text:
    GEORGE DECKER, PLAINTIFF-APPELLANT, v. GERTRUDE EVERSON AND CHESTER EVERSON, DEFENDANTS-RESPONDENTS. STEPHEN OWENS, PLAINTIFF-APPELLANT, v. GERTRUDE EVERSON AND CHESTER EVERSON, DEFENDANTS-RESPONDENTS.
    Submitted October term, 1936
    Decided November 12, 1936.
    Before Brogan, Chief Justice, and Justices Case and Perskie.
    Por the plaintiffs-appellants, Charles Handler.

    For the defendants-respondents, Cox & Walburg (William H. D. Cox, of counsel).
   Per Curiam.

This is an appeal from a judgment entered in the Essex County Circuit Court in favor of the defendant Chester Everson. The cases of the plaintiffs, consolidated on appeal, arose out of an automobile accident.

The testimony discloses that the defendant Chester Ever-son was driving an automobile belonging to his mother, Gertrude Everson, along a state highway in Mercer county when the car left the road and collided with a pole, as a result of which the plaintiffs, who were riding in the car with him, suffered personal injuries. The accident occurred because the defendant Chester Everson fell asleep at the wheel.

The plaintiffs and the defendant Chester Everson and two other companions had been on a fishing trip. They had left Livingston, Essex county, New Jersey, about one o’clock in the morning of September 10th, 1934, had had a day’s fishing in the southern part of the state, and were on their way home at about five-thirty in the afternoon, when the accident occurred.

The negligence charged in the complaint is that the said Everson operated the automobile negligently and “without proper brakes.” The defense was a general denial of negligence and as a separate defense it was alleged that the plaintiffs assumed the risk of travel in the car. This defense relates to testimony, developed in the case, that the said defendant Chester Everson suffered and had suffered for several years from Bright’s disease and that after seven or eight hours of wakefulness he was wont to drop off to sleep at any time; that this situation was known to both plaintiffs and that on a previous automobile trip he had had a similar accident because he fell asleep while driving the car.

At the end of the plaintiffs’ case the court directed a verdict for Mrs. Everson. None of the grounds of appeal, nor any argument advanced by the appellant, challenge this directed verdict. At the end of the entire case the jury returned a verdict favorable to the defendant Chester Everson of no cause for action.

The appellants argue four points upon which they contend the judgment for the defendant Chester Everson should be invalidated. Under the first heading it is argued that the court fell into reversible error in its ruling on certain questions propounded to the several witnesses.

The question first complained of was one asked of the plaintiff Decker on cross-examination, as follows “Q. So you knew at the time when you got to New Brunswick, with just an hour’s drive, he [Everson] was tired out and it made him sleepy?” The court allowed the question. The background leading up to this question was that when the group started on the fishing trip in the early morning Chester Everson was driving. He drove the car only as far as Hew Brunswick, when he surrendered the wheel to the plaintiff Decker who drove for the remainder of the journey. The question was objected to as “improper.” Counsel did not indicate its legal impropriety. In civil cases it is within the discretion of the trial judge to permit the cross-examination of a witness, who, as here, is also a party to the suit, concerning any matter relevant to the issue, even though not touched by the examination in chief, and such judicial action is no ground for reversal on appeal. Weiss v. Weiss, 95 N. J. L. 125; 112 Atl. Rep. 184, citing Risley v. Ocean City Development Co., 75 N. J. L. 840; 69 Atl. Rep. 192.

The next question, the exclusion of which is said to constitute reversible error, was also asked of the plaintiff Decker on redirect examination as follows: "Q. Well, what is the conversation exactly as you do recall it?” The background of this question was that on cross-examination Decker was asked if he had not told Mrs. Everson, when she called to see him at the hospital where he was detained on account of his injuries, that he wasn’t going to sue her. Decker replied, on cross-examination, that he didn’t recall such a conversation whereupon plaintiff’s counsel asked him what the conversation was. It seems to us that no matter what this plaintiff said to Mrs. Everson after the accident, about whether he was going to sue her, was absolutely immaterial and had nothing to do with the issues in the case.

Two further questions which were addressed to Mrs. Ever-son are said to have been erroneously disposed of by the court. The witness was asked if she hadn’t said to Mr. Decker, when she saw him in the hospital after the accident, “don’t worry, Mr. Decker, we are insured. You will be taken care of.” This question, on cross-examination, was overruled by the court. We think the question was obviously immaterial. This witness was also asked this question: "Q. Did Mr. Decker tell you at that time [i. e., after the accident] ‘don’t worry; I won’t sue you.’ ” The court allowed defense counsel to ask this question over the objection by plaintiffs as to the form of the quéstion. Decker had previously, on cross-examination, testified that he had made no such statement to Mrs. Everson. The objection seems to have been directed against the order of proof, that it was rebuttal rather than within the bounds of a direct examination, hfo harm resulted or could result in the premises. Mono of this class of testimony was relevant or material in our view, and Mrs. Everson was later cross-examined by counsel for the plaintiffs on this very testimony. The court, strictly speaking, was not entirely consistent in its rulings on this phase of the testimony. However, looking at these questions as a whole, we cannot see that the admission of the one question and answer was such as to injuriously affect the substantial rights of the party plaintiffs. See section 27, Practice act, 1912 (Cum. Supp. Comp. Stat. 1911-1924, p. 2819, § 163-303).

Under this same heading it is next argued that the court erred in sustaining an objection to a question asked of the defense witness, Love, who also had gone on the fishing trip and was riding in the car at the time of the accident. The question asked on cross-examination was whether Love had received a settlement for his injuries. Love had said that he had been slightly shaken up. This was immaterial and the court’s ruling was free from error.

Two more questions are argued as having been erroneously disposed of by the trial court. The first was directed, on cross-examination, to a witness, Schilling, who was also riding in the car when the accident occurred. Prior to this question there had been some testimony regarding whether there had been an invitation extended by Everson to the members of the party to ride in his mother’s car. The witness wasn’t very clear as to who invited the group and he had said, “well, somebody says 'get in,’ I don’t know who says 'get in,’ but wo all got in just the same.” Then following the question, “it might have been Everson?” there was an objection to the question which was sustained. It is evident that the witness didn’t know who extended the invitation and that any answer he might make would have been mere speculation. He had previously said that he didn’t know who extended the invitation to get into the Everson car, and so we deem this ground to be without merit.

The court’s action in overruling a second question under this heading is also argued as a ground for reversal. Mrs. Everson had testified that her son was prone to fall asleep without warning after an interval of eight or nine hours wakefulness, and there was testimony that he had been operating a Ford car in and around Livingston, where he lived, principally in going to and from his father’s place of business, about a half mile away. Mrs. Everson was asked, on cross-examination, “in all this time you have allowed him to keep a license and to run about in this ear?” Objection to the question was sustained. It was no abuse of discretion to exclude the question. • It was manifest from the testimony in the case that, regardless of the condition from which this witness says her son suffered, he had been driving a ear, around Livingston at least. This fact was clear to the jury and the admission or any exclusion of the evidence sought would neither help nor hurt the plaintiffs’ case.

The next point argued is that the court erred in declining to direct a verdict in favor of the plaintiffs on the question of liability. The burden of the argument is that it was indisputably shown that the defendant, driver of the car, had fallen asleep and that thereby the accident was caused. Passing the question that this was not the negligence charged in the complaint and also assuming for the sake of argument that the plaintiffs were invitees or even passengers for hire, since there was testimony that the defendant Everson supplied the car as well as the gasoline and oil, and that the passengers in return paid the expenses incident to the fishing excursion, it was still a question of fact for the jury as to whether these two plaintiffs had not, with full knowledge of Everson’s weakness and proneness to fall asleep without warning, assumed the risk of his driving the car, and this the court submitted to the jury. We find no merit in the point that the plaintiffs were entitled to a direction on the question of liability. The case of Hendler v. Meadows, 116 N. J. L. 176; 183 Atl. Rep. 214, is not in point.

It is next argued that the court was in error in its charge to the jury. We find no error in any portion of the charge to which exception was taken.

The concluding argument is that the rejection of the plaintiffs’ request to charge constituted error. We have examined the three requests to charge submitted by the appellants. In our view, the subject-matter of the first and third were amply and correctly covered by the charge of the court to the jury, and the second request to charge was properly rejected.

The judgment will be affirmed, with costs.


source: Caselaw Access Project

author: Leyden, C. P. J.

license: Public Domain

text:
    Bergen County Court of Common Pleas.
    SELINA ROBINSON, PROSECUTOR-APPELLANT, v. GERALD B. JACKSON, DEFENDANT-RESPONDENT.
    Decided October 20, 1936.
    For the prosecutor-appellant, Nathan Babinowitz.

    Por the defendant-respondent, Herbert G. Dolan.

   Leyden, C. P. J.

The prosecutor-appellant had an award in the bureau and, on appeal to this court, the amount thereof was reduced. The Supreme Court, on certiorari, affirmed the judgment of this court (13 N. J. Mis. R. 858; 181 Atl. Rep. 704), and on May 14th, 1936, the Court of Errors and Appeals (116 N. J. L. 476; 184 Atl. Rep. 811) reversed the Supreme Court and remanded the cause “for further proceedings in conformity with this opinion.” The remittitur was filed on July 29th, 1936. In the interim, chapter 172, Pamph. L. 1936, p. 409 (N. J. Stat. Annual 1936, § **236-61) was passed and approved on June 20th, 1936. This act provides that the Court of Common Pleas may, in its discretion, allow to the party prevailing a reasonable attorney’s fee to be taxed in the costs and paid by the unsuccessful party in cases where (a) the judgment of the bureau is appealed to the Pleas, (b) the judgment of the Pleas is reviewed by the Supreme Court by certiorari and (c) the judgment of the Supreme Court is reviewed by appeal to the Court of Errors and Appeals.

The present application is two-fold: first, to enter judgment in accordance with the mandate of the Court of Errors and Appeals, and, second, for a reasonable attorney fee to the prosecutor-appellant in the Supreme Court and the Court of Errors and Appeals.

The defendant-respondent resists the application for the fees, insisting that the opinion of the Court of Errors and Appeals terminated the litigation to all intents and purposes before the passage of chapter 172, Pamph. L. 1936, and, therefore, the statute is inapplicable to the present situation. He further argues that an allowance under this statute affects his substantial rights, was not within the contemplation of the parties when the insurance contract was effectuated and is, therefore, an impairment of that contractual obligation.

As appealing as the argument may be, the law, as I understand it, is otherwise. The Court of Errors and Appeals directed further proceedings in accordance with its opinion and until its mandate was returned here, this court was not reinvested with jurisdiction in the premises. See Welsh v. Brown, 42 N. J. L. 325. The present litigation will, therefore, not be terminated until the appropriate judgment is entered in this court in conformity with the direction of the Court of Errors and Appeals.

The rule in this state is that the allowance of costs is governed by the status of the law at the time of the termination' of the action and there is nothing in the present statute which excepts the allowance of costs in pending actions. All the arguments advanced against the allowance of the attorney fees are answered by the opinion of the Court of Errors and Appeals in Igoe Brothers v. National Surety Co., 112 N. J. L. 243; 169 Atl. Rep. 841; 96 A. L. R. 1422, a case strikingly similar to the present.

The total award of compensation to the prosecutor-appellant is the sum of $1,405.22. Her attorney was allowed the sum of $250 for his work before the bureau and $75 for the appeal to the Pleas. In addition thereto the Supreme Court taxed costs in his favor in the sum of $92.55 and the costs taxed in the Court of Errors and Appeals amount to $341.62. The questions presented on the appeals were novel in the sense that they had not been passed upon by the appellate courts of this state. The prosecutor-appellant did not prevail in the Supreme Court and is, therefore, not entitled to an attorney fee there. The defendant-respondent did prevail but seeks no fee from the prosecutor-appellant on that count. Taking into consideration the status of the law at the time the opinion of the Court of Errors and Appeals was rendered, the delay in the filing of the remittitur, the novelty of the question presented on appeal, the total amount of the award of compensation, the sums already awarded for legal services and taxed costs, the work performed on the appeal and the success of the defendant-respondent in the Supreme Court, I think the sum of two hundred fifty dollars ($250) is a reasonable attorney fee to the party prevailing in the Court of Errors and Appeals for services on said appeal and such will be the >order.


author: John J. Stahl, Deputy Commissioner.

text:
    New Jersey Department of Labor, Workmen’s Compensation Bureau.
    JAMES BUSH, PETITIONER, v. HENRY RUDOLPH, RESPONDENT.
    Decided October 3, 1936.
    For the petitioner, Edwin J. O’Brien.

    For the respondent, Simons & McKeown.

   This is a proceeding brought by the petitioner under the provisions of section 21 (f), seeking a review of a certain determination and order heretofore entered in this matter upon the ground of increased incapacity, and praying for an additional allowance of compensation for both temporary and permanent disability.

The material facts are not in dispute. On April 20th, 1935, between ten-thirty A. M. and eleven-thirty A. M., the petitioner, while lifting a potted palm of approximately seventy-five pounds in weight, was seized with a sudden and severe pain in the region of his right groin, causing him to drop the palm to the ground. After resting for a period of fifteen or twenty minutes he continued at light work for the rest of the day. There seems to be no question but that the petitioner suffered a recurrent right inguinal hernia as a result of the said lifting. It appears further that ten years prior a herniatomy was performed upon him in Ohio for a bilateral condition; that eleven months later a recurrence took place on the right side requiring additional surgical intervention; and that thereafter both sides remained firm and in good repair until the occurrence on April 20th, 1935. Upon the original petition filed herein, the parties entered into a settlement which was approved by the deputy commissioner and entered in form of a determination and order, by the terms of which the petitioner was paid compensation of ten weeks at the rate of $14.68 per week for temporary disability, and in addition thereto twenty weeks at the same rate, representing the statutory schedule-allowance for a compensable hernia, besides medical expenses and the costs of a truss.

The question for determination is whether the petitioner, having accepted compensation in accordance with the above settlement, is entitled to maintain his present action for further recovery. Without touching upon the extent of the petitioner’s present disability, solution of the issue necessarily turns upon interpretation of section 11 (x) of the act.

Section 11 (x) (Cum. Supp. Comp. Stat. 1911-1924, p. 3874, § **236-11 (x) ), commonly known as the hernia section, deals exclusively with inguinal hernia. It is conveniently subdivided into two parts: the first part prescribes the requisite proof in order to establish a compensable hernia, while the second part prescribes the statutory benefits inuring to one suffering a compensable hernia. The present inquiry may be limited to the second part since the required proof of hernia must be deemed to have been conceded at the original trial. The benefits flowing from the statute for a compensable hernia are as follows:

1. Medical services in accordance with section 14.

2. Compensation for temporary disability, less the waiting period, payable until such time as the injured is able to resume work with the aid of a truss or other mechanical device. If the total period of.temporary disability exceeds seven weeks, the waiting period then becomes payable.

3. The choice of an operation for the correction of the hernia, the cost of which shall not exceed $150 together with the additional payment of compensation consequent thereon for temporary disability during the period of hospitalization and for a reasonable convalescent period after hospitalization until such time as the injured is able to work; or if an operation is declined by the injured, the payment of twenty weeks compensation, following the payment of which the obligation of the employer shall cease and terminate, unless death results from the hernia.

The purpose underlying the legislative scheme in providing a choice on part of the injured between an operation and the resultant temporary disability compensation, or the payment of twenty weeks compensation is obvious. Under the well settled rule in this state, an injured employe may not be compelled to undergo a surgical operation which endangers life or limb. In McNally v. Hudson and Manhattan Railway Co., 87 N. J. L. 455; 95 Atl. Rep. 122; affirmed, 88 N. J. L. 729; 96 Atl. Rep. 975, the medical testimony was to the effect that the peril of death from an operation for the correction of a hernia was forty-eight chances in twenty-three thousand. It was held the refusal to submit to the operation was not unreasonable and did not release the employer. In order to overcome this obstacle, the legislature in its wisdom enacted this optional provision. Prom a medical standpoint it must be conceded that a herniatomy cures the condition, while an unoperated hernia results in a permanent physical defect for which the payment of twenty weeks compensation is deemed as a measure of indemnity. The petitioner in the present case accepted the payment of twenty weeks in lieu of an operation. Opinions of several physicians representing the respective parties were stipulated at the original trial, the consensus of which was to the effect that an operation was contra-indicated, because of the weakness and thinning out of the abdominal wall, resulting from the previous operations. It is quite probable that the petitioner’s election to accept the payment of twenty weeks compensation in lieu of an operation was influenced to some extent by the opinions of the doctors. But having exercised his option, the question arises, “can he now insist upon surgical and hospital services at the expense of his employer for the repair of the hernia?” The answer, obviously is no. The respondent’s liability is limited to one, and only one of the options; either payment of twenty weeks compensation, or the furnishing surgical and hospital services not exceeding $150, for the correction of the hernia, together with payment of compensation for temporary disability incurred during hospitalization and convalescence—in no case does the statute subject him to both.

Under the grouped headings the respondent has made the following payments:

Under I. Medical services in the amount of $15, representing services rendered petitioner by Dr. Hashen; together with cost of truss.

Under II. Payment of ten weeks compensation at the rate of $14.68, representing temporary disabilitly.

Under III. .Payment of twenty weeks compensation at the same rate.

The respondent’s liability, therefore, is at an end, unless there be a subsequent recurring temporary disability under heading II, by reason of an exascerbation of the condition, either acute or subacute, requiring further medical attention and causing temporary incapacity; or unless death ensues as a result of the hernia following the payment of twenty weeks compensation made under heading III. Like any other type of injury, the provisions of section 11(a) (Cum. Supp. Comp. Stat. 1911-1934, p. 3873, § **336-11 (a) ) apply extending the period of temporary disability to a limit of three hundred weeks, whether the said period is a straight consecutive one following the injury or one occurring at subsequent intervals.

The case may be referred for further hearing for the purpose of producing testimony on the question of allowance of compensation for further temporary disability.

John J. Stahl, Deputy Commissioner.


author: Per Oiirtam.

text:
    ELECTRIC ARC CUTTING AND WELDING COMPANY, A CORPORATION OF NEW JERSEY, PLAINTIFF-RESPONDENT, v. FISCAL ASSOCIATES, INCORPORATED, A CORPORATION OF NEW JERSEY, AND JULIAN J. ROSS, DEFENDANTS-APPELLANTS.
    Argued October 6, 1936
    Decided November 18, 1936.
    Before Justices Trenchard, Bodine and Heher.
    For the defendants-appellants, Samuel A. Sharff.

    For the plaintiff-respondent, Frederic Stoddard.

   Per Oiirtam.

Prior to the sale out of which this action arises, plaintiff had bought from the defendant Julian J. Boss a rod tapering machine for $2,835. The order for this machine and the moneys to become due in payment for it had been sold by the defendant Julian J. Boss to the defendant Fiscal Associates, Incorporated. Subsequently and on July 13th, 1934, plaintiff sold to the defendant Julian J. Boss an arc welding machine for $450, payment for which was to be made by deducting that sum from the money which would become due from the plaintiff to the defendant Fiscal Associates, Incorporated, on the assignment of the rod tapering machine order. An order to this effect was delivered to and accepted by the defendant Fiscal Associates, Incorporated. Neither then nor at any other time did the defendant Fiscal Associates, Incorporated, or anyone else, bring to the notice of the plaintiff a so-called factoring agreement under which the two defendants were operating. The rod tapering machine purchased by the plaintiff was paid for by a series of twelve notes for $175 each and the balance in merchandise. The $450 payment for the arc welder was to be deducted from the last three of these notes. Before these notes became due a dispute arose between the parties and plaintiff filed its bill in Chancery to restrain the defendant Fiscal Associates, Incorporated, from negotiating the notes and to rescind the notes. A preliminary restraint was prayed for and a rule to show cause issued by the Court of Chancery why the same should not be granted and on argument based on ex parte affidavits, the Court of Chancery denied the temporary restraint and dismissed the rule to show cause. No hearing on the merits of that cause has been had, no testimony has been taken, and no final decree has been made. Thereafter, the defendant Fiscal Associates, Incorporated, sold the notes it held to the Ajax Construction Company, who brought suit against the plaintiff thereon and the plaintiff was compelled to pay all of the notes. The plaintiff paid in settlement of the suit on the three notes the sum of $500. It has not received payment of the $450, and was not given the credit therefor on the notes held by the defendant Fiscal Associates, Incorporated, and so brought suit against both Julian J. Eoss and Fiscal Associates, Incorporated, and obtained judgment against the defendant Fiscal Associates, Incorporated, for $450.

The sole contention of the defendant-appellant is that the District Court judge erred in the exclusion of evidence.

We think the trial judge was correct in excluding from evidence the general factoring agreement as well as proof of any indebtedness thereunder. The plaintiff was not a party to that factoring agreement and it is conceded by the appellant that this agreement was never brought to the notice of the plaintiff. Lehigh Coal, &c., Co. v. Central Railroad Co., 41 N. J. Eq. 167; 3 Atl. Rep. 134; Burket v. Ellis, 105 N. J. L. 560; 143 Atl. Rep. 347.

Again, we think that the Chancery proceedings to restrain negotiation of the notes and for rescission of the notes were properly excluded because the proceedings are not terminated, because no hearing on the merits was had, because no final decree or judgment has been entered and because the cause of action in that case is not the same as the cause of action in the instant case. Benjamin v. Van Voorhis, 106 N. J. Eq. 196; 150 Atl. Rep. 393; Hoffmeier & Son v. Trost, 83 N. J. L. 358; 85 Atl. Rep. 221.

Lastly, we think that the trial judge properly excluded from evidence any testimony as to the amount paid by the plaintiff in settlement of a suit on the last three notes.

The appellant had sold the same for value to a holder in due course who sued upon them. Whether or not appellant sold for full value and whether or not plaintiff in settling a suit paid full value is immaterial and irrelevant to the issue in this cause, and moreover, it will be noticed that no set-off was filed in this cause.

The judgment will be affirmed, with costs.


author: Pee Curiam.

text:
    LOUIS RESNICK, PLAINTIFF-RESPONDENT, v. JEFFERSON HOLDING AND BUILDING CORPORATION, INCORPORATED, DEFENDANT-APPELLANT.
    Submitted October 6, 1936
    Decided November 18, 1936.
    Before Justices Tbenciiaed, Bodine and Hehee.

      For the defendant-appellant, Charles J. Bodner (Peder & Rinzler, of counsel).
    For the plaintiff-respondent, Aaron Heller.

   Pee Curiam.

This action was by the plaintiff in replevin against the defendant, the plaintiff claiming as mortgagee a superior right, by virtue of his chattel mortgage to the goods and chattels of the mortgagor, which were distrained for rent by the defendant, the landlord of the mortgagor.

The District Court rendered judgment in favor of the plaintiff for possession and the defendant appeals.

At the outset of the trial the defendant moved to strike out the complaint on the ground that the court had no jurisdiction because no venue was laid in the writ of replevin or state of demand. That motion was denied. How nowhere in the writ of replevin nor in the state of demand does it appear where the goods and chattels, the subject of this replevin action, were located. It appears, therefore, that the motion should have been granted. See District Court act, section 118 (2 Comp. Stat., p. 1992), and Metropolitan Credit Corp. v. Anderson, 118 Atl. Rep. 581, and cases there cited.

The defendant-appellant also makes the point that the District Court erred in refusing to grant a nonsuit on the ground that the chattel mortgage was void because of failure to comply with section 4 of the Chattel Mortgage act (1 Comp. Stat., p. 463), as amended by Pamph. L. 1928, ch. 61, p. 131 (Cum. Supp. Comp. Stat. 1925-1930, p. 211, § 36-4).

It appears that the plaintiff held two chattel mortgages. The original one was filed Hovember 17th, 1930. It was admittedly absolutely void as against creditors of the mortgagor because of a defective affidavit, in that it failed to state the consideration of the mortgage and as nearly as possible the amount due and to grow due thereon. On June 27th, 1935, another chattel mortgage was given to the plaintiff “to correct,” as recited therein, the original chattel mortgage, and was immediately recorded, and the latter mortgage contained an affidavit which, on the face, complied with the requirements of the statute.

Meanwhile, rent became due from the mortgagor to the defendant, his landlord, for the months of February to July, 1935, inclusive. The defendant levied on the chattels in question by distress warrant on July 11th, 1935, and then the plaintiff mortgagee instituted this replevin action.

The defendant urged, and now urges, that by the words of the statute the original mortgage was absolutely void as to the defendant creditor, and so likewise was the so-called “corrective” mortgage, and cites Hunt v. Ludwig, 93 N. J. Eq. 314; 116 Atl. Rep. 699; affirmed, 94 N. J. Eq. 158; 118 Atl. Rep. 839.

We think that ground well taken. The reason a chattel mortgagee who seeks a preference over creditors by virtue of his chattel mortgage must strictly adhere to the requirements of the statute, is expressed in Graham Button Co. v. Spielmann, 50 N. J. Eq. 120; 24 Atl. Rep. 571, where it is said that “the legislative purpose in the enactment of that statute was held to be to compel the mortgagee to commit himself to a statement or disclosure of his debt or claim, under oath, when he made his mortgage a matter of public record, sufficiently precise and explicit to afford the creditors of the mortgagor, in case fraud was suspected, a fair opportunity to ascertain, by judicial investigation or otherwise, whether the mortgage was an honest security or a mere fraudulent cover. * * * Unless the mortgage, when recorded, is accompanied by an affidavit, which states fully and plainly the consideration upon which it is founded, the statute says that the courts shall treat the mortgage as absolutely void as against the creditors of the mortgagor.”

The position in which this defendant now finds itself is a concrete example of how a creditor may be deprived of his legal rights if the contention of the plaintiff is sustained. The defendant, most likely, cannot at this late date, trace or proceed against the funds now alleged in the “corrective” mortgage to have been paid under the original mortgage, as it might have done if an opportunity had been afforded it at the time of the payment of the alleged consideration. Moreover, the defendant cannot recall the credit already extended to the mortgagor (six months rent) relying on the fact, as it had a legal right to do, that there was no effective lien against the assets of the mortgagor. It is especially to be noted in this connection that in the case at bar the “corrective” mortgage was recorded on June 27th, 1935; that the landlord had allowed six months rent to accrue and that its distress levy was made on July 11th, 1935. In other words, only two weeks before the landlord had effectuated its levy and during the period when the tenant or chattel mortgagee most likely realized that such steps were about to be taken, the new mortgage was recorded.

It must be borne in mind that the mortgagor is still liable to the mortgagee for the consideration advanced under the chattel mortgage. If, by his own neglect, the mortgagee fails to properly comply with the statute, he should not be entitled to a preference and even get an added advantage which such ■neglect may give him. If this could be done, the chattel mortgagee could record a defective, ineffectual and even misleading chattel mortgage and then, after creditors had extended credit to the chattel mortgagor, relying for their payment on his apparent assets, take steps to correct the mortgage and thus defeat creditors.

The plaintiff refers us to the case of Sadler v. Banaff, 85 N. J. Eq. 335; 96 Atl. Rep. 361. But that was a case not of a correction mortgage but of a substitution mortgage, where the original mortgage was a valid mortgage, and in which case the mortgagor had removed with the chattels to another county and it became necessary to re-record another chattel mortgage in the new county.

Again the defendant-appellant says that the District Court erred in refusing to grant a nonsuit on the ground that no proper or legal demand was made by the plaintiff prior to the institution of the replevin suit.

There seems also to be merit in this point. The rule seems to be that where the possession was rightfully acquired, a demand is ordinarily necessary to make the subsequent detention wrongful, and that replevin will not lie against one who has obtained possession of the property lawfully, until a proper demand is made for the same and possession refused. Crown Co. v. Reilly, 88 N. J. L. 590; 96 Atl. Rep. 481.

Ill the present case the defendant acquired possession through its bailiff, by lawful distress, and it is not made to appear that a demand was made prior to the institution of the action. In this connection see the case of Woodside v. Adams, 40 N. J. L. 417.

On the whole case it seems that the judgment must be reversed, with costs, and such will be the order.


author: Child, A. M.

text:
    Pearl Wigder, petitioner, v. Murray Wigder, defendant.
    [Decided November 18th, 1936.]

      Mr. Milion M. Unger, for the petitioner.

      Messrs. Kraemer, Siegler £ Biegler, for the defendant.
   Child, A. M.

The petitioner, the wife, filed her petition for nullity on the ground that her husband was physically impotent to consummate the marriage. She has sustained the allegations of her petition and a decree will be advised.

The solicitor of the petitioner at the close of the hearing claimed that the petitioner was entitled to alimony, notwithstanding the fact that the marriage will be declared by the decree to be void db initio.

The theory upon which alimony is sought is that there is no practical distinction between a divorce a vinculo and an annulment and as sustaining this view cites the case of Titsworth v. Titsworth, 78 N. J. Eq. 47; 78 Atl. Rep. 687, which was an annulment suit brought on the ground of nonage. This case merely deals with the effect of the decree of nullity on the issue of the marriage and holds that if there were children of a voidable marriage that these children would be legitimate. This is unquestionably the law but is outside of the point in issue.

There is a distinct difference between an annulment of marriage and a divorce.

“In the case of an annulment, the marriage is destroyed db initio, or else the ostensibly legal relations of the parties are stripped of their colors of legality; whereas in the case of divorce the marriage is merely dissolved, and the relations of the parties are terminated from the date of the decree. * * *” 28 Corp. Jur. 1347 ch. 119; Rooney v. Rooney, 54 N. J. Eq. 231 (at p. 241); 34 Atl. Rep. 682; Sinclair v. Sinclair, 57 N. J. Eq. 222; 40 Atl. Rep. 679 (at p. 227).

2 Schouler on Marriage, Divorce and Domestic Relations (6th ed. 1921) ch. 1153 p. 1412, citing Millar v. Millar, 167 Pac. Rep. 391/, says:

“An action for divorce is predicated on a valid marriage and is based on matters occurring since the marriage, while an action for annulment presupposes that the marriage is void or voidable.'”

While it is true that a voidable marriage is valid for all civil purposes until it is annulled by decree (Willits v. Willits, 107 N. 17. Rep. 379), yet it is well settled that a decree of nullity refers back to the time of contracting and destroys and renders the marriage utterly void db initio, with certain exceptions relating to the legitimacy of children. Steerman v. Snow, 94 N. J. Eq. 9; 118 Atl. Rep. 696; Reisen v. Reisen, 105 N. J. Eq. 144; 147 Atl. Rep. 225; Capossa v. Colonna, 95 N. J. Eq. 35 (at p. 38); 122 Atl. Rep. 378.

The petitioner claims that this court has inherent power to grant alimony or nullity decrees and in support of this contention cites English decisions and some cases decided in the State of New York. The English decisions cited are all cases that were decided subsequent to the American revolution and are in no way binding on the courts of this state. Loudon v. Loudon, 114 N. J. Eq. 242; 168 Atl. Rep. 840; 89 A. L. R. 904; Steward v. Chance, 3 N. J. Law 400. The New York decisions cited by the petitioner are not in harmony with each other, and the ease of Gore v. Gore, 92 N. Y. Supp. 634, cited, was overruled by the New York court of appeals, in Jones v. Brinsmade, 76 N. E. Rep. 22, in which the court said:

“I think the learned court in the Gore Case failed to appreciate that the status of the parties established by the decree of nullity necessarily relates back to the time of the contract of marriage.”

The contention of the petitioner that this court has inherent jurisdiction to grant alimony has been decided adversely in the case of Biddle v. Biddle, 104 N. J. Eq. 313 (at p. 314); 145 Atl. Rep. 639, where the court said:

“The jurisdiction of the court of chancery in matters of alimony is purely statutory. By section 25 of our Divorce act (3 Comp. Stat. 1910 p. BOSS') alimony may be awarded either pending a suit for divorce or nullity or after a decree of divorce.”

This jurisdiction over divorce was conferred on the court of chancery by the Divorce act of 1794 (Paterson 13) and even then the jurisdiction conferred to grant divorces was a concurrent one, the legislature having a like power to grant the same by legislative bill until that power was taken away by the constitution of 1844.

Section 25 of the act (3 Comp. Stat. p. 2035) concerning divorces cannot be construed so as to permit the granting of permanent alimony in a suit for nullity.

Quoting section 25:

“Pending a suit for divorce or nullity, or after decree for divorce, it shall be lawful for the court of chancery to make such order touching the alimony of the wife. * * *”

The omission of any authority to grant alimony after the decree indicates clearly a legislative intention that no power so to do was intended to be conferred on the court of chancery.

Vice-Chancellor Stevenson, in the case of Knott v. Knott, 51 Atl. Rep. 15, denied alimony pendente Hie to a petitioning wife who sought an annulment of her marriage on the ground of bigamy’, saying (at p. 16) :

“In a suit for divorce, or for a judicial determination that the marriage was void, alimony can be allowed to the woman only in case that it appears by the final decree that the woman may be declared to be the wife of the man.”

In 1 R. C. L. ch. 86 p. 939, the following statement of law is made:

“As the sole basis for the allowance of alimony is the duty of maintenance imposed upon the husband by virtue of the marital relation, it is obvious that if a valid marriage never existed, the alleged husband owes no such duty and consequently cannot be required to pay alimony.”

2 Bish. Mar. & D. (6th ed.) ch. 376 p. 320, states the following rule:

“From the reasons on which permanent alimony proceeds, the further doctrine is derived that no decree for it can follow a sentence declaring a marriage, whether void or voidable, null from the beginning.”

In Williis v. Willits, supra, the court said:

“To support his wife is one of the obligations assumed by a husband by virtue of his marriage contract, and where, as in this case, the marriage is voidable, a release from such obligation is a part of the relief sought by the husband in a suit to annul the marriage. Permanent alimony is a statutory innovation, and we find no statutory authority for its allowance in a suit to annul a voidable marriage.”

In our own state, Vice-Chancellor Pitney, in G. v. G., 67 N. J. Eq. 30 (at p. 37); 56 Atl. Rep. 736, said:

“The conduct on her part was a distinct affirmance of the marriage relation. Necessarily so, since there can, I think, be found no foundation in reason or authority for the position that a woman, who seeks a dissolution of the marriage tie on the ground of her husband’s impotence, is entitled to permanent alimony. Such alimony is given where the husband has been guilty of a matrimonial offense, and impotence is not such an offense in any sense of the word in that connection.” '

Marriage in the contemplation of the law is a contractual relation, in other words, a contract. It is fundamental that one who disaffirms a contract cannot have any of the benefits accruing from it. The petitioner in this case seeks to dis-affirm her contract. By so doing, she forfeits her right to support. The application for permanent alimony will be denied for the reasons above given.


author: Per Curiam.

text:
    THE MAYOR AND CITY COUNCIL OF GARFIELD, A MUNICIPAL CORPORATION OF THE STATE OF NEW JERSEY, PROSECUTOR, v. BOROUGH OF EAST PATERSON, A MUNICIPAL CORPORATION, AND MUNICIPAL MUTUAL CORPORATION, A CORPORATION OF THE STATE OF NEW YORK, RESPONDENTS.
    Decided November 23, 1936.
    Before Justices Parker and Lloyd.
    For the prosecutor, Joseph F. Matisovslcy.

    For the respondent borough of East Paterson, Dominick F. Pachella.

    For the respondent Municipal Mutual Corporation, Jacob 8. Karkus.

   Per Curiam.

The application in this case is for a writ of certiorari to review certain sewer and sidewalk assessments levied by the borough of East Paterson on property of the city of Garfield. These assessments were made in September, 1931. In December, 1932, sale of the property for the non-payment of the assessments was effected and subsequently sale certificate transferred to a third party. There is now pending a bill in Chancery to foreclose the equity of redemption of the petitioner. In the meantime no legal proceedings have been taken by the petitioner questioning the validity of the assessments until the present application for the writ.

If this were an application by a private owner to have reviewed an assessment of such long standing, it would be summarily denied, and we fail to see any valid reason for entertaining the application because the property is in the ownership of a municipality.

The statutory provision respecting efforts io review such assessments contemplates prompt action (see section 56, Pamph. L. 1921, ch. 195, p. 515; Cum. Supp. Comp. Stat. 1911-1925, p. 2209, § *136-2057) in order that not only the rights but the status of the parties should be speedily determined.

The indebtedness, amounting to $7,000, seems to have been carried by the borough of East Paterson as an asset available to its creditors in the issuance of bonds, and as a result not only the borough and its inhabitants, but strangers thereto acting upou or under acquiescence of Garfield in the assessments would be seriously embarrassed by the questioning of the validity of the assessments at this late day.

The writ applied for is denied.


author: Bodine, J.

text:
    JACOB URBAN, PROSECUTOR, v. JOHN G. TAYLOR, HEALTH OFFICER OF THE TOWN OF DOVER, AND THE BOARD OF HEALTH OF THE TOWN OF DOVER, RESPONDENTS.
    Decided November 24, 1936.
    For the prosecutor, Irving Youngelson.

    For the respondents, Samuel G. Myerson.

   Bodine, J.

The prosecutor holds a milk dealer’s license obtained pursuant to chapter 175, Pamph. L. 1935, p. 412; N. J. Stat. Annual 1935, § 81-162A(100). He obtains his supply of milk from the Port Murray Dairy Company, Port Murray, Mew Jersey, a corporation duly licensed by the state department of health to buy, sell and distribute milk in this state. The prosecutor sometime ago presented his application in proper form to the board of health of the town of Dover requesting a license to sell milk in that town. The board of health declined the application, although not questioning the quality of the prosecutor’s milk nor the sanitary conditions under which it is produced. The town refused prosecutor’s application because it would entail too great a financial burden to inspect the source of supply. The Port Murray Dairy Company sells and distributes about twenty-five thousand quarts of milk daily in various parts of north Jersey. It is supervised by the state department of health, and is inspected and approved by many municipal health boards, including those of Newark, Paterson, Montclair, Perth Amboy, Elizabeth and Union City. Subsequently, the local board stated that it would refuse a permit because the town had already a sufficient supply to satisfy the needs of its inhabitants.

The facts and circumstances in this case seem on all fours with Sheffield Farms, Inc., v. Seaman, 114 N. J. L. 455; 177 Atl. Rep. 372. It clearly appears that the refusal of the permit was without substance and is not predicated upon any desire to conserve the public health and safety. Mere lack of funds to investigate a source of supply is not sufficient reason to justify the refusal of a permit, in view of the circumstance that there seems to have been adequate inspection by state inspectors. Further, because the town already has a sufficient number of milk dealers presents no valid reason for a refusal of the permit requested.

The local board finally seeks to justify its action by reason of the fact that it has set up higher standards as to butterfat and bacteria count, and so on. The standard set by the state would seem to be sufficient to conserve the public health and safety.

It is also argued that the legislature in passing the act of 1935, page 417 (N. J. Stat. Annual 1935, § 81-162A(301) expressly provided: “That nothing contained in this act or rules or regulations adopted thereunder shall conflict with or be construed to abrogate or affect the status, force or operation of any public health law, any sanitary regulation or any local health ordinance, code or regulation.” And further on page 420 (N. J. Stat. Annual 1935, § 81-162A(500) : “The licenses required by this act shall be in addition to any other license or permit required by any law of this State, or by any ordinance of a local board of health or other body exercising the powers thereof in any municipality of this State.” This statute cannot be construed as in any way affecting the decisions of this court in Sheffield Farms, Inc., v. Seaman, supra. It was there said: “Suffice it to say that the meager facts, relevant as to the occasion and history of the refusal, lead us to the conclusion that they are without substance. They are excuses rather than legal reasons. The city just took the position that it had enough milk dealers and that it had the situation ‘well in hand.’ Such a position is unreasonable; it is arbitrary, capricious and discriminatory. It unlawfully curtails prosecutor’s common law right to engage in a lawful business, notwithstanding that it has fully complied with the requirements of the state and city. This the city cannot lawfully do.”

It has been urged that in this case there has not been an, exact compliance with the town requirements. The proofs clearly show reasonable compliance with the provisions of the ordinance essential to conserve the public health and safety, xi local board of health, by incorporating in its ordinances arbitrary and unnecessary provisions, cannot preclude the prosecutor from engaging in a lawful business, merely on the theory that his milk and cream contains slightly less butterfat or the bacteria count is slightly different. Other matters argued it seems unnecessary to further discuss.

The refusal of the permit will be set aside, with costs.


author: Oliphant, S. 0. C.

text:
    JAMES J. SULLIVAN, PLAINTIFF, v. AETNA CASUALTY AND SURETY COMPANY, DEFENDANT.
    Decided February 4, 1935.
    Por the motion, Gross é Gross.

      Contra,, Collins & Corbin.

   Oliphant, S. 0. C.

This is a motion to strike out the defenses in the answer filed by the defendant. The facts are that the plaintiff in this matter recovered a judgment in the Supreme Court on April 11th, 1934, against one Eay Felson Glass in the sum of $20,000. Glass was insured by the defendant in this action (to the extent of $10,000 for personal injuries and $5,000 for property damage) and that insurance was in full force and effect at the time of the accident. The contract of insurance between Glass and the defendant provided that the defendant would pay all judgments rendered against Glass for personal injuries to the extent of $5,000 for one person and $10,000 for two or more persons, and $5,000 for property damage. The company paid the full amount of the coverage for personal injuries. The dispute arises under the claim for property damage. In the accident suit, the complaint was in two counts, the ad damnum clause in the first count for personal injuries being in the sum of $50,000 and on the second count for property damage in the sum of $2,000. The jury in that suit rendered a general verdict in the sum of $20,000. In that suit at the trial the plaintiff contended that his car was worth $750 before the accident and had no value thereafter and in answers to questions in a bill of particulars, it was said that the automobile bad been repaired at a cost of $350.

The complaint in the instant suit asks for the sum of $2,000, the full amount of the ad damnum, clause in the property damage count in the accident suit. It is brought under the statute against the insurance carrier. Pamph. L. 1924, ch. 153; Cum. Supp. Comp. Stat. 1911-1924, p. 1589,- § 99-90e.

There can be no question but what the general verdict returned in the accident suit was a proper one (Melosh v. Public Service Railway Co., 4 N. J. Mis. R. 361; 132 Atl. Rep. 666) and I am fully aware of the rule that the record of the ease, kept as a memorial in the Supreme Court clerk's office consists of the pleadings, postea and judgment. Notwithstanding the apparent legal rule that that verdict cannot be attacked in the instant suit, if the defendant, the insurance carrier, is deprived of its defense that the damage to the car did not amount to the sum claimed, if the defense sought cannot be interposed, a great injustice will be done, an injustice which should shock any court of justice. Such a situátion is repugnant and inconsistent with the rudimentary demands of justice and fair play. The defendant under its policy of insurance only contracted to pay the actual property damage. It was not a party to the original suit. It cannot attack the verdict as such, hut the defense is not an attack on that verdict; it does not say the defendant is not liable under that verdict, it simply seeks to establish the actual damages suffered by the plaintiff and it should be allowed to do so, as that damage is not determinable unless it can proceed with its defense. As said by Mr. Justice Lloyd in his dissenting opinion in Stefus v. London and Lancashire Indemnity Co., 111 N. J. L. 6; 166 Atl. Rep. 339: “To hold otherwise is to declare that it is bound by litigation between other parties as to which it neither was nor could be made a party. It has not had its day in court and has lost the protection of the due process clause of the federal constitution. * * * Our cases hold that when a party to a litigation appeals to this court he must accept the record as it is here presented. That rule, of course, prevails and is sound. We could not adjudicate upon any other basis, but it is applicable only as between parties to the litigation.” Mr. Justice Kalisch, in Camden, Atlantic and Ventnor Land Co. v. Ventnor City, 106 N. J. L. 125; 147 Atl. Rep. 405, said “the testimony taken at the former trial and the charge of the court have been admitted in evidence in order to ascertain whether or not the same issue or issues was or were presented at the former trial, and that in some cases resort must necessarily be had to the testimony or charge of the court in the former trial.”

For the foregoing reasons the motion to strike the answer will be denied and the matter may proceed only as to the actual property damage suffered by the plaintiff.


text:
    FEDERAL SCHOOLS, INCORPORATED, A CORPORATION, PLAINTIFF-APPELLANT, v. WILLIAM SIDDEN, Jr., DEFENDANT-RESPONDENT.
    Submitted October 16, 1936
    Decided December 14, 1936.
    Before Justices Trenchard, Bodine and Heher.

      For the plaintiff-appellant, Irving U. Young and William, Simon.

    For the defendant-respondent, Peter G. Triolo.

   Bodine, J.

The plaintiff, a foreign corporation, maintains an office in Newark and solicits students in correspondence courses in illustration and cartooning to be sent from its home office in Minnesota. The present action was for the agreed price for the course of instruction. The contract was accepted and completed in the State of Minnesota where the plaintiff is incorporated. An action brought on a note accompanying the contract was dismissed. The present action was tried without a jury and the District Court entered judgment for the defendant on the ground that the plaintiff was a foreign corporation not licensed to do business in this state. Beyond the fact that the plaintiff maintains a studio in this state where students may also receive some instruction and whore an instructor is employed, the case is precise with and controlled by International Textbook Co. v. Pigg, 217 U. S. 91, 106. It was there said: “It is true that the business in which the International Textbook Company is engaged is of a somewhat exceptional character, but, in our judgment, it was, in its essential characteristics, commerce among states within the meaning of the constitution of the United States. It involved, as already suggested, regular and practically, continuous intercourse between the textbook company, located in Pennsylvania, and its scholars and agents in Kansas and other states. That intercourse was conducted by means of correspondence through the mails with such agents and scholars. While this mode of imparting and acquiring an education may not be such as is commonly adopted in this country, it is a lawful mode to accomplish the valuable purpose the parties have in view. More than that; this mode—looking at the contracts between the textbook company and its scholars—■ involved the transportation from the state where the school is located to the state in which the scholar resides, of books, apparatus and papers, useful or necessary in the particular course of study the scholar is pursuing and in respect of which he is entitled, from time to time, by virtue of his contract, to information and direction. Intercourse of that kind, between parties in different states, particularly when it is in execution of a valid contract between them, is as much intercourse, in the constitutional sense, as intercourse by means of the telegraph—‘a new species of commerce/ to use the words of this court in Pensacola Telegraph Co. v. Western Union Telegraph Co., 96 U. S. 1, 9. In the great case of Gibbons v. Ogden, 9 Wheat. 1, 189, this court, speaking by Chief Justice Marshall, said, ‘commerce, undoubtedly, is traffic, but it is something more; it is intercourse.’ Kef erring to the constitutional power of congress to regulate commerce among the states and with foreign countries, this court said in the Pensacola case, just cited, that ‘it is not only the right but the duty of congress to see to it that intercourse among the states and the transmission of intelligence are not obstructed or unnnecessarily encumbered by state legislation.’ This principle has never been modified by any subsequent decision of this court.”

The court then considered the Kansas statute very similar to section 98 of our General Corporation act (Comp. Stat., p. 1657), and then said: “Was it competent for the state to prescribe, as a condition of the right of the textbook company to do interstate business in Kansas, such as was transacted with Pigg, that it should prepare, deliver, and file with the secretary of state the statement mentioned in section 1283? The above question must be answered in the negative upon the authority of former adjudications by this court.”

In the present case, although the record is very meagre, it would seem that the plaintiff was engaged in interstate commerce. That an office was maintained in this state and that there was a resident instructor, who in part participated in the instruction, which was particularly carried on by mail between the head office of the company in the State of Minnesota and the resident scholar, does not destroy the interstate character of the transaction, and it seems error to have precluded the plaintiff from the right to recover under its contract for the agreed price for the services rendered.

Besides “foreign corporations, without complying with the provision of section 98 of the Corporation act, may maintain suits in this state on contracts made outside of the state. Faxon Co. v. Lovett Co., 60 N. J. L. 128; 36 Atl. Rep. 692; Allerton v. Grundy, 67 N. J. L. 55; 50 Atl. Rep. 352; MacMillan Co. v. Stewart, 69 N. J. L. 212; 54 Atl. Rep. 240; Slaytor-Jennings Co. v. Specially Paper Box Co., 69 N. J. L. 214; 54 Atl. Rep. 247; Bell Telephone Co. v. Galen Hall Co., 77 N. J. L. 253; 72 Atl. Rep. 47; Low v. Davy, 83 N. J. L. 540; 83 Atl. Rep. 869.” Commercial Credit Corp. v. Boyko, 103 N. J. L. 620, 627; 137 Atl. Rep. 534.

The dismissal of the action brought upon the note did not preclude the plaintiff of its right to sue upon the contract. The judgment is reversed.


text:
    THE STATE, EX REL. CLAUDIA LEA PHELPS, AS EXECUTRIX OF AND TRUSTEE UNDER THE LAST WILL AND TESTAMENT OF SHEFFIELD PHELPS, DECEASED, ET AL., RELATORS, v. THE BOROUGH OF FORT LEE, IN THE COUNTY OF BERGEN, A MUNICIPAL CORPORATION, ET AL., DEFENDANTS.
    Argued May 5, 1936
    Decided December 15, 1936.

      Before Justices Bodine and Heher.
    For the relators, Wurts <£• Plympton.

    For the municipal finance commission, William A. Stevens.

    For the borough of Fort Lee, Lawrence A. Gavinaio.

    For the trustees, intervenors, Warren Dixon.

    For Ambrose E. Vanderpoel, intervenor, Reed & Reynolds.

    For Sarah W. G-irdwood et al., intervenors, Harrison & Roche.

    For Charles P. Eogers, receiver, etc., intervenor, Harrison & Roche.

   Bodine, J.

On December 1st, 1932, the First National Bank of Fort Lee, then engaged in business, lent to the borough of Fort Lee the sum of $40,000, upon tax revenue notes of that date, due March 1st, 1933, issued against delinquent taxes for 1931. There is now due thereon the sum of $36,857.16 and interest at six per cent. On the same day, the bank lent to the borough the sum of $65,000 on two tax anticipation notes due March 1st, 1933. There is due on these notes the principal sum of $60,000 with interest at six per cent. Since these two notes matured after December 31st, 1932, they are to be treated under the law as tax revenue notes.

On October 14th, 1935, at the behest of a number of persons, holders of bond obligations of the borough of Fort Lee, an alternative writ of mandamus was issued requiring the borough to show cause why it should not include in the amount to be assessed, levied and collected by taxation for the 3rear 1936, money sufficient to pay the sum found to be due by the municipal finance commission as in default on April 30th, 1935, with interest. The return sets forth that the municipal finance commission functioning in said municipality, pursuant to chapter 330 (Pamph. L. 1931, p. 815; N. J. Stat. Annual 1931, § 48-* 110), has found the borough is in default in the sum of $1,562,567.16 for principal upon its obligations, and $498,236.90, accrued interest. The bonds and notes specified in the writs are admitted to be outstanding obligations. It is stated in the return that the total amount, which is possible to raise for the year 1936 by taxation, is approximately $645,000; that it will be possible to collect and raise available moneys in that year in the sum of $681,369.89 of which it is estimated $585,069.89 will be raised by the collection of taxes and approximately $96,200 from miscellaneous revenues; that of the expected sum of $681,369.89, $183,000 must be paid on account of local school taxes; $44,000 must be paid on account of state taxes for the year 1936, and $100,050 must be paid on account of county taxes for the year 1936, leaving a balance available for municipal purposes of $354,070, of which $185,000 is necessary for current economic operating expenses of the borough, and $165,586.86 for debt service; that under the proposed tax levy with other expected receipts there will result funds for a possible payment to or on account of bondholders and other creditors in the sum of $225,586.86. The return also shows that there has been accumulated in a reserve trust fund, because no interest has been paid for some years on municipal obligations, the sum of $177,912.04. These moneys, together with the funds to be realized from current and delinquent taxes, are available for equal and ratable payments on account of interest indebtedness, if preference or priority claims shall not prevail.

The borough sought that it might set aside a reserve for delinquent taxes of not less than $64,000 and an appropriation for debt service of not less than $165,586.86, and such other additional amounts as will increase the tax levy for the year 1936 to an amount not less than $645,000 and not more than $655,000, which after expense of collection will leave a balance of not less than $131,586.86 for payment pro rala on the amount of the indebtedness of the borough.

John Kenlon and Lester C. Burdett, trustees for creditors and depositors of the First National Bank of Fort Lee and holders of the notes in question having intervened in the proceedings, demurred to the return stating: “1. By force of the statute in such case made and provided, these intervening-petitioners are entitled to priority of payment ahead of general obligations of the borough of Port Lee as in said alternative writ of mandamus stated. 2. By force of the statute in such case made and provided, the tax revenue note and the tax anticipation notes held by these intervening petitioners are prior obligations of the borough of Port Lee ahead of its other outstanding obligations and the tax revenue note held by these intervening petitioners issued against delinquent tax revenues of 1931 is entitled to payment out of the revenues received by the borough for said year or out of such funds as are in the hands of the borough in priority to other obligations of the borough and the tax anticipation notes held by these intervening petitioners are entitled to priority of payment out of the revenues received by the said borough for the year 1932 against which anticipated revenues the said notes were issued, or out of such funds as are in the hands of the borough in priority to its other obligations. 3. By force of the statute in such case made and provided, the borough of Port Lee and the municipal finance commission was legally obligated to provide in the budget of the borough of Port Lee for the year 1935, an appropriation for the payment of the said note ahead of and in priority to the other obligations of the said borough, and the said borough and the said commission were legally obligated to pay the said note before the end of the year 1935, and these intervening petitioners are entitled to payment of-said note ahead of other obligations of the borough out of such moneys as are now in the possession of said borough. 4. By force of the statute in such case made and provided, these intervening petitioners are entitled to a provision to be made by the borough of Port Lee and the municipal finance commission in the budget of the said borough for the year 1936 for the payment of the tax anticipation notes held by these intervening petitioners issued against anticipated revenues for the year 1932, and are entitled to payment of the said tax anticipation notes before the end of the year 1936, ahead of and in priority to the other obligations of the borough.”

This court issued a peremptory writ directing the borough to include in its tax levy for the year 1936 the sum of $132,000 for debt service, reserving until now the decision on the demurrer of the intervening trustees, as to whether the $132,000 to be reserved for debt service should be paid to all relators and interveno rs pro rala and all other creditors of the municipality, or whether the trustees were entitled to have full payments of their obligations.

It is the contention of the trustees, the holders of the obligations sold to the Fort Lee bank, that there are funds sufficient to retire their notes, but if not that they are entitled to priority of payment from the moneys appropriated for debt service ahead of the general bond creditors of the borough.

Fort Lee was incorporated as a borough in 1904 (Pamph. L., p. 398), and is governed by the general act relating to boroughs. Pamph. L. 1897, p. 285. Under section 32' of that act, “the council may borrow money temporarily in the name of the borough in anticipation of taxes or assessments, not exceeding three-fourths of such anticipated taxes or assessments.”

In 1906 (Pamph. L., ch. 315, p. 697; 3 Comp. Stat., p. 3667), an act was passed permitting boroughs to borrow in anticipation of taxes. Borrowing was limited to ninety per cent, of the taxes for the year, exclusive of county taxes. The act provided that the notes issued in anticipation of taxes were to be paid and satisfied as soon as moneys raised by taxation were in hand. The 1906 act was repealed by Pamph. L. 1918, ch. 199, p. 734. In the meantime, however, chapter 192 of Pamph. L. 1917, p. 548; (Cum. Supp. Comp. Stat., 1911-1924, p. 3345, § *192-14), had been enacted. This act is entitled “An act concerning municipal and county finances.” It provides, section 21 (Cum. Supp. Comp. Stat. 1911-1924, p. 3355, § *192-34, sec. 14(a): “In anticipation of the receipt of taxes levied or to be levied, but not delinquent, any municipality or county may, between the beginning of its fiscal year and the day upon which taxes become delinquent of each year, borrow, as hereinafter provided, such moneys as may be necessary to meet its lawful expenditures under appropriations for the year for which such taxes are levied and for which they will become delinquent.” There is a limit of borrowing beyond ninety-five per cent, of the budget to be raised by taxation. It then provides: “the amount of money so borrowed before August first, which is in excess of the amount appropriated for such purpose or purposes, shall be included in the tax levy of the current year and be paid on or before the thirty-first day of December of said current year; and the amount of money so borrowed after August first shall be included in the budget of the following year, and the indebtedness thus incurred shall be paid on or before the thirty-first day of December of the said following year.”

Section 22 (Cum. Supp. Comp. Stat. 1911-1924, p. 3356, § *192-35, sec. 22) provides that all such liabilities incurred between the beginning of the fiscal year and the day upon which taxes become delinquent, shall be evidenced by tax anticipation notes of tax anticipation bonds and by no other name, and that such obligations shall mature in the case of municipalities before the eleventh day after the day upon which the taxes become delinquent in the year of issue and shall then be paid and retired; but a municipality may extend the maturity three months longer; provided the tax anticipation notes or bonds shall be credited upon the books of the municipality and charged as tax revenue notes or bonds on the eleventh day after the municipal tax becomes delinquent.

Section 23 (Cum. Supp. Comp. Stat. 1911-1924, p. 3357, § *192-36, sec. 23) permits borrowing to refund tax anticipation notes and bonds, such loans to be evidenced by tax revenue notes or tax revenue bonds. The receipt of all tax returns which are delinquent shall thereafter be set aside and first applied to the retirement of the tax revenue notes or bonds of that year until all notes or bonds are paid. The statute then provides: “Any unpaid balance of the tax revenue notes or bonds of any fiscal year, at the time of making up the tax levy for the third year thereafter, shall be placed in the tax levy of the said third year and retired on or before the last day of the said third year.”

Section 24 (Cum. Supp, Comp. Stat. 1911-1924, p. 3358, § *192-37, sec. 24) provides: “If, during the life of any tax revenue note or bond, any municipality shall acquire any tax title to any real estate included within the tax levy of the fiscal year for which such notes or bonds were issued, the amount of taxes represented by the tax titles so acquired may be withdrawn from tax revenue notes or bonds of that year and funded by the issue of tax title note or notes, bond or bonds, the proceeds of which shall be applied to the retirement of the tax revenue notes or bonds of said year. Such tax title notes or bonds may run until the lien of the tax title is discharged, and shall bo retired by the application to that purpose of the principal received in discharge of the lien or liens. The amount of all tax title notes or bonds outstanding shall at no time be greater than the lien value of the tax titles standing in the name of the municipality issuing such notes or bonds.”

Section 21 was amended by Pamph. L. 1918, p. 926 (Cum. Supp. Comp. Stat. 1911-1924. p. 3355, § *192-34), so that a municipality was able to borrow but not in excess of fifty per cent. The reason for the change is that prior to that time taxes became delinquent only after a year, but by Pamph. L. 1918, ch. 236, p. 872 (Cum. Supp. Comp. Stat. 1911-1924, p. 3501, §§ 208-66d, 601, 602) taxes became delinquent, one-half on June 1st and the other half on December 1st.

The legislative purpose seems necessary to enable a municipality to borrow in order to maintain its schools, to pay its police and fire department, and to carry on its other necessary municipal duties, but the legislature wisely limited the capacity to borrow in anticipation of the receipt of taxes beyond the time when the taxes became delinquent.

Section 22 of the original enactment became a part of section 21 under the 1918 amendment, and by that amendment, section 23 of the 1917 act was changed and became section 22 of the 1918 amendment. This section was amended by Pamph. L. 1919, ch. 178, p. 375, and Pamph. L. 1921, ch. 295, p. 855. Cum. Supp. Comp. Stat. 1911-1924, p. 3356, § *192-35, sec. 22(a).

In 1921, the last amendment occurred. Section 22, now Pamph. L. 1921, ch. 295, p. 854 (supra), so far as pertinent is as follows: “(a) After the first day of June any municipality in anticipation of the receipt of tax revenues for that year for municipal purposes, for local school purposes and for state and county purposes which are collectible by the collector of the taxing district, may, after any such taxes become delinquent, and to the amount thereof borrow moneys for the purpose of making all payments which may be lawfully made out of the proceeds of such taxes, including the payment of state and county taxes as and when required by law, or to refund its outstanding tax anticipation notes or bonds. * * * (b) All obligations incurred under this section shall be evidenced by the issue of Tax Revenue Notes or Tax Revenue Bonds, and not by the name or in the form of any other instrument whatsoever. Each Tax Revenue Note or Bond, or renewal thereof, shall bear upon its face the statement that it is issued against delinquent tax revenues. * * * (c) After the lawful expenditures under the appropriations for the year have been met, and the Tax Anticipation Notes or Bonds, and the Emergency Notes or Bonds, falling due in the year of issue have been paid or retired, the receipts of all delinquent tax revenues of any fiscal year shall be set aside and applied to the retirement of the Tax Revenue Notes or Bonds of that year, until all notes or bonds issued against the delinquent tax revenues of that year are paid; provided, however, when there are obligations incurred for, or purposes unfulfilled under, the budget appropriations of any year, there may be reserved from the first receipts of delinquent taxes of that year an amount sufficient to pay such obligations or to fulfill such purposes, but in no case shall such receipts be reserved to an amount that is greater than the difference between the delinquent taxes of such year and the revenue notes or bonds outstanding against such delinquent taxes; and provided, further, that if at the time of borrowing, a municipality has power to borrow on tax anticipation notes or bonds, the power to borrow on such notes or bonds shall first be exharrsted before it shall borrow on tax revenue notes or bonds, (d) An appropriation for the payment of any unpaid balance of the Tax Revenue Notes or Bonds of any fiscal year shall be included in the budget or the tax ordinance (or resolution) for the fourth year thereafter. All such notes or bonds shall be paid and retired on or before the last day of said fourth year.-”

The trustees contend that the statute dedicates the revenue received after lawful budgetary appropriations to the payment of their notes and that they are at all events absolutely entitled to payment before the last day of the fourth year.

It is obvious from a reading of the statutes that tax anticipation and revenue notes stand on an entirely different footing from other municipal obligations. A municipality must be able to borrow money to carry on its ordinary business. It cannot wait for the receipt of taxes to pay its firemen, its police force and its school teachers. The legislative purpose is dear throughout the period of thirty-odd years that municipalities are free to pledge tax revenues. That tax anticipation notes and tax revenue notes must be paid promptly is necessary if a municipality is to enjoy this temporary credit. Hence, the provisions of law which make these obligations certain as to time and manner of payment. They are secured by a specific pledge and a definite obligation to raise sufficient funds to secure payments before the end of the fourth year.

Finally, section 24 of Pamph. L. 1917, ch. 192, p. 560 (Cum. Supp. Comp. Stat. 1911-1924, p. 3358, § *192-37, sec. 24), makes the legislative purpose absolutely clear, since by its terms a municipality is enabled to borrow on tax title notes in order to make payment of tax revenue notes. Clearly, it was the intention that tax anticipation and tax revenue notes should be short time obligations with a pledge of specific revenues, otherwise the municipality could not function or properly set up a budget. The provisions referred to enable the lender to deal with safety with a municipality in temporary distress and enables the municipality to obtain a credit essential for the safety of its inhabitants. Tax revenues not promptly obtained from the citizen may be borrowed on a pledge of his obligation, which is a prior lien upon his property. If money could not -be so obtained, the municipality might be unable to function.

The legislature intended that, irrespective of the extent of the municipal bond debt, the municipality should have the right to secure temporary accommodation by the pledge of current tax obligations.

It may well be that the borough has received revenues sufficient, after the payment of other obligations, to pay the notes in full. We do not deem it necessary, however, to pass upon this point, because it is perfectly clear that the revenue notes and the tax anticipation notes are payable out of moneys appropriated for debt service ahead of and in priority to the general obligation of the borough.

The obligations were issued under legislative authority by force of which the holders thereof had a contractual obligation, which entitled them to payment either out of revenues received, but absolutely from taxes to be collected in the fourth jrear after issue. Possessed of such an obligation no change thereof can be effected by the Municipal Finance Commission act or subsequent legislative enactment. Municipal revenues are dedicated funds and those holding a lien thereon are entitled to payment as the funds are realized. Piscataway Township v. First National Bank of Dunellen, 111 N. J. L. 412; 168 Atl. Rep. 757.

In the instant case, the holders of the tax revenue notes are entitled to payment on or before the last day of the fourth year after issue. The intervening petitioners are entitled to a writ of mandamus directing the borough to retire their obligations out of the reserve fund which is on hand, or from the appropriations of the 1936 budget for debt service before the end of the current year, and this in priority of the general obligations of the borough.

Let such writ issue.


author: Peeskie, J.

text:
    STATE OF NEW JERSEY, DEFENDANT IN CERTIORARI, v. DEWEY LIBRIZZI, PROSECUTOR IN CERTIORARI.
    Submitted October 16, 1936
    Decided December 10, 1936.

      Before Brogan, Chief Justice, and Justices Case and Peeskie.
    For the state, David T. Wilentz, attorney-general, and Harry A. Walsh, assistant attorney-general.
    For the prosecutor, Abraham, I. Harhavy (Barney Koplin, on the brief).
   The opinion of the court was delivered by

Peeskie, J.

The writ of certiorari in this cause brings up for review the proceedings in the Union County Court of Special Sessions (no judgment of conviction in that court is contained in the state of case) affirming the prosecutor’s conviction in the Kecorder’s Court of Hillside, New Jersey, for having given a fictitious name in his applicaton of February 23d, 1934, for the owner’s registration of a motor vehicle contrary to subdivision 14 of section 14, chapter 208, Pamph. L. 1921, pp. 643, 647 (Cum, Supp. Comp. Stat. 1911-1924, p. 1994, § 135-63 (14), as amended by chapter 152, Pamph. L. 1926, pp. 254, 257 (Cum. Supp. Comp. Stat. 1925-1930, § 135-63 (14), which provides as follows:

“(14). Any person or persons making any misstatement of facts in his or her application for registration of a motor vehicle or driver’s license, or give a fictitious address shall be subject to a fine * * * and the Commissioner of Motor Yehieles shall, upon proper evidence of such misstatement, or fictitious address, revoke the registration of the motor vehicle, or the driver’s license, as the case may be. It shall be the duty of the registered owner of every motor vehicle and of every licensed operator to notify the Commissioner of Motor Yehieles of any change in his or her place of residence, within one week after such change is made.”

It is undisputed that the prosecutor’s real name is Dewey Librizzi. That on February 23d, 1934, while his name was on the revoked list, he made application for an owner’s registration of a motor vehicle and one month later, March 23d, 1934, he made application for an initial driver’s license under the name of “Dewey LaRose;” that in said application he gave his address as 159 Fleming avenue, Newark, New Jersey, and not his home address; that he said nothing in the latter applications to indicate that “Dewey LaRose” and Dewey Librizzi was one and the same person; and that in answer to the question on the driver’s application, “did you ever have your license revoked or suspended?” he answered, “no.”

Prosecutor’s explanation, in substance, is that he was convicted of crime, the number of convictions he did not remember but admitted that it was more than one; that his last conviction was in 1928; that he found his record injurious to his business (which at the time of hearing was the garage business) so that in 1932, on advice of counsel, he assumed the name of “Dewey LaRose.” The proof is plenary that he openly traded under that name; his lease, his agreements with the Standard Oil Company, and others, his banking account, were all under that name. He openly held himself out and was thus known in his business, private and social life as “Dewey LaRose.” On that explanation the argument is made that prosecutor merely did that which he had a right to do.

Thus we approach the question of the right of a person to take or assume another name. The law applicable is clear. In the absence of a statute or judicial adjudication to the contrary there is nothing in the common law which prohibits a person from taking or assuming another name so long as it is not taken or assumed for fraudulent purposes. 45 C. J. 376, 377; 9 R. C. L. 1132. Cf. In re Witsenhausen et al., 42 N. J. L. J. 183. Nor is our statute authorizing persons to change their names (3 Comp. Stat. 1910, p. 3685) to the contrary; that merely provides a judicial process to effect a desired change of name.

It requires no extended discussion to demonstrate the need and wisdom of providing a state agency for the issuance of licenses to owners and drivers of motor vehicles and for the preservation of the records incident thereto. The many reasons are obvious. Suffice it to mark the fact that the issuance of such licenses is not a mere matter of form. Only those who qualify under the act are entitled thereto. The issuing power has a clear right to truthful answers to the questions which form the basis upon which the granting or the refusal of license may be determined. Thus the legislature has made the misstatement of any fact by an applicant, in his application for a motor vehicle owner’s or driver’s license punishable and also authorizes the motor vehicle commissioner to revoke any license for any such misstatement. If the prosecutor here had not desired to impose a fraud on the commissioner he would have answered truthfully that his driver’s license had been revoked and that “LaRose” and “Librizzi” were one and the same person. The reason for his not having done so is obviously fraudulent. The proofs fully support the result reached.

We have examined the other points raised and find them to be without merit.

The writ is dismissed, with costs.


author: Bodire, J.

text:
    A. B. C. CREDIT CORPORATION, A CORPORATION, PLAINTIFF-APPELLEE, v. BIG BEAR USED CAR COMPANY, INCORPORATED, A CORPORATION, DEFENDANT-APPELLANT.
    Submitted October 16, 1936
    Decided December 14, 1936.

      Before Justices Trerchard, Bodire and Heher.
    For the defendant-appellant, Harold Simandl.

    For the plaintiff-appellee, Chiman & Chiman (Herman Chiman, Louis Chiman and Albert M. Neiss).

   Bodire, J.

This was an action of replevin. The plaintiff’s claim is predicated upon a conditional sales contract. The defendant subsequently purchased from the conditional vendee without notice of the conditional sales contract. The trial court directed a verdict in favor of the plaintiff.

Appellant argues that the plaintiff was required to prove an unlawful detention. The proofs clearfy indicate that this was done. The defendant’s entire attitude was that under no circumstance would the car have been returned to the plaintiff but for the court action. Voorhees v. Thomas, 107 N. J. L. 134; 152 Atl. Rep. 4. There is nothing to indicate that a demand for possession was made after the writ of replevin issued. F. A. North Co. v. McClellan, 116 N. J. L. 145; 182 Atl. Rep. 875.

As against the clear and convincing testimony of the constable that a demand had been served prior to the issuance of the writ, the vague denials indicative that under no circumstance, short of court action would possession have been delivered up, do not present a factual question for the determination of the jury. The defendant’s officers’ testimony indicated a stubborn refusal to deliver up the automobile and is inconsistent with the theory that it would have been returned upon request.

“There is a widening field of decisions to the effect that where circumstances show that a demand would have been unavailing no demand is necessary. Petey Manufacturing Co. v. Morris (Md.), 84 Atl. Rep. 238; Whitten v. Kemp (Ind.), 134 N. E. Rep. 211. See 34 Cyc. 1409 et seq., and cases cited. We go no further, however, than to hold that the proofs show a demand and such a congeries of facts as are tantamount to and may be regarded as a refusal.” Voorhees v. Thomas, 107 N. J. L. 137; 152 Atl. Rep. 4.

The judgment is affirmed, with costs.


text:
    MUTUAL GROCERY COMPANY, PLAINTIFF-RESPONDENT, v. MATTHEW WEILER AND WILLIAM WEILER, INDIVIDUALLY AND PARTNERS TRADING AS WEILER & COMPANY, DEFENDANTS-APPELLANTS.
    Submitted October 16, 1936
    Decided December 14, 1936.
    Before Justices Tkektchakd, Bodine and Hetiek.
    For the defendants-appellants, Harry B. Binslcy and Bernard Freedman.

    For the plaintiff-respondent, Jerome Alper and Samuel B. Friedman.

   Bodine, J.

The plaintiff leased a store in Newark to one Donatiello, who became indebted to the defendants for meat. The store fixtures were covered by a chattel mortgage. On April 23d, 1935, subject to the encumbrance, the fixtures and all the stock were transferred to the defendants. The plaintiff had no notice of this sale in bulk, but upon learning of the transfer took judgment for part of the rent reserved and distrained for the balance. The goods were sold to the plaintiff under the distraint and also under the judgment levy. The defendants refused to deliver up the goods so sold on demand. The plaintiff’s action was brought within time. The plaintiff was not only a landlord but was also a judgment creditor, if there be any distinction, and thus had the protection afforded by the Bulk Sales act. Pamph. L. 1915, ch. 208, p. 377; Cum. Supp. Comp. Stat. 1911-1924, p. 3127, § 182-80; N. J. Stat. Annual 1932, § 182-80; Pamph. L. 1932, ch. 225, p. 501.

The proofs indicate that the damages awarded were well founded.

The judgment is affirmed, with costs.


text:
    ELLEN CLARE, CATHERINE CLARE ET AL., PLAINTIFFS-APPELLEES, v. INTERNATIONAL BROTHERHOOD OF STATIONARY FIREMEN, LOCAL NO. 55, OF NEWARK, NEW JERSEY, AND VICINITY, ET AL., DEFENDANTS-APPELLANTS.
    Submitted October 16, 1936
    Decided December 14, 1936.
    Before Justices Tkenohakd, Bodine and Hehek.
    For the defendants-appellants, William F. Nies.

    For the plaintiffs-appellees, Bernard P. Hughes.

   Bodine, J.

The plaintiffs had judgment. The defendants appeal. William Clare was a member of the International Brotherhood of Stationary Firemen, Local No. 55, of Newark. The Local is a subordinate of the International Brotherhood. The suit was by the next of kin to recover death benefits called for under the constitution of the International Brotherhood and the by-laws of the Local. Both the International and the Local were defendants.

Previous to the present action the kin, other than Catherine Clare, a daughter, had sued the International for death benefits. It is first urged that the judgment in defendant International’s favor in that case is a bar to the present action. The District Court held otherwise. “The judgment or decree of a court of competent jurisdiction upon the merits concludes the parties and privies to the litigation and constitutes a bar to a new action or suit involving the same cause of action either before the same or any other tribunal.” 34 Corp. Jur. 743.

In the present action we have all the necessary parties plaintiff before the court for the first time. The previous decision only bound the parties to the cause and their privies. Lehigh Zinc and Iron Co. v. New Jersey Zinc and Iron Co., 55 N. J. L. 357; 26 Atl. Rep. 920. Since the next of kin are for the first time in court, the previous judgment is no bar against the International. Catherine Clare, like the other next of kin, was of full age and a necessary party to the proceeding. Though a wife under specific circumstances may be bound by a judgment at law against her husband on the ground that she was a real though not a nominal party to the proceedings (Lyon v. Stanford, 42 N. J. Eq. 411; 7 Atl. Rep. 869), no special circumstance is shown nor is any authority cited indicative that the rule has been extended so as to preclude a necessary party plaintiff from asserting for the first time her claim in a court of law. Broadly, the first cause of action was to recover death benefits, but the right in the present action rests upon the constitution of the International and the by-laws of the Local. Both defendants appear necessary parties to such an action. They were never in court to answer the plaintiffs’ claim.

The deceased became a member of the Local Ko. 55 on December 21st, 1915, and the court properly found, as it could from the evidence adduced, that he had been a member in good standing till his death. The proofs showed that at the time of his admission the constitution of the International and the by-laws of the Local called for the payment of $500 to the heirs of a member who had been in continuous good standing at the time of his death for a period of eight years beginning with July 1st, 1921, or any eight years thereafter.

“Upon the issue of the certificate a contractual and vested right accrued to the member and to the beneficiary for the payment of the sum mentioned in the certificate upon the death of the member * * *. Consequently, a by-law which ingrafts conditions not appearing in its original contract upon such contract, is an alteration and abridgment of those vested rights which would render the by-law, as applied to the certificate, unreasonable and unenforceable. It is reasonable to refer the alteration made by it, to those duties owing from members as such to the local conclave and as governing the payment of assessments to the benefit fund and like matters which, from time to time, arise in lodges, and also to contracts arising in the future; and not in any way so as to defeat or impair contracts, at the time of its adoption, already completed by making it retrospective.” Sautter v. Improved Order Heptasophs, 76 N. J. L. 767; 71 Atl. Rep. 232.

In view of the above statement of the law it appears that the ruling of the trial court was proper. Because the Local choose to pay dues to the International, which had set up a fund for the payment of benefits, does not relieve the Local of contractual obligations found to exist.

The trial court on the proofs adduced could find that the certificate issued to deceased contained the provision calling for the payment for which there was judgment, and that this provision was not due to a printer’s error. We can find nothing to indicate error in a finding that deceased was never suspended and had not signed an application for reinstate-

The judgment is affirmed, ment.


text:
    RICHARD T. STAGER, PLAINTIFF-RESPONDENT, v. GUSTAV M. JUNKER AND ARTHUR C. JUNKER, DEFENDANTS-APPELLANTS.
    Submitted October 16. 1936
    Decided December 14, 1936.
    Before Justices Tkenchaed, Bodine and Hei-iek.
    For the defendants-appellants, Samuel Levin and Irving Siegler.

    For the plaintiff-respondent, Miles M. Messinger, Jr.

   Bodine, J.

The plaintiff sued and had judgment on an agreement in writing providing as follows: “In consideration of the agreement of the party of the second part to accept bonds of the Home Owners’ Loan Corporation at par in discharge of a mortgage in the principal amount of $6,000 made by said Gustav M. Junker to the party of the second part upon land of said Gustav M. Junker known as No. 426 Prospect Street, Nutley, New Jersey, although the market value of said bonds is at present below par, the parties of the first part jointly and severally agree to pay to the party of the second part within six months from the discharge of said mortgage a sum equal to amr loss which may be sustained or discount below par taken by the party of the second part upon the sale of said bonds by him, at the market price of date of sale.” The bonds taken in discharge of the mortgage mentioned held by the plaintiff were sold within the time fixed in the agreement, resulting in the loss for which recovery was had.

The plaintiff, as required by the Home Owners’ Loan Corporation, at first agreed to accept Home Owners’ Loan bonds in full settlement of his claim upon the mortgage made by the defendant to him. The bonds were to bear four per cent, interest. Later he consented to accept bonds bearing three per cent, interest and finally two and three-quarters per cent. Series B bonds, in the meantime exacting from the mortgagors the agreement in suit. The agreement is said to be supported by consideration, since a promise to accept four per cent, bonds in full settlement is not fulfilled by the tender of two and three-quarters per cent, bonds. However, that is not precisely the situation here presented.

The Home Owners’ Loan act was intended to provide emergency relief with respect to home mortgage indebtedness and the rules of the corporation provide that no loan will be made where there was a separate understanding or agreement between the debtor and the holder of the mortgage calling for any payments other than those required by the corporation. The plaintiff, in order to facilitate the loan, stated the full extent of his debt and agreed to accept a definite number of bonds at face value in full settlement thereof. He was then precluded from exacting any further or other agreement from his debtor looking to the payment of the additional sum. The mere fact that he exacted the instrument in suit, while the negotiations were pending and after he had agreed to accept a definite number of bonds in full settlement, denotes bad faith toward the lending agency. When he agreed to an acceptance of each reduction of bond interest, the acceptance related back to the first agreement and was a reiteration of the promise there made to accept the bonds agreed upon in full settlement of the defendants’ obligation in accordance with the rules of the lending corporation deemed necessary to rehabilitate the home owner. By means of the secret agreement the plaintiff could not defeat the express terms of his own agreement to accept the bonds of the lending agency in full settlement of the defendants’ obligation.

The judgment is reversed, with costs.


author: Pee Cubiam.

text:
    JOSEPH CRISCIONE, PROSECUTOR, v. GIOVANNI IACONO, RESPONDENT.
    Argued May 5, 1936
    Decided December 15, 1936.
    Before Justices Lloyd and Donges.
    For the prosecutor, Alfred M. Gozzi (Louis Hoberman, of counsel).
    For the respondent, Felice Gastelli (J. Raymond Tiffany, of counsel).
   Pee Cubiam.

This is a fact case. It is by an alleged workman for compensation for injuries in the workmen’s compensation bureau in which an award was given and this award later reversed by the Common Picas judge. The latter decision is hero for review on certiorari.

The parties are brothers-in-law, having married sisters. The defendant is in the baking business without practical knowledge, but having at all times a competent man and upon occasion one designated as a helper.

The claimant’s story was that in June, 1933, he made an arrangement with the defendant that he, totally xinfamiliar with the baking business, being a timber man by occupation, should come into the bakery and learn the business for one week as a learner without pay and to be emploxuid thereafter at $20 a week.

Claimant’s arm was caught in some machinery on the twelfth day after he started in to work in the bakery and it was for this injury that the award was made.

The sole point in the case is one of employment and of course whether the claimant was injured in an accident arising out of employment. The award seems to have been complied with by the defendant for a period of eight months pending the appeal which had been taken. On reversal of the award payments ceased and the writ before us was allowed.

The two tribunals having reached different conclusions, we are especially obligated to measure and appraise the two stories as given by the parties.

The burden was on the claimant to establish his claim. The claimant was the sole witness testifying to any agreement or to any circumstances corroborating such agreement. The defendant denied the story m to to except to say that his brother-in-law who had been out of work and on relief for a long time was told he might come in and learn the business, and that after he had learned he would be given employment if his work was satisfactory, but that nothing was said about present emplojunent or any rate of pay. In addition to the denial by the alleged employer there is the testimony of defendant’s counsel that on an occasion when he was driving claimant to his home in West New York the latter said that he (defendant) did not agree to pay any salarjr, that there was no agreement for any salary, but that he (the claimant) thought he would get $20 a week as the defendant would not expect him with five kids to work for any less.

It also appeared that another helper who was discharged after the eighth day that claimant was in the bakery was receiving but $6 a week and that it would take much longer than the time the prosecutor had worked to learn the trade.

Upon these proofs the Common Pleas judge concluded that the burden of proof had not been met and we agree with that result. Against the plaintiff’s testimony is the denial of the defendant and corroboration of admissions by his attorney, to which is to be added the great improbability that a wage of $20 a week would be paid to a man formerly totally ignorant of the business upon one week of experience.

The judgment is affirmed with costs.