N. S.) 306; 10 L. R. A. (N. S.) 690; 39 L. R. A. (N. S.) 988; L. R. A. 1915B 154. Also 2 Beale, Conflict of Laws (1985) 277; Goodrich, Conflict of Laws (Mornboolc 1927) 805; Restatement, Conflict of Laws §§ 144 et seq.

The defendant’s application for a revision of the custodial order is therefore denied.

2. Revision of maintenance order. The defendant’s application for modification of the maintenance order so as to cancel unpaid installments heretofore accrued thereunder must also be denied, for reasons quite distinct from the domiciliary situation. Whatever may be the nature of the jurisdiction exercised by this court in matrimonial litigation in awarding temporary maintenance for children (Cf. Wilson v. Wilson, 14 N. J. Mis. R. 33, 40; 181 Atl. Rep. 257), in contrast to its original parens patriae jurisdiction in custody cases (In re Erving, 109 N. J. Eq. 294, 297; 157 Atl. Rep. 161), the court has no inherent jurisdiction to compel a parent to provide for the maintenance of his child beyond the pend-ency of matrimonial litigation. Meier v. Planer, 107 N. J. Eq. 398, 402; 152 Atl. Rep. 246. In the law courts, see Freeman v. Robinson, 38 N. J. Law 383; and Cf. Tomkins v. Tomkins, 11 N. J. Eq. 512, 517; Murphy v. Murphy, 102 N. J. Eq. 552, 554; 141 Atl. Rep. 774.) The order for the child’s permanent support in this cause therefore must rest upon the statutory authorization contained in section 25 of the Divorce act, chapter 145, which as amended in 1933 (N. J. Stat. Annual 1933 § 62-25) (so far as the question under discussion is concerned the amendment does not change the. previous statute) provides as follows:

“25. Pending a suit for divorce or nullity, or after decree of divorce, it shall bo lawful for the Court of Chancery to make such order touching the alimony of the wife, and also touching the care, custody, education and maintenance of the children, or any of them, as the circumstances of the parties and the nature of the case shall he rendered fit, reasonable and just, and to require reasonable security for the due observance of such orders, and upon neglect or refusal to give such reasonable security, as shall be required, or upon default in complying with the order, to award and issue process for the immediate sequestration of the personal estate, and the rents and profits of the real estate of the party so charged, and to appoint a receiver thereof, and cause such personal estate and the rents and profits of such real estate, or so much thereof as shall be necessary, to be applied toward such alimony and maintenance as to the said court shall from time to time seem reasonable and just, or to enforce the performance of the said orders by such other lawful ways and means as is usual, and according to the course and practice of the Court of Chan-eery; orders so made may be revised and altered by the court from time to time as circumstances may require; provided, however, that it shall he unlawful for the Court of Chancery to make any order or decree touching the alimony of the wife should she have married subsequent to the decree of divorce; and provided further, that the Court of Chancery upon application of the former husband, on notice and upon proof of the marriage of the former wife after the decree of divorce, must modify any order or decree touching the alimony of the former wife ‘by vacating and annulling any and all provisions in any such order or decree, or both, directing the payment of money for the support of the former wife.”

In respect to the wile’s vested right to recover arrearages, there is no distinction between permanent alimony orders and orders lor the permanent maintenance oí children. The authority oí this court in divorce litigation to make both classes oí orders is derived solely from the above quoted statute. Hervey v. Hervey, 56 N. J. Eq. 424, 426; 39 Atl. Rep. 762. Except for the provisos the statutory provisions apply to both alike, so that whatever construction is to be placed upon the statute with reference to alimony the same construction must be applied when questions concerning maintenance of children are involved.

On the question whether a court may modify retroactively orders for alimony and maintenance, the decisions in the various states have not been in accord, because of differences in statutory language and because of the fact that some courts exercise an inherent jurisdiction to make an award. See 94 A. L. R. 331; 41 A. L. R. 1419; 46 A. L. R. 1200; 57 A. L. R. 1113. In our own state, however, the answer must be found in section 25 of the Divorce act and the construction to be given to that section.

Prior to the year 1902 the finality of a New Jersey decree for accrued permanent alimony was fully recognized. In Lynde v. Lynde, 54 N. J. Eq. 473; 35 Atl. Rep. 641; affirmed, 55 N. J. Eq. 591; 39 Atl. Rep. 1114, the court upon petition held that a decree of divorce might be amended for the purpose of inserting a provision for permanent alimony inadvertently omitted. After Mr. Lynde had obtained the order for alimony, she instituted suit thereon in the courts of Mew York. Lynde v. Lynde, 41 App. Div. 280; 58 N. Y. St. 546; affirmed, 162 N. Y. 405; 56 N. E. Rep. 979; 48 L. R. A. 679; 76 Am. St. Rep. 332; affirmed, 181 U. S. 183; 45 L. Ed. 810; 21 S. Ct. 555. Mr. Justice Gray, writing the opinion for the United States supreme court (at p. 187 of 181 U. S.) clearly distinguished between accrued alimony and alimony to become due in the future:

“The decree for the payment of $8,840 was for a fixed sum already due, and the judgment of the court below was properly restricted to that. The provision of the payment for alimony in the future was subject to the discretion of the court of chancery, which might at any time alter it, and was not a final judgment for a fixed sum.”

At the time the decree of divorce was amended in Lynde v. Lynde, supra, to include a provision for permanent alimony the court was governed by section 19 of G. S. 1895 p. 1269 which omitted any express provision for the revision of original orders. The revision clause was added by the Divorce act of 1902 (P. L. 1902 p. 507 § 19) and provided that “orders so made may be revised and altered by the court from time to time as circumstances may require.” This provision was retained in the Divorce act of 1907 (P. L. 1907 p. 481 § 25; 2 Comp. Stat. 1910 p. 3035), under which the order in the instant case was made, and in the amendment of 1933. P. L. 1933 ch. 145; N. J. Stat. Annual 1933 p. 124 § 63-25. Defendant urges that this provision enables the court to revise its orders for the child’s support retrospectively as well as prospectively.

With this contention I am unable to agree. In Sistare v. Sistare, 218 U. S. 1; 54 L. Ed. 905; 30 S. Ct. 682; 28 L. R. A. (N. S.) 1068, the United States supreme court dealt with a similar argument in a case involving the finality of a decree for alimony under the New York statute. The New York statute provided in part that:

“The court may, by order upon the application of either party to the action, after due notice to the other, to be given in such manner as the court shall prescribe, at any time after final judgment, vary or modify such directions.”

In construing this section the supreme court of the United States through Mr. Justice White (at p. 33 of 218 U. S.) stated:

“But it is equally certain that nothing in this language gives power to revoke or modify an installment of alimony which had accrued prior to the making of an application to vary or modify, and every reasonable implication must be resorted to against the existence of such power in the absence of clear language manifesting an intention to confer it.”

The construction placed upon the New York statute in the Sistare Case was followed by our court of errors and appeals in Bolton v. Bolton, 86 N. J. Law 622. These two decisions are controlling in the construction to be given to the revision clause of section 25 supra of our own Divorce act and have heretofore been held to be dispositive by Advisory Master Child in an unreported decision in Spahn v. Spahn (Docket 56-557). Recently, the vested character of accrued permanent alimony was recognized by Advisory Master Grosman in Flavell v. Flavell, 15 N. J. Mis. R. 167, 176; 189 Atl. Rep. 639. See, also, Williams v. Williams, 12 N. J. Mis. R. 641, 644; 174 Atl. Rep. 423.

Lynde v. Lynde, 64 N. J. Eq. 736; 52 Atl. Rep. 694, is not in point. That decision involved, not accrued permanent alimony, but a claim for alimony not yet fixed by the court. See Sutphen v. Sutphen, 103 N. J. Eq. 203, 205; 142 Atl. Rep. 817.

There is no need to consider what effect, if any, will be attached to an express reservation in the decree nisi of the power of the court to modify the order as to past due installments, nor is there any question here as to the extent to which fraud will vitiate the decree with respect to arrears. See Gorrell v. Gorrell, 2 N. J. Mis. R. 707; Wittlinger v. Wittlinger, 13 N. J. Mis. R. 349; 178 Atl. Rep. 97.

The further contention of the petitioner that the order for the child’s maintenance was conditioned upon his right of visitation, which he claims was denied to him, is without merit. See Feinberg v. Feinberg, 72 N. J. Eq. 810; 66 Atl. Rep. 610; 105 A. L. R. 903. Nor does the evidence taken on this application warrant a prospective modification of the maintenance provisions of the order.

The result is that the defendant’s application must be denied in toto.


author: Egan, V. C.

text:
    Vincent Ahlemeyer, complainant, v. John A. Miller et al., defendants.
    [Decided May 12th, 1937.]

      Messrs. Melosh, Morten & Melosh, for the Vogel heirs.

      Messrs. Solomon & Miller, for the Michel heirs.
   Egan, V. C.

The parties to this suit have agreed that the facts herein, upon which decision is sought, are as follows:

“The only issue in this controversy now pending before the court in this case is; Who is entitled to receive the moneys now on deposit with the clerk of this court, which represent that part of the lands, which, under the deed made by Mary Elizabeth Miller and husband to George Miller and wife, were conveyed to the heirs-at-law of said George Miller, and subsequently sold under these proceedings?

“1. On May 1st, 1868, Mary Elizabeth Miller became seized in fee-simple of certain premises situated in Jersey City, Hudson county, New Jersey, known by street Ho. 389-391 Grove street.

“2. By deed dated September 19th, 1891, and duly recorded on April 19th, 1894, in book 593 at page 487, said Mary Elizabeth Miller [her husband, John Miller, joining], conveyed said lands and premises to George Miller and Beata K. Miller, his wife, the habendum clause in which said deed reads as follows:

“To Have and to Hold, all and singular the above described land and premises with the appurtenances unto the said party of the second part, to the only proper use,- benefit and behoof of the said party of the second part, and the survivor of them during the lifetime of the survivor and after the death of the survivor, to the child or children of the parties of the second part, and of the survivor of them share and share alike, their heirs and assigns forever, and in default of any such child or children then to the heirs-at-law of said parties of the second part in the following manner: one undivided half part to the heirs-at-law of said George Miller their heirs and assigns, forever, and one undivided half part to the heirs-at-law of the said Beata K. Miller, their heirs and assigns, forever.”

“3. Said George Miller was the only living child of said Mary Elizabeth Miller at the time deed was made.

“4. Mary Elizabeth Miller, mother of said George Miller, died at Jersey City on March 1st, 1894.

“5. John Miller, father of said George Miller, died at Jersey City in 1895.

"6. George Miller and Beata K. Miller did not have any child or children.

“7. George Miller died on August 7th, 1914,

(1) without lawful issue; and

(2) without leaving a brother or sister of the whole or half blood, or issue of any such brother or sister; and

(3) without leaving a father or mother capable of inheriting under the Descent act.

“8. John Miller, father of said George Miller, had no brothers or sisters of the whole blood. He had no sisters of the half blood but he did have the following brothers of the half blood, all of whom predeceased said George Miller, to wit:

1. Thomas Yogel

2. Conrad Yogel

3. Baehemus Yogel

Each one of these half-brothers left issue who survived said George Miller, to wit:

children of Thomas Yogel Louis Yogel Charles Yogel . .., Elizabeth Yogel Bapp I ^ Catherine Yogel Weniger Anna Yogel — child of Baehemus Vogel. children of Conrad Yogel

“9. Mary Elizabeth Miller, mother of said George Miller, had two brothers and one sister of the whole blood, all of whom predeceased said George Miller, to wit: 1 — Theresa Blass, 2 — Nicholas Michel, and 3 — Bernard Michel. None of these left any issue except Bernard Michel, who left two children, both of whom survived said George Miller, to wit: John Michel, a son, and Mary Elizabeth Michel, a daughter.”

The opposing claimants to the fund will, for the sake of convenience, be referred to as the Yogel heirs, and the Michel heirs. The Yogel heirs are cousins of the half blood of George Miller. The Michel heirs are cousins of the whole blood of George Miller. The Michel heirs say that by reason of their relationship of the whole blood, they are entitled to the entire fund. They contend that the Yogel heirs are in nowise entitled to any share therein.

The deed in question convoyed only a life estate to George and Beata 3L Miller. It recites that in default of a child, or children, born to the grantees, that the fee then should vest as follows: “one undivided half part to the heirs-at-law of said George Miller, their heirs and assigns, forever,” and “one undivided half part to the heirs-at-law of the said Beata .K. Miller, their heirs and assigns forever.”

Consequently, upon the death of George Miller, on August 7th, 1914, the lands Tested in his “heirs-at-law.” Such estate Tested not by operation of law but by yirtue of the proyisions in the deed.

Who were “the heirs-at-law of George Miller” at the time of his death? 3 Words and Phrases {3d Series) 1085, says:

“The word ‘heir,’ or the phrase ‘heir-at-law,’ meant at common law that person who succeeds to the real estate in case of intestacy. Walker v. Walker, 118 N. E. 1014, 1019, 283 Ill. 11; Wilde v. Bell, 87 A. 8, 9, 86 Conn. 610.
“An ‘heir’ or ‘heir-at-law’ is a person designated by law to succeed to an estate. Connertin v. Conconnon, 259 P. 290, 291, 122 Or. 387."

And on page 1086 of said yolume 3—

“The words ‘heirs-at-law,’ when used in a deed to designate the grantees, will be interpreted to mean the persons appointed by law to succeed to real estate in case of intestacy, unless a different interpretation is required in order to give effect to the plain purpose and intention of the grantor, as disclosed by the language of the deed as a whole. Aetna Ins. Co. v. Hoppin, 249 Ill. 406, 94 N. E. 669.” McKinney v. Stewart, 5 Kan. 384, 394

The phrase “heirs-at-law” means the same as “heirs general.” They are the kindred by blood of a deceased intestate, who inherit his lands. Forrest v. Porch, 45 S. W. Rep. 670; 100 Tenn. 391.

3 Words and Phrases {3d Series) 1087, says:

“Under Decedent Estate Law, § 90, providing that relations of the half blood shall inherit equally with those of the whole blood in the same degree, a half-brother of a decedent was his ‘heir-at-law.’ Farmers Loan & Trust Co. v. Polk, 151 N. Y. S. 618, 623. 166 App. Div. 43.”

“By ^heirs’ are properly meant those upon whom the law casts the real estate immediately upon the death of the ancestor.” Howell v. Gifford, 64 N. J. Eq. 180 (at p. 187); 53 Atl. Rep. 1074-

Under section 6 of the statute of descent {£ Comp. Slat. p. 19S,), the persons designated in paragraphs 7, 8 and 9 of the aforesaid agreed state of facts, are the persons who are entitled to the proceeds of the fund. Under the last named section 6 of the Descent act, it is provided:

“The said lands * * * shall then descend and go to the several persons of equal degree of consanguinity, either of the whole or half blood, to the persons so seized, as tenants in common, in equal parts, however remote from the person so seized the common degree of consanguinity may be and whether of the whole or half blood.”

Although the case of Bray v. Taylor, 36 N. J. Law 514, holds that “cousins of the half blood by the established rule of the common law were excluded from the inheritance; neither are they admitted to the succession by the fifth section of the statute of descents which extends only to brothers and sisters of the half blood and their issue and does not embrace collaterals of a more remote degree.”

Chapter 195 of the laws of 1905, page 358, amends section 6 of the Descent act (8 Comp. Slat. p. 1980) so that it now includes “persons either of the whole or half blood, all of equal degree of consanguinity * * * however remote from the person so seized the common degree of consanguinity may be.”

The principle laid down in Bray v. Taylor, supra, does not affect the situation in the instant case. As above observed, we are not dealing with an estate of inheritance; we are considering a grant by deed. The situation expressed in Daly v. Connolly, 159 Atl. Rep. 314, is not a case “on all fours” with the point involved herein.

The Vogel heirs and George Miller are each two degrees removed from their common paternal ancestor, namely, Anna Miller, their paternal grandmother.

The Michel heirs and George Miller are each two degrees removed from their common ancestor, namely, their maternal grandparents.

The paternal half-cousins, the Vogel heirs, are entitled to share equally with the maternal cousins of the whole blood, the Michel heirs.

I shall advise an order to conform with these findings.


text:
    STATE OF NEW JERSEY, DEFENDANT IN ERROR, v. LOUIS WASSERMAN, PLAINTIFF IN ERROR.
    Argued May 4, 1937
    Decided May 20, 1937.
    Before Brogan, Chief Justice, and Justices Trenchard and Parker.
    Eor the plaintiff in error, Benjamin M. Weinberg.

    For the defendant in error, William A. Wachenfeld, prosecutor of the Pleas, and Joseph E. Conlon, first assistant prosecutor.
   Per Curiam.

Louis Wasserman, together with Max Blum, Joseph Praml and Bernard Lieberman, was indicted by the grand jury of Essex county.

At the trial, Lieberman was acquitted' by the direction of the court; Praml was acquitted by the jury, and Blum pleaded non vult.

Wasserman, the plaintiff in error, was found "guilty in manner and form as is set forth in the indictment.”

The indictment contained two counts. The first count charged simple assault and battery upon one Karl Hoffman.

The second count charged that the same defendants committed "an atrocious assault and battery upon Karl Hoffman, by wounding the said Karl Hoffman in and upon the head, limbs and body.”

The state’s case was that the actual assault, allegedly with pieces of iron pipe, was committed by two colored men hired by the defendant Wasserman and that he was close by having come to watch the assault.

We have no reason to doubt that the verdict itself was supported by ample evidence, but with that question we are not now concerned, since neither the weight of the evidence nor the refusal to grant a motion to acquit are assigned or specified for reversal.

The assignments and causes for reversal are identical and there are only two of them, both extracts from the charge.

The first is: “and those who were guilty of committing this offense on the witness Hoffman are guilty of the crime of atrocious assault and battery as charged in this indictment. So you need not give that any further consideration.

It is seen that that instruction assumed that if there was guilt at all it was of atrocious assault and battery. But we think, considering all the evidence, the question whether or not the defendant was guilty of atrocious assault and battery was for the jury under proper instructions as to the law. Such is the general rule. 4 Am. Jur. 186. True, the state’s evidence was that pieces of iron pipe were used in the assault, but that use was a relevant fact as to guilt under the first count, and a general verdict (as here) means guilty on each count.

We think the question whether the use of such an instrument, and the question whether the injury inflicted (as to which there was hut one witness) demonstrated guilt of simple assault and battery only, or guilt of atrocious assault and battery, were questions for the jury, to he decided upon a consideration of the evidence as to the character of the instrument used, the character of the injury inflicted, the credibility of the witnesses, and the weight to he accorded to their testimony.

In State v. Pitman, 119 Atl. Rep. (N. J.) 438, and in State v. Lanto, 98 N. J. L. 401; 121 Atl. Rep. 139 (carnal abuse cases), it was held that the age of the prosecutrix was a question of fact to he submitted to the jury, and that the assumption by the judge as proved, that she was under sixteen years of age, required a reversal, although there was no contradictory testimony as to her age.

Moreover, our Court of Errors and Appeals has frequently held that in every case, where the issue depends upon the determination of facts the existence of which is not admitted, the jury, and not the court, must determine them. Schmidt v. Marconi Wireless Tel. Co., 86 N. J. L. 183; 90 Atl. Rep. 1017; Clark v. Public Service Electric Co., 86 N. J. L. 144; 91 Atl. Rep. 83; State v. Karpowitz, 98 N. J. L. 546; 120 Atl. Rep. 40. Here the essential facts were not admitted.

The application of these rules leads to a reversal, and it will not be necessary to comment upon the other point argued except to say that we incline to think it is without merit.

Accordingly the judgment under review will be reversed, and venire de novo awarded.


text:
    SABASTIANO CARUSO, PROSECUTOR, v. CITY OF NEWARK AND FLORA DI DONATO, DEFENDANTS.
    Submitted January 31, 1937
    Decided June 4, 1937.
    Before Justices Parker, Lloyd and Donges.
    Eor the prosecutor, Algernon T. Sweeney.

    Eor the defendant city of Newark, Frank A. Boettner and Thomas M. Kane.

   Per Curiam.

This is a certiorari to review the recommendation of the board of adjustment of the city of Newark to the board of commissioners of the city of Newark, that a permit be granted to defendant Plora Di Donato to construct a store building in a second residential district in said city, and the action and procedure of the governing body approving said recommendation upon stipulated conditions.

It will be noted there are two defendants, namely, the city of Newark and the owner of the property involved, who has a substantial right in the matter in litigation. The state of the case is largely stipulated, but, as appears, by the prosecutor and the city of Newark only. The defendant Di Donato has not consented thereto. In this situation, we conclude there is no state of the case before us upon which we may determine the rights of all the parties to the writ and who have rights which must be determined.

Further, it appears that there is pending in the Court of Chancery a proceeding to determine the right of the defendant Di Donato to construct a store building on the land in question, by reason of certain alleged restrictive covenants in her deed and other deeds to lands in the neighborhood. It is possible that the Chancery proceeding may be dispositive of the questions sought to be determined under the writ in the instant case.

For these reasons, we conclude that the writ of certiorari presently pending should be dismissed, without prejudice, however. Such will be the order.


text:
    MARY ELIZABETH RIDGEWAY, PETITIONER-RESPONDENT, v. REAL ESTATE OPERATING COMPANY, RESPONDENT-PROSECUTOR.
    Submitted January 31, 1937
    Decided June 4, 1937.

      Before Justices Parker, Lloyd and Donges.
    Por the petitioner-respondent, Sydney A. Gutkin and I. Herbert Levy.

    Por the respondent-prosecutor, Katzenbach, Gildea & Rudner.

   Per Curiam.

This writ brings up a judgment of the Mercer County Court of Common Pleas, affirming an award of the compensation bureau, on a claim that respondent’s husband met his death from asphyxiation by coal gas. At the time of decedent’s death, on August 9th, 1935, he was employed as janitor of the apartment house of prosecutor, and his duties required him to take care of and coal a water heater in the cellar of the house. At the hearing, it appeared to have been conceded that the work of decedent included looking after this hot water heater and that he was found in a comatose state, or dead, in a pit in the cellar in which the furnace for heating the building was situated, in which furnace there was no fire at the time. There was a fire in the water heating stove. It appeared that there was present an odor of coal gas, the intensity of which was variously estimated by different witnesses. Decedent was carried from the cellar and efforts were made to resuscitate him, all of which failed. There was no autopsy. It was in evidence that several days after the funeral a request was made of one of decedent’s sons for an autopsy, which was then refused.

The single question in this case appears to be as to whether the decedent met his death as the result of an accident. It appears that it was not controverted that, if decedent died from asphyxiation by coal gas, his death was from accident arising out of and in the course of his employment. It was denied that decedent died from asphyxiation.

What then, is the evidence with respect to this question? The death certificate of a coroner gave coal gas as the cause of death, but, in view of the testimony of the coroner that he inserted the canse of death as the result of a conversation with the acting county physician, who made no investigation and did not see the body of decedent, the certificate is without probative value as to the cause of death.

Petitioner produced an expert, who is a pathologist and toxicologist, who was asked in effect, that given a man in good health, who was found in a pit thirty inches deep, where a boal burning hot water heater was in operation, and where the odor of coal gas was apparent, who was found unconscious, removed from the cellar and subsequently died, what would be his opinion as to the cause of death; to which he replied his “natural assumption would be, if I were confronted with such a set of facts, that this man must have died from a toxic effect of some gas in that cellar, given the data which you have given me. Of course, I would appreciate going much further, but with the data at hand and the circumstances as described, that would be at least the inference one would draw from such a situation.”

On behalf of respondent an expert testified that, in view of the symptoms testified to by a number of witnesses for both parties, particularly that the appearance of decedent was natural and normal and that there was no vomiting, it was his opinion that death was not attributable to carbon monoxide poisoning. The testimony was that in cases of coal gas poisoning there is a marked change in the color of the skin. As stated by the witness: “There are two types of appearance that are common — in the one, definite bluing or a definite cyanosis is noted, although more commonly there is a definite pinkish or purplish red series of hemorrhages in the skin distributed generally over the face, the chest, the arms, the legs and occasionally the back. The blood itself is a very characteristic bright red, and this bright red color can be used as a means of identification of death of this type, because it is striking, it is easily measured and it persists for many days, even weeks after death has occurred.”

In view of the explicit and uncontradicted testimony of this witness, and of the witnesses who testified that the symptoms said to be present in coal gas asphyxiation cases were not present in the instant case, we are constrained to conclude that the testimony overthrows any presumption, adduced from the circumstance that there was an odor of coal gas in the cellar when decedent was found, that coal gas asphyxiation was the cause of death.

It is stated that two physicians examined the decedent after he was removed from the cellar, but neither of these was called as a witness in the instant proceeding.

The petitioner did not show by the burden of proof that the death of the decedent was the result of an accident. “The petitioner must do more than show that the injury could have been the result of the accident.” Wolfe & Co. v. Piplin, 14 N. J. Mis. R. 146; 183 Atl. Rep. 187. In this case, weighing all of the testimony, it preponderates in favor of the conclusion that it was not shown that decedent met his death from coal gas asphyxiation.

The judgment is reversed.


text:
    MONARCH FUEL OIL COMPANY, RESPONDENT, v. ALPHONSE WALTI, APPELLANT.
    Argued May 4, 1937
    Decided June 3, 1937.

      Before Justices Lloyd, Case and Donges.
    For the appellant, John F. Ryan.

    For the respondent, Harry Gersten.

   Per Curiam.

The plaintiff obtained a judgment in the court below and defendant appeals.

The grounds urged for reversal are that the court erred in denying defendant’s motions for nonsuit and for the direction of a verdict in his favor.

The state of demand was in two counts, one on a book account, and the other for services and materials furnished. The case as presented rested on the proofs offered by the plaintiff, no evidence being produced by the defendant.

The motions for nonsuit and direction were based on the fact that the plaintiff had offered in evidence a contract for the installation of an Air-Scott-Ffewcomb Pioneer Oil Burner, but proved the installation of a Lenox burner instead. On this state of the proofs it was contended that the contract tendered was not carried out and nothing could be recovered.

The difficulty with this contention is that it overlooks the count for materials sold, the proofs in support of it, and defendant’s admissions. The plaintiff proved a substitution of the Lenox boiler for the one specified in the agreement, and that this substitution was made by agreement with the defendant upon which the latter had paid all but the sum of $368.30, which amount the defendant’s testimony might be construed as admitting to be due.

The production of the written contract did not debar the plaintiff from proving its subsequent verbal modification and the delivery of the boiler substituted for the one specified in the writing and recovering therefor under the second count.

The judgment is affirmed, with costs.


text:
    TESSIE DIATEL, ADMINISTRATRIX AD PROSEQUENDUM, ET AL., PLAINTIFFS, v. VINCENT GLEASON AND JOHN L. CAIN, DEFENDANTS.
    Argued May 4, 1937
    Decided June 1, 1937.
    Before Justices Lloyd, Case and Donges.
    Bor. the rule, James I. Bowers.

    Contra, Theodore Strong & Son.

   Per Curiam.

This is an application for a change of venue from Middle-sex county to Somerset county.

The alleged cause of action arose in Somerset county, the plaintiffs reside in Somerset county, the defendant Cain resides in Somerset county, and it is established beyond question that the defendant Gleason was, at the time the cause of action arose, a resident of New York City. It is further asserted that practically all of the witnesses reside in Somerset county.

Service was attempted to be made on Gleason by serving someone of competent age at his father’s home in Middlesex county, and this is urged as ground for denial of this application.

The two hundred and second section of the Practice act reads as follows:

“An action merely transitory shall at the discretion of the court be tried in the county in which the cause of action arose, or the plaintiff or defendant reside at the time of instituting such action, or if the defendant he a non-resident in the county in which process was served upon him.”

As was said in The Fort Orange Paper Co. v. Risdon, 62 N. J. L. 579; 41 Atl. Rep. 706:

“If there is but a single defendant, who is non-resident, the statute is express and the venue is laid in the county where he is served with process, it cannot, except under special circumstances, be changed.

“There is no specific direction in the statute in a case like the present, where there are several defendants, all of whom except one are residents of the state.

“The defendants do not all reside in the state, nor do they all reside out of the state, and the language of the statute does not, therefore, strictly cover this case. The legislature, in this provision, had in view the convenience of litigants, and there is no reason why the resident defendants shall be deprived of a trial in the county where they live and are served. The right of the non-resident defendant to select the place for trial is not within the express language of this act, nor do I think it was contemplated by the framer of it. In the absence of explicit provision it must be discretionary in the court where the venue shall be laid, and it is therefore ordered that the venue be changed to the county of Burlington.”

In the instant case every requisite under the statute for laying the venue in Somerset county is present, and in justice to the resident defendant, for the convenience of parties and witnesses, as well as in pursuance of the statute, the venue should have been laid in Somerset county, and not in Middle-sex county. It is accordingly ordered to be changed. Delaware, Lackawanna and Western Railroad Co. v. North Jersey and P. M. Ice Co., 65 N. J. L. 524; 47 Atl. Rep. 471.

The rule to show cause is made absolute, with costs.


author: McGrath, C. P. J.

text:
    Union County Orphans Court.
    IN THE MATTER OF THE PROBATE OF THE ALLEGED WILL OF NEWTON S. DRAKE, DECEASED.
    Decided June 8, 1937.
    For the appellants, Franlc S. Weiner.

    For the respondent, Louis Messing, Jr.

   McGrath, C. P. J.

Newton S. Drake, a clerk, made a will dated October 25th, 1918, in which he left his entire estate to his wife, Mae Francis Drake, and in case she should predecease him, then to his children equally. He also provided for the payment of his debts and named an executor.

On February 10th, 1932, he executed a second will reading as follows:

“This is my last will. I give, bequeath and devise to my wife Mae Francis Drake, in complete and perfect ownership, all my rights and property of every kind and nature, whether real, personal or mixed, wherever situated, appointing her executrix of my estate without bond and giving her possession thereof.

In witness whereof, I have hereunto set my hand this 10 day of Feb. 1932.

The above instrument, consisting of one (1) sheet was now here subscribed by Newton S. Drake the testator, in the presence of each of us; and was at the same time declared by him to be his last will; and we, at Ms request, sign our names hereto, as attesting witnesses;”

(Here follow the signatures of the two witnesses.)

On October 17th, 1936, he died and the second will dated February 10th, 1932, was admitted to probate by the surrogate, and is the subject of this appeal. Shortly after the execution of the second will, his wife, Mae Francis Drake, died and at the time of his death he was married to his present widow, Anna E. Drake. If the will of February 10th, 1932, was properly executed and if it revokes the will of October 25th, 1918, the second wife takes a share in the personal property by intestacy.

This second will was not signed in the usual place but the testator signed his name in the attestation clause. Apparently he had the will and attestation clause made out on the typewriter, leaving two blank spaces. He filled in one blank space with his wife’s name as beneficiary, and wrote his name in pen and ink in the other space, in the attestation clause, after the words “subscribed by.” He did not use the original typewritten sheet but a carbon copy, but both witnesses saw him execute the carbon copy as his will, and there is no legal objection to this if he did execute the carbon copy as his will. In re Jolley’s Will, 5 N. J. Eq. 96.

From the testimony it appears that he signed his name in the attestation clause in the presence of two witnesses with the intention to make it his signature for the purpose of the execution of the will. This is sufficient under In re Phelan’s Estate, 82 N. J. Eq. 316; 87 Atl. Rep. 625. In the Phelan will there was no room between the will and the attestation clause in which the testator could sign, but the distinction does not seem important in this case.

It is urged, however, that the second will does not revoke the former will but is a mere amendment, which changes the executor and reiterates the gift to the wife without disturbing the provisions of the first will as to the contingency of her death. This argument is unfounded: the two wills are inconsistent because in the first will he disposed of all his property by will and made provisions for the contingency of his wife’s predecease, while in the second will he did not provide for such contingency but left the disposition in such case to the provisions of the laws of intestacy in force at his decease and the circumstances existing at that time. The result is not necessarily the same and is not the same in this case, and in any case the two modes of disposition are legally different and pass a different estate. In re Skellenger, 32 N. J. Eq. 659.

The second will is a complete will and the court can only give effect to the testator’s intentions as he has legally expressed them. We cannot assume that the testator intended to provide for a contingency when under the plain provisions of the second will, he did not do so. “Courts are not at liberty because an event has happened which the testator has not provided for, to disregard the ordinary rule of construction that words must be read according to their natural and reasonable meaning, and inject into the will a provision which the testator would probably have made, had be contemplated the happening of the contingency.” Stout v. Cook, 79 N. J. Eq. 573; 81 Atl. Rep. 821.

I therefore find that both instruments are separate wills, not complementary of each other; that the second will makes a complete disposition of testator’s property and completely revokes the first will. In re Schwieller, 95 N. J. Eq. 203; 122 Atl. Rep. 243; Smith v. McChesney, 15 N. J. Eq. 359. I also find that the second will, although its practical effect now is purely revocatory, is nevertheless entitled to probate. Smith v. McChesney, supra.


text:
    RUTH C. BETTES, PLAINTIFF-RESPONDENT, v. CHESTER B. SCOTT, DEFENDANT-APPELLANT, AND NELL GIACONA AND JENNIE GIACONA, DEFENDANTS-RESPONDENTS.
    Submitted May term, 1937
    Decided June 4, 1937.
    Before Justices Lloyd, Case and Donges.
    For the plaintiff-respondent, David H. Wiener.

    For the defendant-appellant, Franklin J. Marryott.

   Per Curiam.

The proofs disclosed that plaintiff was riding with defendant Chester B. Scott in the latter’s automobile along a public highway about eight o’clock on a rainy evening. Coming from the opposite direction was an automobile owned by the defendant Jennie Giacona, and driven by defendant Nell Giacona. There was a collision between the two automobiles as a result of which plaintiff was injured. This action is to recover for those injuries, and the District Court judge, sitting without a jury, granted a nonsuit as to Jennie Giacona and made an award in favor of the plaintiff against both of the other defendants. Scott appeals.

The single point argued is that the trial court erred in refusing to direct a verdict in favor of defendant-appellant.

Three witnesses testified to the happening. Plaintiff put herself and defendant Scott upon the stand. Nell Giacona, one of the co-defendants, testified in her own behalf. Plaintiff, by her own testimony, knew nothing about the accident. She testified: “Well, it was a rainy, miserable night. I couldn’t see a thing; in fact, I saw nothing of the accident whatsoever. I couldn’t see through the windshield. I just felt the car was either swerving or something had happened to the car and we stopped. I knew nothing whatsoever. I couldn’t see anything. * * * There was just a crash and that is all I knew. * * * My attention was diverted * * *. Something must have happened to the car. I didn’t know what happened.”

In reply to the question, “what caused the diversion?” she answered, “either the brakes were applied and I was thrown forward, or the car swerved.” In response to leading questions, the witness was led to say what she “thought,” what she “imagined,” and what her “impressions” were; but we find no competent evidence of negligence by appellant. The witness Giacona testified:

“I was going about twenty miles an hour, and I don’t recall anything except that as I approached the other car my car seemed to swerve as if it was being pulled, and then I came to a standstill. * * * I was proceeding at the rate I had been going; that was from twenty to twenty-five; I don’t know, I didn’t look at my speedometer, and I don’t know what happened until the two cars came together. Whether I skidded before or after I don’t know, because it happened so quickly;” and this excerpt may fairly be taken as a synopsis of her entire testimony on the subject. Scott testified that as he was driving along the avenue at a fairly low rate of speed he saw the Giacona car suddenly loom up in front of him, that the latter ear seemed to be in a swirling skid, and that it struck his car forward and then in the rear.

Where the evidence, with all fair and legitimate inferences arising therefrom, is insufficient to sustain a verdict for the plaintiff the court should direct a verdict for the defendant. Cleary v. Meyer Bros., 114 N. J. L. 120; 176 Atl. Rep. 187. Negligence must be proved; it is not presumed. This is not a case where, in our opinion, the principle of res ipsa loquitur may be applied, and no contention is made that it should be. The essential proofs to sustain a verdict are lacking. The disposition of the case depends, not upon the relative credibility of the witnesses, but upon the absence of proof.

The motion for a direction in favor of the appellant should have been granted, and the judgment against him will therefore be reversed.