author: McGrath, C. P. J.

text:
    Union County Court of Common Pleas.
    JOSEPH WERTHMAN, PETITIONER-APPELLEE, v. THE PRUDENTIAL INSURANCE COMPANY OF AMERICA, RESPONDENT-APPELLANT.
    Decided October 10, 1941.
    For the petitioner-appellee, Farhus <& Samuels.

    Por the respondent-appellant, James J. Sheffingion.

   McGrath, C. P. J.

Petitioner, while employed by respondent, suffered injuries from a third party and recovered for such injuries, by settlement of a Supreme Court suit, the sum of $10,000. Up to this time the employer had paid him for medical expenses and compensation the sum of $1,506.29. In the Supreme Court suit the petitioner’s attorney’s fees and expenses amounted to $3,116. Upon application to the Compensation Court to fix the rights of the parties under the Compensation Act, the deputy commissioner fixed the total compensation at $2,906.29 and directed the third party to reimburse the respondent to the extent of $1,506.29 (the amount of compensation and medical expenses theretofore paid) less the sum of $905.53 which the deputy commissioner thought should be the respondent’s contribution to the fees and expenses of the petitioner in securing the settlement of $10,000, already mentioned. The practical effect of this order is to reduce the “reimbursement” of the employer to $600.76. Bespondent contends that this is erroneous and that it should have been reimbursed in full, since the settlement of $.10,000 is ample to reimburse him in full, after deducting payments of all kinds, whether for compensation, medical expenses or counsel .fees. This is the only question involved in this appeal.

The order of the deputy commissioner is directly contrary to paragraph (d) of the statute (R. S. 34:15-40; N. J. S. A. 34:15-40) which directs that the third party shall, before making any payment to the employee, inquire as to the amount of medical expenses and compensation theretofore paid to the injured emplo}'e by the employer, and the attorney’s fees and expenses incurred, and “Thereafter, out of that part of any amount about to be paid in release or in judgment 1)3' such third person or corporation on account of his or its liability to the injured employee remaining after deducting the employee’s expenses of suit and attorney’s fees, as hereinafter defined, the employer or his insurance carrier shall be entitled to receive from such third person or corporation, a sum equivalent to the medical expenses incurred and the compensation paid theretofore by the employer or his insurance carrier to the injured employee or his dependents,” &c. In this case, the amount remaining in the hands of the third part3, after deducting the employee’s expenses of suit and counsel fee, is $6,884, whereas his total compensation award is only $2,906.29, and the third party has ample funds in his hands to release the employer, and to pay him “a sum equivalent to the medical expenses incurred and the compensation paid theretofore by the employer or his insurance carrier to the injured employe,” i. e., $1,506,29. According to the statute: “Such sum ($1,506.29) shall be deducted by such third person or corporation from the sum about to be paid in release or judgment to the injured employee or his dependents,” &c. The statute specifically provides that the fees and expenses bo paid out of the recovery, and the Court of Appeals has also said: “In the ascertainment of the credit, the expenses of suit and the attorney’s fees are to be deducted from the recovery,” and since there is ample money in the recovery to reimburse the employer in full, the third party must pay out this money in accordance with paragraph (b) which provides that the employer shall be released and reimbursed for medical expenses and compensation payments “if the sum recovered by the employee from the third party or corporation, after the expenses of suit and attorney’s fees or either of them, as hereinafter defined, have been deducted therefrom, is equivalent to or greater than the liability of the employer or his insurance carrier under the statute.” This “reimbursement” can only mean what the Court of Appeals said it meant, in the Savitt case: “The term reimbursement plainly has reference to such portion of the sum received from the third-party tort feasor as is the equivalent of the whole of the employer’s liability under the Workmen’s Compensation Act, whether actually paid or not, if the recovery exceeds the liability. The legislature had in mind ‘reimbursement’ of the quantum of the employer’s statutory liability for compensation, in the sense of indemnification,” &c. And, as already quoted, the court said that in ascertaining this quantum of credit, the fees and expenses are to be deducted from the recovery.

Under the old statute, the employee was required to reimburse the employer up to the full amount of the recover}' even though this left the employee out of pocket for counsel fees and expenses, so that he might actually get less than the Compensation Act provided for him. (See Deuchar v. Standard Accident Insurance Co., 117 N. J. L. 375; 189 Atl. Rep. 61.). The object of the present statute is to correct this injustice, and all its provisions have the same purpose, i. e., to make sure that the counsel fees and expenses (as defined by the statute) shall be first reserved out of the recovery before the employer shall be entitled to any of it, whether as reimbursement for moneys paid, or credit for moneys due. In this respect the burden of the counsel fee and expenses is on the employer, but this burden is defined and limited by statute, and this burden is the responsibility of the employer for those fees and expenses until the calculation made by the third party, as required by paragraph (d), shows that there is sufficient money to apply paragraph (b); otherwise the employer has to produce the difference. In this present case, even after everyone is paid and the employer released and reimbursed, the employee has several thousand dollars over and above the amount that the Compensation Act insures him, and there is no further burden on anyone. The liability of the employer ceases to exist because the employee has received all that the statute intended him to receive. So far as counsel fees and expenses concern the employer, they are limited by paragraph (e) and have already been paid out of the recovery as required by statute, and there is no reason why the employee should be further enriched by a share of the employer’s reimbursement. This would be contrary to the statute and to the general purpose of the Workmen’s Compensation Act.

The employee argues that the Court of Appeals in the Savitt case (Savitt v. L. & F. Construction Co., 124 N. J. L. 173; 10 Atl. Rep. (2d) 728) decided that the burden of the attorney’s fees and expenses was placed by the statute on the employer in all cases, no matter how much money the employee received from the third party tort feasor. I do not find any such decision or language in that case. The court was passing on the constitutionality of this section and its application to paragraph (e) where the recovery is less than the liability and where, of course, the burden is on the employer to make up the difference, since otherwise the employee would have to bear it. The situation in this case is entirely different, and paragraph (b) applies.

The determination also says that in the event the petitioner makes application for increased disability at some future time, "the determination herein will fix and determine the extent of the credit allowable to the petitioner by reason of the third party settlement.” Since either party may apply for a modification of the judgment, under the general provisions of the act,- the purport of this statement is not apparent, but of course it affords no reason for the order requiring the third party to deduct $905.53 fees and expenses out of the employer’s reimbursement and, which it is agreed, is the only question raised on this appeal.


source: Caselaw Access Project

author: Clapp, Deputy Surrogate.

license: Public Domain

text:
    Essex County Surrogate’s Court.
    IN THE MATTER OF THE ESTATE OF ALEXANDER HORVATH, DECEASED.
    Decided October 9, 1941.
    For the petitioner, John Trier.

    For the respondents, Kapp Brothers (Herman W. Kapp, of counsel).
   Clapp, Deputy Surrogate.

By the will of Alexander Horvath, Helen Kahl and Thomas Hickey were nominated to be or constituted his executors. She renounced on counsel’s advice that a conflict would spring up between her individual interest and her interest as an executor; and the surrogate ordered letters issued to Mr. Hickey. He, after qualifying and entering upon the duties of his office, died July lJth, 1941. Alleging his death and the termination of the conflict in her interest (the conflict was allegedly resolved by the suit of Hickey v. Kahl, 129 N. J. Eq. 233; 19 Atl. Rep. (2d) 33), she now applies to the surrogate to open his order so as to permit her to retract her renunciation and so as to grant her letters of executorship.

Her sisters, the residuary legatees, dispute her right to letters. The Essex County Orphans Court has held itself without jurisdiction of a controversy solefy over a right to letters of executorship because of the pointed failure of the statute, now R. S. 3:2-22; N. J. S. A. 3:2-22, to confer that -jurisdiction on that court. In re Will of Best, 34 N. J. L. J. 338. However, whether such jurisdiction then lies in this court (Cf. Russell’s Case, 64 N. J. Eq. 313; 53 Atl. Rep. 169) and whether this court’s jurisdiction, once deemed exhausted by the first grant of letters, has been recharged by R. S. 2:31-4; N. J. S. A. 2:31-4 sufficiently to grant the application here (Cf. Ryno’s Ex. v. Ryno’s Admr., 27 N. J. Eq. 522; Mellor v. Kaighn, 89 N. J. L. 543; 99 Ayl. Rep. 207; Jewett v. Turner, 172 Mass. 496; Briggs v. Probate Court, 23 R. I. 125) are questions that should be passed over, for the decision here is that the application must on another ground be dismissed.

I have been furnished with excellent briefs on the question whether letters may now be granted Mrs. Kahl, as that question would have been answered at common law; but the answer, in my view, turns on language put in R. S. 3:7-61 and 3:7-69 by the revisers in 1937. N. J. S. A. 3:7-61 and 3:7-69.

To appreciate the constructional problem, one must have in mind the most that can be said for the common law rule. Assume it to be, as petitioner’s argument has it, that at common law one of two executors who has renounced may, on the death of his co-executor and before the grant of administration, retract his renunciation and have letters of executorship issued to him. In re Maxwell, 3 N. J. Eq. 611; Hill v. Smalley, 25 N. J. L. 374; Judson v. Gibbons, 5 Wend. 224; Robertson v. McGeoch, 11 Paige 640; John Dempsey’s Will, 1 Tuck. 51; Codding v. Newman, 3 Thomp. & C. (N. Y.) 364; 63 N. Y. 639; Perry v. DeWolf, 2 R. I. 103; Davis v. Inscoe, 84 N. C. 396.

The policy of these authorities, as it has been presented on the argument, is to have the will executed by the person chosen by its terms — provided he be willing to act and no inconsistent rights have supervened — and not executed by (the authorities are old) an executor of an executor or an administrator de bonis non cum testamento annexo of inefficient (Preamble, Pamph. L. 1901, ch. 145) powers. The more cogent is this policy made to appear when the ground of the renunciation was that it was more efficient to have but one executor.

The ecclesiastical authorities though at first regarding a renunciation as peremptory, that is, as irrevocable (see Webter’s New International Dictionary), later permitted retractions under liberal circumstances. Lord Petrie’s Case, 1 Salk 311; Venables v. East India Co., 2 Ex. 633; 154 Eng. Rep. 644. On respondent’s behalf it is to be remarked that a result, such as that reached by the early civil authorities, was pronounced the more reasonable one and was itself reached upon a construction of a Canadian statute (C. S. U. C., ch. 16, § 1). Allen v. Parke, 17 U. C. C. P. 105. On the other hand, in construing the words of an exactly similar statute theretofore enacted in England (20 & 21 Vict., ch. 77, now 15 Geo. 5, ch. 23) the tenacious common law rule was held to have survived the statutory words (though it must be said, its escape therefrom was narrow) to permit the retraction argued for here — at least, if the retraction were to the benefit of the estate. In the Goods of Stiles (1898), Pac. Rep. 12; In re Gill, L. R. 3 P. & D. 113. The durableness of the policy supporting the common law rule is again to be observed in the New York Surrogate’s Court Act, section 158, codifying the rule — at least to permit of a retraction in the case here, within the Surrogate’s discretion. In re Kellogg, 214 N. Y. 460.

With this for an historical background, the revisers drafted R. S. 3:7-61; N. J. S. A. 3:7-61. It provides (by the italics, attention is called to noteworthy changes from the pre-existingstatute) :

“When a sole or sole surviving or remaining executor * * * dies or is removed * * * after qualifying and entering upon the duties of his office but before the completion thereof, the vacancy so created shall * * * be filled by the appointment of a fit person to exercise the vacated office, such person to be denominated substituted administrator with the will annexed. * * *

“The appointment shall be made by the issuance of letters of substitutionary administration with * * * the will annexed * * * by the Surrogate of the proper county * * * in the manner and upon the conditions prescribed for granting letters of administration to the first administrators in other cases.”

It will be perceived upon a comparison of R. S. 3:7-61, 3:7-63 and 3:7-69; N. J. S. A. 3:7-61, 63 and 69, with the prior statutes, that the revisers were there cutting much new verbal cloth. R. S. 3:7-63; N. J. S. A. 3:7-63, where they patterned a provision as to guardianships after that conceived as to executorships, was amended by Pamph. L. 1941, ch. 323, to return the law in some respects to its preexisting state.

This opinion turns in its argument first to the words “shall” in R. S. 3:7-61; N. J. S. A. 3:7-61, then to the applicability here of the words of that section “sole or sole * * * remaining” and finally to R. S. 3:7-69; N. J. S. A. 3:7-69.

The provisions of the Eevised Statutes affecting the question at bar stand out in contrast to the prior statute affecting the-same. The common law rule, as argued for by applicant here, plainly may be reconcilable with that statute. That statute did not require the appointment of a substituted administrator cum testamento annexo on the death of a sole or surviving executor; the statute permitted it. In place of the word “shall” in R. S. 3:7-61; N. J. S. A. 3:7-61, the word “may” appeared in Pamph. L. 1901, ch. 145, § 1. Most important is it to observe that the word “may” there, superseded the word “shall” appearing in Pamph. L. 1897, ch. 104, and again appearing in Pamph. L. 1898, ch. 234, § 151. I regard the word “shall” in the present statute as imperative. I see nothing of sufficient force in the character or context of R. S. 3:7-61 or 3:7-69; N. J. S. A. 3:7-61 and 69, which will permit me to wrench the word out of its ordinary significance so as to render it directory. Foley v. Orange, 91 N. J. L. 554; 103 Atl. Rep. 743. Notwithstanding that there may be much to be said for the alleged common law rule, I do not think I am at liberty to disregard .the action of the revisers in replacing the word “may.”

Before turning attention away from R. S. 3:7-61; N. J. S. A. 3:7-61, it may be asked whether Mr. Hickey was the “sole or sole remaining” executor, within the meaning of the statute. This is no occasion to consider whether Pamph. L. 1939, ch. 139 (effective before the date of the decedent’s death) amending R. S. 3:2-3; N. J. S. A. 3:2-3, by making probate a condition precedent to the validity of a will, abrogated the common law rule so that from thenceforth an executor derived his title not from the will but from the probate. 62 N. J. L. J. 389 and 390. If a probate decree is the sine qua non of an executor’s power, then Mr. Hickey may have been the “sole” executor.

On the other hand, if Mr. Hickey derived his title from the will and not from the probate, he is to be regarded as the “sole remaining- executor” after Mrs. Kahl’s renunciation; for after her renunciation, she did not remain an executor. The notion of the early common law was, perhaps, to regard a renunciation as a disclaimer, not of the executor’s title and office, but merely of his right to authenticate that title by probate. But to-day renunciations are made doubtless without exception, as disclaimers of the 'title and office. Venables v. East India Co., 2 Ex. 633; 154 Eng. Rep. 644, supra; Cf. Rinehart v. Rinehart, 15 N. J. Eq. 44; R. S. 3:13-1; N. J. S. A. 3:13-1. Without question, an executorship and .all its burdens, rights and powers may be renounced; and Mrs. Kahl’s disclaimer here is to be so construed. Assuming then that she was once an executor, my conclusion is that •she did not remain such. On that assumption, Mr. Hickey was at his death the sole remaining executor.

By the hand of the revisers the words “or remaining” came into the law in the place they stand. In Pamph. L. 1898, ch. 234, § 151, the 'words “remaining executor” refer to the co-executor remaining after another’s removal. But the words obviously are also referent to a co-executor remaining after another’s “refusal to act,” or after another is “disabled to act.” Cf. the use of the words “remaining executor” in the case of Lippincott v. Wikoff, 54 N. J. Eq. 107, 114; 33 Atl. Rep. 305, and Cf. R. S. 3:7-69; N. J. S. A. 3:7-69.

The legislative intent that there shall be substitutionary administration in a situation such as the one at bar, is elsewhere apparent. R. S. 3:7-69; N: J. S. A. 3-7-69 provides that there shall be survivorship and succession between co-fiduciaries; and a co-fiduciary is defined by R. S. 3:6-1; N. J. S. A. 3:6-1 as one of two fiduciaries jointly “serving” in a fiduciary capacity. The indication (insufficient though it would be of itself) is that there is survivorship and succession only between co-fiduciaries jointly serving.

Notice, too, may be taken of the subsequent provision of R. S. 3:7-69; N. J. S. A. 3:7-69 — that if there “remains at least one fiduciary qualified to act, no substituted fiduciary need be appointed to act in the place of any co-fiduciary who may have died,” &c. This language is entirely the revisers’. By R. S. 3:7-69; N. J. S. A. 3:7-69 the implication is cast that a substituted fiduciary — that is, a substituted administrator cum testamento annexo not an executor — need or must be appointed where, e. g., one of two jointly serving fiduciaries dies and then the other dies. The word “need” re-enforces the mandatory construction given to the word “shall” in R. S. 3:7-61; N. J. S. A. 3:7-61.

In view of the statutory language the petition herein must be dismissed.


author: Oliphant, C. C. J.

text:
    Mercer County Circuit Court.
    SAMUEL K. DENNIS, PLAINTIFF, v. THERMOID COMPANY, A DELAWARE CORPORATION, AUTHORIZED TO DO BUSINESS IN NEW JERSEY, DEFENDANT.
    Decided October 18, 1941.
    For the plaintiff, Homan, Buchanan & Smith.

    For the defendant, Ellis L. Pierson.

   Oliphant, C. C. J.

The above matter was heard by the court without a jury pursuant to a stipulation entered into between the parties.

During the year 1936 and for at least eight years prior thereto the plaintiff, Dennis, was employed by the defendant company as division manager of its Southwestern Branch with headquarters at Dallas, Texas, where he had a home and was settled with his family. In October of that year, after some previous negotiations, he came to Trenton at the request of Frederick E. Schluter, the president of the defendant company, for which he had the power and authority to act, to confer concerning his taking the position of'director oí replacement sales. This would necessitate his moving to Trenton, which he was reluctant to do.

Further negotiations took place and the final meeting between Dennis and Schluter occurred the latter part oí October. At that time a memorandum of the terms agreed upon was made out and initialed by Mr. Schluter. Dennis wanted a salary of $7,500 a year, which figure appears on the memorandum, which Schluter would not pay and it was. finally agreed that he should receive $500 per month beginning November 1st, 1936, which was to be raised to $625 per month beginning July 1st, 1937. In addition, he was to be paid his company expenses and the moving expenses of himself and family from Dallas to Trenton. He was further to receive “1% of all increased sales of the replacement division from October 31st, 1936, over same periods previous year” plus “a participating share in any management bonus.” As to this last item the sum of $1,500 was guaranteed. All of the foregoing appears on the memorandum.

As to the “management bonus” item I am of the opinion that the agreement between the parties contemplated that the guarantee of $1,500 applied only to the year 1937, that thereafter Dennis would share therein if there was any such bonus given by the Company. He was paid none for the year 1938 and thereafter never demanded same until the filing of the instant suit. There is no proof that there was any such bonus declared by the Company after the year 1937 or paid to others.

It was the practice of the company to figure increases and losses on sales on a yearly basis and likewise the practice to pay any bonuses shortly after the first of the year for the previous year’s work.

I am convinced from the documentary and testamentary evidence the contract made between Dennis and Schluter on behalf of the Company was a yearly hiring of the plaintiff by the defendant beginning January 1st, 1937. I come to that conclusion largely by reason of the provision in the memorandum providing for a percentage on increased sales and a yearly bonus. Jones v. Manhattan Co., 91 N. J. L. 592; Lyons v. Pease Piano Co., 92 Id. 592. Also in Pfiel v. Christian Feigenspan, Inc., 97 Id. 3, the court said: “It is of some significance that the defendant proposed to, and in fact did, pay for the transportation of plaintiff's household effects from Cleveland, Ohio, a circumstance looking toward some degree of permanency in the employment.''

It is conceded that the memorandum of October, 1936, did not meet the requirements of the statute of frauds, and if suit was brought on that instrument it would fail unless based on a quantum meruit. McElroy v. Ludlum, 32 N. J. Eq. 828 (at p. 833), citing Smith v. Smith’s Adm’rs, 28 N. J. L. 208. Where there is a hiring at a specified rate per year the English rule is followed in this state and that hiring is for a definite term, from year to year. The Court of Errors and Appeals in Willis v. Wyllys Corp., 98 Id. 180, says: “There is great diversity of view in the different jurisdictions respecting this class of cases. The ‘English view' so called, tends to a construction establishing a contract for a definite term if this can be spelled out of the language used. The ‘American view,’ favored by most of the states, tends toward a holding that the hiring is at will unless the contrary be fairly plain. 26 Cyc. 973, et seq.; Willis Con., ¶ 39. Our own cases seem to favor the English view. * * *” This ease has been followed in two recent decisions, one by the Court of Errors and Appeals in Donnellan v. Halsey, 114 N. J. L. 175, and the other by the Supreme Court in Essbee Amusement Corp. v. Greenhaus, 114 Id. 492.

New York cases have been cited by both sides in their briefs with reference to several questions presented here. They are not pertinent as that jurisdiction follows the American rule. •

In the instant case Dennis continued at his employment at the same rate of pay during the years 1937 and 1938 and began the year 1939 under the same conditions. He was discharged on April 7th, 1939, without justifiable cause.

This suit is based upon the contract arising by operation of law by reason of the relationship of the parties continuing from year to year. In Passino v. Brady Brass Co., 83 N. J. L. 419, the court said: “The existence of a continuing contract of service from year to year, or from one definite period to another, may be implied from proved facts and circumstances, and the course oE business between the parties, and is always a question of the intent of the parties.” The following is found in Morris v. Briggs Co., 179 S. W. Rep. 783 (at p. 785) : “The affect of the continuation of the employment after the termination of the definite period, without any new agreement, was to raise the presumption of a renewal of the contract for the following year — when one serves another under a contract for a year’s service, and holds over, continuing in the service after the expiration of the year, there is a presumption, analogous to the presumption in the case of a yearly lease, that the parties consent to the continuance through another year of the contract of service.”

In Williston on Contracts 155, ¶ 90, it is stated “Where a contract of employment for a definite time is made, and the employee’s services are continued after the expiration of the time, without objection, the inference is that the parties have assented to another contract for a term of the same length with the same salary and conditions of service, following the analogy of a similar rule in regard to leases.”

L. R. A. 1918C, p. 706, states the general rule to be as follows: “The great weight of authority is to the effect that an employee originally hired for a definite term who continues to render the same services after the expiration of such term without explicitly entering into a new agreement is prima facie, presumed or deemed to be serving under a new contract having the same terms and conditions as the original one, the continuance in the employment of the hirer with the consent of the latter after the time specified in the contract being equivalent to a new hiring for the same length of time, on the same terms.”

In this situation the original negotiations between the parties and the memorandum are competent evidence to show the terms of the contract under which the parties continued their relations and the statute of frauds is no bar to the action. Tatterson v. Suffolk Manufacturing Co., 108 Mass. 56.

That statute and the denial of any contract of hiring for a definite period were the defenses relied upon by the defendant.

Again in Williston on Contracts (1st ed.) 985, 503 (Vol. 2, p. 1465, ¶ 503, Revised Ed. 1936), it is stated, “If after a contract for yearly hiring, at the close of one year’s service the employer and employee continue to perform as before, so that by implication a contract of service for another year arises, the statute is inapplicable.”

In the Tatterson case, supra, the court said: “The fifth prayer relates to the statute of frauds. The position of the defendants would be correct, if the plaintiff relied upon the original negotiations as the contract upon which his action was founded. The written evidence does not show any contract which binds the defendants to employ the plaintiff for the whole of- a second year. That obligation, if it exists, must be found in some agreement into which the parties had entered within the year. They did enter into some agreement, by the mere fact of continuing their relations of employment and service. It was a relation of contract. The terms of the contract, in the absence of express words, are to be ascertained, not alone by what occurred within the 3ear, but also from all that had transpired previously. From all the evidence the jury must determine, as an inference of fact, what was the understanding with which the parties entered upon the second year of employment and service. That, when found, constitutes their -contract. The contract which resulted from the original negotiations did not by its terms, and could not by reason of the statute, extend into the second year. But those negotiations were competent evidence from which to infer what were the terms of the new contract under which the parties continued their relations. We think that the jury were rightly instructed that the statute of frauds did not apply to the contract upon which the plaintiff relied; and that the fifth prayer was rightly refused.”

In Sines v. Superintendents of the Poor, 58 Mich. 503, the plaintiff was first employed as a clerk on February 1st, 1875, and in August, 1877, was employed as keeper of the poorhouse. His employment commenced in October. He was continued in the employ of the defendant until February 1st, 1883, when he was discharged. He sued for his salary from February to October, 1883. The defendants set up the statute of frauds, as a defense, but this defense was disallowed, the court (at p. 506), saying: “It is urged by defendants that the contract claimed by the plaintiff is void by reason of the statute of frauds; that the talk with the president in September, to continue work until he had laid the matter before the board, was a contract not to be performed within a year. But this is an erroneous view of the testimony. The contract had been previously made for a year’s service, and under the contract defendant had gone on from year to year, and in such cases, if nothing is said or done by either party at the end of the year to terminate it, but on the contrary, the person performing service is allowed to continue on without objection, the facts raise the presumption from which the jury has found that both parties have assented to the contract continuing in force for another year.”

The contract sued upon here covers the period from January 1st, 1939, to December 31st, 1939, and was created by operation of law. That period is within a year and the statute of frauds has no application. As was said in Passino v. Brady Brass Co., supra, “We deem the contract under consideration therefor to be one which by its terms was to be performed within a year.”

Counsel for the defendant argues that the statute applies because while the contract on the part of the plaintiff would be completely performed within the year, only a part thereof would be performed on the part of the defendant; the monthly payments on account of salary would have been made, but the amount due on any increase of sales could not be ascertained and paid within the year neither would the management bonus be paid until after the year had gone by. Tn support of this contention the cases of McElroy v. Ludlum, supra, and Barnes v. P. & D. Manufacturing Co., 123 N. J. L. 246, are cited. They are not in point. In Berry v. Doremus, 30 Id. 399, it was stated that the statute of frauds “only applies where neither side is to perform the contract within one year,” and this pronouncement was followed in Boyce v. Miller, 15 N. J. Mis. R. 280; 190 Atl. Rep. 845, where the court said: “Contracts not to be performed within one year may be taken out of the statute through an entire performance by one of the parties thereto.”

It is also contended for the defendant that a statement by the attorney for the plaintiff during the trial of the case was dispositive of the issue and brought the contract squarely within the interdiction of the statute. 13 N. J. Mis. R. 832; 181 Atl. Rep. 638. Counsel said: “We have a suit which is on a contract made in 1936. We allege the contract continued until the discharge of this man. The answer is a denial of that.” That is a true statement too succinctly stated. This suit is in effect one arising by operation of law out of the contract made in 1936. The decision in the Labett case would not control.

The court finds that the statements contained in the complaint are supported by the evidence except as to subdivision (e) of paragraph 9.

■The court finds for the plaintiff and against the defendant. The damages of the plaintiff are assessed at $5,821.73 with interest on the respective items amounting to $643.51, or a' total of $6,465.24.


author: John C. Wegner, Deputy Commissioner.

text:
    New Jersey Department of Labor, Workmen’s Compensation Bureau.
    SAMUEL GORDON EL, BY HIS NEXT FRIEND, HIS FATHER, SAMUEL GORDON EL, PETITIONER, v. NEWARK STAR-LEDGER, ALSO KNOWN AS NEWARK MORNING LEDGER CO., AND LIBERTY MUTUAL INSURANCE COMPANY, RESPONDENTS.
    Decided October 9, 1941.
    For the petitioner, Fox Krieger (by Harry Krieger).

    For the respondent Newark Star-Ledger, Osborne, Cornish & Scheclc (by Harry V. Osborne, Jr.).

    For the respondent Liberty Mutual Insurance Company, John W. Taylor.

   * * * * * * *

The petitioner, Samuel Gordon El, who is thirteen years of age, testified that he had been employed by the Newark Star-Ledger some two weeks prior to the alleged occurrence of November 7th, 1940, as a route man, it being his job to deliver to various subscribers the newspapers published by the respondent Newark Star-Ledger. In addition to delivering papers, the petitioner also collected 18 cents weekly from each customer, the cost of the papers, and in some instances an additional 2 cents per week, the premium on an accident insurance policy purchased by some of his customers through the respondent. The first day or two that he performed this work, he was accompanied by a Mr. Mendelsohn, who he described as his “boss.” Mr. Mendelsohn showed him the various places to which the papers were to be delivered and' the method to be followed in delivering the papers. The petitioner stated that no agreement was made at the time he began this work with respect to remnneration but that for the two weeks prior to the alleged occurrence he was paid $4 a week by Mr. Mendelsohn, which money he accepted. In addition to delivering papers, he was expected to obtain new subscribers to the newspaper and he received a certain sum for each subscriber obtained. The petitioner obtained some five or six new subscribers during the period of time that he worked. On the day in question, viz., November 7th, 1940, the petitioner went to the respondent company’s distributing point at 20-22 Parkhurst Street, Newark, and obtained his papers for delivery. At that time he said he was given an extra paper by Mr. Mendelsohn who instructed him to deliver it to a Mrs. Todd at 109 Orchard Street, Newark. He was unsuccessful in his attempt to deliver this paper and said that he brought it back to Mr. Mendelsohn and was then instructed “to take it around the corner on Parkhurst Street and leave it.” The petitioner was unable to furnish us with the name or address of the person to whom this paper was to be delivered. He stated that while he was on his way to make this delivery that the accident occurred. It was while he was walking along Thomas Street out in the highway alongside of another boy, Eleo Weaver, who was riding on a bicycle, that an automobile operated by a Mr. McEadden struck Weaver’s bicycle, which in turn struck the petitioner, causing him to suffer injury.

At the conclusion of the petitioner’s testimony, he being the only witness offered in his behalf, motion was made by John W. Taylor, attorney for the Liberty Mutual Insurance Company, the insurance carrier for the respondent Newark Star-Ledger for a dismissal of the petition on the ground that the petitioner had failed to prove a prima facie case of employment, by'the respondent Newark ..Star-Ledger, at the time and place of the alleged occurrence, contending that the petitioner was excluded from the benefits of the Workmen’s Compensation Act by reason of R. S. 34:15-36; N. J. S. A. 34:15-36, wherein it is provided that a person engaged in the vending, selling or offering for sale ox delivery directly to the general public newspapers, &c., shall not be considered an employee within the provisions of the Workmen’s Compensation Act. Motion was also made by Harry Y. Osborne on behalf of the Newark Star-Ledger for a dismissal of the petition in so far as it claimed compensation benefits in double the amount payable under R. S. 34:15-12; N. J. S. A. 34:15-12 by reason of the allegation that the petitioner was employed in violation of R. S. 34:15-10; N. J. S. A. 34:15-10.

Having carefully considered the testimony and the arguments of counsel, I have come to the conclusion that the petitioner failed to prove a prima facie case of employment, by the Star-Ledger at the time of the alleged occurrence, within the terms and provisions of the Workmen’s Compensation Act. His employment, if any, is excluded from the provisions of the Workmen’s Compensation Act by reason of the fact that he was engaged in vending, selling or offering for sale or delivery directly to the general public of newspapers. T am further of the opinion that the petition should be dismissed in so far as it claims double compensation benefits by reason of the fact that the petitioner was not engaged in violation of the Labor Law of this state. It is therefore,

Ordered that the petition be and hereby is dismissed.

John C. Wegner, Deputy Commissioner.


author: Wolber, C. C. J.

text:
    BINDER REALTY CORP., A CORPORATION OF NEW JERSEY, PLAINTIFF, v. CITY OF NEWARK, A MUNICIPAL CORPORATION, DEFENDANT.
    Decided July 18, 1941.
    For the plaintiff, Newton M. ■Roemer (Archibald Kreiger, of counsel).
    For the defendant, Raymond Schroeder (Joseph A. Ward, of counsel).
   Wolber, C. C. J.

The plaintiff in its complaint sets forth that on February 4th, 1941, a judgment was entered by the State Board of Tax Appeals in its favor and against the defendant directing that the assessment on property owned by plaintiff in the City of Newark for the year 1939 be reduced to $50,900, a net reduction from the former assessment by the defendant in an amount totaling $6,300; that the amount which the defendant was required to remit to defendant was based on a tax rate of $4.55 per $100, which amounts to the sum of $286.65, and that the defendant has not paid said sum or any part thereof, although the judgment remitting the said amount remains in full force and effect. Plaintiff demands judgment against the defendant for $286.65, together with interest from February 4th, 1941, and costs.

Defendant in its answer, after admitting the truth of the allegations of the complaint, with the exception that it denies it was required to remit the sum of $286.65 to the plaintiff,' and a denial that the plaintiff is entitled to said sum, sets up four separate defenses, the first separate defense that the admitted sum is not due and owing to the plaintiff; the second separate defense that as a result of said judgment of the State Board of Tax Appeals the defendant credited said sum to the taxes due for the year 1941 on said property; the third separate defense that the whole amount of the taxes for the year 1939 was not paid to the City of hTewark by the plaintiff, and that the plaintiff is not entitled to the said sum; and the fourth separate defense that the plaintiff did not pay to the city the whole amount of the tax for the year 1939, and ought not to recover more than a pro rata amount of said sum of $286.65, based on the portion of taxes paid for the year 1939 by the plaintiff.

In its answer defendant reserved the right to strike out the complaint, either at or before the trial of the above cause.

This matter comes before me on an application by the plaintiff for an order to strike out the four separate defenses contained in the answer, on the ground that each one is insufficient in law, and asks for the entry of a summary judgment in favor of the plaintiff against the defendant for the sum of $286.65.

In conformity with Supreme Court rules 80 and 81, affidavits have been submitted to me by the respective parties.

On the day set for hearing the plaintiff’s motion to strike out the answer and the separate defenses, defendant made application for an order to strike out the complaint on the grounds that it was part frivolous and part sham, and that it did not disclose a cause of action, together with a supporting affidavit. I cannot now consider defendant’s cross motion, supported by an affidavit, because it has filed an answer.

Defendant must decide either to move to strike out the complaint or answer the complaint. When he makes a decision he must abide by it. He cannot decide to answer the complaint and do so, and then afterwards move to strike out the complaint, any more than under common law pleadings a defendant could plead to a declaration and then afterwards demur to it. Apfelbaum v. Pierce (Supreme Court, 1924, P. C.), 2 N. J. Mis. R. 1150; 126 Atl. Rep. 738; Klughaupt v. Acquackanonk Water Co. (Supreme Court, 1924, P. C.), 2 N. J. Mis. R. 1188; 126 Atl. Rep. 739.

Of course, I can consider any question of law presented for decision in the case out of a motion on the pleadings, under rule 40 of the Supreme Court, which takes the place of a demurrer to a pleading. Lehigh Valley Railroad v. United Lead (Supreme Court, 1926, Black, J.), 102 N. J. L. 545; 133 Atl. Rep. 290.

From the affidavits before me it is undisputed that on October 1st, 1938, the plaintiff was the owner of .lands and premises in the City of Newark; that on that assessing date a valuation of $12,700 was assessed against the land and $50,000 against the improvements thereon, making a total assessment of $62,700. Within the time required by law, the plaintiff appealed from said assessment to the Esses County Board of Taxation and that Board ordered the property to be assessed as follows:

Land ................. $12,200.00

Improvements ................ 45,000.00

Total Assesssment......... $57,200.00

Within the time required by law plaintiff appealed from the assessment as reduced by the County Board to the State Board of Tax Appeals of the State of New Jersey.

During February, 1940, defendant remitted to plaintiff the sum of $250.25 for the remission in the assessment made by the County Board.

On February 4th, 1941, the State Board of Tax Appeals entered its judgment for a further reduction on the assessment as follows:

Land ..................'...... $9,100.00

Improvements ................. 41,800.00

Total Assessment.......... $50,900.00

On March 14th, 1939, the plaintiff paid the first quarter of the 1939 taxes amounting to $596.42; on May 9th, 1939, the premises were acquired by the Keil Realty Go. by deed from the plaintiff; and on May 23d, 1939, September 23d, 1939, and November 29th, 1939, the Keil Realty Go. paid the balance of the taxes for the year 1939 amounting to $2,256.43.

The Keil Realty Go. also filed an appeal for the reduction of the assessment with the State Board of Tax Appeals, but that appeal was dismissed for lack of prosecution on February 4th, 1941.

Under our Tax Act, Revision of 1918, as amended, R. S. 54:4-23; N. J. S. A. 54:4-23, the assessor shall ascertain the names of the owners of all real property situate in his taxing district, and, after examination and inquiry, determine the full and fair value of each parcel of real property situate in the taxing district at such price as, in his judgment, it would sell for at a fair and bona fide sale by private contract on October 1st next preceding the date on which the assessor shall complete his assessments, as hereinafter required.

Our “Tax Sale Law,” Revision of 1918, R. S. 54:5-6; N. J. S. A. 54:5-6, provides that all unpaid taxes on lands, with interest, penalties, and costs of collection shall be a lien on the land on which they are assessed on and after December 1st of the year in which they fall due.

R. S. 54:3-27; N. J. S. A. 54:3-27, as amended, permits a taxpayer who shall file an appeal from an assessment against him to pay to the collector of the taxing district such portion of the taxes assessed against him as he would be required to pay if his appeal were sustained; and further provides that the payment of part or all of the taxes upon any property, due for the year for which an appeal from an assessment upon such property has been or shall hereafter be taken, or of the taxes for subsequent years, shall in nowise prejudice the status of the appeal or the rights of the appellant to prosecute such appeal before the county board of taxation, the State Board of Tax Appeals, or in any court to which the judgment arising out of such appeal shall be taken.

Our General Tax Act, Revision of 1918, as amended, R. S. 54:4-56; N. J. S. A. 54:4-56, also provides that upon the sale and transfer of any real estate in this state, unless otherwise provided in a written agreement between the seller and purchaser, the seller shall be liable for the payment of such proportion of the taxes for the current year upon the property to be conveyed as the time between the previous January 1st and the date of the delivery of the deed by the seller to the purchaser bears to a full calendar year. If the amount of the taxes for the current year shall not have been determined at the time of the delivery of the deed of conveyance, the amount of the taxes last previously assessed against such real estate shall be used as the basis for computing the apportionment herein provided.

All proceedings for the taxation of property in the State of New Jersey for public purposes must be found in our statute law. Any action or determination of a County Board of Taxation may be appealed for review to the State Board of Tax Appeals under such rules and regulations as it may from time to time prescribe, and it may review such action and proceedings and give such judgment therein as it may think proper. R. S. 54:2-35 and 39; N. J. S. A. 54:2-35 and 39.

The County Board of Taxation shall summarily hear and determine the appeal, and revise and correct the assessment in accordance with the true value of the taxable property. R. 8. 54:3-22; N. J. S. A. 54:3-22.

The determination of the> State Board of Tax Appeals shall be evidenced by a judgment signed by at least three members and filed with the secretary. R. S. 54:2-14; N. J. S. A. 54:2-14.

All remissions granted by the County Board of Taxation shall be credited on the second half of the taxes. R. S. 54:4-105; N. J. S. A. 54:4-105.

In the absence of any other statutory authority to credit remissions, the second separate defense in the answer is insufficient in law.

In the determination of the questions before the court, the case of Ocean Grove, &c., Association v. Bradley Beach (Supreme Court, 1918, Gummere, C. J.), 91 N. J. L. 364; 103 Atl. Rep. 812, will be helpful. That was an action on assumpsit brought to recover a certain proportion of taxes paid by the Ocean G-rove Camp Meeting Association to the borough clerk of Bradley Beach for the year 1915. The taxes were assessed upon an electric light plant, water tank and ice house owned by the association and located in the borough. The local tax assessor placed a valuation of $83,000 upon this property. The association appealed from this valuation to the County Board of Taxation. Notwithstanding the taking of the appeal, the superintendent of the plaintiff association paid the whole amount of the tax by check to the borough without the knowledge that an appeal had been taken. The County Board made a slight reduction in the valuation and a further appeal was then taken to the State Board of Taxation and Assessment, and an additional reduction was ordered by that board, fixing the true value of the property at $34,900. The present suit was brought to recover the amount of the overpayment and was tried by the court without a jury.

The court found that the authority of the borough to assess the tax was not wholly wanting. The tax itself was only invalid to the extent that the taxing official disregarded the constitutional requirement that property must be assessed for taxes at its true value — that is to say, to the extent that the valuation put upon the property as the basis of levying the tax was in excess of its true value. The tax itself was paid pending the appeal.

The court held that the case was controlled by Jersey City v. Riker (Supreme Court, 1876, Beasley, C. J.), 38 N. J. L. 225. In that case the facts and the law applicable thereto are set forth by Chief Justice Beasley as follows:

“* * * the authority to levy the tax was not wholly wanting; and the payment, in the legal sense was voluntary; and under either of these conditions the law refuses to raise an implied promise to refund the money paid. Had this suit been brought upon the payment of the tax, and before any change in the situation had occurred the case would have been the ordinary one presented in the reports and ruled by the decisions. But that is not so; there is a new element here, and that is, the tax which was paid has been set aside. The consequence is the payment has nothing, either in theory or in fact, to rest upon. The party is debarred from his action after a voluntary payment, because, of his own motion, he abandons his defense to the claim; this the present plaintiff did not do; on the contrary, he pushed his defense to a successful result. The payment of the tax in this cause has not added, in the least degree, to the litigation, and public policy, therefore, does not require a frustration of this procedure. The assessment being vacated by direct judicial action, the law raises an assumption to refund the money which can no longer be honestly retained. * * * upon its vacation the money paid cannot, in good conscience, be retained by the public.”

In that case the plaintiff was assessed for the benefit to his property in Jersey City by the construction of a sewer. The assessment was paid by him and was subsequent^ set aside on certiorari by the Supreme Court. A re-assessment of the expenses of the sewer was then made by the commissioners for a lesser amount. The suit was brought to recover the difference between the sum paid and the amount thus re-assessed.

It was urged by the defendant in the Ocean Grove case that the decision in the Riker case only applied where the taxes were vacated by the Supreme Court or by the Court of Errors and Appeals upon a review of the former court’s judgment. The court held that the words, “by direct judicial action” used in the opinion in the Riker case do not indicate such a limitation on the^ right of the taxpayer to recover a tax illegally assessed. The Chief Justice stated that the language used clearly describes a duly constituted authority exercising a judicial function with relation to the matter before it, citing Campion v. Elizabeth (1879, Beasley, C. J.), 41 N. J. L. 355.

In Hahne Realty Corp. v. Newark (1937, Brogan, C. J.), 119 N. J. L. 12; 194 Atl. Rep. 191, our Court of Errors and Appeals considered the right of a taxpayer who has paid taxes as assessed, though he disputes the amount of the assessment, to have interest on tax moneys refunded by the taxing district when the valuations fixed by the taxing district have, on taxpayer’s appeal, been reduced by reviewing tax tribunals. The learned Chief Justice held that the cases of Jersey City v. Riker, supra; Jersey City v. O’Callaghan (1879, Beasley, C. J.), 41 Id. 349, and Ocean Grove, &c., v. Bradley Beach, supra, were not applicable because the question of reimbursement with interest was not involved in the cases.

In the Hahne case the taxpayer paid his taxes on the quarterly duo dates and the court said that where the taxpayer pays the taxes called for by the assessment or valuation, though he disputes the amount thereof in advance of a hearing of the appeal, it seems clear that the payment is voluntarily made and at the risk of the taxpayer. The learned Chief Justice said:

“The assessment was not illegal per se. The valuation was too high — an error of judgment on the part of the assessor whose duty it is, under the statute, supra (section 202), to assess real and personal property at true value. The power to levy a proper tax was not wanting — there was no infirmity in the proceeding of making the assessment as was the situation in the cases upon which appellant relies. The excessive assessment was a mistake of fact. The appellant did not choose to retain that part of the tax money which it believed to be in excess of the true valuation, as it might have done legally, and litigate about the excess. It elected to pay first and litigate later. Under these circumstances we do not think the amount of taxes abated should carry interest.”

In Francis Realty Co. v. Newark (Essex County Circuit Court, 1938, Smith, William A., C. C. J.), 16 N. J. Mis. R. 328; 199 Atl. Rep. 912, the matter was submitted on a motion to strike out the answer on the ground that it was not sufficient in law. On October 1st, 1934, the plaintiff owned real estate in Newark and appealed from the assessment which was carried to the State Board of Tax Appeals. Pending these appeals the plaintiff paid the taxes which were assessed for 1935. The State Board of Tax Appeals finally granted a reduction in the assessment. The action was brought to recover the overpayment of taxes aggregating $823.20. The answer contained an affirmative defense that the plaintiff had received credit for the refund by its application to tax charges due to the city. The credit was applied against the 1936 real estate taxes. The city sought to justify this offset by virtue of R. S. 2:27-255; N. J. S. A. 2:27-255, “Offset against judgment of taxes, &e., due municipality.” Judge Smith held that the determination of the Board of Tax Appeals does not fix the liability for payment but settles the amount of the assessment, and that the set-off statute was not applicable because it authorizes the set-off of the judgment where the taxpayer “is indebted to the municipality for taxes, assessments, water rates, or other indebtedness of a public nature.” A tax against real estate is not a debt of the owner; it is not founded on a contract express or implied but is an imposition against the property and no personal liability attaches, citing Wrightstown v. Salvation Army (Supreme Court, 1921, Kalisch, J.), 97 N. J. L. 89; 123 Atl. Rep. 607; Baker v. East Orange (Supreme Court, 1920, Black, J.), 95 N. J. L. 365; 111 Atl. Rep. 681; affirmed (1921, P. C. on opinion below), 96 N. J. L. 267; 114 Atl. Rep. 926; City of Camden v. Allen (Supreme Court, 1857, Green, C. J.), 26 N. J. L. 398.

In Bradley v. Dike (Supreme Court, 1895), 57 N. J. L. 471; 32 Atl. Rep. 132, Chief Justice Beasley, in an action for breach of covenants in a conveyance (at p. 473), said:

“As our statutory regulations now stand, assessments of taxes for the current year do not become liens or encumbrances upon lands prior to the twentieth of December (Suppl. approved April 2d, 1888) antecedently to that period they subject the lands to a mere liability to a future lien, and such a liability is not essentially different from that which inheres in the land prior to the making of the assessment itself.”

The,case of United States v. Alabama (May 26th, 1941, Hughes, C. J.), 85 Law Ed. Advance Opinions 896, is not contrary to this rule because under the Alabama Tax Statute there construed, unlike our own, an inchoate lien as of the tax day for taxes to be assessed during the year is imposed as against subsequent mortgagees and purchasers acquiring an interest in the land, after the tax day, but before the perfecting of the tax lien by final assessment of the tax.

In Cadmus v. Fagan (1885, Magie, J.), 47 N. J. L. 549; 4 Atl. Rep. 323, there was an action on a covenant against encumbrances contained in a conveyance of lands in the City of Bayonne, dated September 26th, 1872. At that time an assessment for the expense of opening a street which had been laid on the lands and was confirmed September 28th, 1871, remained unpaid. In 1877 the assessment was vacated as to the prosecutors on certiorari. On June 14th, 1878, it was set aside as to all persons affected thereby. By the same order the Supreme Court appointed commissioners to make a now assessment. They made a new assessment which was confirmed March 21st, 1879. The plaintiff paid the later assessment on June 19th, 1883. The court held that the lien of the original assessment in this case attached to the land, not when the work was completed, but when the assessment was confirmed, and permitted the plaintiff to' recover the amount of the new assessment.

In Arimex Copper Co. v. Board of Assessors (Supreme Court, 1903, Dixon, J.), 69 N. J. L. 121; 54 Atl. Rep. 244, the Supreme Court allowed the entry of a judgment reducing the franchise tax of the prosecutor to $2,500, but did not make an order for the restoration of the surplus paid, because a statute previously giving such authority had been repealed, and cited the case of Singer Sewing Machine Co. v. Assessors (Supreme Court, 1891, Dixon, J.), 54 N. J. L. 90; 22 Atl. Rep. 1085.

I therefore reach the conclusion that on a theory of unjust enrichment the plaintiff should have a summary judgment for $69.58, being its pro rata share of said sum of $286.65 based on the first quarterly installment of the 1939 taxes paid by it on March 14th, 1939, admitted by the fourth separate defense of the answer; and that as to the balance of $217.07 sought to be recovered by the plaintiff, the complaint should be stricken.

I will sign orders to strike the complaint and answer, in order to effectuate the entry of an appropriate judgment for the plaintiff in the Supreme Court, in conformity with the foregoing determination.


author: Collester, D. C. J.

text:
    Clifton District Court.
    DE VOE AND CO., A NEW JERSEY CORPORATION, PLAINTIFF, v. JOSEPH R. CURRIE, DEFENDANT.
    Decided November 7, 1941.
    For the plaintiff, Joseph J. Corn.

    For the defendant, Greenburg, Wilenslcy <& Feinberg.

   Collester, D. C. J.

This matter is before this court on application by the defendant to set aside a wage execution - issued in this cause on the ground that the -defendant has been adjudicated and discharged as a bankrupt by the United States District Court.

The primary question for determination is whether or not the debt of the defendant as reduced to judgment is released by defendant’s discharge in bankruptcy, or falls within the exception to the statute relating to willful and malicious injury to the person or property of another (section 17, subdivision 2, United States Bankruptcy Act).

The action brought by the plaintiff corporation was in two counts, the first alleging that the defendant “without plaintiff’s knowledge or consent, unlawfully took said truck from plaintiff’s possession and unlawfully converted the same to his own use.” The second count which was abandoned on the day of the trial by the plaintiff alleged that the plaintiff made certain pajunents “in and concerning the Chevrolet truck” namely:

Paid October, 1937, as down payment .......... $25.00

July 11th, 1938, last payment to GMAC........ 80.09

Eepair bill — new head, gasket, valves, etc........ 35.85

Tire and tube ........................... 14.00

Body ..............................'...... 25.00

Total ...........................$211.34

On the day set for trial, the defendant did not appear to contest the issue and judgment was entered for the plaintiff in the sum of $350 upon presentation of evidence in support of the first count of the state of demand.

The defendant contends that the state of demand did not set forth a cause of action for “willful and malicious injury” to plaintiff’s property, and that therefore the debt is barred by the subsequent discharge in bankruptcy. The plaintiff contends that the allegation of “unlawful” taking of the truck and “unlawful” conversion to the defendant’s own use is sufficient to bring the act within the exception of the statute.

It is the opinion of this court that the decision of Mr. Justice Cardozo in the case of Davis v. Aetna Acceptance Co., 293 U. S. 328; 55 S. C. Rep. 151, controls the matter sub judice. In that case, Davis, an automobile dealer, sold to a purchaser an automobile encumbered by a chattel mortgage held by Aetna Acceptance Go. in contravention of an agreement which required the consent of the chattel mortgagee before such a sale. Mr. Justice Cardozo stated:

“There is no doubt that an act of conversion, if willful and malicious is an injury to property within the scope of the exception (citing McIntyre v. Kavanaugh, 242 U. S. 128) but a willful and malicious injury does not follow as of course from every act of conversion, without reference to the circumstances. There may be a conversion which is innocent or technical, an unauthorized assumption of dominion without willfulness or malice. (Citing Boyce v. Brockway, 31 N. Y. 490; Laverty v. Snetan, 68 N. Y. 522; Wood v. Fisk, 215 N. Y. 233, and others.)

“There may be an honest but mistaken belief engendered by a course of dealing, that powers have been enlarged or incapacities removed. In these and like cases, what is done is a tort, but not a willful and malicious one.”-

The first count of the state of demand filed in this cause alleges only that there was an unlawful taking and an unlawful conversion of the truck. Every exercise of dominion over the chattel of another without the owner’s consent is an “unlawful act.” So, too, is the taking of a chattel without the owner’s consent. But as the learned justice points out in the Davis case (supra) “there may be a conversion which is innocent or technical, an unauthorized assumption of dominion without willfulness or malice.”

It is therefore the opinion of this court that the state of demand filed by the plaintiff herein, together with the evidence in support thereof neither alleges nor establishes the “willfulness and malice” required to place the debt within the exception to the statute.

Plaintiff further alleges that defendant’s application comes too late for relief. Plaintiff’s counsel apparently confuses the present procedure with an application for a new trial which is not the case; A motion to vacate a wage execution is always proper provided legal grounds exist therefor.

Nor is the issue res adjudicata because defendant’s prior application was denied by this court. Finkel v. Roberts, 127 N. J. L. 132; 21 Atl. Rep. (2d) 306.

It is the decision of this court that the wage execution issued in this cause shall be vacated and that the plaintiff shall be perpetually restrained from the execution of said judgment. Defendant will submit an order in accordance with this opinion.


author: Quinn, President.

text:
    State Board of Tax Appeals.
    MARY McBRIDE, EXECUTRIX OF THE ESTATE OF ANTHONY MARRI, PETITIONER, v. CITY OF JERSEY CITY, RESPONDENT.
    Decided November 18, 1941.
    For the petitioner, Frank J. Bello.

    For the respondent, Frank P. McCarthy.

   Quinn, President.

On October 1st, 1938, Anthony Marri was a resident of the City of Jersey City, and on April 14th, 1939, he died a resident of that taxing district, leaving an estate consisting of $12,428.01 in cash, deposited in New York City banks. Petitioner qualified as executrix and the respondent’s assessing authorities made a personal property assessment against the estate in her hands, for the year 1939, in the amount of $12,400. The actual entry on the tax duplicate was made on or about May 15th, 1939. The assessment lists had not yet been filed with the Hudson County Board of Taxation, as a result of delay in preparation of the city budget that year. When finally filed, the list included the assessment referred to above, and here in dispute.

An appeal to the Hudson County Board of Taxation resulted in an affirmance of the assessment.

Petitioner urges: (1) the assessment was made too late and is illegal in that the procedure outlined in R. S. 54:3-20; N. J. S. A. 54:3-20, for assessing omitted property, was not followed by the city; (2) that the property, being cash entitled to exemption under R. S. 54:4-3.23; N. J. S. A. 54:4-3.23, is not assessable in the hands of petitioner; (3) that the assessment is not supportable as against the decedent, the property having been situated out of the state upon the assessing date, October 1st, 1938; (4) that petitioner is entitled to deductions for debts owing by the estate. Hone of these contentions suffices to prevent an affirmance of the assessment.

1. Although taxing districts are required by statute to file-their tax duplicates with the county board of taxation on or prior to January 10th, this requirement is, as a practical matter, frequently honored by its breach, rather than by its observance. Furthermore, in 1939 the date was extended two months after March 2d, by Pamph. L. 1939, ch. 16. In the recent decision of Ridgewood Elks Holding Corp. v. Village of Ridgewood (Court of Errors and Appeals), 127 N. J. L. 295, municipal assessors who had entered certain property as exempt for the years 1938 and 1939, in the duplicates filed with a county tax board, nevertheless made an entry in October, 1939, assessing the property as a taxable ratable for those years, upon the basis of a decision of this board respecting the taxability of the property for the year 1937, which was handed down in March, 1939, prior to the filing of the 1939 list with the county board. Ho notice of the assessment was given the taxpayer until August, 1940. A writ of certiorari to review a tax sale of the property for the non-payment of the 1938 and 1939 taxes so assessed was dismissed, and the Court of Errors and Appeals affirmed the judgment, on the specific ground that under R. S. 54:4-58 and 54:4-59; N. J. S. A. 54:4-58 and 54:4-59, no tax may be set aside in any action, suit or proceeding, for any irregularity or defect in form, or illegality in assessing the tax, if the person or property assessed, is, in fact, liable to taxation or assessment.

It would clearly appear that the present ease is an a fortiori situation, and that the assessment must be sustained if the property was actually subject to taxation, as of October 1st, 1938. The failure of the assessing authorities to proceed as in cases of omitted assessments, if under the circumstances they should have done so, is at most an irregularity or illegality not fatal to an assessment, under the construction of R. S. 54:4-58, 54:4-59; N. J. S. A. 54:4-58, 54:4-59, in the Ridgewood case.

2. It is doubtful whether cash deposited out of the state is subject to exemption under R. S. 54:4-3.23; N. J. S. A. 54:4-3.23, but, in any event, no exemption could be allowed in this case, because of the failure of the decedent to have filed a statement of his taxable property, and a claim of exemption, on or prior to January 10th, 1939. R. S. 54:4-15; N. J. S. A. 54:4-15, as construed in Public Service Corp. v. City of Newark, New Jersey Tax Reports, 1934-1939, p. 269.

3. Upon the assessing date, this property consisted of intangible personalty, i. e., the several rights of action which decedent held against the New York banks where his funds were deposited. The property was not tangible personalty. Petitioner’s reliance upon R. S. 54:4-9; N. J. S. A. 54:4-9, providing for the assessment of tangible personalty in the taxing district where found, does not, therefore, avail her any relief, and the further provision in the cited section, that “the tax on other personal property shall be assessed on each inhabitant in the taxing district where he resides on October first,” confirms the right of the respondent taxing district to make the levy here questioned.

4. Yo deduction for debts is claimable, none having been shown to exist on October 1st, 1938, qnd no claim .for such deduction having been filed with the city, as required by R. S. 54:4-14; N. J. S. A. 54:4-14.

The taxpayer having offered no proofs establishing a lesser valuation for the property assessed than the amount of the assessment appealed from, the judgment of the Hudson County Board, sustaining the assessment, is affirmed.


text:
    New Jersey Department of Labor, Workmen’s Compensation Bureau.
    PETER PONEK, PETITIONER, v. AMERICAN STEEL FOUNDRIES, RESPONDENT.
    Decided November 3, 1941.
    For the petitioner, Avidan <& Avidan (by Alexander Avidan).
    For the respondent, Lindabury, Bepue & Faulks (by William L. Bill, Jr.).

   * * * * * * *

In a determination made in this matter by Deputy Commissioner Stahl under date of June 6th, 1938, it was adjudicated that on October 3d, 1936, the petitioner, Peter Ponek, while employed by the respondent, American Steel Foundries, at a wage of $20 per week, met with an accident which arose out of and in the course of his employment, when he fell, fracturing the lower end of his left radius. Deputy Commissioner Stahl also found as a fact that prior to his accident of October 3d, 1936, the petitioner had sustained two other injuries to his lower left hand and wrist, each of which resulted in a permanent disability. The deputy commissioner further found that the petitioner had a permanent disability of his left hand amounting to 50% loss of use thereof, of which 25% loss of use resulted from the injury sustained in his accident of October 3d, 1936, for which the petitioner was awarded compensation. Thereafter a further petition was filed which alleged there had been an increased disability to the petitioner’s left hand as a result of the accident of October 3d, 1936. The claim was disposed of by agreement of the parties that since June 6th, 1938, there had been an increase of approximately 20% loss of use of the petitioner’s left hand of which 12%% was the result of the petitioner’s injury of October 3d, 193G. The proposed settlement was submitted to me for approval and was approved by me on February 15th, 1940, compensation being awarded in favor of the petitioner and against the respondent for an additional 12%% loss of use of the former’s left hand as a result of the injury of October 3d, 1936.

The present petition was filed on March 10th, 1941. The petitioner alleges that the disability of his left hand has further increased and that he has sustained a neurosis.

It appears from the testimony of the petitioner that he has engaged in some gainful work. While so engaged he recently sustained another accident which involved rather extensive injuries for which he appears to have been under treatment for some period of time. The only complaints which the petitioner attributes to his accident of October 3d, 1936, are referable to 1ns left hand. Dr. Max Singer testified for the petitioner that he had examined the latter and that he found a deformity of the left hand, a possible nerve lesion and some hysteria in the left arm below the elbow. He stated that while from a purely orthopedic standpoint the disability of the petitioner’s left hand might be something less than total loss of its use, the petitioner’s manner of holding his hand and the nerve involvement made it practically a complete loss from a functional standpoint.

Dr. B. L. Clement testified for the respondent that he treated the petitioner’s original injury of October 3d, 1936, that he has examined the petitioner on a number of occasions since that time and that he has recently had him under treatment for injuries sustained in another accident. The doctor testified that in his opinion the permanent disability has not increased and that it is approximately 60% loss of the use of the petitioner’s hand. He further testified that during the course of his treatment and his many esaminations the petitioner never manifested any neurological condition which could' be attributed to or associated with his accident of October 3d, 1936.

Prior to the filing of the present petition the petitioner filed two petitions one in 1937 and one in 1939, in neither of which was any claim made for any neurosis. If the petitioner sustained any general neurosis as a result of his accident of October 3d, 1936, I believe that it would have manifested itself prior to this time. Even if the petitioner does presently suffer from any general neurosis, I do not believe that it has, and I find that it has not resulted from his accident of October 3d, 1936. Even if any general neurosis has resulted from that accident, I think any claim for such condition is presently barred by the limitation provision of the Workmen’s Compensation Act. I believe that such claim is also barred by the earlier determination of Deputy Commissioner Stahl who awarded compensation for the injury of October 3d, 1936, solely on the basis of disability to the petitioner’s left hand. Herbert v. Newark Hardware Co., 107 N. J. L. 24; affirmed, 109 Id. 266.

. I am convinced, however, on the basis of the evidence produced and from my observation of the petitioner’s hand, that the disability of that hand has increased since September, 1938, and since February, 1940, and that for all practical purposes the petitioner’s left hand is useless.

After considering the pleadings, previous proceedings, testimony, stipulations and arguments of counsel, I conclude and do find and determine that as a result of his accident of October 3d, 1936, the petitioner has not sustained any temporary disability other than that for which he has already •been paid compensation by the respondent; that the petitioner did not sustain any neurosis apart from the possible nerve involvement and hysteria in his left hand and left arm below his elbow; that the petitioner has sustained a permanent disability of his left hand amounting to a total or 100 % loss of the use of that member, of which loss 62%% has resulted from the injury sustained in the aforementioned accident of October 3d, 1936. After allowance has been made for compensation heretofore paid by the respondent for permanent disability of that hand, the petitioner is entitled to be paid compensation for 25% loss of use of his left hand.

❖ # i'fi sfc & ^ SJi

It is therefore ordered * * * that judgment be entered in favor of the petitioner, * * * and against the respondent, * * * in accordance with the foregoing determinations.

John C. Wegner, Deputy Commissioner.


author: John J. Stahl, Deputy Commissioner.

text:
    New Jersey Department of Labor, Workmen’s Compensation Bureau.
    JOSEPH DREXL, PETITIONER, v. CHARLES JURGENSEN, RESPONDENT.
    Decided October 31, 1941.
    For the petitioner, Nathan Rabinowiiz.

    For the respondent, Wilbur A. Stevens (Arthur F. Mead, of counsel).
   The "undisputed facts in this case are substantially as follows : The petitioner was regularly employed by the respondent as a laborer'; that he received for his said services weekly wages of $20; that on March 25th, 1938, he suffered injuries to his right leg as the result of an accident; that the said accident arose out of and in the course of his employment and consisted of a large rock or boulder slipping and rolling upon ■petitioner’s right leg, while he and a fellow worker were trying” to move-it from a lot in Wyckoff, New Jersey, prior to the beginning of building operations thereon; and that the respondent had actual knowledge of the injury on the very day of the mishap. Three petitions were filed by the petitioner. The first one, filed on November 3d, 1938,. was disposed of by settlement on February 28th, 1939, duly approved by Deputy Commissioner John C. Wegner, by the terms of which the respondent paid the -petitioner 27 .weeks compensation at $13.33 per week for temporary disability, and in addition thereto 25 weeks compensation at the same rate for partial permanent disability, based upon 20% loss of use of the right foot. The second petition was filed on August 12th, 1939, and was proceeded with by a trial on the merits before Deputy Commissioner Charles E. Corbin, resulting in an award on June 19th, 1940, in favor of the petitioner, to wit: For temporary disability — no additional allowance made. For partial permanent disability — 116 2/3 weeks at $13.33 per week, based upon 66 2/3% loss of use of the right leg, less 25 weeks heretofore paid on the former settlement. A claim for a traumatic neurosis was disallowed, the pertinent part of the deputy commissioner’s findings being as follows:

“I am not impressed that any neurosis that the petitioner now is suffering with is related to this accident. A neurosis may be that of a depressed, worried nature. Well, I don’t feel that under the law because of that characteristic, that that is related to an injury, such as to make an award for a neurosis. I don’t feel it is connected up with this injury. I believe the injury is entirely confined to this leg, and under the law, of course, we are confined to find disability as a result -of the loss of function and as a result of the disability, because the petitioner may be worried about money affairs. It may be of a character, as Dr. Blumberg said: — he developed a characteristic as if everyone was against him and life wasn’t worth living. I don’t think there is a true neurosis which is tied up with the disability, so I believe that in fixing the disability I should confine it to the injured member, which is, namely, the right leg.”

No appeal having been taken by the petitioner, although much dissatisfaction over the award was shown by him at the conclusion of the trial, compensation in full was paid by the respondent in accordance with terms of the said award. On October 2d, 1940, less than four months after the adjudication on the merits, a third petition was filed by the petitioner, seeking further allowances of compensation on the ground of increased incapacity.

While the present petition would seem to limit the issue to one question, namely, whether there has been any increase of incapacity since the adjudication of June 19th, 1940, it becomes necessary in rendering a decision in this case to determine a second question, namely, whether there has been any recurring temporary disability since the said adjudication. The burden of proof, of course, rests upon the petitioner.

Upon a petition to establish and obtain amended allowance for an increase or a decrease in disability the burden is upon him who asserts the change. Pasquale v. Clyde Piece Dye Works, 120 N. J. L. 557; 1 Atl. Rep. (2d) 45. Cf. Tucker v. Frank J. Beltramo, Inc., 117 N. J. L. 72 (at p. 80); 186 Atl. Rep. 821; affirmed, 118 N. J. L. 301; 192 Atl. Rep. 62; also the Supreme Court opinion in Cirillo v. United Engineers and Constructors, Inc., 120 N. J. L. 225; 198 Atl. Rep. 768, reversed on other grounds, 121 N. J. L. 511; 3 Atl. Rep. (2d) 596. The testimony of increase or of decrease must he predicated upon the condition and causes determined at the original hearing. Cirillo v. United Engineers and Constructors, Inc., 121 N. J. L. 511; 3 Atl. Rep. (2d) 596.

Considerable lay and medical testimony was adduced at the present trial. A review of the voluminous medical testimony of the various physicians appearing for the respective parties discloses a definite contrariety of opinion touching upon question of increased disability or capacity. Of the four medical experts called by the petitioner to testify at the present trial, it is quite significant to note that only one of them, Dr. Alvin E. Córtese, testified in his behalf at the former trial. They expressed their opinions that there had been an increase of incapacity since the last award in both the neurological and orthopedic conditions, in that the petitioner’s neurosis has gradually retrogressed to a state of psychasthenia and psychosis; and in that there has been a greater impairment of the right leg because of added circulatory and nerve changes throughout the entire right lower extremity. On the other hand, the respondent produced the same physicians who had testified at the earlier trial. They expressed the opinion, after comparing their recent examination of the petitioner with the earlier one made just prior to the last trial, that there was no change whatever in the degree, of disability.

In this posture of the proofs where the opinions of the several medical experts of the respective parties conflict so widely, it becomes necessary for me, in order to decide the case, to accept the view which appears to be the more credible, reasonable and weighty. In my considered judgment, I feel that greater weight of the medical testimony preponderates in favor of the respondent to the effect that there has been no increase in the petitioner’s incapacity. Eurthermore, I am not unmindful that in proceedings such as these to increase or diminish an award, it is my duty to consider the proofs adduced on the review as to whether the disability resulting from the injury has increased or diminished, in connection with proofs adduced at the time of the original award.

Upon a consideration of the first question, it clearly appears that the. petitioner has failed to sustain the burden of proof in establishing any increase of incapacity ascribable to the original compensable injury. With respect to the orthopaedic condition, I am satisfied there has been no further impairment to the leg and that his present disability of this member does not'exceed 66 2/3% the basis upon which the first award was made. With respect to the neurosis, since Deputy Commissioner Corbin in the original trial, as the sole trier of the facts, accepted the testimony of the respondent’s medical experts as the more credible in determining that the then existing neurosis bore no causal relation to the accident, such finding is now res judicata, and cannot be made the subject-matter in a subsequent application under N. J. S. A. 34:15-27 grounded upon a claim of increased disability. Furthermore, since the said award was not appealed, it cannot be challenged nor can its fairness be attacked at this time by the petitioner.

In passing upon the second question, the undisputed evidence indicates that the petitioner’s leg broke down during four subsequent and recurring intervals following the last award, requiring hospitalisation and medical treatment. These periods are as follows: — from August 12th, 1940, to August 27th, 1940, confined at the Hackensack Hospital for treatment involving circulatory disturbances of the right leg; from October 9th, 1940, to October 12th, 1940, confined at the same institution for treatment for a recurring varicose ulcer; from April 8th, 1941, to April 19th, 1941, confined at the same institution for observation and study with respect to a neuritis of_the sciatic nerve; and from June 8th, 1941, to September 26th, 1941, under the treatment of Dr. Sherman Foote for a rupture of a varicose vein with a subsequent ulceration thereof. I therefore, find that the petitioner is entitled to recover compensation for temporary disability covering the above stated periods, aggregating 20 weeks. By ¿he provisions of paragraph 34:15-12 (a) compensation for temporary disability may extend for a maximum period of 300 weeks. It is not necessary that the period be a consecutive one, but may be broken up in recurring intervals. In Napoleon v. Jersey City Coal and Ice Co., 14 N. J. Mis. R. 54; 181 Atl. Rep. 880, it was held that an employee suffering from osteomyelitis of foot as the result of a compensable accident, who received both temporary and permanent compensation therefor, is entitled to further temporary disability until the permanent character of the injury could be ascertained, upon proof that the healed condition broke down necessitating' further treatment.

TTpon a careful consideration of the entire case it would seem that the petitioner’s main grievance is grounded upon the contention that he was not granted sufficient compensation by the terms of the last award. However, by the doctrine enunciated in DeMarco v. F. H. McGraw Co. (Supreme Court), 181 Atl. Rep. 639, a proceeding under the provisions of N. J. S. A. 34:15-27 for increased disability cannot be instituted for the purpose of correcting or revising a previous award, holding that “By the clear weight of credible evidence no increased disability was shown. It may be that the bureau award in the first instance was too low, but if, upon the proofs, such were the case, the remedy was by appeal and not by petition for the recovery of increased compensation by reason of. increased disability, which was not shown.” .

It is, therefore * * * adjudged, determined and ordered, that judgment final be entered in favor of the petitioner and against the respondent.

*******

John J. Stahl, Deputy Commissioner.


text:
    New Jersey Department of Labor, Workmen’s Compensation Bureau.
    ELSIE GOLUB, PETITIONER, v. LOBEL’S KIDDIE SHOP AND AMERICAN INSURANCE CO., RESPONDENT.
    Decided November 7, 1941.
    Dor the petitioner, Alexander Permison (David Roslcein, of counsel).
    Dor the respondent, Fdwin J. O'Brien.

   The primary issue presented ior determination is whether or not the petitioner’s present disability, conceded by both sides to be total and permanent in character, is causally related to the compensable accident of February 25th, 1937. That the accident arose out of and in the course of the petitioner’s employment with the respondent and other jurisdictional factors are admitted.

The testimony adduced before me discloses that on February 25th, 1937, the petitioner was employed by the respondent as a saleslady and that she had pursued this calling for some years prior thereto. It is significant that prior to the accident in question she was in an apparently sound physical condition and was able to satisfactorily perform the routine work required by her occupation. On the date aforesaid, and while descending a flight of stairs in the respondent’s premises, she fell down and against the stairway and sustained injuries to her body, limbs and head of such a character that rendered her unable to continue with her work. The respondent referred her to Dr. Satulsky the same day, who examined and thereafter treated the petitioner until March 25th, 1937. This doctor found the patient to be suffering from an abrasion and discoloration of the left elbow, with marked pain on passive motion. She complained of severe headaches, pain over the thoracic and lumbar vertebrae, with tenderness on pressure and palpation and pains in her chest. She appeared to be considerably upset and shaken up and because of her extreme nervousness, crying spells and complaints of pain, the doctor ordered her to bed, prescribed an ice cap to her head and administered sedatives and bromides. The patient thereafter developed nausea, suffered from spots in front of her ej-es, dizziness and continued to complain of pains in her chest and head. Her physician found the petitioner highly emotional, extremely hypersensitive and nervous, very tremulous and she cried frequently. Dr. Satulsky testified that during the course of his treatment, the petitioner did not manifest any diagnostic heart symptoms and that her heart on external physical examination, was negative, with the sound regular in rate and rhythm. This witness described the petitioner as a large, obese woman, who exhibited an .unstable emotional make-up, and an endocrine imbalance, which in his opinion had existed prior to the accident. He testified that the latter condition was demonstrated by her obesity,' hirsutism, masculinity and stature. When he discharged the petitioner from active treatment, she still exhibited signs of emotional disturbance, even though the physical aspects of the injury to her elbow had cleared up.

On March 10th, 1937, within three weeks following the accident, and while the petitioner was still confined to her home, she was examined by the respondent’s physician, Dr. Keller.' At that time she manifested definite symptoms of a cardiac disorder, such as poor quality of heart sounds which were rapid and arithmic in character and exhibited an irregular rapid pulse. These, in the opinion of Dr. Keller, seemed to indicate a definite myocarditis with a cardiovascular disfunction.

Sometime thereafter the petitioner attempted to resume her employment, but she was only able to pursue same irregularly. Her condition, instead of improving, became worse and her symptoms increased in severity so that she was unable to continue with her full time employment and resorted to part time work. Eventually she was even compelled to terminate this type of employment. Her physical condition has progressively deteriorated and her symptoms become markedly increased apd in an endeavor to obtain some relief or physical improvement, she has been confined to her home and to several hospitals under the care of numerous physicians. The petitioner is admittedly now totally disabled and unable to engage in any gainful occupation.

A survey of the entire testimony warrants a conclusion that the petitioner prior to the accident possessed an unstable, emotional system and an endocrine imbalance, which, while it rendered her potentially vulnerable- to systemic shock or disturbance, did not prevent or interfere with her ability to satisfactorily and regularly perform the duties required of her employment. Nor did she, prior to the accident, appear to be disabled in the sense that term is employed in compensation litigation. The accidental fall down the stairway of her employer’s premises unquestionably resulted in not only external physical injuries to her body and limbs, but also caused a severe emotional upset, induced no doubt, by the shock resulting from said fall. It was of such severity as to necessitate her confinement to bed and home and manifested itself at once by extreme nervousness, tremulousness, frequent crying spells, dizziness, spots before her eyes and for a time completely prevented her from doing any work. Her attempt to resume her normal and regular employment was frustrated by the progressive character of the distressing symptoms which, from the evidence, clearly found their inception in the accident. There appears little dispute that after her fall she was disabled and deteriorated physically, notwithstanding the attendance and treatment of numerous doctors and several confinements to hospitals. I deem it significant that prior to the accident she appeared in good general physical condition, and was able to maintain herself normally while in the pursuit of routine daily activity. These circumstances, considering the intervention of the industrial accident, are entitled to great weight. Davis v. Lotz, 126 N. J. L. 615; 20 Atl. Rep. (2d) 602. That she is now completely incapacitated is not disputed even by the medical witnesses of the respondent.

It is the theory of the petitioner’s case, and amply supported by the testimony of her treating physicians, that as a result of the accident, she suffered an emotional shock, which superimposed upon her underlying unstable emotional and' glandular condition, resulted in the chain of symptoms and the physical condition which presently incapacitates her completely. From a consideration of all of the testimony adduced, I find that the petitioner has succeeded in establishing her contention by a preponderance of the credible testimony. Similar to the case at bar is the situation found in the recently decided case of City of Paterson v. Smith, 126 N. J. L. 571; 20 Atl. Rep. (2d) 323. There the Supreme Court affirmed an award for compensation to the petitioner, who previous to the accident had been suffering from an enlargement of the prostate gland and was not in good health by reason thereof. He suffered injuries to his back and groin at a fire which he attended in the course of his duties, and was thereafter confined to a hospital'for about two weeks and then returned to work in about two months. It became necessary while he was in the hospital to catherize him and the testimony disclosed that by that operation he became infected and thereby the prostate gland then became progressively worse, necessitating surgical treatment, following which he died. Mr. Justice Porter held:

“The rule is settled that where a pre-existing disease was caused to become acute or flare up and injury resulted therefrom rather than from the specific hurts received, the same is compensable. The proximate cause is the accident which set in motion the undeveloped or latent physical defect. Sound health at the time of the injury is not the test. Furferi v. Pennsylvania Railroad Co., 117 N. J. L. 508; 189 Atl. Rep. 126.”

The foregoing language, in. my opinion, is dispositive of the respondent’s position taken that the petitioner was suffering from this underlying condition prior to the accident. Such a contention is of no avail. Under our decisions, compensation is to be paid for the resultant disability which is induced or proximately caused by a compensable accident. This, notwithstanding the presence in the injured employee, of an underlying diseased condition. It is not essential, under our Workmen’s Compensation Act, that the employee be in perfect physical condition prior to an accident. The employer takes his employees with their mental, emotional, glandular and other physical defects or instabilities. Bernstein Furniture Co. v. Kelly, 115 N. J. L. 500; 180 Atl. Rep. 832.

Here, the petitioner was able to carry out and perform her regular work prior to the accident. Her potential physical weakness or underlying instability was non-disabling until the accident activated or aggravated them following which she suffered a pronounced disablement. The proofs are convincing that the accident resulted not only in direct soft tissue or bony injury to the petitioner’s body, but also contributed to the breakdown of her underlying potential vulnerable physiological make-up. The testimony of the petitioner’s medical witnesses, Dr. Jacob Bleiberg, Dr. H. H. Goldberg, Dr. Daniel E. Mishell and Dr. Kathan H. Earn, all physicians who had occasion to treat the petitioner at various times during her illness, was supported in some measure by the respondent’s witnesses, and clearly indicates that the trauma of the accident was the precipitating cause of the petilioner’s cardiac decomensation. This especially so, since the fall down the stairway was accompanied by shock and emotional upset. .It requires no extended argument to establish that the petitioner, previously possessed of an imbalanced endocrine and emotional system, was more susceptible to the distressing effects of a trauma such as she suffered than a person free from such an underlying condition. Considering her vulnerability in this regard, the severity of the trauma inflicted upon her and the ensuing disability, the relationship of cause and effect is apparent. I find that the accident of February 25th, 1937, with its attendant shock and injury, superimposed on the petitioner’s preexisting unstable, emotional and endocrine disfunction, was the causative factor in the development of her symptoms and present disability.

The medical witnesses produced by the respondent attempt to attribute the petitioner’s present disability to causes other than the accident. They charge her condition to: (a) a diphtheria suffered during childhood; (b) a progressive rheumatic heart disease and (c) an old thyroid condition. Undoubtedly these conditions played a part in the general physical make-up of the petitioner. However, a preponderance of the proofs clearly indicate that she suffered no disability prior to this accident by reason thereof, and was not Impeded in the regular pursuit of her normal daily employment and routine activities. Dr. Frederick A. Ailing, who specializes in internal medicine with particular reference to the heart and lungs, one of the respondent’s experts, conceded that a shock following a trauma resulting in an emotional disturbance plays a considerable part in aggravating or activating an underlying endocrine or heart condition. Dr. Paul Keller, another medical witness of the respondent, admitted that the trauma resulting from the fall of the petitioner clown a flight of steps may have influenced the acceleration or aceentuation of the symptoms referable to her already diseased heart. Dr. Leon Lewis, the third medical expert of the respondent, testified that it cannot be denied that a woman with a background such as the petitioner possessed, would be more susceptible to the effects of an injury such as she suffered and that certainly the injury played a part in the ultimate emotional disturbance suffered by the employee. Dr. Asher Yaguda, eminent pathologist in this community, also appeared on behalf of the respondent and testified following an examination made by him on behalf of the respondent and a hypothetical question in which were embodied the pertinent facts of this case. Although the doctor felt that there was no causal connection between the petitioner’s present condition and her accident, he did, however, substantiate the generally accepted medical theory upon which the petitioner’s case rested.

Where the employer seeks to attribute the disability of the injured employee to causes other than the accident, the burden of proof in that regard is on the employer. Atchinson v. Colgate, 102 N. J. L. 425; 131 Atl. Rep. 921. I find from a consideration of the testimony, that the respondent has failed to meet and carry that burden.

I therefore find and determine that the petitioner, Elsie Golub, on February 25th, 193'}', suffered an accident which arose out of and in the course of her employment with the respondent, Lobel’s Kiddie Shop, and that the injuries sustained resulted in a disability which is now concededly total in quality and permanent in character. * * *

Upon the termination of compensation payments for disability as provided in this order petitioner is entitled to receive benefits under N. J. S. A. 34:15-12.

It is therefore, * * * determined and ordered that judgment be entered in favor of the petitioner and against the respondent. • •

****** *

John C. Wegner, Deputy Commissioner.