text:
    ROBERT L. STEVENS, PLAINTIFF-RESPONDENT, v. OSCHWALD REALTY CORPORATION, DEFENDANT-APPELLANT.
    Submitted May 13, 1932
    Decided October 19, 1932.
    Before Gummere, Chiee Justice, and Justices Bodine and Donges.
    For the appellant, Quinn, Parsons •& Horemus.

    For the respondent, Joseph F. Mattice and William J. O’Hagan.

   Per Curiam.

This is an appeal from a judgment of the Monmouth County Court of Common Pleas entered upon a verdict directed in favor of the plaintiff by the trial judge. The suit was by a real estate broker upon a contract to pay a commission for the renting of property of the defendant by him. The contract reads as follows:

“In the event of your bringing about the renting or selling of my property you will be recognized as a licensed real estate broker and entitled to your regular commission of five per cent, of the amount of the rent or of the sale.”

The property was a lot in Red Bank. The plaintiff brought together defendant and the Mileage Gas Corporation, and as the result of negotiations a lease was entered into. The lease provided that the defendant should obtain a permit to construct and should construct a gasoline service station upon the premises. The term was to begin five days after the completion of the building. It further provided that if the building permit were not obtained within sixty days, the lessee should have the option of voiding the lease. The Mileage Gas Corporation supplied the defendant with plans for the service station and the building permit was applied for. It was denied on the ground that the plans did comply with the local building ordinance. Defendant requested the Mileage Gas Corporation to supply new plans. This was not done; no renewal of the application was made; and after the sixty-day period the Mileage corporation declared the lease void.

The plaintiff demanded his commission and, upon failure to receive it, instituted the instant suit. At the close of the evidence the trial judge directed a verdict for the plaintiff, which is the action here under review, the defendant-appellant asserting that the trial court should either have directed a verdict for it or should have submitted the case to the j urv.

The contract required the plaintiff to bring about the “renting” of the propertjn If he did precisely this, he is entitled to recover, otherwise not. The question is whether the execution of this lease, with the provisions which might void it before any benefit to the parties, was a “renting” of the property.

The defendant treats the lease as a conditional agreement to rent, but it cannot be so regarded. It was a complete instrument containing the whole contract for the whole term.

It has been held, in cases dealing with contracts between landowners and brokers for the sale of lands and payment of commission, that the words “sell” and “selling” mean no more than to procure a purchaser upon the owner's terms. Lindley v. Keim, 54 N. J. Eq. 418; 34 Atl. Rep. 1073; Freeman v. Van Wagenen, 90 N. J. L. 358; 101 Atl. Rep. 55. This must also be true of the words “rent” and “renting.” If so, the plaintiff performed his part of the contract when he brought the defendant a prospective tenant upon the defendant's terms; and the subsequent failure of a condition in the lease cannot defeat his right to a commission. The landlord agreed to the terms and made a binding contract. If he violated it, he cannot complain. If the lessee violated it, the lessor has his remedy.

We think the judgment is proper because the execution of the lease was a “renting” within the meaning of the contract, and because a “renting” was accomplished, within the meaning of the law, when the broker brought the defendant a person willing to rent upon its terms. Upon the proofs, there was no dispute upon the essential point, namely, that plaintiff procured a tenant with whom appellant contracted.

The judgment is affirmed, with costs.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    JOHN BEGGANS, DIRECTOR OF PUBLIC SAFETY OF THE CITY OF JERSEY CITY, AND THE MAYOR AND ALDERMEN OF JERSEY CITY, PROSECUTORS, v. CIVIL SERVICE COMMISSION, DEFENDANT.
    Submitted May 13, 1932
    Decided October 19, 1932.
    Before Gummere, Chibe Justice, and Justices Bodine and Donges.
    For the prosecutors, James A. Hamill and Frank J. Reardon.

    For the defendant, Ziegener & Brenner and William L. Rae.

   Per Curiam.

This writ of certiorari brings up for review a decision of the civil service commission ordering the restoration of Thomas Hurley to his position as police officer of the city of Jersey City, from which position he had been removed by the director of public safety after a hearing on charges before the deputy director.

The charge against Hurley was conduct unbecoming an officer “in this that the said patrolman * * * at about nine A. 11., December 2d, 1930, while off duty and in full uniform, did enter the home of Mrs. Florence McGowan, age thirty-three, residence 52 Bright street, Jersey City, New Jersey, and did violently assault the said Mrs. Florence McGowan.”

Mrs. McGowan testified before the deputy director and before the civil service commission that Hurley raped her. She made complaint on December 6th, 1930, four days after the alleged occurrence, and Hurley was suspended. The hearing was held on January 7th, 1931, and on January 23d, 1931, he was dismissed from the police force. He filed an appeal to the civil service commission on January 24th, 1931. He was indicted for rape on January 27th, 1931, and on November 9th, 1931, he was tried on that charge and was acquitted. The appeal was heard by one of the civil service commissioners on January 25th, 1932, and on March 1st, 1932, the order now under review was made directing his reinstatement.

Mrs. McGowan testified in detail concerning the circumstances which led up to the alleged attack. Other witnesses testified in support of the charge. Hurley denied the offense and claimed his superior officers were attempting to oust him from the police force upon false charges.

The decision of the civil service commission contains the following language:

“The records in this case show that the appellant was indicted at the grand inquest of the Hudson Oyer and Terminer at the December term, 1930, and subsequently brought to trial in the Court of Quarter Sessions of that county and was found not guilty and acquitted under date of November 9th, 1931. Since the appellant was acquitted by the Court of Quarter Sessions, as aforesaid, on the charges upon which the dismissal action of the director of public safety is based, it would appear that these charges have been disposed of and that they may not be used as grounds for dismissal.

“I submit, therefore, and I so recommend that the action of dismissal be set aside and the appellant ordered reinstated to the rank and title of patrolman in the uniformed police department of the city of Jersey City. It would appear to be the intention of the law that in cases where a public employe has been acquitted of a criminal offense, that he is entitled, not only to reinstatement, but to compensation from the date of his suspension. See chapter 74, Pamph. L. 1913.”

It would thus appear that the action of the civil service commission was based entirely upon the acquittal of Hurley at the criminal trial, both because of the statute cited and on general reasoning. The statute cited provides that the holder of any elective or appointive office, upon conviction of a misdemeanor in the administration of his office involving moral turpitude, shall forfeit office, but shall be restored with salary if the conviction be reversed. We do not think that this act controls the instant case. It is applicable to cases where dismissal follows conviction and is rested entirely upon the conviction. Here the charge was entirely different from the offense charged in the indictment, although they grew out of the same event.

For do we think that the acquittal disposed of the charges so “that they may not be used as grounds for dismissal.” We think the proceedings were entirely independent. The charge was conduct unbecoming an officer touching an assault upon Mrs. McGowan. There might have been an assault which would amount to conduct unbecoming an officer but which did not constitute rape. The evidence might have been insufficient to convince a jury beyond a reasonable doubt of the guilt of the accused of the crime of rape but still have clearly indicated the officer’s guilt of unbecoming conduct justifying dismissal. We think the acquittal was not a bar to the dismissal proceeding.

Counsel for Hurley urge that, even if the basis of the decision below is wrong, there should be an affirmance because the evidence demonstrates Hurley’s innocence. However, the civil service commission made no finding on the factual situation and we deem it better to remit the case to that body for a decision on the question of whether or not the evidence justifies the action of the municipal authority.

The order under review is set aside.


author: Dungan, C. C. J.

text:
    Essex County Circuit Court.
    BALAY CHUZ v. THE COLUMBIAN NATIONAL LIFE INSURANCE COMPANY.
    Decided May 12, 1932.
    Before Nelson Y. Dungan, J., and a jury.
    For the plaintiff, Abraham Silverstein.

    For the defendant, Osborne, Cornish ■& Scheclc (by Emanuel P. Shech).

   Dungan, C. C. J.

The policy in this case has the usual incontestability clause, which is to the effect that this policy shall be incontestable after one year during the lifetime of the insured from the date of issue, except for non-payment of the premium. The question in this case is whether or not that same agreement of incontestability should be read into the policy as changed by a reinstatement agreement at the time of such reinstatement, and whether or not the policy is incontestable after the period of one year from each reinstatement. If that be read into the policy, then the defendant in this case is now barred from setting up fraudulent representations in the application for reinstatement.

In the case of Mutual Life Insurance Co. v. Dreeben, 20 Fed. Rep. (2d Series) 394, Judge Atwell, of the United States District Court, says, in effect, as stated by the second syllabus, the reinstatement o£ a life policy after a lapse as permitted by its terms does not create a new contract, but is a revival of the original contract, and the clause in a policy making it incontestable after two years applies to representations made in the application for reinstatement, for falsity of which insurer may contest the policy within two years after they are made. He says (at p. 395) : “The two years begin to run, as to reinstatement representations, when they were made. Two years after reinstatement their falseness may not be advantaged by the company.” The inference from this is that the insurer cannot contest a policy after the expiration of two years from the reinstatement.

Precisely the contrary opinion is given by Judge Woodward, in the United States District Court for the Northern District of Illinois, in Alper v. New York Life Insurance Co., 41 Fed. Rep. (2d Series) 956, in which he holds that in a suit of this kind the “plaintiff must maintain two contracts. One is the contract of reinstatement. The other is the original contract as restored by the contract of reinstatement;” and “the incontestable clause is a part of the restored contract. It is no part of the contract for the restoration of the policy. The new contract for the reinstatement of the policy is subject to be attacked for fraud.” I have read very carefully that case and the case therein cited by Judge Woodward, namely, New York Life Insurance Co. v. Feicht, another Illinois case, reported in 29 Fed. Rep. (2d Series) (at p. 318).

The decision of this question is a matter of first impression in Hew Jersey. There appears to be no case directly in point as to whether or not the incontestability clause should apply to a contract of reinstatement. Therefore, I am' at liberty, so far as the decisions in this state are concerned, to adopt whichever policy seems to be the more convincing, and I am convinced that the better reasoning is that of Judge Woodward in the Alper ease, and I hold that the incontestability clause does not apply to the reinstatement. That results in overruling of the objection. This incontestability clause, being in derogation of common law, should be strictly construed and should not be read into the new contract for the reinstatement of the policy.


author: Per Cueiam.

text:
    STATE OF NEW JERSEY, DEFENDANT IN ERROR, v. HARRY H. GOODMAN, PLAINTIFF IN ERROR.
    Submitted May 13, 1932
    Decided October 19, 1932.
    Before Gummere, Chief Justice, and Justices Bodine and Donges.
    For the plaintiff in error, Thomas B. Hall.

    For the defendant in error, Sylvester C. Smith, Jr., prosecutor of the pleas.
   Per Cueiam.

Plaintiff in error was convicted of embezzlement. It was alleged in the indictment that the defendant, being the servant and agent of three certain individuals, did feloniously and unlawfully embezzle and convert to his own use certain bonds and securities of the par value of $15,000 and $4,000 in money, which were committed to the defendant for the purpose of applying them to the purchase of Sherman’s Theatre in Stroudsburg, Pennsylvania, with intent .to defraud, and did willfully retain and appropriate said securities and money to his own use.

Plaintiff in error urges, as a ground for reversal, the trial court’s refusal to direct a verdict of acquittal.

It was in evidence, both by written and parol evidence, that the securities and money were advanced to plaintiff in error upon the express agreement that the proceeds were to be used for the purchase of a theatre and not otherwise, and the testimony was susceptible of the interpretation that the Crouses, whose money and securities were advanced, were to have an interest in the property purchased. Plaintiff in error asserts that the securities and money were advanced purely as a loan. He so testified and produced a receipt, signed by two of the three Crouses, on return of some of the securities, in which the word “loan” is used.

The Crouses testified to the arrangement as an advance for a specified purpose, as stated in the receipt of June 15th, 1931 (Exhibit D-l), and not as a loan, as stated in the receipt of August 11th, 1931 (Exhibit D-&). If, as they testified, the property was not turned over to Goodman as a loan, but as an advance of their share in a common enterprise, then clearly Goodman did not so use it but converted it to his own use and devoted it to his own purposes.

We are of opinion that there was raised upon the proofs a question of fact, which the court properly left to the jury.

This appears to be the only question argued in the brief of plaintiff in error and disposes of the question of the propriety of -submitting the case to the jury.

We have, however, examined the other questions raised in the bill of exceptions and assignments of errors, and conclude that there does not appear to be any harmful error in the rulings of the court.

The judgment under review is affirmed.


author: Pee Cueiam.

text:
    LAWRENCE J. HYLAND, PLAINTIFF-RESPONDENT, v. PARKSIDE INVESTMENT COMPANY, INCORPORATED, DEFENDANT-APPELLANT.
    Argued May 4, 1932
    Decided October 19, 1932.

      Before Gummeee, Chief Justice, and Justices Bodine and Donges.
    For the appellant, Orlando cC Kisselman.

    For the respondent, William Cantor and Seymour Cantor.

   Pee Cueiam.

This is an appeal from a judgment of the Atlantic County Court of Common Pleas in favor of the plaintiff. The suit was to recover a down payment of $1,000 on account of moneys to grow due under a lease by the defendant to the plaintiff of certain lands in Atlantic City.

In the lease the defendant restricted the plaintiff’s use of the land to that of an open air garage. It developed shortly after plaintiff went into possession that the zoning ordinance of the city prohibited such use of the premises in question. Plaintiff sued for the down payment and defendant counterclaimed for a past due installment of rent. The jury found for the plaintiff and defendant appeals.

Only two points are argued for reversal. The first point is that the rule is that the demise of lands by a landlord raises no implication that the premises shall be ñt and suitable for the use for which the lessee requires them. This is raised upon the motion for a directed verdict. While the rule is sound as a general proposition, yet here we have a different situation. In this lease the landlord specifically restricted the use to one purpose, and we think this was an express guaranty of the fitness of the premises for that particular purpose. To hold otherwise would be an absurdity. A lease for a single purpose is void if that purpose is unlawful. 16 R. C. L. 742. Such is the situation here.

The second point is that the court erred in taking judicial notice of the Atlantic City zoning ordinance. The court permitted the provisions of the ordinance to be testified by a witness. The ordinance itself is not in the record before us, so that the only testimony is by a witness to the effect that there is a zoning ordinance forbidding an open air garage at the site involved. The court seems to have assumed the contents of the ordinance without it being before him and to have charged it. Defendant was then confronted with a situation in which he had to proceed as if the ordinance were in evidence, when it actually was not. The court told the jury that the ordinance was not introduced by either party, but the court would take judicial notice of the ordinance, and charged that by its terms an open air garage could not be operated at the site in question. We think this was error. Courts do not take judicial notice of municipal ordinances. As the record now stands there is no way to test the accuracy of the court’s statement.

The judgment is reversed, and a venire de novo awarded.


text:
    JOSEPH SOLOFF, PLAINTIFF-RESPONDENT, v. ATLANTIC COAST BUILDING AND LOAN ASSOCIATION, DEFENDANT-APPELLANT.
    Submitted May 13, 1932
    Decided October 19, 1932.
    Before Gummere, Chief Justice, and Justices Bodine and Donges.
    Por the appellant, Endicott '•& Endicott.

    Por the respondent, Thompson <& Sanstein.

   Per Curiam.

This is an appeal from a judgment of the Atlantic County Court of Common Pleas entered in favor of the plaintiff by direction of the trial judge. The suit was by a broker upon an alleged oral agreement of brokerage followed by a letter to the owner in an attempt to comply with the tenth section of the statute of frauds.

This section requires that when the broker is authorized orally to sell lands he shall within five days send the owner a notice, in writing, “setting forth the terms of such oral agreement and stating the rate or amount of commission to be paid thereunder.” The notice sent in the instant case is as follows:

“This is to advise you that I have this day submitted the property known as 2519 Atlantic avenue, which was purchased by your association at the sheriff’s sale today, to Joseph Stoltz of 2517 Atlantic avenue.

“In the event a sale is made, the usual brokerage commission will be expected by me.”

It appears that the plaintiff obtained an offer from Stoltz which was refused by defendant. Subsequently, in direct dealings, defendant sold the property to Stoltz upon the same terms. Commission was demanded and refused, and this suit instituted.

The question here involves the sufficiency of the notice above quoted, and comes up on objection to its admission and on motion to nonsuit. Appellant contends the notice is defective in that it does not set out the terms of the oral agreement and does not state the commission to be paid.

With respect to failure to state the commission more definitely, under Hueth v. Stevenson, 100 N. J. L. 1, and Smith v. Pazin, 5 N. J. Mis. R. 832; 138 Atl. Rep. 513, the notice is clearly deficient. However, this objection was not raised at the trial and cannot be relied upon here.

The only objection made to the notice was that it did not set out the “terms of such oral agreement.” We fail to find anything in the notice which can be considered “terms.” In Rooney v. Greiner, 3 N. J. Mis. R. 996; 130 Atl. Rep. 456, it was held that a notice which identified the property, stated the price and the commission, was a sufficient statement of the terms, because those facts constituted the agreement. In the instant case, the notice merely identifies the property, says plaintiff has submitted it to Stoltz and will expect a commission. It does not state the sale price, makes no reference to the alleged oral agreement, and does not even say there was any such agreement. The testimony did not develop what the terms of the authority were. If the plaintiff was merely to solicit offers until he found an accetpable one, this should have been set out in his letter as the terms of the oral agreement. We think the latter was not a compliance with the statute.

The judgment will be reversed, with costs.


text:
    DURHAM NAVIGATION CORPORATION, PROSECUTOR, v. THE CITY OF BAYONNE, LUCIUS F. DONOHOE, DIRECTOR OF DEPARTMENT OF REVENUE AND FINANCE; GEORGE H. KRAMER, COLLECTOR OF REVENUE, AND JOHN ANDES, PRESIDENT OF THE HUDSON COUNTY TAX BOARD, RESPONDENTS.
    Argued May term, 1932
    Decided October 26, 1932.
    Before Justices Parker, Campbell and Lloyd.
    Por the prosecutor, Kenneth G. Hand.

    Por the respondents, Alexander Seclow.

   Per Curiam.

The writ seeks to set aside the assessment of certain boat property of the prosecutor by the city of Bayonne for purposes of taxation. While taxes were originally claimed by the city for the years from 1922 to 1931, inclusive, those preceding 1928 are now waived, but those for the remaining years are defended.

The prosecutor is a Delaware corporation engaged in the shipping business and dealing also in the purchase and sale of old vessels. A large number of such vessels were moored at the Port Johnson coal docks in Bayonne during at least a part of the time for which the tax is claimed, as were also vessels of other owners.

The prosecutor presents several reasons for setting aside the asesssments; that the boats are not subject to tax; that no assessments were actually made; that the tax was excessive.

We think none of these reasons are valid except the failure to assess. The boats seem to have been located permanently until disposed of at the Port Johnson docks and were therefore subject to assessment, but our conclusion on reading the evidence taken is that no attempt to assess them was ever made until the fall of 1930, when assessment for the following year appears to have been made.

Without assessment there could be no tax. Irregularity in the levying of an assessment may not be fatal, but to justify imposition of a tax there must be an assessment by the proper officer. Prior to the fall of 1930 there was no assessment of any sort, but the assessment for that year would seem to have been properly laid and to be reasonable in amount. All taxes assessed prior to these for the year 1931 will be set aside and the taxes for that year affirmed.


text:
    BENJAMIN Di ORIO, RELATOR, v. CITY CLERK OF ATLANTIC CITY ET AL., RESPONDENTS.
    Argued October 19, 1932
    Decided October 28, 1932.
    Before Justices Parker and Lloyd.
    Por the relator, Samuel Morris.

    Por the respondents, Joseph B. Perskie.

   Per Curiam.

■ We conclude that the rule to show cause should be discharged, and a writ of mandamus refused.

The application • is directed to requiring the eityt- clerk to place on the official ballot at the next general election, and to requiring the city commissioners to direct him to do. so, two referendum questions for submission to the voters, and which relator denies had been endorsed by petitioners bearing the required number of signatures specified in the statute or statutes in that regard. The questions are as follows:

“Shall the city of Atlantic City acquire a plant for the purpose of manufacturing, generating, accumulating, storing, transmitting and distributing gas for supplying light, heat and power for the city’s own public purposes and for the purpose of selling and supplying the same to the inhabitants of Atlantic City? and

“Shall the city of Atlantic City acquire a plant for the purpose of manufacturing, generating, accumulating, storing, transmitting and distributing electricity for supplying light, heat and power for the city’s own public purposes and for the purpose of selling and supplying the same to the inhabitants of Atlantic City?”

Several questions have been argued, as for example, whether the petitions contained the required number of genuine signatures, whether the city clerk was by law enttiled to examine into that matter, whether the commissioners themselves were so entitled, whether the statutes are constitutional, and so on.

We find it needless to deal with such questions as these, because, assuming for present purposes that the statutory requirements with regard to procedure have been met, and the legislation is impregnable to constitution attack, we are clearly of opinion that the two questions are so vague and general in character that it would be impossible for any voter to measure with any approximation whatever the consequences of a majority vote for adoption of them. Eo mention is made of any particular plant to be acquired, within or without the city: no mention is made of any money limit involved in this general requirement that some gas (or electric) plant be acquired. Consequently, a voter would be voting in the dark both as to what utility plant is to be .“acquired” or what it will cost to do it: and the city authorities would be equally in the dark as to just what they are directed to do. It is settled in this court that mandamus will not be awarded when such action will create disorder or confusion. McCormick v. New Brunswick, 89 N. J. L. 117; 97 Atl. Rep. 777; English v. Asbury Park, 115 Id. 64; United Dining Car Co. v. Camden, 5 N. J. Mis. R. 361; 136 Atl. Rep. 601; Maxim Motor Co. v. Palisades Park, 7 N. J. Mis. R. 186; 144 Atl. Rep. 818.

It may be proper to add that mandamus is not awarded in a doubtful case, and that the other phases of this case are by no means free from doubt.

We deem our conclusion fortified from a practical standpoint by the obvious consideration that it would clearly be disastrous to a municipality, which, like most others, is in urgent need of funds for running expenses and appears to be at or above its debt limit, to compel municipal acquisition and operation of utility plants which from all human experience are usually conducted more efficiently and economically by private owners.

The rule to show cause is discharged, with costs.


text:
    HENRY LOELOFF, PROSECUTOR, v. KELLY PRESS DIVISION OF AMERICAN TYPE FOUNDRY COMPANY, RESPONDENT.
    Argued October 4, 1932
    Decided November 10, 1932.
    The opinion of Judge Thompson, in the Court of Common Pleas, is as follows:
    “This appeal involves solely a question of law. The question is whether mailing a report of an accident by the employer to the department of labor is such a compliance with the provisions of chapter 187 of the laws of 1924 as will preserve the defense of the employer under paragraph 23 (h) of chapter 95 of the laws of 1911, as amended by chapter 93 of the laws of 1919. By the two last mentioned statutes the employe is barred from compensation under the Workmen’s Compensation act unless a petition is filed with the workmen’s compensation bureau in Trenton within one year after the date of the accident. By the first mentioned statute (chapter 187, laws of 1924, paragraph 6) an employer or insurance carrier failing to make the report required by the act is deprived of the defense that the employe did not file his petition within one year. This case rests upon the construction to be given to the provisions of chapter 187 of the laws of 1924 as to what constitutes a compliance with the act in respect to making the report of the accident by the employer.
    “It is stipulated in the instant ease that the employer mailed a notice of the accident, but there is no record of its having been received or being on file. It is also stipulated that the petitioner did not file his claim within one year from the date of the accident. On this agreed state of facts below the deputy compensation commissioner dismissed petitioner’s claim.
    “It is the contention of the petitioner-appellant that chapter 187 of the laws of 1924 required the employer to file a report of the accident, not merely to mail it. The respondent contends that proof of mailing is sufficient, irrespective of whether the mailed notice reached the workmen’s compensation bureau and was filed.
    “We must look to the wording of the act for enlightenment. Section 1 provides as follows:
    “‘Upon the happening of any accident or the occurrence of any compensable occupational disease in any employment of labor in this state, report thereof shall be made as follows:
    “ ‘Any employer carrying insurance as required by chapter 178 of the laws of 1917, shall, when an accident occurs to one of his employes, or an employe contracts a compensable occupational disease, make report thereof in accordance with the terms of his insurance policy. Such report shall be prepared in triplicate upon a form, designated as ‘first notice of accident,’ to be furnished by the insurance carrier. One copy shall be sent to the department of labor of the state, one copy to the insurance carrier, and one copy shall be kept on file by the employer. A supplemental report shall be prepared on a form designated as ‘supplemental report,’ and sent in like manner, at the expiration of the waiting period prescribed by paragraph 13 of the Workmen’s Compensation act. If, however, the employe is able to resume work before the expiration of said waiting period, the supplemental report shall be sent immediately upon his return. Thereafter the employer shall promptly furnish the carrier whatever information is demanded and necessary to enable it to carry out the intent of the Workmen’s Compensation act. These reports on the first notice and supplemental forms, filed with the state, must be signed by the employer and mailed by him directly to the workmen’s compensation bureau, as a check on the operations of the insurance company.’
    “The italicizing in the above quotation from the statute is mine, to indicate the words used with reference to the transmission or lodgement of the report to and with the workmen’s compensation bureau. It will be noted that in three of the instances the reports are required to be ‘sent’ to the bureau, and in a fourth instance the act provides that the report ‘must’ be signed by the employer and 'mailed’ by him directly to the workmen’s compensation bureau. The only place the word ‘filed’ is used in this section is in the last sentence where it occurs in the more or less parenthetical phrase, ‘filed with the state,’ and apparently used in this connection as though synonymous with ‘sent’ or ‘mailed.’ In other words, while it is clearly the intent of the act that the report shall be on file with the workmen’s compensation bureau, it nevertheless plainly prescribes or permits the method of transmitting the reports to the bureau for filing and where such method is prescribed or permitted I am of the opinion that a compliance with the designated method on the part of the employer is a compliance with the act. I think the designation of the method of transmission by mailing was in recognition of the hardship that would be imposed by personal filing from all parts of the state in Trenton, and also in recognition of the general reliability of the mails for safe transmission. With those two things in mind the legislature undoubtedly conceived that the purpose of the act would be achieved as a rule by the sending or mailing of reports for filing.
    “In accordance with the views above expressed the decision of the commissioner below will be affirmed and the appeal dismissed.”

      Before Justices Parker and Lloyd.
    Por the prosecutor, Russell Fleming.

    Por the respondent, Wall, Haight, Carey & Hartpence.

   Per Curiam.

The judgment of the Union County Court of Common Pleas in this cause is affirmed, for the reasons stated in the opinion of Judge Thompson.


author: Parker, J.

text:
    KATHERINE ARCHER, PROSECUTRIX, v. FIRST CRIMINAL JUDICIAL DISTRICT COURT OF THE COUNTY OF BERGEN.
    Submitted November 4, 1932
    Decided November 7, 1932.
    Before Justice Parker, at chambers, pursuant to the statute.
    Por the prosecutrix, Jacob 8. Earhus.

    Por the defendant, George F. Losche, deputy attorney-general.
   Parker, J.

This case seems perfectly clear to me. The prosecutrix, and some nineteen others, each of whom, as I understand the matter, obtained a writ of certiorari from the Chief Justice at sometime last summer, were charged and convicted of being disorderly persons within the intent and meaning of section 1 of the “act concerning disorderly persons.” Comp. Stat., p. 1926, as amended by Pamph. L. 1928, p. 202. The charge in each case was that the party accused “did then and there wander abroad in the open air and not give a good account of himself” (or herself). The proof showed that they were emissaries of some religious organization, and were engaged in distributing its literature from door to door; no question of the literature being in anyway improper is even suggested.

In the usual summary proceeding under the statute, defendants were represented by their present counsel, who raised the point that the complaint was insufficient in failing to include as part of the charge, that they did “lodge in taverns,” &c., “or in the open air.” He was overruled, and his clients were convicted: and the only point before me is this one of the sufficiency of the complaint.

The language of the statute in this aspect dates at least from the eighteenth century. In the act of 1799, paragraph 410, the clause reads: “or who shall wander abroad and lodge in taverns, inns, beer houses, out houses, houses of entertainment, market houses, barns, or other places, or in the open air, and not give a good account of themselves.” The same clause will be found in the Revised Statutes of 1847, at page 564; in the Revision of 1877, at pages 303, 304, apparently without any change in language. To my mind it is aimed specifically at the genus tramp, as one who wanders abroad, sleeps where he can find shelter or in the open air if he cannot or is not particular about it, and does not give a good account of himself. If these three things concur, the statutory definition is satisfied; if one of them is missing, the definition is not satisfied.

The only argument made to support the conviction is that the conjunctive and should be read as the disjunctive or. In other words, if one wanders abroad, or lodges * * * in the open air, and does not give a good account of himself, he is a disorderly person. But I am unable to warp the statutory language to that extent. As. well could it be said ■ that the second and preceding the “good account” phrase should be read or. If the reading suggested be adopted, any citizen taking a walk in the park or on the street, and declining to submit to interrogation by an inquisitive policeman, is liable to prosecution as a disorderly person. I cannot conceive that our forefathers had any such intention in passing the statute of 1799, nor am I aware that any such construction has ever been placed upon it.

The convictions will be set aside.


author: Caeekey, C. C. J.

text:
    PEOPLE OF THE STATE OF NEW YORK, PLAINTIFF, v. COE MANUFACTURING COMPANY, A NEW JERSEY CORPORATION, DEFENDANT.
    Decided August 5, 1932.
   Caeekey, C. C. J.

This is an action by the State of New York against the Coe Manufacturing Company, a New Jersey corporation, doing business in New York State, to recover $1,565.26 with interest from July 26th, 1930. The action is founded on a judgment entered in the Supreme Court of the State of New York, in the county of Albany, against the defendant. The defendant has filed an answer to the complaint and the plaintiff has moved to strike out the same on the ground that it does not set up a meritorious defense. The defendant, despite the fact that it filed an answer, moved to strike out the complaint on the ground that the judgment entered against it in the Supreme Court of New York was invalid, in that the New York court has no jurisdiction over it.

There is no dispute as to the facts, and for the purpose of determination of this motion the parties have stipulated that the defendant was served with a summons and complaint in a suit by the attorney-general for the collection of franchise taxes under the statute, for which it became liable by virtue of its doing business in the State of New York. To this action the defendant company filed an answer. On motion of the attorney-general the answer was stricken out, and judgment was entered in the terms of the following memorandum filed by the Honorable Ellis J. Stalejf:

“At a special term of the Supreme Court held in and for the county of Albany at the county court house in the city of Albany, this 28th day of July, 1930.

Present:

Hon. Ellis J. Staley,

Justice of the Supreme Court.

Supreme Court—Albany County.

The People of the State of New York,

Plaintiffs,

against

Coe Manufacturing Companjq Defendant.”

On reading and filing the summons and complaint herein, verified April 12th, 1930, the answer herein, verified May 12th, 1930, and the notice of motion made by the plaintiffs dated June 12th, 1930, and returnable at this time and place; and the plaintiffs having duly moved thereupon for judgment on the pleadings in favor of the plaintiffs and against the defendant for the relief demanded in the complaint, under rule 112 of the Eules of Civil Practice, on the ground that the answer of the defendant is insufficient in law upon the face thereof both in form and in substance; now after hearing Borden H. Mills, esquire, deputy assistant attorney-general, of counsel for plaintiffs, in support of said motion, and Leon E. Jillson, esquire, of counsel for defendant, in opposition thereto; and due deliberation being had thereon, it is, on motion of Hamilton Ward, attorney-general,

Ordered that the said motion be, and the same hereby is, granted, with ten dollars costs, and that judgment be entered herein, on the pleadings, in favor of plaintiffs and against defendant, for the relief demanded in the complaint.

Ellis J. Staley,

Justice Supreme Court.”

In addition to the stipulated facts an exemplified copy of the judgment was offered on the motion before me.

The defendant company contends that the judgment entered in the State of New York is not entitled to full faith and credit by this court because of the lack of power on the part of the State of New York to enter a judgment for taxes as imposed by the Hew York statute.

Of course if this were an original suit for the collection of taxes due to the State of New York the plaintiff would be without relief, because the principle is well settled without the need of citation, that the courts of one state will not enforce a claim for taxes as such in any other jurisdiction than that in which the taxes are due. Colorado v. Harleck, 232 N. Y. 71; 133 N. E. Rep. 357.

As I view this matter the suit in this court is not for the collection of taxes, but for the collection of a judgment which is based on a tax claim, and the original character of the claim has been merged in the judgment. In so holding I am not unmindful of Huntington v. Attrill, 146 U. S. 657; 36 Lawy. Ed. 1123, nor Wisconsin v. The Pelican Insurance Co., 127 U. S. 265; 32 Lawy. Ed. 239.

In the case of Bergen Aqueduct v. State Board of Taxes and Assessments, 95 N. J. L. 486; 112 Atl. Rep. 881, Mr. Justice Minturn, speaking for the Court of Errors and Appeals, said:

“The fundamental rule is settled beyond controversy that the state may require as the condition of a grant to do business to a corporation, payment of a specific sum, based on the gross receipts, or of any sum to be ascertained in any convenient mode the legislature may prescribe. Home Insursance v. New York, 134 U. S. 594; 26 R. C. L. 161.”

The purport of the Hew York statute is in keeping with the New Jersey statute which has been construed in the above language.

Under section 16 of the Evidence act we have to presume the validity of a foreign judgment unless it appears that the defendant was not within the jurisdiction of the foreign court in which judgment was entered. The defendant in this cause can make no claim under the exceptions in our Evidence act because as stipulated and as evidenced by the exemplified judgment roll it submitted itself to the jurisdiction of the New York court. If it felt aggrieved by the ruling of the trial judge it could have appealed to the court of last report in the State of New York. See John Simmons v. Sloan, 104 N. J. L. 612; 142 Atl. Rep. 15.

Under the circumstances I feel that the judgment entered is entitled to full faith and credit in this court. The motion to strike out the answer will be granted.


author: Lawrence, C. C. J.

text:
    EDWARD MAXSON, RECEIVER OF INTERNATIONAL HIGH SPEED STEEL COMPANY, PLAINTIFF, v. NEW JERSEY MANUFACTURERS’ CASUALTY INSURANCE COMPANY, DEFENDANT.
    Decided June 15, 1929.

      For the plaintiff, King £ Vogt.

    For the defendant, Kellogg & Chance.

   Lawrence, C. C. J.

This action was submitted to the court, without a jury, at the Morris County Circuit, on a stipulation of facts, and is decided on the law deemed applicable.

The facts involved are that on or about June 20th, 1921, Eose G. Smith, as administratrix ad prosequendum of the estate of one Harvey D. Slockbower, deceased, brought suit under the Death act to recover of the International High Speed Steel Company (now in bankruptcy, and of which company plaintiff was duly appointed receiver by the federal court of this district) damages suffered by his next of kin as the result of hisi death.

From July 1st, 1918, to June 5th, 1920, Mr. Slockbower had been in the employ of the steel company, and it was claimed that his death thereafter was occasioned by a diseased condition of his lungs, due to fine particles of metallic and mineral substances thrown into the air as the result of the work on which he was engaged, that is to say, polishing and boring steel tubing in which an emery wheel was used. The gravamen of the complaint was that the employing company was liable because of its failure to provide a reasonably safe place in which to work and in failing to install mechanical means of keeping the air free of the offending substances. In other words, negligence was alleged. The trial resulted in a verdict against the company. An appeal was taken to the Court of Errors and Appeals, and it was argued, as it had been on a motion to strike the complaint, that the Workmen’s Compensation act applied and provided the exclusive remedy. The judgment entered on the verdict rendered in the trial court was, however, affirmed on the ground that the death was not the result of an accident within the purview of that act. It did not consequently apply and it was held that resort had been properly had to the recognized rule of common law liability. See Smith v. International High Speed Steel Co., 98 N. J. L. 574; 120 Atl. Rep. 188.

Plaintiff now seeks in this action to recover of defendant insurance company the amount paid by the steel company in settlement of this judgment, with costs and disbursements necessarily incurred, alleging that during the period of Slockbower’s employment when his injury is said to have occurred or arisen, the insurance company had issued to the steel company, which in turn had paid the stipulated premiums in consideration thereof, two Universal Standard Workmen’s Compensation policies whereby it undertook to insure the steel company for all injuries sustained by employes by reason of accidents happening during the period limit of the policies, and it is now claimed by the plaintiff that they covered the injury received by the employe in .question and which caused his death.

It is admitted that the policies were issued and were valid to cover, under the Workmen’s Compenastion act, employes injured in accidents arising out of and in the course of employment, during the period when Slockbower worked for the steel company. Defendant insists, however, that the injury in question was not of that character and cannot be raised as ■an issue inasmuch as it is now res adjudícala, in view of the opinion or decision of the Court of Errors and Appeals, supra.

. The sole question submitted, therefore, is whether any provision of the policies is broad enough to cover the loss to the steel company by reason of the compulsory payment of the judgment obtained against it in behalf of Slockbower’s next of kin. It is argued that there are such provisions in the policies and a number are suggested in the brief of counsel for plaintiff, while it is urged that the compulsory insurance act is broad enough to cover just such an injury as was here involved, together with the form of action brought to recover damages. Pamph. L. 1917, ch. 178; Pamph. L. 1919, ch. 254, p. 105. In such a case, it is insisted, it became obligatory for the steel company to so insure and that this was the intention of the company in procuring the policies in question of the defendant company.

A careful examination of the policies, however, discloses that they were issued with the intent of protecting the insured against loss by reason of injuries to employes due to accidents arising out of and in the course of employment, and they are so labeled. The Workmen’s Compensation act of 1911 and the amendments and supplements thereto are specially referred to, also the Compulsory Insurance act. There is no provision in either of the policies which indicates any intent on the part of the defendant company to assume, in addition to the requirements of the statute, and in behalf of the insured, any common law liability based on the steel company’s negligence. The Compulsory Insurance act distinctly provides that compensation payments arising under section 2 of the 1911 act only are involved, while the title clearly sets forth the purpose and the relation to that act. Moreover, the premiums paid by the steel company were in accordance with and based upon the rates prescribed by the state compensation rating and inspection bureau, created by the Compulsory Insurance act and the policies themselves are in the standard form approved by the bureau. Section 14, which is the same substantially in both acts, provides that the policies shall not be regarded as insuring the employer against any liability whatsoever other than liability of the insured for compensation or damages because of personal injuries, including death, at any time resulting therefrom, sustained by the employe. That this refers to injuries arising under the Workmen’s Compensation act and eliminates others seems sufficiently clear. Likewise the policies themselves contain the provision—section 1, paragraph 7—that the insurance agreement “shall apply only to such injuries so sustained” (obviously under the Workmen’s Compensation act) “by reason of accidents occurring during the policy period.”

That Slockbower’s death was not due to an accident arising out of and in the course of his employment within the intent and meaning of the compensation act is res adjudicata. Court of Errors and Appeals, supra.

In the circumstances, plaintiff is not entitled to recover the sum claimed and judgment in favor of defendant and against plaintiff of no cause may be entered.


author: Hartshorne, J.

text:
    Essex County Court of Common Pleas.
    SAVINA SIZZA, PETITIONER-APPELLANT, v. W. H. COMPTON SHEAR COMPANY, RESPONDENT-APPELLEE.
    Decided November 14, 1932.
    For the petitioner-appellant, Samuel Press (by Harry J. Goas).

    For the respondent-appellee, Edwin J. O’Brien.

   Hartshorne, J.

This is an appeal from the workmen’s compensation bureau’s dismissal of a petition for continuation of compensation, after the expiration of the four hundred weeks’ period of compensation for total permanent disability previously awarded both by the compensation bureau and on appeal therefrom by the Court of Common Pleas. The petition is filed under the provisions of Pamph. L. 1911, ch. 95, as amended in 1923 (Pamph. L. 1923, ch. 49), providing that at the end of the ordinary four hundred weeks’ compensation period for total permanent disability, “compensation payments shall cease, unless the employe shall have submitted to such physical or educational rehabilitation as may have been ordered by the rehabilitation commission of the state and can show that, because of such disability, it is impossible for him to obtain wages or earnings equal to those earned at the time of the accident, in which case further weekly payments shall be made during the period of such disability, the amount thereof to be the previously weekly compensation payment diminished by that portion thereof that the wage or earnings he is then able to earn bears to the wage received at the time of the accident.”

Petitioner has admittedly submitted to such rehabilitation and the commission has found that he can now earn no wages due to continuance of total permanent disability after the four hundred weeks’ period, the award during such period having been at the rate of $17 a week. The payment for the continued period is resisted because of a satisfaction piece executed by petitioner of the above judgment of the Court of Common Pleas on the original application for compensation for the four hundred weeks’ period.

The judgment of such court provided “judgment final * * * for the sum of $6,800 * * * said sum of $6,800 covering a period of four hundred weeks’ compensation at the rate of $17 a week from the 20th day of November, 1923. At the expiration of said period of four hundred weeks petitioner is given leave to apply for such further compensation as may be due him in accordance with the act or acts of the legislature in such cases made and provided.” The satisfaction piece recites that judgment had been obtained against respondent “for $6,800, and the right to apply for such further compensation as may be duo him [petitioner] in accordance with the act or acts of the legislature in such cases made and provided * * further reciting the receipt of satisfaction “for the same” and authorizing satisfaction “upon the record of said judgment.”

The question therefore is in this aspect whether this judgment covered the right to apply in the future for further relief, if petitioner continued disabled after the expiration of the four hundred weeks’ period.

Clearly, the amount of such compensation could not be included in such judgment since almost eight years must elapse before it could be determined if petitioner was so disabled. Nor does the judgment give the right to apply in the future. Such right is given by the above statute, the recital of such legislative right in the judgment being mere surplusage.

Since the satisfaction piece only covers the judgment, and the judgment does not cover the future right to apply, the satisfaction piece does not bar this future right to apply. Its very character would seem to evidence this, since a satisfaction piece differs intrinsically from a release, the latter being the normal method used to bar rights of action.

Furthermore, even assuming the satisfaction piece purported to bar future rights of action, the statute prevents it from doing so. It is almost axiomatic that the act is a remedial statute of prime import to be liberally construed for the benefit of the injured workman. It is provided by Pamph. L. 1918, ch. 149, § 4, as amended: “Whenever an employer or his insurance carrier and an injured employe or the dependents of a deceased employe shall by agree-' ment, duly signed, settle upon and determine the compensation due to the injured employe * * *. Such agreement shall not bind the employer or injured employe or the dependents of a deceased employe, unless approved by the bureau.” It is further provided by Pamph. L. 1911, ch. 95, § 20, sub. B, as amended by Pamph. L. 1921, ch. 230, If 2: “No agreement between the parties for a sum other than that which may be determined to be due by the commissioner, deputy commissioner or referee or the judge of the Court of Common Pleas upon appeal shall operate as a bar to the determination of a controversy upon its merits or to the award of a different sum if it shall be determined by the said commissioner, deputy commissioner, referee or judge, that the amount agreed upon is less or more than the injured employe or his dependents are properly entitled to receive.” The legislative intent is thus clear that the parties are not to be permitted to settle the controversy between themselves unless the bureau shall approve the settlement as one which does not give “less or more than the injured employe or his dependents are properly entitled to receive.” In fact it would seem that even the bureau’s approval of a settlement before the end of the four hundred weeks’ period could not, according to the provisions of the act last quoted, bar such possible right to compensation in the future. In any event, in the case at bar, there was no such approval or determination by the bureau on the execution and entry of this satisfaction piece, and it is the satisfaction piece alone which it is argued bars the present petition. The judgment so satisfied purports to permit such petition as above set forth, not to bar it. ISTor is respondent aided by the statute of 1913 permitting payment of the original award to a bank, as was done in this case, to be held in trust for the employe, “who shall have no further recourse against the employer.” Pamph. L. 1913, ch. 174, § 21a. The balance of the section makes it clear that the barring of further recourse applies only to the award as made and paid. Furthermore, the statutory procedure is to be adopted “by leave of court,” which was not obtained, and the provision for additional compensation after the end of the four hundred weeks’ period was adopted ten years after section 21a, and, impliedly at least, amends it.

Petitioner’s right to apply for a continuance of compensation is therefore clear, and, since it is admitted that his disability continues to be total and permanent in the same way as before the expiration of the four hundred weeks’ period, an order may be entered-for payment of $17 a week, the sum previously awarded, “subject to such periodic reconsiderations and extensions as the case may require.”


text:
    Essex County Court of Common Pleas.
    BACHMEIER & COMPANY, INCORPORATED, PLAINTIFF, v. HAROLD SEMEL AND NATIONAL SURETY COMPANY, A CORPORATION, DEFENDANTS.
    Decided November 9, 1932.
    Eor the plaintiff, James B. Stewart, Jr.

    Eor the defendant National Surety Company, Harry Silverstein.

   Hartshorne, J.

This is on motion to strike the answer of defendant National Surety Company and for summary judgment. Defendant Semel has permitted judgment to go against him by default. Voluminous affidavits have been submitted on both sides, showing the facts to be substantially undisputed as follows:

On December 4th, 1928, Semel was appointed a constable of the town of Irvington for a term of three years from December 22d, 1928. Purporting to act as such, and within said period, Semel collected on execution from the Orange District Court, issued at the instance of Bachmeier & Company, the sum of $216.84, $75 of which he has satisfied to Bachmeier & Company. Thereafter, he gave them a check for $131, which he stopped payment on and has refused to make good. Meanwhile, on October 22d, 1929, the Irvington town clerk wrote him that, as he appeared to be living in Newark and not voting in Irvington, he would appear to be disqualified to act as constable and his name was therefore “automatically dropped from the list of constables.” But no action was taken, either by the town commissioners or by the commissioner of public safety, in charge of the police authorities of the town, to remove or drop Semel as constable. Semel filed no bond with the town for the year 1930, whether because the town clerk refused to receive it or not is not stated, but did file it with the clerk of the Orange District Court with the National Surety Company as surety. On December 19th, 1930, Semel filed with the Irvington town clerk his constable’s bond for the year 1931, with the National Surety Company as surety, conditioned for “faithfully and truly performing all the duties of his office” and to “pay over and account for all funds coming into his hands by virtue of his said office as constable as required by law.” It is on this bond that suit is brought. This bond the town clerk returned to Semel December 26th, 1930, on the grounds that he had not qualified as a constable in 1930, since he had failed to file his bond for that jrear, and had become disqualified in 1929 for residing outside of Irvington. But again no action was taken by the town commissioners or the commissioner of public safety.

The question therefore is, on this motion, whether either the failure to file a constable’s bond or residence outside of the town where appointed, prevents suit against the surety on the bond, in fact executed, for defalcations by the principal on the bond.

The Constables act (Comp. Stat. 1910, Constables, p. 1530) requires a constable to file a bond with the town clerk and, if he shall neglect to renew same “within thirty days after the expiration of each yearly term, his office shall become vacant * * Section 13. By the Municipalities act, as amended (Pam-ph. L. 1920, p. 248, § 18), it is provided that “whenever any officer of any municipality shall cease to be a bona fide resident therein * * * a vacancy in the office held by any such person shall immediately exist, and such person shall not exercise any of the duties of the office theretofore held by him; and such municipality by and through its proper a'uthority shall immediately proceed to fill such vacancy in the manner and form prescribed by law for the filling of any such vacancy * * *.”

While these statutes seem quite definite, the rule has long been accepted in New Jersey and elsewhere throughout the United States on the grounds of public policy that the mere failure to file an official bond does not work a forfeiture ipso fado, nor vacate the office, but merely makes the title defeasible until forfeiture is pronounced in due form, so that all acts of such officer prior to such pronouncement of forfeiture are valid as to the public and third parties. To this effect see the case of Clark v. Ennis, 45 N. J. L. 69, where in a learned opinion collating the authorities from many jurisdictions the Supreme Court says: “This rule is founded in public policy and has the sanction of universal approbation by the courts as absolutely essential to the protection of the citizen who is compelled to deal with public officers * * *. In virtue of his election and induction into office, the sheriff [here constable] enters upon a term of three years. Prima facie, he is1 entitled to perform the functions of the office for that full period of time and to remain in office for the term under a color of title, although he may have done or omitted some act the consequence of which is a forfeiture of his office. Of the existence of a cause of forfeiture, third persons and the public must be ignorant for a time at least, and it would be in the last degree unjust to visit upon them a punishment for the delinquencies of the officer.”

This rule was applied in the face of a statute fully as strong as that applying to constables, such statute providing, “that if any sheriff * * * shall neglect * * * to give bond * * * the office of such sheriff shall immediately expire and be deemed and taken to be vacant and if such sheriff shall thereafter presume to execute the office of sheriff, then all such his acts and proceedings done under color of office shall be absolutely void.”

Not only would this same principle of law seem to apply to the matter of residence as clearly as to the matter of filing a bond, but we find in the early case of State v. Anderson, 1 N. J. L. 36 *[318] that the court has so held, the statute there in issue providing that non-residence of the sheriff of the county would make him ineligible for the office, the suit there being apparently not one involving the rights of third parties, but a proceeding directly against the sheriff. In all events, the court there found the sheriff, whose ineligibility in fact was admitted, nevertheless to be “sheriff de facto; and we think that all his acts which were performed in discharging the duties of his office were good.” In view of such settled construction of statutory provisions substantially identic with the present, the court is constrained to find that, despite Semel’s non-residence at the time of his defalcation and his failure to renew his bond previously thereto, he still remained constable with a defeasible title or constable de facto, whose acts would be as fully valid as to all third persons, including an execution creditor such as Bachmeier & Company here is and the defendant surety company, as if Semel had been constable de jure.

The fact that Semel may have misrepresented the facts to the surety company in obtaining the bond is immaterial as to the rights of the execution creditor against the surety on the bond, the remedy for the surety being an action against the person who made the false representations.

Accordingly, defendant’s answer will be stricken, but, in view of the reservation of motions therein, summary judgment will not be entered for the plaintiff until such motions are disposed of on application to this court on notice.


author: Bkown, C. C. J.

text:
    Hudson County Circuit Court.
    JAMES MITCHELL, INCORPORATED, PLAINTIFF, v. UNKNOWN EXECUTORS, ADMINISTRATORS, TRUSTEES, HEIRS AND/OR DEVISEES OF IVAR KREUGER, DECEASED, DEFENDANTS. MAME C. HOLBROOK, PLAINTIFF, v. IVAR KREUGER, HIS UNKNOWN EXECUTORS, ADMINISTRATORS, TRUSTEES, HEIRS AND/OR DEVISEES, DEFENDANTS.
    Decided November 12, 1932.
    For the plaintiff James Mitchell, Incorporated, Carey & Lame.

    For the plaintiff Mame C. Holbrook, John D. McMaster.

    For Miel Lofgran, administrator of the estate of Ivar Kreuger, deceased, Anders Jordahl and Mary D. Jordahl, specially appearing for the purpose of this motion, McCarter <& English.

   Bkown, C. C. J.

The administrators of the estate of Ivar Kreuger and the alleged owners of the property in question, entering a special appearance for that purpose, seek to set aside the writs of attachment issued in the above entitled eases. Because of the similarity of the causes of action and the proceedings taken the questions raised can be determined in one decision. An attachment was issued in each case upon the order of a Supreme Court commissioner under section 84 of the Practice act (Comp. Slat., p. 4076), which provides:

“84. An action may be commenced by attachment against the property, real and personal, of any person, corporation or organization against whom a writ of summons might issue, upon proof by affidavit or otherwise to the satisfaction of the court in which an action is about to be commenced, or to a judge or Supreme Court commissioner, establishing: * * *

“That a cause of action existed against a decedent which survives against his heirs or devisees, and that such heirs or devisees or some of them are unknown or non-resident, and that there is property in this state which is by law liable to answer such cause of action.”

The orders made by the commissioner are questioned on the grounds that the affidavits upon which the orders for the writs of attachment are based fail to establish that the plaintiffs have a legal cause of action against the defendants; that the affidavits do not present competent evidence that the plaintiffs have a cause of action against the estate of the decedent, Ivar Kreuger, which survived against his heirs or devisees and that such heirs and devisees, or some of them, are unknown or non-resident and that there is property in this state which is liable to attachment. The Court of Errors and Appeals in the case of Jaudel v. Schoelzke, 95 N. J. L. 171, decided that in this state it is settled beyond debate that where a legislative act requires proof to be made of certain facts, as required in the present instances, it means competent evidence such as would be admissible on a trial in a court of justice. The averments in the affidavits under consideration do not meet this test. The plaintiffs in their affidavits say they purchased certain bonds not of the deceased Ivar Kreuger but of a corporation named the “International Match Corporation,” and offered to them for sale by “Lee Higginson & Company,” bankers for the match company. The plaintiffs say they relied upon the truth of the notification contained in the offer made which included a financial statement of earnings from the year 1926 to the date of sale; that it is a matter of common knowledge throughout the world and “has been brought out in examinations before the receiver of the International Match Company/’ in the city of New York, that the financial statements and earning statements which had been issued of the condition of said corporation and upon which the securitities of that corporation were purchased, were false and did not expose the true condition of the affairs of said company and its allied companies. The affiants further alleged- “Ivar Kreuger was the man in control of said International Match Corporation and said allied corporations and due to the fact that the falsifications were discovered by other financial interests with whom he was dealing, he, on being called for an accounting, committed suicide; that because of the said fraudulent acts of the said Ivar Kreuger, that the plaintiffs in the purchase of said bonds as heretofore set forth, were defrauded and have a cause of action for the recovery of money paid for said bonds against the said Ivar Kreuger at tire time of his death, which cause of action survives against his heirs or devisees. I am informed that there is deposited in the Journal Square National Bank property in their safe deposit vaults in the name of one Anders Jordahl. That said Anders Jordahl also has a safe deposit box in the Hudson County National Bank in Jersey City in which I believe valuable securities are deposited. The said property was deposited with the Journal Square National Bank and said safe deposit box was taken out in the Hudson County National Bank shortly after the death of the said Ivar Kreuger. That I have also been informed that said Anders Jordahl was the confidential agent and representative of or associated with the said Ivar Kreuger in this country, and as a matter of fact, was the lessee of the apartment in New York City in which the said Ivar Kreuger stayed when he was in New York. I, therefore, have good reason to believe that all or some of the property hereinbefore mentioned is property of the said Ivar Kreuger, which was gotten out of the State of New York, where the receivership proceedings are pending against the International Match Corporation. Furthermore, that according to newspaper accounts of the receivership proceedings, it has been testified that certain property was taken out of this apartment and attempt has been made to locate the said Anders Jordahl which has been unsucessful.” It will be seen at a glance that those copious references to the affidavits do not disclose statements of fact that would be admissible at a trial. The affiants do not disclose the contents of the notification of sale or of the financial statements; by whom signed or to whom addressed. The allegations of the affidavits are conclusions based upon hearsay statements the author and contents of which remain undisclosed. There is no competent proof that Kreuger was in control of the match company or that he committed suicide. There is no competent proof to show that Kreuger was responsible for the acts of the match company or that Kreuger had anything to do with the sale of the bonds. The plaintiffs in part of their affidavits refer to newspaper reports to support some of the statements made. They fail to disclose the name of the newspaper and even if they did it would overcome1 the hearsay effect of such information. Kewspaper announcements of the death of a person are inadmissible to prove death. 17 Corp. Jur. 1177. Competent evidence is lacking to prove that the property attached was the property of Kreuger and the relationship of Anders Jordahl to him. In order for the commissioner to make an order awarding a writ of attachment he must adjudicate upon the facts before him and that he did so must appear upon the face of the order and that the proof of the particulars necessary to authorize the awarding of the writ was satisfactory. Hisor v. Vandiver, 83 N. J. L. 438. The orders awarding writs in the cases which are the subject-matter of the motions now being considered do not meet the requirements above indicated. The plaintiffs in their briefs attempt to meet the charge of the insufficiency of the affidavits and order by stating that the “common knowledge of the world about the man Kreuger, establishes and specifies in sufficient particulars” the right of action of the plaintiffs. What the plaintiff invokes is the rule that the court may take judicial notice of matters of common knowledge. Judicial notice is the cognizance of certain facts which judges; and jurors may properly take and act upon without proof because they already know them. Courts may properly take judicial notice of facts that may be regarded as forming part of the common knowledge of every person of ordinary understanding and intelligence, generally known within the limits of their jurisdiction. It is necessary that the community throughout which a fact is supposed to be known should be one whose extent bears some reasonable relation to the territorial jurisdiction of the court itself. What may be a proper subject of judicial notice at one time or place may not be at another. Notoriety of the death and financial operations of Kreuger might be known in the community where he lived and died but it is not of sufficient certainty and common knowledge to be known in this jurisdiction. Is the fact one of every common every-day knowledge in the jurisdiction of the State of New Jersey which everyone of average intelligence and knowledge of things about him can be presumed to know? and, is it certain and indisputable? Those are the tests. The affidavits in this cause do not meet this test on the question of common knowledge.

The plaintiffs also contend that the special appearance made by defendants on these motions to quash involves a determination of the merits of the action and is equivalent to a general appearance and that the defendants thereby waive any defect in the affidavits and orders. It is proper procedure for an attorney to enter a special appearance for the purpose of making a motion to quash a writ of attachment or to question the jurisdiction of the court. In the case of Franklyn v. Taylor Hydraulic, &c., Co., 68 N. J. L. 113, an appearance was entered for the purpose of moving to quash the attachment. The court held in that case that the appearance was not a general appearance. When a motion is made which can be granted only upon the assumption that the court has acquired jurisdiction it is a general appearance. A motion to quash will not produce that result if its limited purpose is first declared on the record. The writs of attachment ■will be set aside and orders may be entered accordingly.


author: La Coste, J.

text:
    First Judicial District Court of Union County.
    HOWARD R. DICKSON, PLAINTIFF, v. GEORGE H. SCOTT, SCHUYLER S. ELDRIDGE AND CLARA B. ELDRIDGE, DEFENDANTS.
    Decided November 1, 1932.
    For the plaintiff, Charles L. Morgan.

    For the defendants, Philip Ox.

   La Coste, J.

This matter comes before the court on a motion of the plaintiff for an order to deliver to him, or his attorney, an appeal bond filed in this court on July 6th, 1931, given by the defendants George H. Scott, Schuyler S. Eldridge, and Clara B. Eldridge, as principals and Clara G. Peterson, as suretjr, in the sum of $1,100 for lack of prosecution of the appeal.

On June 16th, 1931, judgment was entered in this court for the plaintiff in the sum of $500 and a counter-claim filed by the defendants was dismissed. From this judgment, defendant filed notice of appeal in this court on July 6th, 1931, and the court approved an appeal bond in the sum of $1,100 which was filed on the same day. It will be noticed that twenty-one days had actually elapsed from the time judgment was entered until the notice .of appeal and bond were filed, but the filing of the notice and approved bond was in time, as July 4th was a legal holiday and July 5th, 1931, was a Sunday. Von de Place v. Weller, 64 N. J. L. 155; 44 Atl. Rep. 874, since followed by Williams v. Minsavich, 3 N. J. Mis. R. 565; 129 Atl. Rep. 410, and cases cited.

The files1 of this court show that nothing further was done to perfect the appeal, and a certificate of'the clerk of the Supreme Court offered in evidence on this motion shows that to October 4th, 1932, more than a year after the gesture of appeal was made in this court, there was no record of any proceedings taken or papers filed by the defendants in the Supreme Court. The question therefore is this: Was there in fact an appeal to the Supreme Court? I do not so find. The District Court act (Pamph. L. 1902, p. 565, as amended by Pamph. L. 1910, p. 236; 2 Comp. Stat., p. 2016, § 213A, and Pamph. L. 1915, p. 549,) provides that':

“If either party in any action or proceeding in any District Court of this state shall be dissatisfied with the determination or direction of such District Court, in point of law or upon the admission or rejection of evidence, such party may appeal from the same to the Supreme Court, if such party shall, within twenty days after such determination or direction, give notice of such appeal to the other party or his attorney, and enter into bond to the other party with sufficient surety, to be approved by the District. Court judge, for the .costs of. the appeal, whatever may be the result thereof, and for double the amount, if any, of the judgment rendered against him, conditioned for the payment thereof, if the appeal be not prosecuted by the appellant, or to be dismissed; * * * and the said Supreme Court may either order a new trial on such terms as it thinks fit, or may order judgment to be entered for either party, as the case may be, and may make such order with respect to the dismissal and costs of said appeal as such court may think proper.”

The reported decisions are numerous on the dismissal of appeals actually made from a District Court to the Supreme Court, but I have not been able to find a case on the point raised by this motion.

It seems to me that the orderly procedure would certainly warrant that something be done in the court to which an appeal is to be taken. As the record stands, there is absolutely nothing before the Supreme Court for consideration. It follows, therefore, that there is no appeal to dismiss in that court.

The apparent omission in section 213A, supra, as to the filing of the notice of appeal in the Supreme Court is, in my opinion, supplied by section 68 of the District Court act which provides that “the practice of the Circuit Courts, in so far as applicable, shall apply to District Courts, excepting, however, in cases where there may be some express provision of law providing otherwise.” There is no express provision of law providing that notice of appeal from the District Court should be filed in the Supreme Court. The statute is silent but the rules and practice of the Supreme and Circuit Courts supply it. Eulo 137, Supreme Court, provides, i/nter alia, “that appeals shall be taken by notice, which shall be served on the adverse party and filed,” and Supreme Court rule 219 provides that “the foregoing rules shall, so far as appropriate, be applicable to the practice of the several Circuit Courts.” In Prantl v. Junk, 93 N. J. L. 387; 101 Atl. Rep. 56, which was an appeal from the Supreme Court to the Court of Errors and Appeals, Chancellor Walker, speaking for the court, laid down this rule: An appeal is a matter of right, subject to practice regulations, and in order to entitle himself to be heard in this court, the defendant is only required to serve his notice of appeal and file the same within the prescribed time. And it was held in Williams v. White, 98 N. J. L. 140 (at p. 142); 117 Atl. Rep. 615, that it was the filing and the service of the appeal which invokes the jurisdiction of the appellate court.

I therefore hold that in the instant ease, it was necessary, in order to invoke the jurisdiction of the Supreme Court, that

(1) notice of appeal be given to the plaintiff or his attorney; (2) that such notice be filed in the District Court, and (3) that notice of the appeal be filed in the Supreme Court.

Notice of appeal not having been filed in the Supreme Court, it is my opinion, that no appeal was made to that court, and the statutory time for filing such notice having long since expired, the plaintiff is entitled to an order delivering to him or his attorney the appeal bond filed in this court for lack of prosecution of the appeal. Order accordingly.


author: Rosenstein, J.

text:
    Second District Court of the City of Paterson.
    THE OCEAN ACCIDENT AND GUARANTEE CORPORATION, LIMITED, PLAINTIFF, v. PEERLESS CLEANING AND DYEING WORKS, INCORPORATED, DEFENDANT.
    Decided October 11, 1932.
    Por the plaintiff, Kalisch & Kalisch.

    Pot the defendant, Cohn & Kohlreiier.

   Rosenstein, J.

This is an action brought by the plaintiff to recover from the defendant the sum paid by the plaintiff to one Eileen Smith in settlement of a claim made by her for damages alleged to have been caused by the defendant in an accident. On October 26th, 1930, plaintiff issued a motor vehicle policy to the defendant, by the terms of which plaintiff agreed to pay any sums of money for the payment of which defendant might become liable during the term of the policy for bodily injuries sustained by any person or damage to property caused by any of the motor vehicles of defendant. Plaintiff likewise agreed to investigate any claims for such damages, to negotiate settlement thereon, and to defend suits for damages. The policy contained a provision that upon the occurrence of an accident, involving bodily injuries or damage to property of others, and also upon receiving notice of any claim made or suit resulting therefrom, the assured was to give prompt notice to the insurance company.

On August 3d, 1931, one of the trucks of the assured came into contact with Eileen Smith. The undisputed testimony was, that in answer to the driver’s inquiry she replied she had not been injured, and that she let him treat her to an ice cream soda. On that day she notified the defendant company by letter of the occurrence of the accident and stated that her shoes had been ruined, and that she would take either $10 in settlement thereof, or let the assured buy her a new pair which would cost $15.

There is a disputed question of fact as to when the assured gave notice of the accident to the company. The plaintiff says it got its first notice of the accident on November 25th, 1931, when it was notified thereof by the attorney of Miss Smith. Defendant says that, upon receiving the letter of August 3d, 1931, it notified the office of the agent of the insurance company and advised him of the receipt of this letter from Miss Smith, and that when it received the letter of October 29th, 1931, from the attorney representing Miss Smith, it again gave immediate notice to the agent of the insurance company. Neither of these notices was in writing. There is no dispute of the fact that on February 4th, 1932, the insurance company notified the defendant that, through investigation, it had learned that Miss Smith had received an injury to her foot and they could dispose of her claim for $250, although she originally would have taken $15 in settlement, and notifying the defendant that they must look to it for settlement of the case, and that if this was not accomplished within five days they would dispose of the matter themselves and seek reimbursement from the defendant. At the end of tire five-day period, they did pay Miss Smith $250 and now seek to be reimbursed by the defendant.

In the absence of the Financial Responsibility act (Pamph. L. 1929, ch. 116, p. 201), this action would not lie. At common law there was no privity between the claimant and the insurance company. Hence, the claimant could not sue the company, but could sue only the assured, who, in turn, would have an action against the company. And, in that case the insurance company would have a defense, because the policy requires that prompt notice of an accident be given by the assured to the insurance company. If, nevertheless, the insurance company did choose to pay the claimant, when it knew that the assured had breached the provision as to prompt notice, such payment would be a voluntary payment, and a waiver of the breach of the covenants in the policy on the part of the assured. Therefore, it could not now seek reimbursement for such payment.

Can the company, nevertheless, now seek such reimbursement by virtue of the statute? In their brief, counsel for the plaintiff frankly concede, “it is clear that in the absence of the Financial Responsibility act * * * the insurance company wnuld have been relieved from all obligations under the contract to both the assured and the third party.” But counsel for the plaintiff insist that this statute gives a third party an absolute right to sue the company, and that the company’s defense, to wit, want of prompt notice, available if the assured were suing, is not available against such third person, and, therefore, their payment to such third person was not voluntary, and permits them, under the terms of the statute, to be reimbursed by the assured.

Plaintiff overlooks a very material fact. The Financial Responsibility act does not apply to every policy of automobile insurance issued in the State of Sew Jersey. It does not say that the liability of the insurance company shall be absolute and in favor of every claimant injured by the assured under any policy of liability insurance. The provision for making liability absolute towards a third person is contained in subdivision (a) of paragraph 10 at page 201: “The liability of any company under a motor vehicle liability shall become absolute whenever loss or damage covered by said policy occurs,” &c.

Standing by itself, this language would be sufficiently broad to make the insurer absolutely liable on every policy to every injured claimant. But this language does not stand alone. It is expressly made a provision affecting only certain policies, for the last paragraph of section 10, page 201, which introduces it, reads, “such motor vehicle liability policy shall be subject to the following provisions which need not be contained therein,” and then immediately follows the provision for absolute liability just quoted. The expression, “'such motor vehicle liability policy” providing for absolute liability clearly refers to some particular class of policy mentioned earlier in the statute. And that policy is the policy required in certain specific cases under this statute. What are these cases ?

The act commences, section 1, page 195, by stating that the commissioner of motor vehicles shall require proof of financial responsibility to satisfy any claim for damages, in the cases of certain persons: (1) those convicted; (2) those who forfeited their bonds, and (3) those whose cases were nolled for certain statutory offenses, or (4) those already in a motor vehicle accident causing damages of $100 or more. This proof of financial responsibility may be furnished in various forms. One of these (page 196), is a certificate signed by the agent of any company issuing the policy of insurance. This is the first mention of policy of insurance, and it is “such policy of insurance” that “shall be subject to the following provisions,” one of which is the absolute liability of the company towards a third person.

Hence, it is only a policy used as proof of financial responsibility in the case of one of the four classes of individuals mentioned in the first section of the act that would create absolute liability towards the injured third person. Consequently, in the case at bar, if the injured partjr had sued the insurer, she could have had the benefit of the absolute statutory liability in her favor, only, if she had proved, and this would be an absolute essential of her case, that the assured was one of the four classes of individuals in whose case the statute created absolute liability. Likewise, in the case at bai’, it was essential for the insurance company to show that its assured was in one of those four classes, since it is only as to such persons that proof of the existence of such insurance policies is required by the statute, and only as to such policy does the statute raise an absolute liability of the company to the third person, and, in turn, give the company a right of action against the assured for reimbursement, if he has breached any of the terms of the policy, such as failure to give prompt notice to the company.

Nor does the endorsement on the policy extend the liability of the company to an absolute one in favor of any third person, since it merely incorporates by reference and quotation the provisions of the statute. A memorandum on the endorsement discloses that the endorsement is placed on every New Jersey policy, obviously a precaution that it shall be there, with its provision of reimbursement in favor of the company, in any case where the statute would apply to it. That the company foresaw that, at the time of issuance of the policy, the statute might not apply to the policy, but that subsequently the insured might come within one of the four classes and would want the policy to comply with the statute in order to retain his license, is shown by paragraph (d) of the rider, “the company agrees to provide an appropriate certificate for filing with the commissioner of motor vehicles as required by section 2 of said chapter whenever it may be required,” &c. It is to be borne in mind that it is only upon a policy of which, and when, such certificate is filed that the statute imposes an absolute liability in favor of a third person against the company.

The endorsement itself provides, “the policy to which this endorsement is attached is amended to conform with the requirements of chapter 116, laws of 1929 of the State of New Jersey, and all laws amendatory thereof or supplementary thereto which may be or become effective while said policy is in force, as respects any liability for bodily injury or death or liability for property damage covered by said policy, but only to the extent of the coverage and the limits of liability required by said chapter and only with respect to the motor vehicles described in said policy.

“It is further agreed that to the extent of the coverage required by said chapter and within the limits stated in said chapter, the said policy is subject to the following additional provisions contained in said chapter.”

In the ease at bar, there was no proof that the assured was within any of the four classes mentioned in the first section, as to whom such certificate was required as proof of financial responsibility. Hence, there was no absolute liability in favor of the third person against the company, which, in turn, has no right of reimbursement against the assured.

The judgment is no cause of action.