text:
    New Jersey Department of Labor, Workmen’s Compensation Bureau.
    ARTHUR H. FENNIMORE, PETITIONER, v. UNION CONSTRUCTION AND HOLDING CO., RESPONDENT.
    Decided December 10, 1943.
   A petition was filed in this matter by Arthur H. Fennimore seeking compensation for personal injury sustained on April 17th, 1913, when a car he was driving was struck by a locomotive of the Lehigh Yalley Eailroad while he was transversing a private road laid from the premises of the respondent to the public highway after the termination of his day’s work.

That petitioner sustained his injury, as claimed, is undisputed, as well as the fact that he sustained some percentage of partial permanent disability as the result thereof. The chief contention between the parties is whether the injury in question arose out of and in the course of the employment. R. S. 34:15-7; N. J. S. A. 34:15-7.

This cause came on for a hearing before me at Somerville, New Jersey, November 19th, 1943, at which time counsel for both sides stated that since there was no dispute about material facts of the case that all of the facts would be stipulated, leaving to the court the legal inferences to be drawn therefrom.

Accordingly the following stipulation of facts was read, into the. record

“Respondent conducted its business on a large tract of land' lying in Bridgewater Township, Somerset County, New Jersey. Its property is surrounded at 'least to the north, east and west by lands presently owned by Calco Chemical Company of Bound Brook, New Jersey. The lands of Calco Chemical Company extend to the north of this property a distance of approximately 1,500 feet to a public highway known as Bound Brook Road. The only means of ingress ■and egress to the property of the Union Construction and Holding Co. is by means of a dirt road approximately 10 feet wide which runs from the public highway, Bound Brook Road, northerly through the lands presently owned by Calco Chemical to the main gate of Union Construction. This road is a private road and constitutes the one and only means by which persons employed by Union Construction can reach their place of employment. The Union Construction therefore has a right of way, by necessity, over the lands north of its property to the Bound Brook Road or nearest public highway.

“This private road or way of necessity was intersected by the main lines of three railroad companies. At the northerly end of this road it was intersected at grade by four sets of tracks belonging to the Central Railroad of New Jersey. * * * Approaching the entrance to the property of Union Construction this road was intersected at grade by the main lines of the Reading Railroad and the Lehigh Yalley Railroad.

“* * * On April 17th, 1943, petitioner, who was a pump operator for respondent, finished his work at about 11:15 p. m. when he was relieved at his post by another employee who was to take over the next shift. He got into his private ear which was parked on the property of respondent and also picked up a co-employee, one George Pinfield, and started to leave the plant. The gate facing thé private road was opened by a guard employed by respondent, and petitioner and his passenger proceeded north on the private road toward the public highway known as Bound Brook Road. As petitioner reached the west bound track of the,Lehigh Yalley Eailroad, a distance of approximately 180 feet from the gate, his car was struck by a west bound train of the Lehigh Valley Eailroad and he suffered various personal injuries for which this petition is filed. His passenger, George Pinfield, was killed instantly.”

There was also submitted in evidence by consent two longhand sketches (Exhibits P-1 and P-2) which graphically depict the location of the private road with respect to respondent’s property, the fence and gate by which its property is separated from the surrounding property and the proximity of the railroad crossing to the entrance of respondent’s premises. Three photographs (Exhibits P-S, J¡. and 5) were also submitted by consent and they corroborated the facts depicted in the sketches.

In view of the undisputed facts a determination of the compensability of this ease resolves itself into a question of law. A number of cases from this and other jurisdictions was submitted for my consideration by counsel for petitioner but none of the New Jersey eases appear to be exactly in point. The case at bar, therefore, seems to be one of novel impression in this state.

The present case is clearly distinguishable from Bryn v. Central Railroad Co., 114 N. J. L. 534; 177 Atl. Rep. 857; affirmed (Court of Errors and Appeals), 115 N. J. L. 508; 180 Atl. Rep. 874, in which the employee after leaving his employer’s premises walked along a public street and then attempted a short cut over the tracks of the railroad in order to reach his home, a practice which he had apparently followed for many years even though there was another way over the public streets for him to reach his home. The employee in the Bryn ease was, as our Court of Errors and Appeals took occasion to point out in the recent ease of Fury v. New York and Long Branch Railroad Co., 127 N. J. L. 354; 22 Atl. Rep. (2d) 286, in distinguishing that case (the Eury case) from the Bryn case.

“We have not overlooked our holding in the case of Bryn v. Central Railroad Company of New Jersey, 114 N. J. L. 534; 177 Atl. Rep. 857; affirmed, 115 N. J. L. 508; 180 Atl. Rep. 874. That case is clearly distinguishable on the facts. In that ease deceased employee ‘chose a dangerous-route’ when there was a ‘perfectly safe way by which he could have reached his home.’ He was not where, under his contract of employment, he ‘had the express or implied right to be.’ He was a trespasser.”

Obviously the employee in this case was not a trespasser on the railroad property in question, nor was he choosing the more dangerous of two or more ways to reach the public highway. He was pursuing the one and only road which led from his place of employment lo the public road.

In the case of McMillin v. Calco Chemical Co., Inc., 15 N. J. Mis. R. 68; 188 Atl. Rep. 694, the employee after finishing his day’s work got into his car and drove along a road on the employer’s premises which was intersected by a right of way of the Central Eailroad Co. and at that point was run down by a train. In holding that the accident arose out of and in the course of the employment Chief Justice Brogan for the Supreme Court said:

“* * * In the brief of the prosecutor, passing mention is made that the accident did not occur on the premises of the employer, but on the tracks of the railroad company. There is no merit whatever- to this argument. The roadway leading into the plant, laid out as it is over the lands of the employer, was built for the convenience and use of those coming to or leaving the plant. The railroad right of way is laid out across these privately owned lands.

“The employer owns the land on each side of the railroad right of way and employees parked automobiles on the land between the railroad tracks and the plant of the employer, or on the land between the railroad tracks and the public highway * *

The distinction made between the McMillin ease and the present case is that the road which intersected the railroad’s right of way was owned by the employer, whereas in the present case the road was on the property of another. This appears to me to be a distinction without a difference, since it is conceded that the employer in this ease had a right of way by necessity over the róad and for the purposes of ingress and egress it was as much a part of his property as if he owned it.

The case of Fury v. New York and Long Branch Railroad Co., 126 N. J. L. 25; 16 Atl. Rep. (2d) 544; affirmed (Court of Errors and Appeals), 127 N. J. L. 354; 22 Atl. Rep. (2d) 286, seems to come closest to the situation at bar and would be controlling except that our Supreme Court found certain other factors beside the selection of a direct route over the property of another from the place of employment to the public road which indubitably placed the employee in the ambit of his employment at the time of the injury. However, the following excerpts from the opinion for the Supreme Court by Mr. Justice Heher would indicate pretty clearly that the case at bar is at least within the dicta of the opinion:

«* * * Prosecutor’s regular working hours were from 8 a. M. to 5 P. ir. On the day in question, at 5 p. at., or within a few minutes thereafter, he walked from the tower across the tracks of the Long Branch Company and thence across the track of the Central Company to the sub-station. He had reason to believe that the mechanism there required adjustment, and, finding that this was so, he labored for an hour on the generator and commutator. He then proceeded northeast between the rails of the Central Company’s single track (the ground was covered with a foot of snow and ice, and the cleared track afforded the only pathway), intending to leave the right of way about 400 feet from the sub-station for his home nearby. Before he reached that point, he was struck by a train of the Central Company and sustained the disabling injuries for which compensation is sought. The mishap occurred approximately 320 feet from the signal tower, and not much more than 160 feet from the sub-station. He testified that this was the way customarily used by himself and other workmen upon leaving the junction at the close of the day’s work. * * *

«* * * qv^g emplojmient had not ended when the accident happened. While prosecutor was then on his way home, he was yet within the inspection territory; and so he was still bound to exercise his powers of observation with a view to the detection of faults in the signal system and switching mechanism, and all obstacles to their normal functioning, as well as to discover any other menace to safety of operation along the right of way, and to take timely remedial measures. A failure in this respect would plainly be classable as a breach of duty. He had not departed from his employment while he remained within the ambit of service. He was not then ‘on his own,’ as in Gullo v. American Lead Pencil Co., 119 N. J. L. 484; 196 Atl. Rep. 438. Compare, also, Terlecki v. Strauss, 85 N. J. L. 454; 89 Atl. Rep. 1023; affirmed, 86 N. J. L. 708; 92 Atl. Rep. 1087; Bolos v. Trenton Fire Clay, &c., Co., 102 N. J. L. 479; 133 Atl. Rep. 764; Lehigh Navigation Coal Co. v. McConnell, 120 N. J. L. 428; 199 Atl. Rep. 906; affirmed, 121 N. J. L. 583; 3 Atl. Rep. (2d) 581.

“In the circumstances, there was indubitably a causal connection between the injury and the employment. The relationship was such as to warrant classification of the risk .as reasonably incident to the employment. The hazard was a natural consequence of what the employee was obliged to do in the fulfillment of his contract of service. It is pertinent to note here that it suffices if the employment was substantially contributory to the injury. Vide Cudahy Packing Co. v. Parramore, 263 U. S. 418; 44 S. Ct. 153; 68 L. Ed. 366; 30 A. L. R. 532; In re Madden’s Case, 222 Mass. 487; 111 N. E. Rep. 379; L. R. A. 1916D 1000.

“And it is also to be observed, without necessarily implying that that in itself would be determinative in the same direction, that the sole alternative course open to prosecutor, after he had departed from the sub-station, was over the right of way of his employer — a double track railroad with a much greater volume of traffic and a correlative increase of risk. The course he took was the most direct way home, and clearly it was the least dangerous. Indeed, there was no other available route until he reached the bypath some 100 feet beyond the place of the mishap, unless he pursued the roundabout and more hazardous course over the railroad of his employer. Compare, in this connection, Cudahy Packing Co. v. Parramore, supra; Bountiful Brick Co. v. Giles, 276 U. S. 154; 48 S. Ct. 221; 27 L. Ed. 507; 66 A. L. R. 1402.”

However, regardless of the distinction that may be made between this case and the MeMillin and Fury eases, it seems to me that the law of this case is to be found in the decisions of the Supreme Court of the United States in the cases of Cudahy Packing Company of Nebraska v. Mary Ann Parramore, 263 U. S. 418; 44 S. Ct. 153, and Bountiful Brick Co. v. Giles, supra. In connection with these eases it is to be noted that they are cited not only in the Fury case, supra, but in the following decisions of our Supreme Court and Court of Errors and Appeals: Bryn v. Central Railroad, Co., supra (rule quoted but facts distinguished); Grady v. Nevin Press Co., 120 N. J. L. 351; 199 Atl. Rep. 578 (cases cited and facts in Parramore distinguished from those in Grady).

In Cudahy v. Parramore, supra, it appeared that the company operated a meat packing plant about six miles north of Salt Lake City. In going to and from the plant workmen proceeded along a main highway running north and south that passed the plant at a distance of about one-half mile east. From this point a public road ran west to a point beyond the plant and was crossed by three lines of railroad, one of which was immediately adjacent to the Cudahy plant. The only practical way of ingress and egress for employees was along this road and across the tracks. Parramore, while on his way to work in an automobile, was struck by a train of the railroad company adjacent to the plant. In the opinion for the court Mr. Justice Sutherland said:

“Whether a given accident is so related or incident to the business must depend upon its own particular circumstances. No exact formula can be laid down which will automatically solve every case. The fact that the accident happens upon a public road or at a railroad crossing, and that the danger is one to which the general public is likewise exposed, is not conclusive against the existence of such causal relationship, if the danger be one to which the employee, by reason of and in connection with his employment, is subjected peculiarly or to an abnormal degree. * * *

“Here the location of the plant was at a place so situated as to make the customary and only practicable way of immediate ingress and egress one of hazard. Parramore could not, at the point of the accident, select his way. He had no other choice than to go over the railway tracks in order to get to his work; and he was in effect invited by his employer to do so. And this he was obliged to do regularly and continuously as a necessary concomitant of his employment, resulting in a degree of exposure to the common risk beyond that to which the general public was subjected. The railroad over which the way extended was not only immediately adjacent to the plant, but, by means of switches, was connected with it, and in principle it was as though upon the actual premises of the employer.

“We attach no importance to the fact that the aeeident happened a few minutes before the time Parramore was to begin work, and was, therefore, to that extent, outside the specified hours of employment. The employment contemplated his entry upon and departure from the premises as much as it is contemplated his working there, and must include a reasonable interval of time for that purpose. x *

, The facts in the case at bar are, if anything, stronger than those in Cudahy Packing Co. v. Parramore, because the road on which the employee was traveling here was a private road, leading to the employer’s premises only, and the risk of mishap in crossing these railroads was peculiar to employees of respondent only, whereas the risk in the Parramore case was to some degree a risk shared by the public in general, because the accident occurred on a public road. Furthermore, the risk in this case was enhanced by the fact that it was a private road and the railroad crossings were unprotected, whereas a public road would be protected by at least a warning signal. The risk entailed in the daily crossing of these unprotected railroad rights of way by employees of respondent was a risk, which to my mind was clearly an incident of the employment and one that was also foreseeable. The location of respondent’s premises made not only the customary, but the only way of ingress and egress one fraught with the very danger that overtook the present petitioner on the day in question. An employer is liable for injuries or death caused by accidents arising from or growing out of risks peculiar to the nature of the work within the scope of the employment or incidental thereto and accidents to which employees are exposed in a-special degree because of employment. Belyus v. Wilkinson, Gaddis & Co., 115 N. J. L. 43; 178 Atl. Rep. 181; affirmed, 116 N. J. L. 92; 182 Atl. Rep. 873; Hall v. Doremus, 114 N. J. L. 47; 175 Atl. Rep. 369.

I do find, therefore; that the petitioner in this case suffered a personal injury by accident arising out of and in the course-of his employment within the meaning of our Workmen’s Compensation Act, of which respondent had due and timely knowledge, and that on the basis of the medical evidence-presented by Drs. Julian P. Linke and M. Weinstock Bergman for petitioner, and Drs. Otis P. Chapman and Jack Blumberg for respondent, that petitioner is entitled to payment of all medical and hospital expenses together with one week for temporary disability and 20% of total for partial permanent disability at the rate of $20 per week.

Dr. Julian P. Linke for petitioner estimated petitioner’s disability at 12% to 15% of total, orthopedically, and Dr. M. Weinstock Bergman estimated neurological disability at 12%% of total for an alleged concussion. Dr. Chapman, for respondent, estimated the orthopedic disability at 10% of total and Dr. Jack Blumberg estimated the neurological disability at 5% of total for the alleged concussion.

It is, therefore, * * * ordered, that the petitioner be paid compensation.

* * * * * *

Harry S. Mbdtnetr,

Deputy Commissioner.


source: Caselaw Access Project

author: Caffrey, C. C. J.

license: Public Domain

text:
    LORD’S CUT FLOWER CO., INC., A NEW YORK CORPORATION, PLAINTIFF, v. PETER CURCIO, TRADING AS CURCIO FLORAL CO., DEFENDANT.
    Decided November 17, 1943.

      Max L. Rosenstein (by George H. Rosenstein), for the plaintiff.

      Robinson & Morris, for the defendant.
   Caffrey, C. C. J.

The plaintiff corporation issued a summons, datted August 6th, 1943, addressed to Peter Curcio, trading as Curcio Moral Co., a hTew Jersey corporation. Annexed to the summons was a complaint wherein the defendant was named as Peter Curcio, trading as Curcio Moral Co. The summons and complaint were served on August 10th, 1943, on the defendant, Peter Curcio.

The defendant filed an affidavit of merits on August 16th in the usual form. On August 23d, the defendant served a demand for bill of particulars on the plaintiff, which were duly considered by the court and denied. The defendant also demanded security of costs, with which demand the plaintiff complied.

On the 6th of October, 1943, the defendant served notice on the plaintiff, through his attorney, stating that he was going to move before this court to strike out the complaint on the ground that no action had been commenced due to the fact that there was a variance between the name stated in the summons and the name stated in the complaint. The plaintiff thereupon served notice on the defendant wherein it stated they would apply to the court for an order to amend the summons to conform to the complaint.

The motion of the plaintiff will be granted. The words “A Mew Jersey Corporation” will be stricken from the summons and an amendment will be allowed to read, “Peter Curcio, trading as Curcio Ploral Co.”

The motion of the defendant to strike the complaint will be denied.

Heretofore, the defendant has appeared generally in this court by the filing of an affidavit of merits, demand for the security of costs, and demand for bill of particulars. He has waived, therefore, all objections to the process complained of and submitted himself to the jurisdiction of this court over his person.

Motion to amend the summons on the part of the plaintiff was justified by the case of Jefferson, Adm'r, v. Hotel Cape May, 82 N. J. L. 32; 81 Atl. Rep. 349. The relief the plaintiff seeks is not by way of adding a party or bringing in new parties but only describe by proper name the defendant already in court. See, also, Kantor v. Asbury Park Press, 116 N. J. L. 379; 184 Atl. Rep. 815.

The defendant raises the question as to the power of a Circuit Court Judge to amend the summons in the instant case. Rule 94 of the Supreme Court, N. J. S. A. tit. 2, in part, invests authority in a Circuit Court Judge, sitting as a Supreme Court Commissioner, to “make such order as the court might make and as may be just in * * * any other interlocutory matter preliminary to and in preparation for trial.” This matter, in my opinion, is an interlocutory matter. See Allen v. Tyler, 32 N. J. L. 499.

I see no conflict between my determination and the decision of Jordan v. Hoffman, 126 N. J. L. 100; 18 Atl. Rep. (2d) 607. In that case the Circuit Court Judge passed upon the legality of a capias issued out of the Supreme Court. Mr. Justice Perskie, in discussing the right of a Circuit Court Judge to pass upon Supreme Court matters, rested his conclusions upon the statute, R. S. 2:27-77 and R. S. 2:27:78; N. J. S. A. 2:27-77 and 2:27-78. The stricture of that opinion was based on the statute and in nowise went into the question of the powers of a Circuit Court Judge under rule 94 of the Supreme Court. In that opinion (at p. 103); 18 Atl. Rep. (2d) 609, Mr. Justice Perskie said, “We know of no statute law, nor of any rule of court, nor of any other authority which authorizes a Circuit Court Judge, sitting as a Supreme Court Commissioner, to exercise the powers conferred by R. S. 2:27-77 and 2:27-78.”


author: Caffrey, S. C. C. and C. C. J.

text:
    FRED WALTER, PLAINTIFF, v. HENRY BENDER, DEFENDANT.
    Decided November 16, 1943.

      Levy, Fenster & McCloskey, for the plaintiff.

      Joseph W. Kapp, for the defendant.
   Caffrey, S. C. C. and C. C. J.

The plaintiff filed a complaint. against the defendant, from which it appears he is engaged in the business of constructing and selling memorials at Stuyvesant Avenue, Union, New Jersey, and the defendant was engaged in the business of selling flowers in an adjacent property.

The second count of the complaint alleges that, during the month of April, 1943, when a customer of the plaintiff had left his place of business and was passing the place of business of the defendant, defendant called out to the customer and said to him, “Don’t bother with him [meaning the plaintiff]. He is.a Nazi.”

Another count recites that on a number 'of occasions during the months of April and May defendant, in talking with one Everett Gathwaite, who is in the trucking business and who does business for both plaintiff and the defendant, told the said Gathwaite, “Do not do any business with Ered Walter. He is a Nazi.”

The fourth count alleges that, in the month of May, 1943, the defendant stopped several customers coming from the plaintiff’s office and said to them, “Do not do any business with him [meaning the plaintiff] as he is a Nazi.”

The fifth count, I take it, is the plaintiff’s imputation of the words allegedly used by the defendant and reads as follows:

“The defendant, by said statements, meant to infer and did infer to the various parties to whom he made the statement, that the plaintiff was sympathetic with the German Government with which the United States was and still is at war, and that the plaintiff was opposed to the United States Government and desired that the German Government be victorious in the war.”

The sixth count is a general allegation that the statements were malicious, false, and slanderous, being used for the purpose of injuring the plaintiff in his person and in his business.

The seventh count alleges that the plaintiff, by reason of the foregoing false and slanderous statements, willfully and maliciously made by the defendant, has been injured in his good name, fame and credit and brought to public scandal and infamy with and among his neighbors and the members of his community, and has lost a large number of customers and a large amount of business that otherwise he would have obtained had not the malicious and false statements been made against him.

The defendant served a demand for answers to a bill of particulars, asking the following details:

“1. State the date, time of day, name of customer and address of said customer referred to in paragraph 2 of the complaint.

“2. Give the number of occasions during the months of April and May, 1943, giving the particular dates, time of each day, the particular location of occurrence, with the addresses thereof and the names of the persons present and/or who took part in the alleged conversations, mentioned in paragraph 3 of the complaint.

“3. State the date or dates, time of each day, name of each customer or customers mentioned in paragraph 4 of the complaint.

“4. The particulars of how and in what way the plaintiff alleges the defendant meant and did infer that the plaintiff was sympathetic with the German government; that the plaintiff was opposed to the United States government and desired that the German government be victorious in the war.

“5. A statement of how and in what way the plaintiff alleges defendant Henry Bender did maliciously and well knowing make statements regarding the plaintiff which are alleged to infer to the various parties to whom made, that plaintiff was sympathetic with the German government, &e., as set forth in paragraph 5 of the complaint.

“6. Give the names and addresses of all customers plaintiff alleges he lost, an itemized statement of the amount of business lost, giving dates, &e.

“7. A bill of particulars of the plaintiff’s alleged damage by reason of the alleged injury to his good name, fame and credit, itemizing each item, with date and amount.

“8. State the names and addresses of all the plaintiff’s neighbors and members of his community with whom plaintiff alleges he has been injured in his good name, fame and credit and brought lo public scandal and infamy.

“9. How long has plaintiff been in business of constructing and selling memorials at 1634 Stuyvesant Avenue, Union, N. J.

“10. Give the amount of plaintiff’s gross profits derived from said business mentioned in paragraph 9 of this demand from,

(a) April 1, 1939 to July 1, 1939
(b) April 1, 1940 to July 1, 1940
(c) April 1, 1941 to July 1, 1941
(d) April 1, 1942 to July 1, 1942
(e) April 1, 1943 to July 1, 1943
(f) July 1, 1939 to July 1, 1940
(g) July 1, 1940 to July 1, 1941
(h) July 1, 1941 to July 1, 1942
(i) July 1, 1942 to July 1, 1943

“11. State whether plaintiff was devoting his entire time and efforts to the business of constructing and selling memorials from July 1, 1939, to date.

“12. If answer to No. 11 hereof is No, state the nature of any other business and/or occupation to which he ip or was devoting his time, for the period aforesaid, giving details and itemized statement of dates, locations, names of persons, firms and/or corporations, and nature of other occupations and/or business during said period or periods of time.

“13. State specifically what the plaintiff alleges the meaning of ‘Nazi’ to be.

“14. State whether plaintiff at any time, anywhere, was ever associated directly or indirectly with or attended the meetings of any organizations, German, German-American or Nazi.

“15. State whether plaintiff at any time, associated with persons known to be Nazi.”

The plaintiff’s answer to these particulars is as follows:

“1. Not a proper question.

“2. Not a proper question.

“3. Not a proper question.

“4. Not a proper question.

“5. Not a proper question.

“6. Numerous persons who would have come to plaintiff went elsewhere because of statements made by the defendant. As a rule, a person purchases a monument only once in his lifetime.

“7. A number of friends avoided plaintiff and upon inquiry by him said the defendant had said plaintiff was a Nazi and, therefore, avoided him.

“8. Not a proper question.

“9. Since 1935.

“10. All the records of plaintiff were destroyed when his office burned on February 23, 1943. He estimates his profit at $4,000 per year.

“11. Yes. Except for time before and after office hours he spent on his garden.

“12. Need not answer.

“13. Not a proper question.

“14. Never belong to a Nazi organization.

“15. No.”

I know of no specific ease in New Jersey wherein a ruling has been made with respect to the particulars, asking for such minute information as has been demanded in demands numbers one, three, six, seven, eight, and, in order to determine the propriety of these questions, I had to resort to some fundamental conceptions of pleading in suits for slander with regard to certainty.

In one of our early eases, Trenton Mutual Life and Fire Insurance Co. v. Perrine, 23 N. J. L. (at p. 415), the court there held, “The general rule certainly is, that where the plaintiff alleges, by way of special damage, the loss of customers or friends * * *, the names of such customers or friends must be stated. But the rule is relaxed when the individuals may be supposed to be unknown to the plaintiff, or where they are so numerous as to excuse a specific description on the score of inconvenience.” This is cited in 5 Wait's Actions and Defenses 731. It is also cited in Ritchie v. Widdemer, 59 N. J. L. 290; 35 Atl. Rep. 825.

Yet, in Craig v. Proctor, 229 Mass. 339; 118 N. E. Rep. 647, the court pointed out that the defendant, if apprehensive of being embarrassed in making her defense, could move for specification and the court would order the plaintiff to furnish names, dates, and particulars. The whole question is discussed and annotated in 86 A. L. R. 848.

In Newell on Blander and Libel (4th ed.) 709, there is cited the case of Jones v. Platt, 60 How. Prac. (New York), 277, holding that an order for particulars was proper asking for a specification of language such as divers and various other times and places.

In Odgers on Pleading and Practice 190, the following language was used, “Particulars of general damage will never be ordered. But whenever any special damage is claimed, without sufficient detail, particulars will be ordered of the alleged damage; e. g., if the plaintiff alleges that certain customers have ceased to deal with him, he will be ordered to state their names. * * *”

In Watkins v. Cope, 84 N. J. L. 143; 86 Atl. Rep. 545, although this case had to do primarily with interrogatories, Mr. Justice Parker (at p. 147); 86 Atl. Rep. 547, discusses the function of bills of particulars and cites with approval the broad rule laid down in Tilton v. Beecher, 59 N Y 184, wherein it is said, “A bill of particulars is appropriate in all descriptions of actions where the circumstances are such that justice demands that a party should be apprised of the matters for which he is to be put for trial with greater particularity than is required by the rules of the pleading.”

In Odgers on Libel and Blander (5th ed.) 626, speaking of the statement of claim as given by the plaintiff, the following language is used: “In eases of slander lie must give the date of each slander, the names of the persons to whom, and the places where, each slander was uttered,” and (at p. 627), “If the special damage alleged he the loss of particular customers as distinct from a general diminution of income, the customers’ names must be given, unless it is clear from the circumstances that plaintiff would not know their names.”

A greater liberality in the right of particulars is recognized in our own state as evidenced by Mr. Justice Heher’s opinion. See Wolfson v. Mills, 112 N. J. L. 1 (at p. 3); 169 Atl. Rep. 359, 360, “Although a bill of particulars may not be required for the purpose of disclosing the evidence, or the names of the witnesses of an adversary, it may be required for the purpose of giving definite information as to a claim or proposition maintained by an adversary with respect to any material fact at issue, even though this may involve a disclosure of the names of individuals with whom it is claimed the transactions were had; so that, while the name of a witness, as such, may not be required to be disclosed, nevertheless the name of an individual, with whom it is claimed that the transaction, which is one of the issues in the ease, was had, may be required, in a proper case, to be specified, even though it may be the intention of the opposite party to prove the fact by such individual as a witness.” See, also, Mr. Justice Bodine’s opinion in Buermann v. Morris, 8 N. J. Mis. R. 811; 152 Atl. Rep. 341.

In the light of the foregoing it seems to me that part of the first interrogatory, giving the name of the customer mentioned in paragraph two of the complaint, should be answered.

Also in the light of the allegations in paragraph two of the complaint I take it the plaintiff knows the customer referred to in that paragraph and the defendant is entitled to know his name.

I believe the allegations in paragraph three of the complaint are sufficient and no particularities will be ordered with respect to that.

I take it that the plaintiff knows the several customers referred to in paragraph four of the complaint. The demand for bill of particulars directed to that count is to be answered.

The fourth demand has to do with the fifth paragraph of the complaint. Under- the present practice the plaintiff is permitted to aver in what sense he deems the alleged slanderous words to be used. R. S. 2:59-3; N. J. S. A. 2:59-3.

With respect to the sixth demand, if the plaintiff can give the names and addresses of all the customers which he alleges !he lost, he should do so.

The seventh demand is too exacting. It will be denied.

The eighth demand will be denied. That also is too minute' in its demand.

Humber twelve will- be denied. It is not a proper question.

Humber thirteen will be denied.


text:
    New Jersey Department of Labor, Workmen’s Compensation Bureau.
    HELEN DEHRENBACH, PETITIONER, v. NORTH JERSEY DISTRICT WATER SUPPLY COMMISSION, RESPONDENT.
    Decided December 16, 1943.
    For the petitioner, Nathan Rabinowitz.

    For the respondent, Reid, Kelly & Flaherty.

   This is a proceeding brought by the petitioner, Helen Dehrenbach, wife of Fred Dehrenbach, hereinafter referred to as decedent, against North Jersey District Water Supply Commission, respondent, seeking compensation for herself as a dependent under and by virtue of the provisions of R. S. 34:15-1, et seq.; N. J. S. A. 34:15-1, et seq., “prescribing the liability of an employer to make compensation for injuries received by an employee in the course of employment, establishing an elective schedule of compensation and regulating procedure for the determination of liability and compensation thereunder,” together with the several acts amendatory thereof and supplemental thereto.

A dependent’s claim petition and an answer thereto were duly filed with the secretary of the Workmen’s Compensation Bureau at Trenton, New Jersey. In regular course the matter came on for formal hearing before me, John J. Stahl, a Deputy Commissioner of Compensation, at the chambers of the Workmen’s Compensation Bureau, Paterson, New Jersey.

Dpon the pleadings and the proofs adduced, the following facts were developed in the evidence: On November 18th, 1941, and for a long time prior thereto, petitioner’s decedent-was employed by the respondent as a guard in and about its Wanaque Beservoir, Wanaque, New Jersey, receiving for his said services wages at the rate of $30.77 per week. On the above day while so employed at or about three o’clock in the morning, while patrolling his post alone, decedent slipped on the grass and fell, striking his right groin and scrotum in the fall. At the time of the mishap, decedent was 69 years of age and had been wearing a truss for some years for the relief of a right inguinal hernia from which he was apparently suffering. He developed symptoms of the injury soon after the accident but, despite the pain and discomfort, he continued at work in the respondent’s employ until December 3d, 1941.

Dr. James S. Stokes commenced treatment of decedent on December 4th, 1941, at his office and continued to see him subsequently at his home and finally at the Paterson General Hospital. Dr. Stokes received a history from decedent that on November 18th, 1941, while performing his duties as a-guard, his feet slid from under him, he fell down, injuring Ms right groin and testicles. Later his right scrotum swelled and he was in constant pain. On his first examination, Dr. Stokes found evidences of tranma to the right testicle, large hard swelling in the right scrotum, hydrocele, and a possible hernia. After several weeks of treatment and at Dr. Stokes’ suggestion, Dr. Theodore Bender’s advice was sought. He was examined by Dr. Bender, a surgeon of Paterson, at his office on December 19th, 1941, who was told by decedent that he had slipped and fallen, suffering an injury to the right testicle and grain, causing pain and discoloration in that area. Decedent also told Dr. Bender about a previous mishap which had occurred to him about ten years previously when he slipped and fell while carrying a quarter of beef and that he had been wearing a truss on his right side since then. There was no evidence, however, that he had received medical treatment for an inguinal condition prior to November 18th, 1941.

Decedent was admitted to the Paterson General Hospital on January 7th, 1942, and the hospital record, in evidence, under title “Chief Complaint: Date and Mode of Onset, Probable Cause, Course” reads as follows: “Slipped on an embankment on or about November 18 and fell down, injuring rt testicle and causing rt inguinal hernia and bruising scrotum and testes, accident about 3 :00 A. m.”

Dr. Bender performed an operation on decedent’s right side at the hospital on January 9th, 1942, with Dr. Stokes assisting, for the correction of a right inguinal hernia (herniorraphy) and right hydrocele, but decedent died at the hospital on January 23d, 1942, from a post-operative pulmonary embolism.

Dr. Bender was of the opinion that the accident ef November 18th, 1941, aggravated a pre-existing hernia and hydrocele, which opinion was also expressed by the physicians, Dr. Samuel Kleiner and Dr. Alvin E. Córtese, the latter two testifying hypothetically. It appeared from the testimony of Dr. Stokes, now in the armed services, as disclosed by interrogatories and cross-interrogatories propounded of him, that there was evidence of recent trauma to the right testicle at the date of his first examination on December 4th, 1941.

Petitioner testified that decedent’s working hours, as guard for respondent, were between 12:00 midnight and 8:00 A. M., that up to the time of the accident he drove his automobile to and from his work each day, and upon his Teturn from work on the morning of November 19th, 1941, saw decedent in pain, and upon examination, found that the scrotum was swollen.' After Dr. Stokes’ examination, she applied ice packs to the injured parts upon his advice. She testified that decedent did not work the day after the accident, although he received his full wages for that day. Petitioner further testified that decedent showed no evidence of suffering from acute symptoms prior to November 18th, 1941, and was apparently able to perform his daily work and other normal activities in comfort, but that from the time of his return home after working that day, he manifested acute pain and disability in the region of the right groin which continued to the time of operation.

Exhibit P-1 in evidence was a letter written by the assistant to counsel of the respondent to attorneys for petitioner, dated June 21st, 1943, in reply to an inquiry by said attorneys, in which letter it was stated that respondent’s records show that on November 18th, 1941, “this man, while patrolling the area, slipped and fell down on the grass.” Exhibit PS in evidence was a copy of the first formal notice of accident prepared on December 6th, 1941, by Helen M. McG-urk, an employee of respondent, in which it was stated in answer to question No. 2, “Exact part of person injured with nature and extent of injury.” Answer: “Pain around the groin, possibility of hernia,” that the probable period of disability was at least two weeks, that medical attention was necessary, and that the attending physician was Dr. James S. Stokes.

,Dr. Bender testified that deceased was recovering from the aforementioned operation that he had performed on January 9th, 1942, and was about to be discharged from the hospital when he suddenly developed a pulmonary embolism on Janu-ary 23d, 1942, as a result of which he died on that day. It was Dr. Bender’s opinion that the embolism causing death' was a sequence and unavoidable complication of the surgical operation performed upon decedent and was directly related thereto. The same opinion was expressed by Dr. Samnel Kleiner, testifying for petitioner, who likewise stated that there was a direct causal relationship between the operation, the development of the embolism and the death. Dr. Alvin E. Córtese, on behalf of petitioner, also testified to the same effect.

Dr. Joseph E. A. Rubacky, appearing as an expert on behalf of respondent, testified that he interviewed decedent at the hospital on January 22d, 1942, and that decedent told him that he had injured himself on November 18th, 1941, when he fell while walking in the course of his employment with respondent. It was his opinion, however, that the accident did not contribute to decedent’s death, that in the absence of an autopsy he would not say that death was due to a pulmonary embolism, and that, in his opinion, the death was most likely due to a disease of the heart, known as myo-cardial infarct, resulting from a septic poisoning which decedent had suffered from many years ago. Dr. Rubacky agreed that trauma might aggravate an old pre-existing hernia, such as decedent had apparently been suffering from prior to the accident, and that a pulmonary embolism may follow and result from an operation performed for the relief of such a condition. However, it was his opinion that such an embolism would result from such operation only within a period of ten days thereafter, and that fifteen days following the operation was too long a period of time to warrant the inference that the embolism which then developed was due to the operation. Dr. Rubacky further testified that he had called upon Dr. Bender at his office on March 5th, 1942, and was told about decedent’s accident of many years ago when he injured his right side as a result of lifting a quarter of beef and that he had worn a truss ever since, but that Dr. Bender stated in answer to his inquiry that he had received no history of an accident occurring on November 18fch, 1941. It was stipulated by counsel for both sides that Dr. Anthony Watman, a practicing physician of New Jersey, would testify similarly to that of Dr. Rubacky on behalf of respondent.

There was also introduced into evidence, at petitioner’s instance, certified transcripts of two official death records made by Dr. Bender and filed with the Burean of Vital Statistics in Paterson. In the original certificate of death filed by him, Dr. Bender had certified, in answer to the question “Cause of Death” that the cause of death was “embolism, pulmonary, post-operative after herniaplasty,” but, in accordance with the statutory permission to do so, as provided by R. S. 26:8-52; N. J. S. A. 26:8-52, he had filed an amended certificate of death amending the answer to the question to read, in addition to the foregoing, “slipped on an embankment on or about Nov. 18, 1941, and fell down, injuring rt. testicle and causing rt. inguinal hernia and bruising scrotum and testes — accident about 3 A. n.” Pursuant to the statute, certificates of death are prima facie evidence of the facts therein contained. R. S. 2:98-14; N. J. S. A. 2:98-14. The hospital record heretofore mentioned also seems to be competent proof. Opdyke v. Halbach, 123 N. J. L. 123; 7 Atl. Rep. (2d) 635.

After carefully considering all the competent evidence, I find that decedent suffered an accident by falling on November 18th, 1941, while in respondent’s employ as a guard doing patrol work, which accident arose out of and in the course of his employment. The development of new, immediate symptoms in decedent’s right side thereafter leads me to the conclusion that he suffered aggravating injuries in that region and that they were directly, naturally, and probably the result of that accident. While there is a difference of views between the medical witnesses produced by petitioner and respondent, yet where injuries are so immediately and directly, or naturally and probably the result of an accident, we are not required to depend alone upon medical testimony to find a causal connection. And when, as here, the course of events is considered in connection with the-preponderating medical testimony, particularly the testimony of the two attending physicians, Drs. Stokes and Bender, there is no question, and I so find, that the accident aggravated thepre-existing condition, which aggravation so superimposed upon said pre-existing condition, finally made necessary the operation of January 9th, 1942, and that as a direct and unavoidable result of the surgery performed upon him on that date, decedent developed a pulmonary embolism, from which he died on January 23d, 1942. Decedent’s death had its origin primarily in the injury sustained on November 18th, 1941. Furferi v. Pennsylvania Railroad Co., 117 N. J. L. 508; 189 Atl. Rep. 126.

I therefore find and determine as follows:

1. That decedent was regularly employed by the respondent as a guard, and as such, his said employment was subject to article II of the Workmen’s Compensation Act, N. J. S. A. 34:15-7, et seq.

2. That decedent received wages in the amount of $30.77 per week.

3. That on November 18th, 1941, decedent suffered an injury as the result of an accident arising out of and in the course of his employment.

4. That respondent had notice of the said accident and injury.

5. That as a result of said injury, decedent suffered an aggravation of a pre-existing inguinal and testicular condition, as a result of which a surgical operation was performed upon him for the relief of the same on January 9th, 1942, and that as a consequence of said surgical operation, decedent developed a pulmonary embolism, causing his death on January 23d, 1942.

6. That decedent left surviving him, petitioner, his widow, as his only and total dependent, with whom he lived at the time of said accident.

7. I find, therefore, that petitioner is entitled to an award of compensation as a total dependent of decedent for a period of 300 weeks at the rate of $10.77 per week, payments to begin as of January 23d, 1942, and in addition thereto, the sum of $150 for statutory burial allowance.

8. I further find that the bill of the Paterson General Hospital, in the sum of $108.15 shall be paid by respondent for hospital services rendered decedent.

9. I further find that Dr. Theodore Bender shall be paid the sum of $100 for professional medical services rendered decedent, payable by respondent.

10. I further find that Dr. Samuel Kleiner and Dr. Alvin E. Córtese, who testified as medical experts for petitioner,, shall each he paid the sum of $35, payable $17.50 by petitioner and $17;50 by respondent for such testimony, and that Dr. Theodore Bender who testified on behalf of petitioner shall be paid the sum of $35, payable $17.50 by respondent and $17.50 by petitioner;

11. I further find that petitioner’s attorney, -NathanBabinowitz, shall be paid a counsel fee for- services rendered on petitioner’s behalf in the sum of $650, payable in the-following manner, that is to say, $325 by respondent and $325 by petitioner, and that stenographic fees in the sum of $40 shall be paid by respondent.

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

* * * * * *

John J. Stahl,

Deputy Commissioner.


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

text:
    Essex County Circuit Court.
    BLOOMFIELD HEIGHTS, INC., PLAINTIFF, v. HOLLAND-ASSOCIATES, INC., AND JULIAN A. COHEN, DEFENDANTS.
    Decided January 17, 1944.
    For the plaintiff, Harry Schafer.

    For the defendants, Milton M. Unger.

   William A. Smith, C. C. J.

This action is based upon a bond made by the two defendants, Holland Associates, Inc., and Julian A. Cohen. A mortgage was given by the Holland Associates, Inc., to Harry H. Koehler, and the bond was secured by a mortgage made by the defendant Holland Associates, Inc., to said Koehler. The bond and mortgage were dated April 8th, 1931, and were conditioned to pay the sum of $23,971.50 with interest on March 15th, 1934. The bond and mortgage, by mesne assignments, came into possession of the plaintiff, Bloomfield Heights, Inc. In 1934 the tax collector of the Town of Bloomfield sold the mortgaged premises for unpaid taxes due to the Town of Bloomfield, which was followed by a foreclosure of the tax certificate. The defendant Holland Associates, Inc., with the mortgagee, were defendants in that proceeding; the defendant Cohen was not.

The result of the foreclosure was a barring of the right of redemption. Ho suit was instituted by the plaintiff to foreclose its mortgage, but after the decree of foreclosure based on the tax certificate was entered, this suit was instituted against these defendants to recover on the bond.

The facts are not in dispute, and the principal question presented on this motion to strike the answers is whether the act concerning proceedings on bonds and mortgage given for the same indebtedness and the foreclosure and sale of mortgage premises thereunder, N. J. S. A. 2:65-1, &c., hereinafter referred to as the Mortgage Act, governs the plaintiff’s rights againts the defendants.

It is contended by the plaintiff that the lien of the mortgage upon the premises described therein has been wiped out and that therefore the Mortgage Act referred to does not apply to the right of the plaintiff against the defendants on the bond; and it is the defendants’ contention that the act does apply and that therefore, there being no foreclosure of the mortgage, no action may be instituted on the bond.

It is perfectly evident that if the act in question does apply, the answer sets up a good defense. If the statute does not apply, then the plaintiff is in the position of the holder of a bond under the common law as it existed before the passage of the 1880 Mortgage Act. The 1880 act with its supplements and amendments as contained in the revised statute hereinbefore referred to is, of course, in derogation of the common law and should be strictly construed. Callan v. Bodine, 81 N. J. L. 240; 79 Atl. Rep. 1057; Wolf v. Schlichting, 111 N. J. Eq. 619; 161 Atl. Rep. 840.

There is a line of cases in this state which hold that this act does not apply to a situation where, although the indebtedness on the bond was secured by a mortgage the mortgage was not a lien upon the land therein described at the time of the commencement of the suit on the bond, the bond still being unpaid. Waters v. Dye (Ocean County Circuit Court, 1884), 7 N. J. L. J. 335; Wheeler v. Ellis (Supreme Court, 1893), 56 N. J. L. 28; 27 Atl. Rep. 911; Seigman v. Streeter (Supreme Court, 1899), 64 N. J. L. 169; 44 Atl. Rep. 888; Franklin Loan and Building Association v. Richman (Supreme Court, 1900), 65 N. J. L. 526; 47 Atl. Rep. 426; Pruden v. Savage (Supreme Court, 1904), 70 N. J. L. 22; 56 Atl. Rep. 690; Bower v. Bower (Supreme Court, 1909), 78 N. J. L. 387; 74 Atl. Rep. 522; Schmidt v. Frey (Court of Errors and Appeals, 1914), 86 N. J. L. 215; 90 Atl. Rep. 1123; Echickson v. Zalenski (Court of Errors and Appeals, 1930), 106 N. J. L. 508; 150 Atl. Rep. 335; Sivade v. Smith (Court of Errors and Appeals, 1929), 104 N. J. Eq. 528; 146 Atl. Rep. 364; Pink v. Peering (Supreme Court, 1939), 122 N. J. L. 277; 4 Atl. Rep. (2d) 790.

In Wheeler v. Ellis, supra, the bond on which the action was based was given to secure a mortgage cut off by the foreclosure on a prior mortgage. The court held that the requirement of the Mortgage Act to institute suit on the bond within six months after the sale of the mortgaged premises, did not apply, but the provision referred to applied only to the bond secured by the mortgage under the foreclosure of the prior mortgage. Mr. Justice Dixon in his opinion did not base his determination upon a narrow construction of the wording of the act by holding that the suit on the bond was not barred because there had been no sale in proceedings instituted by the plaintiff for the purpose of foreclosing the accompanying mortgage, but said:

“But a safer guide to the proper construction of this law will be found by looking at the effect of maintaining the one and the other of these contentions.

“If we adopt the defendant’s view, then, under section 3 of the act, the conclusive character of a sale in foreclosure of a prior mortgage will not be ascertained until every subsequent mortgagee necessarily made a party to the foreclosure proceedings has had six months in which to bring suit on his bond, and, in case of any such suit, until it is ended by final judgment, and perhaps until six months afterwards. Evidently this would render the foreclosure of prior mortgages very precarious, and would enable the mortgagors to impair seriously the value of such securities by giving subsequent mortgages. It is not to be believed, without clearer evidence than this statute affords, that the legislature intended to place 'such obstacles in the way of enforcing mortgages.

'Tinder the other view — that the statute deals only with the bond of the complainant in foreclosure — he may make his sale effective and final, either by selling the mortgaged premises enough to satisfy his debt or by relinquishing all right of action upon his bond for the deficiency. That probably reaches the actual design of the legislature.”

What Mr. Justice Dixon said in Wheeler v. Ellis, supra, as to the difficulties we would be met with if we applied the Mortgage Act to the situation there under consideration, applies with equal force to the present situation. It is quite obvious that we must conclude that the Mortgage Act does not apply to a situation where the mortgage which secures the bond sued on is no longer a lien on the land described therein. This is the principle of the construction of the Mortgage Act running through the line of cases hereinbefore cited.

We must therefore determine whether or not the mortgage that secured the bond sued on in this case was still a lien on the premises therein described at the time of the commencement of this suit notwithstanding the proceedings taken to foreclose under the tax lien.

The lien of the taxes on which the foreclosure proceedings were based was unquestionably prior to the lien of the mortgage which was given to secure the bond sued on. N. J. S. A. 54:5-9.

The conyeyance by the tax certificate conveyed the title of the owner of the premises at the time the taxes became a lien subject only to the right of redemption contained in the statute, N. J. S. A. 54:5-54.

The conveyance in this case by the tax certificate to the Town of Bloomfield was subject to the “right of the owner, mortgagee, occupant, or other person having an interest in the land sold for municipal liens to redeem at any time within two years from the date of sale or at any time thereafter until the right to redeem has been cut off in the manner in this chapter set forth.”

The defendant Holland Associates, Inc., was made a party to the tax foreclosure proceedings, and its right of redemption was therefore terminated. N. J. S. A. 54:5-87. The mortgage therefore ceased to be a lien upon the land described therein on the right of the redemption being barred, and therefore left the Town of Bloomfield with an indivisible title in so far as the Holland Associates, Inc., was concerned.

The defendant Cohen was not a party to the foreclosure, but neither is he one of the persons referred to in the statute who had a right to redeem. Hot having any interest in the property itself he is therefore in the position of a stranger and has no right of redemption. Mitsch v. Owens, 82 N. J. Eq. 404; 89 Atl. Rep. 292; approved in Atlantic City v. Gardner, 124 N. J. Eq. 110; 199 Atl. Rep. 724.

I therefore must conclude that the defense set up by these defendants with reference to the application of the Mortgage Act must be stricken.

There was a further defense set up in the answer under the ninth defense which was withdrawn on the motion.

The plaintifE is therefore entitled to enter summary judgment against the two defendants.


author: Cozzi, D. C. J.

text:
    District Court of the First Judicial District of the County of Hudson.
    THE MANHATTAN LIFE INSURANCE COMPANY, v. CITY OF JERSEY CITY AND TAMPA HOLDING CORPORATION.
    Decided December 22, 1943.
    For the plaintiff, Max Druz.

    For the defendant City of Jersey City, Charles A. Rooney,

      For the defendant Tampa Holding Corporation, Goldstein & Goldstein.

   Cozzi, D. C. J.

The facts in this case are undisputed.. Plaintiff owned certain premises known as 666 Grand Street, Jersey City, and on January 31st, 1941, entered into a written agreement of sale with Isaac Blumkin, wherein he agreed to buy the premises for a certain price, free and clear, except that he also assumed to pay the fourth quarter of taxes for the year 1940, which were unpaid. Isaac Blumkin assigned •this agreement to the Tampa Holding Corporation, hereinafter referred to as “Tampa.” The plaintiff had already paid three-quarters of the taxes of 1940, leaving the fourth quarter unpaid. During 1940, the plaintiff had filed an appeal to the Hudson County Tax Board for a reduction of the assessed valuation of the premises. This appeal was decided, “Affirmed as Assessed.” Thereafter, the plaintiff appealed this decision to the State Board of Tax Appeals. Meanwhile, on February 28th, 1941, the plaintiff conveyed the premises, pursuant to the agreement and assignment, to Tampa. One year and three months later, on May 19th, 1942, the State Board of Tax Appeals, rendered its judgment reducing the assessed valuation, for the year 1940, $5,700 amounting to $296.69, reduction in taxes. On June 29th, 1942, Tampa paid the balance of the fourth quarter of taxes of 1940 which originally amounted to $421.77, less the reduction granted of $296.69, by paying the difference and balance due thereon of $125.08. The defendant, Tampa, had previously paid in 1941, the 1941 taxes, omitting payment of the fourth quarter of 1940 taxes which it had assumed to pay. The agreement of sale makes no reference or provision regarding any tax appeal. It appears that Max Druz, Esq., an attorney-at-law of this state, prosecuted the tax appeal to its conclusion.

The plaintiff, The Manhattan Life Insurance Company, sues the City of Jersey City and the Tampa Holding Corporation, for $296.69, claiming that it was entitled to the refund of the tax reduction granted to it as a result of the appeal, either by virtue of the agreement of sale or upon the theory and doctrine of unjust enrichment.

Therefore, under the circumstances, the legal question resolves itself as to whether the plaintiff, by virtue of the agreement of sale or principles of quasi-contract, is entitled to the refund of the reduced taxes from either defendant.

The court shall first consider the question of liability of the City of Jersey City. Was the City of Jersey City legally responsible to refund the reduction of taxes or credit the allowance towards the unpaid portion of taxes of 1940 P

The pertinent provisions of statutes in this state as provided in N. J. S. A. 54:2-14, 54:2-35, 54:2-39, 54:3-22, 54:3-27, 54:4-23, 54:4-56, 54:4-105 and 54:4-6, justifies the City of Jersey City to apply and credit the reduction towards the unpaid taxes due for such year. Such conclusion, at least, is warranted by the legislative intent. It is further significant that the plaintiff was the owner of the premises during the entire year of 1940. This case is distinguishable from the situation presented in the case of Binder v. City of Newark, 19 N. J. Mis. R. 624; 22 Atl. Rep. (2d) 359. In the latter case, the City of Newark had credited the refund to the ensuing year’s taxes, no taxes remaining unpaid for the year in which the taxes were reduced. The City of Newark, therefore was unjustly enriched over and above the readjusted taxes which had already been paid and the court allowed the plaintiff to recover a judgment for his pro rata share commensurate with the length of time he owned the premises during such year. This is not so, in this case. The City of Jersey City, by reason of the refund was not unjustly enrichefi beyond the readjusted taxes for the year. Furthermore, the plaintiff in this case, made voluntary payments on account of the 1940 taxes. Voluntary payment of taxes, based on a legal assessment, is made at the risk of the payor to the extent of the readjusted taxes for such year. See Hahne Realty Co. v. City of Newark, 119 N. J. L. 12; 194 Atl. Rep. 191, and R. S. 54:3-27, as amended, N. J. S. A. 54:3-27.

The statutory provision of N. J. S. A. 54:4-8.2 merely extends the right, in the taxing authority to credit any refund due to a tax reduction granted by virtue of an appeal, on any unpaid taxes due or to become due thereon, in the ensuing years, provided there has been no change of ownership in the interim and consequently does not affect the situation sub judice.

The agreement of sale cannot lend any greater responsibility upon the City of Jersey City, as it is apparent it was not a party to this agreement, and hence, cannot be bound by its terms.

The court shall now consider the liability of the defendant Tampa Holding Corporation. Tampa contends that the fourth quarter of taxes of 1940 is now fully paid, and hence, there is nothing further before the court. The plaintiff, counters, by claiming that the fourth quarter of taxes for the year 1940 amounted to $421.77, and this was the sum that it assumed to pay. Tampa resists this offer of evidence as to the amount of taxes as it existed at the date of the agreement of sale, on the ground that such parol testimony tends to vary or alter the terms of a written agreement.

The objection is untenable. The written agreement of sale did not specify the amount of the taxes, but did refer to the fourth quarter of taxes for 1940, and by such reference, parol evidence is admissible to complete what otherwise would be an incomplete written provision and agreement. See Naunberg v. Young, 44 N. J. L. 331.

It is significant here, to point out that no reference or provision whatsoever was provided in the agreement of sale, concerning the tax appeal which the plaintiff prosecuted successfully, bringing about the reduction, now the subject-matter of this suit, nor does Tampa make such claim. The assumption by Tampa of the payment of the fourth quarter of taxes for the year 1940, was definite and unalterable as of the time of the execution of the agreement of sale, which, was January 31st, 1941, at which time, no reduction of taxes was contemplated therein. By such reference, Tampa assumed to pay the sum of $421.77 as taxes, to the City of Jersey City. Instead, Tampa seeks to absorb the reduction of taxes granted to the plaintiff, by showing payment of the fourth quarter of taxes for the year 1940, as late as June 29th, 1942. It seeks to get credit for a tax reduction, not provided for in the agreement of sale, which developed a ..year and three months thereafter, through the efforts of the plaintiff.

The State Board of Tax Appeals, in granting the reduction, did not review or reduce the fourth'quarter of taxes •alone, but actually reduced the assessed valuation of the premises for the, entire year. The taxes for the entire year was $1,677.31, and accordingly reduced to $1,380.62, thus figur,ing each quarter to be $345.15. Even with this reduction, the fourth quarter was never less than $345.15.

In view .of the reduction brought about by the plaintiff’s efforts and the assumption of taxes by the defendant Tampa for the last quarter of the year 1940, made specific by reference, as of the date of the agreement of sale, showing the tax to be then $421.77, the defendant Tampa was unjustly .enriched to the extent of the reduction of taxes amounting to $296.69.

Under the circumstances, the law implies a promise on the part of this defendant Tampa to pay the plaintiff the difference between the amount actually paid and that which it had assumed to pay by virtue of the agreement of sale above mentioned. The law implies this promise on the part of the defendant based on the doctrine of unjust enrichment or .gwasi-eontract, in that, the credit received by this defendant, because of the reduction of taxes, through the independent labor and efforts of the plaintiff not contemplated in the agreement for the benefit of this defendant, would unjustly grant to this defendant an advantage or a saving .of moneys to which it is not entitled, but otherwise by its contract was legally obligated to pay.

Accordingly, judgment will be entered in favor of the defendant City of Jersey City and in favor of the plaintiff, .against the defendant Tampa Holding Corporation in the ■sum of $296.69, besides interest from June 29th, 1942, being the date the defendant Tampa received the credit of the tax reduction.


author: Pee Cueiam.

text:
    SAMUEL EDELSTEIN, PLAINTIFF-RESPONDENT, v. HUB LOAN COMPANY, DEFENDANT-APPELLANT.
    Argued January 19, 1944
    Decided February 15, 1944.
    Before Justices Case, Donges and Poetes.
    For the motion, Harry Kay.

   Pee Cueiam.

Application is made to this court to vacate plaintiff-respondent’s costs against defendant-appellant in this court. The plaintiff had judgment in the District Court, which judgment was affirmed in this court. 129 N. J. L. 497. It is asserted that, upon appeal to the Court of Errors and Appeals, the judgment was reversed and the case remitted to this court. It is argued that the judgment being in all things reversed, the judgment for costs should be vacated. Plaintiff-respondent did not appear nor did he oppose the application.

Prom the record submitted we are unable to make any finding as to the true situation and the merits of this application. The state of case consists of a verified petition and notice. The remittitur, if any, does not appear therein, nor is there anything from which the determination of the Court of Errors and Appeals appears.

The application is denied, without costs.


author: Joseph L. Smith, C. C. J.

text:
    RICHARD FIELDS, PLAINTIFF, v. THE MOUNTAINSIDE HOSPITAL, A CORPORATION OF THE STATE OF NEW JERSEY; DEFENDANT.
    Decided January 21, 1944.
    For the plaintiff, Edward R. McGlynn.

    For the defendant, Cox & Walburg (Harry E. Walburg, of counsel).
   Joseph L. Smith, C. C. J.

The defendant moves to strike the complaint and its amendments on the ground that the complaint does not allege a good and legal cause of action, for the reason that the defendant is a charitable corporation and that the plaintiff was a beneficiary of the charitable purposes of the said defendant. The plaintiff admits for the purposes of this motion that the defendant may be described as a “charitable institution.” The original complaint consists of four counts and the amendment to the complaint contains two additional counts.

The first count alleges that from April 19th, 1941, to July 3d, 1941, and for a long period of time prior thereto, The Mountainside Hospital, the defendant, engaged in the business of operating a hospital for profit, at Montclair, New Jersey, at which hospital it undertook to care for the sick and give nursing and medical attention and to provide apparatus and equipment necessary for the care of the sick, for all of which it charged and received compensation. It further alleges that the defendant owned, operated, maintained and controlled the apparatus and equipment mentioned in the complaint at all times mentioned therein. The plaintiff, Eichard Fields, it is alleged, was admitted to the said hospital on or about April 9th, 1941, for the purpose of receiving medical care and treatment; that on or about said date, the said plaintiff requested that he be placed in a private room in said hospital for treatment, medical and nursing attention commensurate with his needs, and that on the said date he was placed in a private room of said hospital. It further alleges that the defendant corporation, through its administrators, servants and agents impliedly promised that the plaintiff would be given nursing and medical attention commensurate with his needs and that it would use fit and proper apparatus and equipment, for which the plaintiff promised to pay the regular charges. It alleges that by reason of the allegations above referred to, there was an implied contract between the plaintiff and the defendant corporation that the plaintiff would be given nursing and medical care and attention commensurate with his needs and that the defendant would use fit and proper apparatus and equipment and would use care in its maintenance, for which the plaintiff promised to pay the regular charges. It further alleges that the plaintiff remained in the sáid private room from April 12th, 1941, until July 3d, 1941, and for a period of time thereafter, during which time he received from the defendant certain medical care and attention, and during which time he was charged the usual rates for his private room, nursing and medical attention and for the use of its apparatus and equipment. It alleges further, that on or about July 3d, 1941, the defendant corporation, through its administrators, servants and agents, in violation of the implied contract above referred to, placed the plaintiff in a dangerous situation, to wit: the defendant corporation, through its administrators, servants and agents, placed faulty and improper equipment at the disposal of the plaintiff, and as a result of the plaintiff's using such faulty and improper apparatus and equipment, he’was caused to fall and suffer the injuries and damages alleged in said complaint. It alleges certain personal injuries in detail, as well as the aggravation of a pre-existing condition, claiming permanent injuries and certain special damages.

The plaintiff alleges that he performed all of the terms and conditions of the said agreement.

It was agreed by counsel for the purposes of this motion, to inform the court of the nature of the accident, solely for the purpose of assisting the court in disposing of this motion. As the court understands the agreed statement of fact, as aforesaid, it would appear that the plaintiff, on the day of the accident, had been supplied by the defendant with a Balkan frame, which was attached to his bed, and which the plaintiff used in helping to pull himself up in the bed. This is a wooden frame. While the plaintiff was using it, on July 3d, 1941, the wooden frame broke and the plaintiff was injured.

There is no allegation in the complaint, or amendments thereto, setting forth the alleged cause of action was based on the negligence of either the doctors or nurses in the employ of the defendant hospital.

The second count of the complaint is similar to the first • count, except that it alleges an express contract between the parties.

It is to be noted, as to the first and second counts, that the breach of the said contract claimed by the plaintiff, was that “the defendant would use fit and proper apparatus and equipment, and would use care in its maintenance.”

Por the purposes of this motion we may consider the first and second counts .together, as they are intended to allege respectively, a breach of contract; on the first, an implied contract, and the second count, an express contract.

It does not seem to this court, under the allegations of the complaint, that a legal cause of action is stated. There can be no liability on contract, such as is alleged here, when there is none in tort. D’Amato v. Orange Memorial Hospital, 101 N. J. L. 61; 127 Atl. Rep. 340; Boeckel v. The Orange Memorial Hospital, 108 N. J. L. 453; 158 Atl. Rep. 832; affirmed, 110 N. J. L. 509; 166 Atl. Rep. 146; Kolb v. Monmouth Memorial Hospital, 116 N. J. L. 118; 182 Atl. Rep. 822; Bianci v. South Park Presbyterian Church, 123 N. J. L. 325; 8 Atl. Rep. (2d) 567; Rossen v. Peter Bent Brigham Hospital, 235 Mass. 66; 126 N. E. Rep. 392; Williams v. Fenster, 103 N. J. L. 566; 137 Atl. Rep. 406; Hadley v. Baxendale, 26 Eng. L. & Eq. 398.

Therefore the motion to strike as to the first and second counts will be granted.

The third count charges negligence in that the defendant owed the plaintiff the duty to use due care in the maintenance management, operation and control of its premises, equipment and apparatus furnished for plaintiff’s use by the defendant, so as not to injure the plaintiff, but that, notwithstanding this duty, the defendant, by its agents, servants and employees, negligently and carelessly furnished for the use of the plaintiff, apparatus and equipment which was improper, defective and inadequate, and that plaintiff, in using same, was caused to fall and suffer injuries and damages claimed therein.

As heretofore stated, the plaintiff admits, for the purpose of this motion, that the defendant may he described as a “charitable institution.” It is now the law of this state that a person who is the recipient of the benefactions, or is a beneficiary of a charitable institution, cannot maintain an action against that institution for the negligence of its physicians and nurses, as a result of which a beneficiary sustained personal injury. The courts so holding have based their rulings on the doctrine of public policy. In the case of D’Amato v. Orange Memorial Hospital, supra, 101 N. J. L. (at p. 65); 127 Atl. Rep. 341, Chancellor Walker, speaking for the Court of Errors and Appeals, said:

“In our opinion, public policy requires that a charitable institution maintaining a hospital be held not liable for injuries resulting to patients through the negligence or carelessness of its physicians and nurses, even if the injured person were a pay patient, payment for board, medical services and nursing in such case going to the general fund to maintain the charity.” Boeckel v. The Orange Memorial Hospital, supra; Kolb v. Monmouth Memorial Hospital, supra.

The court feels that the cause of action alleged in the third count clearly comes within this inhibition and motion to strike must be granted, as it does not state a good and legal cause of action; the public policy of our state having been fixed by our Court of Errors and Appeals, no change therein can be made, except either by that court or the legislature. 'This question possibly may now again be submitted to that court on this adverse ruling, for its consideration. Public policy may have changed since 1924 when D’Amato v. Orange Memorial Hospital, supra, was decided.

The fourth count, in effect, is one alleging that the defendant maintained a nuisance in that by its agents, servants and employees it constructed and maintained and caused, suffered and permitted to be constructed and maintained, a thing of inherent danger and menace to life, limb and safety of all persons lawfully using such apparatus and equipment, by reason of all of which the conduct of the defendant constituted .a nuisance' to the public as a whole and to the plaintiff in particular.

I cannot find that the cause of action that the defendant maintained a nuisance, as alleged in the fourth count, can be sustained, and for the reasons heretofore stated in respect to the previous counts, motion to strike must prevail.

The fifth count, in addition to repeating the allegations contained in paragraphs one, two and three of the first count, alleges that on or about April 12th, 1941, the defendant admitted the plaintiff as a private patient in a private room of said hospital, for treatment, medical and nursing attention by his own physicians and nurses employed by him for that purpose. The defendant corporation, through its administrators, servants and agents, in consideration of the charges made for the use by the plaintiff of the room in said hospital and for the facilities of said hospital, including equipment such as bed, apparatus necessary for the plaintiff’s treatment, &c., were under a duty to furnish apparatus and equipment suitable for the purposes for which they were intended and were under a duty to select and employ competent and efficient servants and agents (exclusive of doctors and nurses) whose duty it was to inspect, repair and maintain such equipment in such condition that it could be used for the proper treatment of the plaintiff. It alleges that on or about July 3d, 1941, the defendant failed to provide competent and efficient administrators, servants and agents to properly procure, inspect and maintain suitable equipment for the treatment of the plaintiff and by reason of their incompetence and inefficiency, which was known or should have been known to the defendant, placed faulty and improper equipment at the disposal of the plaintiff, and as a result of the plaintiff using said faulty apparatus and equipment he was caused to fall and suffer the injuries and damages claimed.

The fifth count of the complaint, however, this court will allow to stand. This court does not know of any Tuling in this state where it was decided whether or not a charitable corporation is liable to a beneficiary if he is injured through negligence on the part of the charity in failing to exercise reasonable care in the selection of its servants or agents. This question has been decided both ways in other jurisdictions, some holding charitable institutions liable, others holding to the contrary. This,fifth count is based on negligence in failing to use due care in furnishing apparatus and equipment suitable for the purposes for which they were intended, and in failing to select and employ competent and efficient servants and agents (exclusive of doctors and nurses) whose duty it was to inspect, repair and maintain such equipment.

Chancellor Walker in D'Amato v. Orange Memorial Hospital, supra (at p. 65), said:

' “Like the Masaschusetts court in the earlier case of McDonald v. Massachusetts General Hospital (120 Mass. 432), we are not required in this decision.to go so far as to hold that a charitable corporation maintaining a hospital .might not be liable to a patient if carelessness were shown .in the selection of the. agent responsible for the injury, as .that question is not raised in this case.”

It is clear that the court, in that case, did not pass on the question whether or not a hospital or charitable institution may not be liable to a patient if carelessness were shown in the selection of the agent responsible for the injury. Bianchi v. South Park Presbyterian Church, supra.

This said fifth count, however, is also based on the theory which some of the eases have called “administrative negligence.” -The basis for this rule is that a hospital may be ■.liable for failure to furnish proper equipment, as a result of .which a patient is injured and such wrong doing is referred ..to as “administrative negligence.” It is administrative and .it is a non-delegable duty on the part of the hospital, to • employ a capable staff and for the breach of this duty, the Institution may be liable. It is an administrative duty on the part of the hospital to supply proper equipment for the , care of the patient.

, In the ease of Miller v. Sisters of St. Francis (1940), 5 Wash. (2d) 204; 105 Pac. Rep. (2d) 32; the court, in holding the hospital liable, said (at p. 35) :

“A hospital, -even though it be a charitable institution, such , as the one involved in this case, is liable for failure to fur,.nish.proper equipment if damages- result from that failure. This is what is called administrative negligence, as distinct from failure to exercise due care in the selecting of proper physicians and nurses.

“* * * A further distinction has been made to depend upon whether the tort grew out of a want of due performance, or ministerial or administrative duties, or whether it arose from the malpractice of the physicians, nurses and others in ministering professionally to the patient. In the latter cases, provided the corporation has exercised due care in its nondelegable duty of selecting proper physicians and nurses and providing suitable appliances for them, to which reference is made hereafter, the corporation will not be liable for injury to the patient owing to the negligent performance of these professional duties. On the other hand, if the injury springs from the corporation’s failure in the performance of a ministerial or administrative duty, the corporation is liable, even though the failure was due to the act of a nurse or similar professional attendant in attempting to perform the duty for the corporation * * 5 Fletcher Cyc. Corporations 5352, § 3362. Heckman v. Sisters of Charity (1940), 5 Wash. (2d) 699; 106 Pac. Rep. (2d) 593.

In the case of Volk v. City of New York (1940), 384 N. Y. 279; 30 N. E. Rep. (2d) 596, the court (at p. 597), said:

“Nevertheless, if a hospital be negligent in the performance of an administrative function, it is liable in damages * * *; It is not the plaintiff’s contention that the hospital is responsible for the acts of its nurses, but that the hospital was negligent in an administrative capacity iii making available decomposed medical supplies * *

In the case of Hillyer v. St. Bartholomew (1909), 2 K. B. 820, the court said:

“In my view, the duty which the law imposes in the relation of hospital to patient, and the corresponding liability, are limited. The governors of a public hospital, by their admission of the patient to enjoy in the hospital, the gratuitous benefits of its care, do, I think, undertake that the patient while there, shall be treated only by experts — and .further, that those experts shall have at their disposal for the care and treatment of the patients, fit and proper apparatus and appliances.”

In New York, in the recent ease of Rabasco v. New Rochelle Hospital Association, 266 App. Div. 97; 44 N. Y. S. (2d) 293, the court said:

“The character of the act done, and not the person doing it, determines whether the function is administrative or nonadministrative * * * and that where such a question is presented, the dismissal of the complaint against the defendant hospital, as a matter of law, was error.” Bickford v. Peck Memorial Hospital, 266 App. Div. 875; 43 N. Y. S. (2d) 20; Dillon v. Rockaway Beach Hospital, 284 N. Y. 176; 30 N. E. Rep. (2d) 373.

In the sixth count the plaintiff alleges that the defendant holds itself out as a charitable institution, and by reason thereof claims exemption from liability for injuries resulting to patients in said hospital, occurring by reason of the negligence or carelessness of its physicians and nurses, and that in order to protect itself against liability and to protect its trust funds, it insured-itself against liability for injuries or claims for damages to patients or other persons, by reason of the negligence of its nurses or physicians, or its servants or agents, as well as for claims for damages to persons through the use of improper or inadequate or unsuitable equipment.

The plaintiff further alleges that such contract of insurance was made for the benefit of persons having claims against the defendant, including the plaintiff, and the plaintiff alleges that he is entitled to recover a judgment against the defendant corporation, even though it is a charitable institution to the extent of and not exceeding the amount of the contract of insurance obtained by the defendant, as herein alleged.

This count will be stricken out. The alleged insurance carrier is not a party to this action. It is an indemnity agreement. We have no statutory provision in this state whereby a plaintiff can obtain a judgment against a charitable institution subject to be paid only in the event that the insurance carrier is held liable; 3 Scott on Trusts, Topic 6, p. 2153, § 402; Cyclopedia of Insurance Law, 5 Couch, § 1165, C. P. 4147; Enman v. Trustees of Boston University, 270 Mass. 299; 170 N. E. Rep. 43; Williams v. Church Home, 223 Ky. 355; 3 S. W. Rep. (2d) 753.

Circuit Court Judge William A. Smith, in passing upon this question, in the unreported case of Helen Golis, an infant, &c., v. St. Stanislaus Roman Catholic Church of Newark, New Jersey, said:

“The ground upon which this protection from liability is predicated is that it is against the public policy of this state. It is urged by the plaintiff that the rule of public policy should not apply where the trust is not going to suffer by reason of any recovery had in any action such as this is.

“My consideration of the authorities with regard to the rule of public policy does not indicate that the rule should be so limited. Any change in the rule of public policy as decided by the upper courts is for them or the legislature.”

An order may be submitted without costs.


author: Parker, J.

text:
    KEYSTONE LUNCH, INCORPORATED, PROSECUTOR, v. FIRST CRIMINAL COURT OF NEWARK ET AL., DEFENDANTS.
    Argued January 8, 1944
    Decided January 26, 1944.
    Before justice Parker.
    ■For the prosecutor, William J. Egan.

    For the defendants, Philip J. Schotland.

   Parker, J.

This is an application for a writ of certiorari to bring up the conviction of the prosecutor for violation of the Newark zoning ordinance. The question to be answered is whether the proposed structure amounts to a “lunch wagon” and therefore is subject to the prohibition of the ordinance which forbids a “lunch wagon” in the particular district.

The structure as originally planned was a roadside “diner” so common nowadays. Prosecutor applied to the Board of Adjustment, after denial by the zoning officer, for a variance, and in the application úsed the words “lunch wagon.” The board denied the application. Then prosecutor seems to have concluded to enclose, or partially enclose, the “diner” leaving -the interior substantially unaltered, and with architect’s plans went before the superintendent of buildings for a permit for “new addition” (to its existing restaurant) “to be used as a Restaurant (Dining Car). Present restaurant space will be used as a Kitchen.” The permit was granted: but the zoning board, learning of this, ordered the work stopped, and made a complaint to the Municipal Court which resulted in a conviction, to review which the present application is made.

The photograph submitted on this motion shows an existing one-story restaurant building on the west side of the Plaza where the Market Street station stands, and the plan of the prosecutor is to add to this building what is obviously and admittedly a “diner,” which appears in the photograph, connect it with the existing building and, as stated in its application to the zoning department, use the “diner” as the restaurant part of the structure and the existing building as a kitchen. It is claimed that the “diner” even when enclosed and reinforced, as hereinafter to be noted, is not a building, but that point is unimportant because the ordinance provides that in the particular district “no building or premises shall be used * * * for any of the following specified * * * uses * * * (k) Lunch Wagon.” It is stated, and the evidence before me goes to show, that what the prosecutor proposes to do with this “diner” by way of alteration and addition is' to enclose it in a concrete outer wall about three feet four inches high which comes up to the bottom of the plate glass windows appearing in the photograph; above the top of the present windows, I gather from the plans there is to be some sort of a roof structure with the sign “Keystone Lunch Co.” thereon, and that at various points along the front on the Plaza six concrete or stone pillars two feet wide and about thirteen feet high which perform no particular function except of an ornamental or decorative character. The result of this is simply to enclose the “diner” in a sort of shell which in no way interferes with either the existing windows or the doorway. The claim is that these additions have the effect of transforming what in its present state is obviously a “lunch wagon” into something else in such wise as to remove it from the purview of the ordinance. This, however, I fail to see.

My conclusion in the matter is that a “lunch wagon” is a “lunch wagon” whether it is in a shell or out of a shell, particularly if the shell continues to have the original apertures for light and access. The allocatur of the certiorari is therefore denied.


author: Burling, C. C. J.

text:
    Cumberland County Circuit Court.
    SEARS ROEBUCK & COMPANY, A CORPORATION, PLAINTIFF, v. RALPH L. HARRIS AND CATHERINE B. HARRIS, DEFENDANTS.
    Decided February 21, 1944.
    For the plaintiff, Francis J. Smith.

    For the defendant, Henry O. Burt.

   Burling, C. C. J.

Motion has been made to strike the answer in'the aboye entitled cause of action upon the following grounds:

Because the said answer and defenses are frivolous and do not set forth good and sufficient defenses to an action in replevin;

Further to strike out the counter-claim filed by the defendant, which was incorporated as to form in the second defense of the answer.

Upon the argument of the motion the defendants consented to the granting of a motion to strike out the counter-claim.

The remaining issue raised is a narrow one, namely that the sale of a certain Everready water pump by the plaintiff to the defendant was for cash, payment for which the defendants gave a check for the defendant, Catherine B. Harris, payable to the plaintiff for the entire purchase price of the water pump. That thereupon payment by the defendants of this check was stopped by them. That title did not pass to the defendant.

The motion is to strike the answer and the first separate defense because they are frivolous. Ho attempt has been made to strike the denials of the answer as being sham. However, although the defendants have denied paragraph 1 of the complaint, excepting that they admit the defendant Catherine B. Harris did purchase the pump mentioned therein for the price therein stated, they have admitted paragraph two of the complaint, excepting the allegation of title of the plaintiff. The admissions in paragraph two of the answer a,re inconsistent with the denials of paragraph one of the answer so that the allegations respecting the nonpayment of the check may be taken as true for disposition of this motion.

The first separate defense thereby raised a matter of law. In the application of the aforesaid law to the admitted facts the motion should be granted, and the answer is frivolous.

The Uniform Sale of Goods Law, section 48 of R. S. 46:30; N. J. S. A. 46:30, provides as follows:

“46 :30-48. Delivery and payment concurrent conditions. Unless otherwise agreed, delivery of the goods and payment of the price are concurrent conditions, that is to say, the seller must be ready and willing to give possession of the goods to the buyer in exchange for the price and the buyer must be ready and willing to pay the price in exchange for possession of the goods.”

The generally accepted rule is that the acceptance of the check does not imply an extension of credit or preclude the exercise of the right of reclamation in the case of its nonpayment upon timely presentation. Morehouse v. Keyport Auto Sales Co., Inc. (Court of Chancery, 1935), 118 N. J. Eq. 368 (at p. 370); 179 Atl. Rep. 279, and in said case (at p. 371); 179 Atl. Rep. (at p. 279), it was stated:

“By analogy, delivery is no delivery (at least for the purpose of passing title) unless the check is paid. Pending payment the delivery is conditional only. It was definitely held in National Bank of Commerce v. Chicago, B. and N. R. Co., supra [44 Minn. 224; 46 N. W. Rep. 342], that the delivery of a check is not payment, but is only so when the money is received on it; and that there is no presumption that a creditor takes a check in absolute payment arising from the mere fact that he accepts it from the debtor.

“Under such circumstances, if the check is presented for payment promptly and is not paid, the rights of third parties, not intervening, the vendor, acting with due diligence, may retake the goods for title has never passed from him. Hirsch v. Leatherbee Lumber Co., supra [69 N. J. L. 509; 55 Atl. Rep. 645]; Leatherbury v. Connor, supra [54 N. J. L. 172; 23 Atl. Rep. 684]; Frech v. Lewis, 218 Pa. 141; 31 A. L. R. 586, citing In re Perpall, 256 Fed. Rep. 758. It was, of course, competent for the parties to make any agreement they spw fit as to when the absolute title to the ear should pass. But in the absence of anything to indicate to the contrary, the transaction between them must be taken to have been the ordinary one of the sale of a specific chattel for cash, delivery being made in the expectation of immediate payment. Peoples State Bank of Michigan Valley v. Brown, supra [80 Kan. 520; 103 Pac. Rep. 102].”

The second separate defense has been disposed of by the action of the defendants in their treatment of the same as a counter-claim which they have abandoned. • . ,

. In the answer filed in this matter, the defendants made the following reservations:

“The plaintiff is hereby notified the defendants reserve the right to, and at the time of trial will move to strike out the complaint because it discloses no cause of action in replevin,” pursuant to rule 40 of the Supreme Court, N. J. S. A., tit. 2, and brought the matter on for disposition before trial simultaneously with the motion of the plaintiff above referred to. Defendants moved to strike out the complaint filed in this cause upon the following grounds: “as frivolous, because the complaint alleges the water pump mentioned in the complaint and the property sought to be replevined, was sold and delivered to defendants, and at the same time alleges because defendants failed to make payment of the purchase price title remains in the plaintiff.”

This motion to strike the complaint is in the nature of a general demurrer. The reasons which are applicable to the granting of the motion to strike the first separate defense of the answer are applicable to this motion, and it is accordingly denied.

An appropriate rule may be presented.