author: Heheb, J.

text:
    MAE SCOWCROFT, PROSECUTOR, v. CIVIL SERVICE COMMISSION OF NEW JERSEY AND BOARD OF CHOSEN FREEHOLDERS OF PASSAIC COUNTY, RESPONDENTS.
    Submitted October term, 1934
    Decided March 27, 1935.

      Before Justices Heheb and Pekskie.
    Por the prosecutor, Randal B. Lewis.

    Por the respondents, David T. Wilentz, attorney-general, and Harry L. Schoen.

   The opinion of the court was delivered by

Heheb, J.

The board of chosen freeholders of the county of Passaic, by resolution adopted on May 2d, 1934, abolished the “position of clerk to the jury commission,” of that county, then held by prosecutor. The civil service commission, on appeal, sustained this action. A review by certiorari is sought.

Eeasons of economy were asserted in justification of the challenged action. But prosecutor insists that the action is tainted with bad faith, and alleges that the service rendered by her was indispensable; that the jury commission had no other employe; and that one Purlong was employed, shortly after the taking of the action in question, to render the services theretofore performed by her. She claims the protection of the Civil Service act (3 Comp. Stat. 1910, p. 3795, § 57 et seq.; Cum. Supp. Comp. Stat. 1924, § 144-59a et seq.; Cum. Supp. Comp. Stat. 1930, § 144-59t et seq.; N. J. Stat. Serv. 1932, § 144-68 et seq.; N. J. Stat. Serv. 1933, § 144-74), but in vain.

On May 23d, 1919, she was appointed from a civil service eligible list, as a clerk to the jury commission. She retained this position, without further appointment, until the adoption of the resolution now under attack. Chapter 316 of the laws of 1927 (Pamph. L. 1927, p. 592), as amended by chapter 124 of the laws of 1929 (Pamph. L. 1929, p. 213; Gum. Supp. Comp. Slat. 1930, § 104-52), empowered the board of chosen freeholders to “select a clerk to the commissioners of juries and to fix the compensation of said clerk,” who “shall hold office for a period of three years from the time of his selection;” and to “appoint all necessary clerks and stenographers” in the commissioner’s office. Like provisions are contained in the amendment of 1934 to the act concerning juries, vesting in the presiding justice of the Supreme Court the power of appointing the jury commissioner. Pamph. L. 1934, ch. 111, p. 304; N. J. Stat. Serv. 1934, §§ 104-49 to 104-51, 104-53.

It is clear that prosecutor, at the time of the adoption of the resolution at issue, was exercising the functions of the statutory office of clerk to the jury commission. At the time of the adoption of the act of 1927, supra, she was, it would seem, the holder of a mere clerical position within the classified civil service. Although not appointed to the office in question, she apparently performed the functions thereof until her removal by virtue of the resolution under attack. She was then, and for sometime prior thereto had been, the only employe of the jury commission. It may well be that, in such circumstancés, her status was that of a mere de fado holder of the statutory office; if so, she has no standing to challenge the resolution. But if, as contended, she were then the holder of a subordinate clerical position, within the classified civil service, by virtue of her original appointment, the board was clearly within its rights in abolishing it. In fact, as the service of but one employe was required, it was the board’s prerogative, if not indeed its duty, to fill the office created by statute. While Furlong was designated by the jury commission as secretary of that body, it was with the approval of the board of freeholders, formally expressed. He is unquestionably exercising the powers of the statutory office of clerk to the commission. That body has no other clerk or employe. Neither the regularity of his appointment, nor his present status, is before us on this application. It results that prosecutor is not entitled to a certiorari.

Motion denied, but without costs..


source: Caselaw Access Project

license: Public Domain

text:
    JOHN A. MESEROL, PROSECUTOR, v. CITY OF LONG BRANCH, RESPONDENT. FRANK RUGGARO, PROSECUTOR, v. CITY OF LONG BRANCH, RESPONDENT.
    Argued October 3, 1935
    Decided March 28, 1935.
    Before Justices Heiteb and Pekskie.
    For the prosecutors, Joseph 8. Lindabury, Jr.

    For the respondent, Jacob Steinbach, Jr.

   The opinion of the court was delivered by

Heheb, J.

Prosecutors are employes of the New York Eskimo Pie Corporation, whose plant is located at Highland Park, in the county of Middlesex, in this state. This corporation is the manufacturer of a frozen ice cream product, known in the trade as “Eskimo Pie.” Each prosecutor was the driver of one of the corporation’s delivery automobiles on a designated route, extending through various municipalities of the state. Deliveries were made only to restaurants, billiard rooms, candy stores and like establishments. The apparent need of the retailer at the time is supplied from the contents of the delivery vehicle. The corporation is exclusively a wholesaler; sales are made only to retail merchants on the driver’s route. The consumer is not directly served by the corporation.

Prosecutors were each convicted upon a complaint charging the peddling and sale of the product referred to, “with an automobile without first obtaining a license therefor,” in violation of the provisions of an ordinance of the municipality entitled " 'An ordinance governing, regulating and fixing fees of mercantile licenses in the city of Long Branch, New Jersey, and regulating business licensed’ approved January 11th, 1927.” This ordinance is not regulatory; it imposes a tax for revenue.

On the presentation made, the facts of these cases bring them within the rationale of the decision of this court in the recent case of Huband v. Evans, 114 N. J. L. 586; 177 Atl. Rep. 871, and such being the case, the judgment of conviction should be brought up by certiorari.

The writs are therefore allowed.


author: Hehek, J.

text:
    AARON H. WOODMAN, PROSECUTOR, v. OVID C. BIANCHI, DIRECTOR OF REVENUE AND FINANCE OF THE CITY OF ORANGE, RESPONDENT.
    Argued October 2, 1934
    Decided April 4, 1935.
    Before Justices Hehek and Pekskie.
    Por the prosecutor, Seymour <& Seymour.

    Por the respondent, Edward R. McGlynn.

   The opinion of the court was delivered by

Hehek, J.

On March 27th, 1934, prosecutor was appointed, by resolution adopted by the board of commissioners of the city of Orange, a member of the board of assessors of that municipality, for a term expiring on September 14th, 1936. On August 3d, 1934, he was removed from office by the respondent director, and he challenges the legality of the ouster.

The board was created by an ordinance adopted on September 5th, 1933. It provided for a board of three members, with a prescribed term of three years. The chairman of the board was thereby required to “devote his entire time exclusively to the duties of his office, or such other duties as may be assigned to him by the commissioner of the department to which the board of assessors is assigned.” The salary of the chairman was fixed at $3,400 per annum. The other members were required to “devote so much of their time as is necessary to the satisfactory discharge of their duties, but not necessarily their entire time.” Their salaries were fixed at $1,600 per annum. By an amendment of the ordinance, adopted on July 3d, 1934, it was provided that all three assessors should “devote their entire time exclusively” to the duties of their respective offices, or such other duties as should be assigned to them by the commissioner in charge. The hours of duty were ordained to be from nine A. m. to four-thirty P. M., except on Saturday, when the quitting hour was fixed at noon.

The judgment under attack rests upon prosecutor’s conviction of non-performance of the duties imposed upon him by the ordinance. At the time fixed for the hearing of the charges, prosecutor, through counsel, challenged the jurisdiction of the respondent director, and, when this challenge was overruled, he withdrew and presented no defense. The charges were established by the proofs. There was evidence tending to show that prior to July 3d, 1934, when the amendment was adopted, prosecutor refused to do any clerical work, and that thereafter he rendered no service, although on July 6th, 1934, the respondent director forwarded to him, by registered mail, a letter enclosing a copy of the amendment to the ordinance, and requested him to comply with its provisions. It seems that since 1922 it had been the custom for the assessors of the municipality to prepare and mail the tax bills. There was a substantial basis in the proofs for the finding that he did not devote such time as was necessary for “the satisfactory discharge” of his duties as an assessor, and that after July 4th, 1934, he rendered no service at all.

The first point urged is that the respondent director was without jurisdiction for the reason that the ordinance and amendment are illegal and void. The claim is that the legislature, in the General Tax act, has regulated the duties of assessors and placed their supervision and control in the hands of the county board of taxation, and vested authority to remove in the Supreme Court, and the individual justices thereof, and the state tax bo'ard.

This point has been disposed of, adversely to prosecutor, in O’Brien v. Parnell, 12 N. J. Mis. R. 99; 169 Atl. Rep. 539. There Mr. Justice Parker said that the power of removal vested in the Supreme Court, and the justices thereof, is “modeled somewhat upon section 11 of the County Board act (Pamph. L. 1906, p. 210—at p. 216; 4 Comp. Stat. 1910, p. 5120, § 373), conferring powers of dismissal on the state board of equalization upon complaint by a county board. Each appears to be a sort of legislative short cut aimed.at the removal of an assessor who ‘shall willfully or intentionally fail, neglect or refuse to comply with the constitution and laws of this state relating to the assessment and collection of taxes. * * *.’ ” The powers vested in these tribunals, he declared, are not “exclusive” methods of dismissing an assessor, but run “side by side with the later powers of municipal commissions created by the Walsh act of 1911 (Pamph. L., p. 462) and its supplements and amendments.” Cum Supp. Comp. Stat., § **136-1 et seq.”

It is next urged that the charges did not accuse prosecutor of “any neglect of his duties of office or failure to perform •his duties of office.” This is manifestly untenable.- As herein pointed out, he was charged with a failure to render adequate service for a period, and no service at all for another period. We regard the duties imposed upon prosecutor as entirely reasonable under the circumstances, and a failure to perform them was adequate cause for removal.

Lastly, it is contended that the respondent, having made the charges, could not be both accuser and judge. This is likewise lacking in merit. See Zober v. Turner, 106 N. J. L. 86; 148 Atl. Rep. 894; Crane v. Jersey City, 90 N. J. L. 109; 103 Atl. Rep. 678; affirmed, 92 N. J. L. 248; 103 Atl. Rep. 1051.

Writ dismissed, with costs.


author: Hehee, J.

text:
    NEW JERSEY WATER SERVICE COMPANY, PROSECUTOR, v. STATE TAX COMMISSIONER AND STATE BOARD OF TAX APPEALS, DEFENDANTS.
    Submitted October term, 1934
    Decided April 4, 1935.
    Before Justices Heiiee and Pbbskie.
    For the prosecutor, John L. Ridley.

    For the defendants, David T. Wilentz, attorney-general, and John Bolán.

   The opinion of the court was delivered by

Hehee, J.

The prosecutor challenges the validity of an assessment and apportionment of taxes made against it for the year 1932, by the state tax commissioner, and affirmed by the state board of tax appeals.

The tax was levied under the Yoorhees Franchise Tax act. Pamph. L. 1900, p. 502; 4 Comp. Stat., p. 5298, as amended by chapter 240 of the laws of 1918 (Pamph. L. 1918, p. 907; Cum. Supp. Comp. Stat. 1924, § 208-527 et seq.), and chapter 302 of the laws of 1927 (Pamph. L. 1927, p. 567; Cum. Supp. Comp. Stat. 1930, §§ 208-530, 208-532).

These are the essential facts: In 1931, the prosecutor maintained water plants, and lines, for the service of water in the municipalities of Butler, Bloomingdale, Little Palls and West Paterson. On September 30th, 1931, it sold the Butler and Bloomingdale plants to Butler. These plants were thereafter operated by that municipality, while the Little Palls and West Paterson plants continued to be operated by prosecutor. The water company’s gross receipts for the year 1931, as shown by its return made to the tax commissioner, pursuant to section 4 of chapter 195 of the laws of 1900, supra,, amounted to the sum of $103,954.38. Of this, $63,082.32 was derived from the operation of the Little Palls plant (which included West Paterson), and the remainder, $40,872.06, was the gross receipts from the Butler plant from January 1st, 1931, to September 30th, 1931. As of September 30th, 1931, the length of several lines owned by the water company, according to the return, was: In Little Palls, 15.490 miles, and in West Paterson, 3.886 miles, or a total of 19.376 miles; in Bloomingdale, 10.709 miles, and in Butler, 13.011 miles, or a total of 23.720.

The tax commissioner, pursuant to section 5 of the mentioned act, assessed a tax of five per cent, of the entire gross receipts of the water company, amounting to the sum of $5,197.72. He apportioned this sum between Little Palls and West Paterson, in proportion to the value of the property of the water company located in, upon or under the public streets, highways, lanes or other places therein, as shown by the returns filed with him by the assessors of these municipalities. Under the apportionment, Little Palls became entitled to $4,862.38, and West Paterson to $335.34. None of the money was allotted to Butler or Bloomingdale.

The sole point raised by the prosecutor is that the levy of a tax upon the receipts derived from the operation of the Butler and Bloomingdale plants is unconstitutional and invalid. Specifically, it is urged that, “the act itself is constitutional, but that the assessment as levied arising from the gross receipts derived from the company’s operations in Butler and Bloomingdale is incorrect,” for the reason that it is “subjected to the payment of a tax based on gross operations in Butler and Bloomingdale although these plants had been sold to Butler prior to the expiration of the year 1931, because the plants were sold to a municipal corporation which is tax exempt, whereas if the plants had been sold to another water company” prosecutor “would have been relieved of the obligation and the purchasing corporation would have been obligated to pay the tax therefore.” It is said that “such construction of the law is discriminatory and unjust.”

There is no merit to this claim. The tax commissioner properly levied this franchise tax upon the gross receipts shown by the return made by the water company. This was in conformity with section 4 of the act of 1900, as amended by chapter 320 of the laws of 1927, supra. The sale by the water company of the Butler plant during the tax year does not relieve it from the obligation to pay the tax levied upon its gross receipts as shown by its return. New York and New Jersey Water Co. v. Hendrickson, 88 N. J. L. 595; 97 Atl. Rep. 153. Compare Hann v. State Board of Taxes and Assessments, 7 N. J. Mis. R. 1047; 147 Atl. Rep. 724, 725; Paterson and Passaic Gas Co. v. State Board of Assessors, 69 N. J. L. 116; 54 Atl. Rep. 246. Chapter 109 of the laws of 1928 (Pamph. L. 1928, p. 223; Cum. Supp. Comp. Stat. 1930, §§ 208-535a(1), 208-535a(2), cited by prosecutor, is of no avail. It does not modify in any respect the obligation of the water company here, under the Yoorhees act, to pay a tax levied upon its gross receipts. If applicable at all, it was designed to safeguard the tax in the event of a sale of the property and franchise of a company subject to such tax; it was devised to make effective the provision imposing such a tax. The exemption of the municipality manifestly does not, under these circumstances, constitute unlawful discrimination. As to this, it suffices to point out that, where a sale is made to such a governmental agency, the payment of the tax can be provided for by the contract. There is, therefore, no factual basis for the claim.

The application is denied, with costs.


author: J. L. Smith, S. C. 0.

text:
    WILHELMINA C. SAYRE AND ESSEX COUNTY TRUST COMPANY, A CORPORATION AS ADMINISTRATOR CUM TESTAMENTO ANNEXO OF THE ESTATE OF ANNA D. WARD, PLAINTIFFS, v. JOSEPH A. DUFFY, DEFENDANT. ESSEX COUNTY TRUST COMPANY, AS ADMINISTRATOR CUM TESTAMENTO ANNEXO OF THE ESTATE OF ANNA D. WARD, PLAINTIFF, v. JOSEPH A. DUFFY, DEFENDANT.
    Decided May 29, 1935.
    For the plaintiffs, Burnett & Trelease.

    For the defendant, L. Edward Herrmann.

   J. L. Smith, S. C. 0.

This comes on a motion to strike the answers filed in the two above entitled actions, on two bonds made by the defendant and secured by first and second mortgages on the same parcel of property. The action wherein Wilhelmina C. Sayre appears as plaintiff is for deficiency upon the bond secured by the first mortgage, which was foreclosed, and in the usual course, the mortgaged lands were bought by the representatives of the first mortgagee at sheriff’s sale, for $100. The other action is on the bond which was secured by the second mortgage.

An answer has been filed to each action, disputing the amount of deficiency demanded by the plaintiffs on the ground that the reasonable value of the premises mortgaged and sold is in excess of the final decree obtained in Chancery.

The defense in both actions is based on chapter 88 of the laws of 1935, approved March 22d, 1935. The actions before the court were both commenced on March 14th, 1935.

The plaintiffs contend :

(a) The statute in question is not applicable to either of these two actions, since these actions were commenced prior to the enactment of the statute relied upon.

(b) The statute in question does not apply to the bond secured by the second mortgage, which is the basis of the action wherein Essex County Trust Company, as administrator, is the plaintiff.

(c) The statute is unconstitutional in so far as it concerns obligations entered into prior to its enactment.

In the opinion of the court, the plaintiffs’ third contention that the statute in question, in so far as it relates to obligations already entered into, is unconstitutional, is correct. It is deemed unnecessary, therefore, to discuss the correctness of the other two grounds.

The part of the statute which forms the basis of the defense pleaded, provides as follows:

“That the obligor or obligors in said bond may file an answer in the suit on said bond disputing the amount of such deficiency, in which event both parties may introduce in evidence at the trial, testimony of the fair market value of the mortgaged premises at the time of the sale under said foreclosure proceedings, and the court, sitting with or without a jury, shall determine the amount of said deficiency by deducting from said debt the amount assessed as the fair market value of said premises * *

The portion just quoted is identical with the provisions of chapter 82 of the laws of 1933 (N. J. Stat. Annual 1933, § 134-48), which was declared by our Court of Errors and Appeals, in the case of Vanderbilt v. Brunton Piano Co., 111 N. J. L. 596; 169 Atl. Rep. 177, to be in violation of the constitution of the United States, as well as of New Jersey, in so far as it related to pre-existing contracts.

The vice in the 1933 enactment as brought out in the Vanderbilt v. Brunton Piano Co. case, supra, has not been in any way remedied, and is still existent in the present statute.

As pointed out in the Vanderbilt v. Brunton Piano Co. case, supra:

“The statute applies, without distinction, whether the sale be to the mortgagee or to a third party, and the statute is incapable of dissection so that it may be held to apply in the one instance and not in the other.”

Identical with the facts outlined in the Vanderbilt case, in the present cases, the mortgagee instituted an action on the bonds, and only after that came the statute in question, which is made the basis of the defense interposed.

In the Vanderbilt case, supra, the court criticised the 1933 act on the further ground that it was not an exercise of police power. The legislature, in the present enactment, apparently with the intent to meet the criticism made in the Vanderbilt case, supra, states that a serious public emergency exists and determines the necessity for legislative intervention by the enactment of the provisions prescribed, and their application until Jufy 1st, 1938.

The effect of the present statute, however, is not to postpone or delay the remedy until July 1st, 1938, but to abrogate completely the right of the mortgagee to a deficiency suit up to that time. In other words, while the life of the statute is limited, its effect during its existence and when applied, is permanent and complete, and not merely dilatory, so that the criticism made in the Vanderbilt case, supra, still applies in that its “purview is absolute, final and permanent. It extends to all classes of property, homes, business properties, speculative ventures, everything.”

While a financial or economic emergency may justify a temporary relief from enforcement of a contract by delaying its enforcement, it does not justify the permanent destruction or cancellation of contractual obligations. In the words of Mr. Justice Case, in the Vanderbilt case, supra:

“The statute does not grant a stay or a delay, and therefore does not deal with the question of a moratorium.”

In the case of Home Building and Loan Association v. Blaisdell, 290 U. S. 398; 54 Sup. Ct. Rep. 231, the United States Supreme Court, in an opinion delivered by Chief Justice Hughes, upheld the Minnesota Mortgage Moratorium law. It did so, however, holding that the measure in question was one temporarily restraining the enforcement of the contractual obligation. Whereas, in the statute now before the court, the legislature makes it mandatory for the mortgagee to bring his action for the deficiency within three months from the date of the sale of the mortgaged premises, and in the same paragraph, provides for the so-called defense of fair market value of the premises; so that, the effect of the statute is rather to destroy and abrogate the mortgagee’s right, than to postpone or delay its enforcement.

As stated by the United States Supreme Court, in its recent decision, in the case of Louisville Joint Stock Land Bank v. William W. Radford, Sr., 55 S. Ct. 854.

“For the fifth amendment commands that, however great the nation’s need, private property shall not be thus taken even for a wholly public use without just compensation. If the public interest requires and permits the taking of property of individual mortgagees in order to relieve the necessities of individual mortgagors, resort must be had to proceedings by eminent domain; so that, through taxation, the burden of the relief afforded in the public interest may be borne by the public.”

The United States Supreme Court, in the case of Home Building and Loan Association v. Blaisdell, supra, did not go beyond upholding a moratorium law which prevented the “immediate and literal enforcement of contractual obligations by temporary and conditional restraints.”

As has been observed above, the act now before the court, while temporary and limited in duration, places a restraint on the enforcement of obligations which restraint is neither temporary nor conditional. When applied, it is permanent and conclusive.

For the reasons above given, I am constrained to grant the motion to strike out the answers herein filed.


author: Donges, J.

text:
    IN THE MATTER OF THE APPLICATION OF WILLIAM A. BROPHY ET AL., TO SET ASIDE THE ELECTION OF DIRECTORS OF ATLANTIC CITY WIMSETT THRIFT COMPANY.
    Decided May 31, 1935.
    Before Justice Donges (at chambers).
    For the petitioners, Lionel P. Eristeller and Saul J. Zuclcer.

    For the respondents, Endicobt & Endicott.

   Donges, J.

This matter is before me under section 42 of "An act concerning corporations” (Revision of 1896), and the supplements thereto1 and amendments thereof. Comp. Stat., p. 1624, § 39.

The nine petitioners were nominated for directors of the Atlantic City Wimsett Thrift Company, a corporation of the State of New Jersey, organized under the Corporations act, above referred to.

Neither in the certificate of incorporation, filed February 25th, 1928, not in the amended certificate, filed November 20th, 1928, is there provision for cumulative voting of stock. Effective December 19th, 1934, article 1, section 2 of the by-laws of the corporation provided, inter alia:

"At all elections for directors, each stockholder of no par common stock of record shall be entitled to cast, for every share of stock held by him, as many votes as there are directors to be elected, and he may cast the whole number of votes for one person, or distribute them among two or more persons as he may prefer.”

On December 19th, 1934, an annual meeting of the stockholders of the corporation was held in Atlantic City, on due notice, at which there were represented either in person or by proxy, four thousand seven hundred and thirteen shares of the common stock of the corporation. Of this stock Public Bancorporation owns two thousand shares of five thousand shares outstanding, and there was produced a list of holders of voting trust certificates of that corporation, on which it was asserted the holders were eligible as directors. Twenty-five persons were nominated for the sixteen directorships. For the nine petitioners, who were alleged to be holders of voting trust certificates, there were two thousand shares voted, and they assert that under the by-law they were entitled to have thirty-two thousand votes distributed among them so that five would receive three thousand five hundred and fifty-six votes each and four would receive three thousand five hundred and fifty-five votes each. The other sixteen nominees each received two thousand seven hundred and thirteen votes, no cumulative voting being attempted in behalf of any of them. The chairman ruled that there being no provision in the certificate of incorporation for cumulative voting, the provision therefor in the by-laws was ineffective. He further held that the nominees of Public Bancorporation “are not stockholders under statutory classification in that the holding of voting trust certificates does not make them eligible as directors; however, the votes cast by Public Ban-corporation will be considered as being two thousand votes for each of the directors it nominated.”

The first question to be considered relates to cumulative voting.

Sections 36a and 36b of our Corporation act provide (Comp. Stat., pp. 1622, 1623):

“36a. Cumulative voting may be provided for in certificate. The certificate of incorporation, original or amended, of any corporation now or hereafter organized under the laws of this state and thereunder issuing or authorized to issue shares of its capital stock, may provide that at all elections of directors, managers or trustees, each stockholder shall be entitled to as many votes as shall equal the number of his shares of stock multiplied by the number of directors, managers or trustees to' be elected, and that he may cast all of such votes for a single director, manager or trustee, or may distribute them among the number to be voted for, or any two or more of them as he may see fit, which right when exercised shall be termed cumulative voting.

“36b. Act not construed as affecting implied rights in previous charters. This act shall not be construed as affecting in anywise the determination of whether or not the right of cumulative voting has been heretofore granted by implication or the right of cumulative voting, if any, granted specifically by special charter or certificate of incorporation.” It will be observed that the only provision for cumulative voting is contained in section 36a {supra). This requires that the certificate of incorporation shall provide for such voting. There was no common law right to cumulative voting; it exists only by virtue of the statute and may be exercised only in accordance with the statute. Compare Lloyd v. Pennsylvania Electric Vehicle Co., 75 N. J. Eq. 263 (at p. 266); 72 Atl. Rep. 16, where in dealing with the power to create preferred stock, it was said:

“The power to create preferred stock is granted by section 18 (Comp. Stat., p. 1608), and it is granted upon the terms set forth in that section. To enact that the stock should have such preference as is stated or expressed in the certificate was equivalent to enacting that it should have no other preferences upon the general principle of interpretation that the expression of one thing is the exclusion of the other.”

So here, the only authority for cumulative voting is the one requiring it to be expressed in the certificate of incorporation.

• In a case dealing with this subject, In re American Fibre Chair Seat Corp., 265 N. Y. 416; 193 N. E. Rep. 253, the New York Court of Appeals said:

“We find in these sections of the statute a legislative declaration that provision for cumulative voting is not against public policy, but such provision can be made only by the certificate of incorporation or amendment thereto filed pursuant to1 law. A corporation is a purely artificial body created by law. It can act only in accordance with the law of its creation. The stockholders of a corporation may be the real owners of the corporation, but their right to control the corporation is governed by the law of its creation. Once the stockholders’ rights are fixed, they cannot be changed except in the manner provided by law. In some matters the statute permits change by amendment to the by-laws. Then a stockholder takes his stock subject to the possibility of change of rights in that manner. In other matters the law may forbid any change or permit change only through amendment of the certificate of incorporation. It is plain that the voting rights of stockholders fixed by the corporate charter are immune from change except by amendment of the certificate of incorporation.”

The court found that the stockholders agreed to a provision for cumulative voting and directed the officers to prepare and file an amendment to the certificate of incorporation which would embody such provision in accordance with law, and held that the failure to file the required certificate did not deprive a stockholder of his right to cumulative voting.

In the instant case, there was no attempt to’ amend the certificate of incorporation, as required by the statute. A by-law was passed, apparently by the acquiescence of four thousand seven hundi'ed and thirteen shares of the five thousand shares outstanding.

In Brooks v. Richards, 79 Atl. Rep. 790 (at p. 800), it is said : “A by-law that restricts or alters the voting power of stock of a corporation as established by the law of its charter is, of course, void.” See Taylor v. Griswold, 14 N. J. L. 222.

I conclude that the by-law in question was ineffective to confer upon the owners of stock in the corporation the privilege of cumulative voting, because not provided for in the charter of the corporation as required by statute. This result makes it unnecessary to consider the other point attempted to be raised.

The rule to show cause is, therefore, discharged, with costs.


author: Bbown, S. 0. 0.

text:
    BELLE CERRUTI, PLAINTIFF, v. JOSEPH SIMONE, LYMAN BROCK AND VOX BOX LUNCH COMPANY, A CORPORATION, DEFENDANTS.
    Decided May 14, 1935.
    For the plaintiff, Collins <& Corbin.

    For the defendant Joseph Simone, Carey >& Lane.

   Bbown, S. 0. 0.

The plaintiff moves to strike the fourth separate defense of the defendants’ answer on the ground that it is frivolous. The plaintiff, a married woman, brings suit to recover for injuries sustained in an automobile collision. The first count in the complaint charges the defendant Simone as being the owner of an automobile operated by his agent and servant on December 4th, 1932, in the State of Pennsylvania and that the plaintiff was at the time riding as an invitee in the automobile when it collided with an automobile of the defendant Brock. The plaintiff claims her injuries were caused as a result of the combined negligence of those defendants. The second count of the complaint contains substantially the same allegations except that the collision is alleged to have occurred between the Simone automobile and that of the defendant Yox Box Lunch Company and a claim is made for damages because of the alleged combined negligence in the operation of those two automobiles. The defense to which the motion is addressed alleges that at the time of the collision referred to in the complaint the husband of the plaintiff was operating the Simone automobile as the agent and servant of the latter and for that reason “the plaintiff can have no cause of action against the defendant [Simone] for injuries or damages alleged to have been received by her as the result of his alleged negligence.” On the oral argument of this motion as well as in the written briefs it is conceded that the operator of the Simone automobile at the time of the collision was acting as the servant and agent of Simone. This defendant answers the motion to strike by contending that the suit having been brought in the State of New Jersey on account of a collision occurring in the State of Pennsylvania she has no right to bring her suit unless she is enabled to do so by a statute of Pennsylvania and that she must plead in her complaint the enabling act otherwise her action is governed by the rules of common law. There was no statute of the State of Pennsylvania referred to in the complaint. Under the common law, a husband and wife were deemed to be one person, and, while the marriage relation continued, the legal identity of the wife was suspended or merged in that of the husband. Between the spouses, no right or cause of action existed. As to third persons, the joinder of the husband was required in all actions by or against a married woman unless he was an alien who had always resided abroad or was regarded as civilly dead. If a husband had no cause of action against a tort feasor guilty of an assault upon his wife because of his own complicity, his disability as a party plaintiff barred an action for the wrong. The wife could not sue alone. The joining of a husband in a suit for injuries to a wife, at common law, was a procedural requirement. The merits of the cause rested in her. If the husband died before or pending the suit, the right of action survived in the wife. If the wife died before or ponding the suit, the right of action was extinguished. An act for the protection and enforcement of rights of married women (Comp. Stat. 1910, p. 3236, §§ 12a, 12b) enables a married woman to maintain an action in her own name without joining her husband therein for all torts committed against her. This act did not create a new cause of action. It changed no rule of substantive law regarding the liability of third persons for injuries to married women. Sims v. Sims, 79 N. J. L. 577; 76 Atl. Rep. 1063. While in some states (Howard v. Howard, 120 Me. 479; 115 Atl. Rep. 259) statutes similar to the Married Woman’s act of Mew Jersey, have been construed strictly as being in derogation of the common law. The opposite view has been taken in this state. For Mr. Justice Minturn, in an opinion for the Court of Errors and Appeals, in the ease of Sims v. Sims, supra, said:

“That this act was intended to confer the power upon a married woman to protect and enforce her rights, is the specific announcement contained in its title. The body of the act declares that she may maintain an action as a feme sole might lawfully do and without joining her husband therein for all torts committed against her or her property. Keeping in mind the old law and the existing mischief, it becomes manifest that the legislative intent which inspired this remedial measure could have been only a desire to confer upon the married woman that equality of remedy as an independent suitor which would enable her to vindicate her right in personam for a tort committed against her, and thus remedy the inequality to which she was subjected by the comjnon law.”

Since the enactment of the Married Woman’s act in this state the rights of a married woman cannot be abridged through the independent act of her husband though such act may have been a contributing cause to her injury. So far as the enforcement of her rights is concerned, against third persons to redress wrong committed against her, she stands in the same relation to her husband as to a stranger. Peskowitz v. Lawrence F. Kramer, Inc., 105 N. J. L. 415; 144 Atl. Rep. 604. The precise question presented on this motion has not been passed upon in the reported cases of this state. The cases of Rankin v. Central Railroad Co., 77 N. J. L. 175; 71 Atl. Rep. 55, and Friedman v. Greenberg, 110 N. J. L. 462; 166 Atl. Rep. 119, cited in defendant’s brief, are not cases in point. In those cases there was involved statutes creating a right of action for injuries resulting in death through the negligence of another. Those statutes changed the substantive rights of parties as they existed under the common law; hence, in order to bring an action for negligence it is necessary to plead the statute. The Married Woman’s act of this state does not change the substantive rights of the parties as they existed at comon law. It would amount to a perversion of justice to hold that a master could not be held liable for the acts of his servant. To hold that the plaintiff cannot recover in this case because her husband happened to be the servant involved would be to- pervert the purpose, meaning and effect of the Married Woman’s act of Mew Jersey.

The motion to strike the fourth defense in the answer of the defendant Simone as frivolous is granted.


author: Pee Cukiam.

text:
    GRACE D. MECRAY ET AL., PETITIONERS-DEFENDANTS, v. LOUISA L. CHURCH, RESPONDENT-PLAINTIFF.
    Submitted January 25, 1935
    Decided June 7, 1935.
    Before Justices Lloyd, Case and Donges.
    For the rule, Lewis T. Stevens.

   Pee Cukiam.

This is a rule to show cause why a judgment entered by confession for a deficiency under a mortgage foreclosure should not be set aside.

The sheriff of Cape May county sold the property in foreclosure on February 6th, 1933. It does not appear when or if the sale was confirmed. On May 27th, 1933, the present judgment was entered on bond and warrant of attorney. Mo notice of intention was filed in the county clerk’s office, as required by section 51 of the Mortgage act. Comp. Stat., p. 3423. This is a fatal defect in the proceeding.

The judgment is set aside, with costs.


author: Pee Cueiam.

text:
    BLANCHE LANDGRAF, ADMINISTRATRIX, PLAINTIFF-RESPONDENT, v. NORTH JERSEY STREET RAILWAY EMPLOYES BENEVOLENT ASSOCIATION, DEFENDANT-APPELLANT.
    Submitted January 25, 1935
    Decided June 7, 1935.
    Before Justices Lloyd, Case and Donges.
    Dor the appellant, Kuvin & Grand.

    Dor the respondent, Ellenstein & O’Brien and Harold J. Cavanaugh.

   Pee Cueiam.

This is an appeal from a judgment o'f the Second District Court of Newark in favor of the plaintiff, Blanche Landgraf, administratrix of the estate of Hiram Paulding, deceased, against the North Jersey Street Railway Employes’ Benevolent Association.

Plaintiff’s decedent became a member of the defendant association on June 6th, 1902, and remained a member until his death on December 11th, 1930. The by-laws provided for a death benefit as well as sick benefits in ease of incapacity. It appears that in 1930 the plaintiff fell in arrears on his dues, and on November 6th of that year paid to defendant dues for six months up to January 1st, 1931.

Article XIV, section 2 of the by-laws provides:

“Any member being in arrears for dues or other indebtedness 30 days after the stated meeting, forfeits all benefits and claims of the association for the space of three months after payment of same.”

Under this section the defendant disclaims liability for the payment of death benefits under the circumstances above outlined, claiming that a member who dies within three months after a thirty-day default has forfeited the death benefit.

The position of the plaintiff-respondent is that this section applies only to sick benefits and not to the death benefit, and that this is evident from a reading of other sections of the by-laws.

It thus becomes necessary to examine all the provisions of the by-laws, keeping in mind the rule that they should be construed strictly against the association and in favor of the representative of one who has paid his dues for twenty-eight years.

Article I, section 3, says:

“In case of death of a member, this Association shall pay to the family the sum of one hundred dollars within thirty days after notification of same to' the Financial Secretary, * * *.”

It is to be noted that the word “member” was used and not “member in good standing,” whereas in section 2 of article I, it is provided:

“In case of sickness or disability of any member in good standing, the Association shall pay to such sick or disabled member the sum of * *

It would, therefore, appear that there are two classes of benefits, sick and death, and that one was available to members and the other to1 members in good standing. It would appear that a person in arrears remained a member because section 3 of article XIY provides that after a member is one year in arrears he shall be dropped from membership after due notice by the financial secretary.

We are of the opinion that the section relied upon by the appellant does not apply to the payment of death benefit to the family of a member but only to benefits for a sick member.

The judgment is affirmed, with costs.


author: Pee Curiam.

text:
    MARTHA WIESE ET AL., PLAINTIFFS-RESPONDENTS, v. BALDANZA BROTHERS, INCORPORATED, ET AL., DEFENDANTS-APPELLANTS.
    Submitted January 25, 1935
    Decided June 7, 1935.
    For the respondents, James D. Carton, Jr.

    For the appellants, Lester C. Leonard.

   Pee Curiam.

These are appeals from judgments of the District Court of the First Judicial District of Monmouth county entered upon verdicts of a jury, in suits arising out of a collision between two automobiles.

An automobile owned and driven by the plaintiff Adolf Wiese, in which the plaintiffs Martha Wiese, his wife, and Dorothy Wiese, his daughter, were passengers, was struck on the morning of August 12th, 1934, by a bakery truck owned by defendant Baldanza Brothers, Incorporated, and driven by the defendant Tom Anechiarico, at the intersection of Seventh avenue and F’street in Belmar.

Plaintiffs’ car was going westwardly on Seventh avenue and defendants’ car was going southwardly on F street. Seventh avenue is a stop street at this point.

The first point is that it was error to refuse defendants’ request No. 3 : “I charge you that if Adolf Wiese were guilty of contributor negligence and his wife, Martha Wiese, and his daughter, Dorotlrv Wiese, or either of them, were engaged in a joint or common enterprise with him, then 3rour verdict must be no cause for action.”

In the first place, this was harmless if erroneous, because the jury by its verdict in favor of Adolf absolved him from contributory negligence, so the charge would not have helped defendants.

In the second place, there was no evidence of joint enterprise to submit to the jury. The proof was that the wife and daughter wore accompanying Adolf on a fishing and crabbing excursion. Joint enterprise implies joint control, joint contribution toward expenses and joint share in profits, if any. There was no proof of any of these elements and in fact Mrs. Wiese, when questioned, said she was contributing nothing toward the cost of the trip.

For both of these reasons, we think there is no harmful error pointed out by the first point.

The second point is that it was error to refuse to direct a verdict as to Adolf because of his negligent operation of Ms ear, and as to Martha because of ber failure as a passenger in the car to use the proper degree of care for her own safety. The proof was that as plaintiff approached the intersection he did not stop, as he should have, but slowed down and made observation in both directions. To his right, some three Mind red or four hundred feet away, he saw the truck approaching. He thought he had time to cross and proceeded. When he reached the south-bound trolley tracks (those farthest over the street), the defendant bore down on him and he swerved to avoid a collision. Aneehiarico' swerved in the same direction that plaintiff was going and the collision resulted.

In such a situation, under well settled rules, the question of the contributory negligence of Adolf was for the jury. Aneehiarico admitted that he was going rather fast and was in a hurry to cover Ms bakery route. It was open to the jury to find that plaintiff was justified in thinking he had time to cross and that the excessive speed of defendants’ car was the sole cause of the accident.

As to Mrs. Wiese, we fail to see in what way she was guilty of contributory negligence as a matter of law. It is not pointed out just what she should have done. She was not driving and could not have ordered her husband to pursue a different course. She saw the truck approaching, but so did her husband, so her failure to communicate to him what she saw cannot be said to be a contributory cause of the accident.

We are of the opinion that the trial judge properly submitted the issues to the jury under a fair and correct charge, and the judgments are, therefore, affirmed, with costs.


author: Per Curiam.

text:
    ELECTRIC SERVICE REPAIR COMPANY, PLAINTIFF-RESPONDENT, v. ALEX GOLDSTEIN, TRADING AS CENTRAL HANDKERCHIEF COMPANY, DEFENDANT-APPELLANT.
    Submitted January 25, 1935
    Decided June 7, 1935.
    Before Justices Lloyd, Case and Donges.
    For the appellant, Aaron Heller.

    For the respondent, Charles Turndorf.

   Per Curiam.

This is an appeal from a judgment of the First District Court of Paterson in a replevin action. Plaintiff brought its suit under section 143 of the District Court act without filing a bond. Under this section there can be a judgment for possession but not a money judgment for the value of the goods. Tobin v. Vogel, 9 N. J. Mis. R. 667.

Defendant, Alex Goldstein, trading as Central Handkerchief Company, desired an electric motor for use in his textile business. Negotiations were had by him with one Justasen and one Kurtz resulting in the following document:

“Central Handkerchief Co.

Passaic, N. J.

April 5, 1934.

Received from the Central Handkerchief Company, Passaic, New Jersey, $150 on account for one 25 Horse Power B. T. A. motor, 220 volt, 3 phase, 60 cycle, 415 RPM to 1250 EPM, complete with controls. Electrical equipment to be guaranteed against defects electrically and mechanically for a period of one year. The balance of $300 on delivery and same to be satisfactory. Delivery within one week.

National Elec. Co.,

J. J’ustesen.”

It appears that the plaintiff, Electric Service Repair Company, delivered the motor to defendant, there being proof that National Electric Company had acted as plaintiff’s agent. Defendant denied knowledge of this and said he dealt only with the National company and had no relations whatever with the plaintiff.

When plaintiff’s driver delivered the motor, defendant pointed out to him that certain switch equipment was not with the motor. The driver returned to Paterson for this switch. When he returned to defendant’s plant, defendant was not there, so the driver left the motor and the switch. Defendant did not pay him the $300 and has since refused to pay it on the alleged ground that the motor delivered was not “complete with controls” in accordance with the contract. Plaintiff then demanded return of the motor and tendered to defendant the $150 paid in advance. Defendant refused to part with the property, and, it would appear, is not in a position of affirming the contract by keeping the motor and denying liability to' pay anything further for it.

The grounds of appeal are the refusal of the court to non-suit and direct a verdict. The first ground for these motions was that the motor was not delivered complete, certain controls having not been included. At best this seems to be a question of fact, since the contract does not specify the particular controls to be furnished. There was proof from plaintiff’s witnesses that all the equipment called for by the contract and the oral negotiations was delivered. Defendant, who was his only witness, denied this. In this situation we are of opinion that there was evidence to' support the finding of the trial court on this phase of the case.

Defendant also claims he was entitled to a directed verdict because he had no contractual relations with the plaintiff but dealt with the National Electrical Company. There can be no doubt, from the evidence, that plaintiff owned the motor and delivered it to defendant. If defendant did not deal with plaintiff and does not wish to, then his duty is to return plaintiff’s property to it, and that is what is sought by this action. He cannot claim he has no connection with plaintiff and then refuse to return the motor which plaintiff sent to him.

Appellant argues that the case presented is not one for replevin, but plaintiff must sue for the amount due it. The burden is that plaintiff delivered the goods and there was no reservation of title. We see no merit in this argument. All the parties, including the defendant, agree that the transaction was to be C. O. D. The action of plaintiff’s truck driver in leaving the motor in the absence of defendant did not operate to change the agreement in this respect. There was evidence of a reservation of title, effective as to defendant if not as to third persons. Appellant cites cases to the effect that a reservation of title may be waived, but that is a question of fact, which was here resolved1 in favor of the plaintiff, if indeed it was ever raised.

The judgment is affirmed, with costs.


text:
    BROAD AND CENTRAL, INCORPORATED, PLAINTIFF-RESPONDENT, v. ELIZABETH FRENCH, DEFENDANT-APPELLANT.
    Argued January 16, 1935
    Decided June 7, 1935.
    Before Justices Lloyd, Case and Donges.
    For the appellant, Alan Bruce Gonlin.

    For the respondent, Augustus G. Nash.

   Pee Curiam.

This is an appeal from a judgment of the District Court of the Fourth Judicial District of Onion county, entered on a verdict directed by the trial judge in favor of tho plaintiff.

The suit was for two months’ rent under a lease and for the balance duo upon a promissory noto given for rout for previous months. Tho premises leased were store premises located on tho first floor of a building in Westfield. It is said that the second floor contained offices. The defense was that there had been a constructive eviction by reason of the overflowing on two occasions of a toilet on the second floor which had damaged the stock of defendant, had left permanent obnoxious odors in her store and had made the same unfit for use.

Defendant filed a counter-claim for damage to her stock in trade caused by this overflow.

At tho trial the defendant offered proof of the overflowing of the toilet, of its effect on her stock and her health, and of the damage to her business. This testimony was objected to on the ground that the lease, which is a brief one entered into in 1928 with the original owners and incorporated by reference in a renewal agreement between the parties to this suit, gave no right to peaceful enjoyment and contained no covenant on the part of the landlord to guard against happenings of this kind. The objection was sustained and at the close of the testimony a verdict for plaintiff was directed.

The difficulty with the consideration of the questions sought to be presented on this appeal is that a rule to show cause was allowed by the trial judge, and was argued and discharged. The rule reserved exceptions for appeal, but it appears from the memorandum appended to the respondent’s brief that the same substantial questions were argued on the rule, namely the right of the defendant to claim a constructive eviction under the lease in question by reason of the overflow of the toilet. The appellant does not deny the claim of respondent that these questions were considered on the rule. In this situation there is nothing before this court for determination. Morris Plan, &c., v. Leschinsky, 113 N. J. L. 414; 174 Atl. Rep. 729.

The judgment is affirmed.


author: Ture, C. P. J.

text:
    Mercer County Court of Common Pleas.
    IN THE MATTER OF THE APPLICATION FOR THE ADMISSION OF JOHN BYRNES TO THE TUBERCULOSIS HOSPITAL OF THE CITY OF TRENTON (NOW MUNICIPAL COLONY).
    Decided May 29, 1935.
    For the petitioner, Frederic R. Brace.

    For the respondent, Clarence A. Ward.

   Ture, C. P. J.

Under date of July 25th, 1932, John Byrnes was found to be indigent and to have a legal settlement in the county of Mercer, and an order was entered by this court under said date directing that the care and maintenance of said John Byrnes at the Tuberculosis Hospital of the city of Trenton (now Municipal Colony) be paid as an indigent patient by the county of Mercer. Said patient was admitted at said hospital on July 12th, 1932, and the aforesaid order was based upon testimony taken before the county adjuster of the county of Mercer, July 20th, 1932, by which testimony it appears that Rose Byrnes, upon oath, testified that the patient had lived all his life in Trenton. Later additional facts were discovered by the county adjuster which showed clearly that the aforesaid testimony of Rose Byrnes in the foregoing respect was false, and after petition, upon which the present proceeding is based, was filed on behalf of the county of Mercer stating that the legal settlement of the said John Byrnes was not as a matter of fact in the county of Mercer, but was in the county of Union, and praying that the matter of the admission of John Byrnes to the Tuberculosis Hospital of the city of Trenton (now Municipal Colony), as aforesaid be reopened and his legal settlement established. A day was set by this court for the hearing of the matters and facts set forth in the said petition and the matter was duly brought on for hearing on April 17th, 1935, at the court house at Trenton, New Jersey, and due notice of the time and place fixed was given to the county of Union, and said county was represented at the hearing by Clarence A. Ward, Esq.

The testimony taken at this rehearing established firmly, in my-opinion, that the legal settlement of the patient, John Byrnes, at the time of his commitment aforesaid to the said hospital was in the county of Union, State of New Jersey, and not in the county of Mercer. It also disclosed, therefore, that the testimony given at the previous hearing by the said Rose Byrnes was false. The previous order of this court dated July 25th, 1932, determining the legal settlement of said patient to be in the county of Mercer being based upon the said false testimony is therefore invalid and I hereby declare it void and of no effect. An order will be entered changing the legal settlement of John Byrnes from Mercer county to Union county.

The next point raised by Union county is that the court cannot make an order now dating back to the time of the original commitment, but such order can only be made from the date of the filing of the present petition. The liability of an individual .to pay for his own care, if he has sufficient estate, is well settled, and even though he has been declared by order of the court to be indigent, said order can be changed to make him non-indigent, in which event he can be compelled to pay for his keep from the time of the commitment. This is set forth clearly in section 444, chapter 147 of the laws of 1918 (Cum. Supp. Comp. Stat. 1911, p. 323, § 34-195), and likewise decided in In re Bedford, 11 N. J. Mis. R. 589; 168 Atl. Rep. 134. The question with respect to municipalities does not appear to have been determined hitherto and it is necessary to look into the legislation to determine the point. The matter is governed principally by chapter 147 of the laws of 1918, section 442 (Cum. Supp. Comp. Stat. 1911, p. 322, § 34-193), of which provides as follows:

“In all eases where an indigent patient is found to have a legal settlement in any county in this state, the cost of Ms care and maintenance shall be borne by such county from the beginning of his confinement, as provided by law, except that part which may be collected on account of the board of an indigent patient, as in section 430 provided.”

The exception mentioned does not have any application to the present matter.

Section 448 (Cum. Supp. Comp. Stat. 1911, p. 324, § 34-199) of said act provides as follows:

“Ho county in this state shall be chargeable with the cost of the care and maintenance of any indigent patient, uni ess the judicial officer shall find as a matter of fact and the final order of commitment shall set forth that such patient is indigent and has a legal settlement in such county, and in case such order is made by the judicial officer of another county, a certified copy of the same shall be filed with the clerk of the county so charged. The cost of clothing and maintenance of any indigent patient which may have accrued prior to the determination of legal settlement in any county shall be paid by the county in which such settlement is determined to be.”

And section 451 (Cum. Supp. Comp. Stat. 1911, p. 325, § 34-202) of said act is as follows:

“The estate of any patient, or the person chargeable with liability for his support in any institution in this state as provided by law, or the state or county as provided by law, shall be liable for the support of such patient in such institution from the time of his comm/itmenl thereto, irrespective of whether such patient is committed as non-indigent or indigent, or whether the status of such patient has been or shall be changed after his commitment; and this article shall be construed, in this respect, between the state and the counties, as retroactive.”

The above sections of this statute indicate to me a legislative intention to have the same rule applied with respect to different municipalities within the state as applies with regard to an individual; that is, that the municipality liable shall be liable for the support of such patient from the time of his commitment thereto, irrespective of whether the status of such patient has been or shall be changed after his commitment. In adopting this view no real hardship is worked upon the municipality where it has been finally determined the patient has a legal settlement because due to the situation, the county has escaped its liability which it otherwise would have been paying all the time.

However, irrespective of whether or not any hardship is placed upon said municipalitj1, if the legislature has decreed that such shall be done, the question of hardship cannot be gone into by this court. The order may be entered, therefore, changing the legal settlement of said patient from Mercer county to Union county with the provision that Union county shall be liable for the support of such patient from the time of his commitment thereto, namely, July 12th, 1932.

There is a further question in this matter, and that is as to whether or not the patient should be transferred from the Trenton hospital to the institution provided by the county of Union for such class of patients. The amendment of 1922 to the Tuberculosis act (Pamph. L. 1922, ch. 269; Cum. Supp. Comp. Stat. 1911, p. 1534, § 92-114), vests authority in the court to determine whether or not such a transfer would be detrimental to the health of said patient. Upon my observation of the patient while testifying it is my conclusion that such transfer would be detrimental to the health of the patient, notwithstanding the fact that it is readily conceded that the institution provided by the county of Union is an exceptionally fine institution for such patients. The disease, however, is a depressing one and for that reason, coupled with the patient’s present condition, leads me to the above stated conclusion. The order may, therefore, include such a certificate therein and the patient be ordered to remain at the present institution. However, leave will be granted to the county of Union to have a further examination with respect to this question, if it is desired.


author: Brown, S. G. G.

text:
    HENRY MATERA, ASSIGNEE OF JAMES M. FAWCETT, PLAINTIFF, v. BRUNO RICHARD HAUPTMANN, DEFENDANT.
    Decided June 18, 1935.
    For the plaintiff, William George.

    For the defendant, George E. Gulley and Egbert Rosecmns.

   Brown, S. G. G.

The above entitled suit is brought to recover the sum of $4,22Í.57 on a judgment obtained by the plaintiff’s assignor in the Supreme Court of the State of New York against the defendant Hauptmann. The answer filed contains a general denial and several separate defenses. The plaintiff moves to strike the answer and defenses on the ground that they are sham. In support of the motion the plaintiff presents an exemplified copy of a judgment filed in the New York court in favor of the plaintiff’s assignor for the sum above stated and an affidavit by Fawcett setting forth in some detail the proceedings leading np to the entry of judgment. The defendant’s proof on this motion is contained in his affidavit in which he denies that he was ever served with process and that he did not appear in person or authorize any one to appear for him in the New York proceedings. In the first separate defense of the answer the defendant alleges that he was not summoned; did not appear and was not within the jurisdiction of the New York court at any time during the proceedings in that court which resulted in a judgment being entered against him. In the second defense the defendant alleges he did not appear in person in the New York suit nor did he authorize any person or attorney to appear for him. The third defense is to the effect that the New York court was without jurisdiction of a subject-matter upon which a money judgment could be based as the court was limited by the issues presented in the “title of the action” and a money judgment could not lawfully be entered on the issues presented. The fourth defense alleges that the assignor is without power to enforce any judgment and that his appointment of the plaintiff as assignee was fraudulent. Article IY, section 1, of the constitution of the United States provides in part that full faith and credit shall be given in each state to the public acts, records, and judicial proceedings of every other state. Section 16 of the Evidence act of the State of New Jersey (Pamph. L. 1900, p. 366; 2 Comp. Stat., p. 2225), provides:

“If any suit upon a foreign judgment, or a judgment of any court out of this state, the defendant, or person sought to be affected by such judgment, may show that the defendant therein was not summoned, did not appear, or was not within the jurisdiction of such foreign court, notwithstanding it may be recited in the record of such proceedings that he was summoned or did appear, or was within the jurisdiction of such court; and such recital shall not conclude said defendant, or estop him from proving that the same is not true.”

Article IY, section 1, of the constitution of the United States should be read and considered in connection with section 1 of the fourteenth amendment to the constitution of the United States which provides in part that no state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty or property, without due process of law, nor deny to any person within its jurisdiction the equal protection of the Jaws. Article 1Y of the constitution of the United States does not preclude inquiry into the jurisdiction of the court in which a judgment is rendered, or into the facts necessary to obtain such jurisdiction. Simmons v. Saul, 138 U. S. 448. When properly pleaded and proved, judgments of other states have the effect of being not merely prima facie evidence, but conclusive proof, of the rights thereby adjudicated unless impugned for want of jurisdiction of person or subject-matter. Huntington v. Attrill, 146 Id. 657. Article IY of the constitution of the United States applies to the records and proceedings of the courts only so far as they have jurisdiction. Wherever they want jurisdiction the records are not entitled to credit. Board of Public Works v. Columbia College, 84 Id. 531; 31 L. Ed. 687. The record of a judgment rendered in another state may be contradicted as to the facts necessary to give the court-jurisdiction, and, if it be shown that such facts did-not exist, the record will be a nullity, notwithstanding it may recite that they did exist; that want of jurisdiction may be shown either as to the subject-matter or the person. Pembleton v. Illinois Commercial Men’s Association, 124 N. E. Rep. 355; German Savings, &c., Society v. Dormitzer, 192 U. S. 125; Brown v. Fletcher, 210 Id. 82.

By an act of congress, R. S., § 905, it is enacted that:

“The acts of the legislature of any State or Territory, or of any country subject to the jurisdiction of the United States, shall be authenticated by having the seals of such state, Territory, or country affixed thereto. The records and judicial proceedings of the courts of any Slate or Territory, or of any such country, shall be proved or admitted in any other court within the United States, by the attestation of the clerk, and the seal of the court annexed, if there be a seal, together with a certificate of the Judge, Chief Justice or presiding magistrate, that the said attestation is in due form. And the said records and judicial proceedings, so authenticated, shall have such faith and credit given to them in every court within the United States as they have by law or usage in the courts of the State from which they are taken.”

In the affidavit of the assignor, James M. Fawcett, he deposes and says that an action was brought by the defendant, Bruno Biehard Hauptmann, in the jurisdiction of the New York Supreme Court, in Kings county by a verified petition dated December 19th, 1934. The action was entitled “Supreme Court: Kings County. In the Matter of the Petition of Bruno Biehard Hauptmann for an order directing James M. Fawcett, an attorney and counselor-at-law, to turn over all the files and papers in his matters to his new attorney Edward J. Beilly.”

A copy of the defendant’s petition in that suit is annexed to the affidavit. The petition alleges that the defendant was confined in the Hunterdon county jail in the State of New Jersejr, awaiting trial upon an indictment charging him with the crime of murder. On the 21st day of September, 1934, through his wife, the defendant had retained the assignor, James M. Fawcett, as his counsel to defend him in connection with charges then pending in the State of New York against the defendant; that Fawcett continued to represent him until the 2d day of November, 1934, when he discharged the latter and retained the services of one Edward J. Beilly, but although demand' was made for exhibits and other writings which were in the possession of Fawcett and essential for the defense on the New Jersey indictment Fawcett refused to turn over the papers claiming that he had a lien thereon for services rendered. The petition prays that an order issue directing Fawcett to turn over the exhibits and papers to Beilly and “for such other relief as to the court may seem just and proper in the premises.” This petition is alleged to have been signed by the defendant, Hauptmann, and also contains an alleged verification by the same person of the contents of the petition. Fawcett further alleges in his affidavit that he filed a reply to the petition of Hauptmann in the New York court in which Fawcett claimed a lien on all the files and papers in his possession belonging to Hauptmann. Testimony was taken as to the amount of Fawcett’s lien before a justice of the Supreme Court of the State of New York and at that hearing Eeilly appeared for Hauptmann as attorney in support of the application of Hauptmann. Evidence was submitted by both sides at the hearing and the court made its findings and conclusions of law on December 21st, 1934, to the effect that Eawcett had a lien on the papers for unpaid legal services and disbursements and the same was fixed in the sum of $4,221.57 and it was further ordered that Fawcett retain all the papers and exhibits belonging to Hauptmann until the lien was fully satisfied or in the alternative that the petitioner property indemnify the deponent by furnishing proper and adequate security to satisfy the lien. On this decision a judgment was entered in favor of the deponent against the petitioner therein in the sum of $4,221.57 by the clerk of the county of Kings in the State of New York, who is also the clerk of the Supreme Court in Kings county. The affidavit of Fawcett also alleges that Eeilly took an appeal to the Appellate Division of the New York Supreme Court from the decision and that the Appellate Division authorized Fawcett “to turn over to said Edward J. Eeilly, as attorney for the said petitioner therein, Bruno Biehard Hauptmann, all the files and papers in the matters of Bruno Biehard Hauptmann, which files and papers were delivered to Edward J. Eeilly as attorney for said petitioner, Bruno Eichard Hauptmann.” A copy of a rule to show cause on the alleged petition of Hauptmann, for an order directing Fawcett to turn over papers to Eeilly is annexed to Fawcett’s affidavit and it directs Fawcett to show cause before the New York Supreme Court in Kings county, on a day stated; “why all the papers and exhibits in the possession of Fawcett effecting the defense of Hauptmann should not be turned over to Eeilly and for such other and further relief as to the court may seem just and proper.” The only part of the record of the proceedings in New York which has been exemplified as required by the act of congress, is an order for judgment entitled in the same court and in the same manner as the petition alleged to have been filed by Hauptmann for the return of papers from Fawcett to Eeilly. The order for judgment is not signed by the presiding justice and recites that it is entered on the motion of the attorney for Fawcett. It is signed by the clerk of the court and the exemplification is certified to by the presiding justice of the Supreme Court of the State of New York.

The defendant in his affidavit on the motion to strike says that at no time did he engage Edward J. Reilly to institute any proceedings against James M. Fawcett, or any proceeding in New York State by which the said Reilly sought to recover certain documents or certain papers which the said James M. Fawcett had in his possession. The deponent never had any discussion with Reilly about any such action, never knew such action was brought and did not know the nature of the action or when it was started nor anything whatever about it. The defendant in his affidavit further states that Reilly acted “absolutely without the authority of this deponent and without the knowledge of this deponent. No papers were ever served upon him in connection with said cause until he was served with a complaint and summons in the suit brought against him in this state, that he never submitted himself to the jurisdiction of the New York courts in the Fawcett proceedings.” Three questions are to be considered in order to' decide the motion presented. Can the defendant deny and disavow the authority of Reilly to appear for the defendant as attorney in the proceedings of the New York Supreme Court? Can the defendant question the jurisdiction at this time, of the New York court and did the New York court have jurisdiction to enter a money judgment against Hauptmann?

Notwithstanding the strong presumption that attaches to a judgment entered in a court of a sister state by direction of article IV of the constitution of the United States, to give full faith and credit to such proceedings, the defendant has the right under the fourteenth amendment of the constitution of the United States not to be deprived of his liberty or property without due process of law. The affidavit of Hauptmann in regard to the retention of Reilly as an attorney denies that Reilly was ever authorized to appear for him. On a motion of this kind the courts of the State of New Jersey have jurisdiction to inquire into these disputed questions of fact. Price v. Ward et al., 25 N. J. L. 225; Nichols v. Nichols, 25 N. J. Eq. 60, When to decide a question whether a plea is false or sham it becomes necessary to take testimony to enable the court to determine the relative merits of the controversy or the justice or injustice of the defense the defendant’s constitutional right to a jury trial requires that the motion to deprive him of his defense be denied. Muhlenback v. West Hoboken, 2 N. J. Mis. R. 7. The disputed question of fact whether Hauptmann authorized .Reilly to appear for him in the Hew York proceeding involving the papers in possession of Fawcett will be left to the jury for determination. The question of the jurisdiction of a court in a sister state is always a proper subject of inquiry where an attempt is made to bring suit in this state on a judgment obtained in the sister state. If a jury should determine that Hauptmann did not sign the petition that was presented in the Hew York proceedings and that Reilly was without authority to appear for him and that the defendant knew nothing of the proceeding and took no part therein then the Hew York courts would be without jurisdiction to proceed to' give judgment in favor of Fawcett against Hauptmann. This question then becomes a proper question for determination at the trial of this cause in this state. Though there is a general presumption in favor of the regularity and validity of judgments of the courts of sister states, notwithstanding this presumption upon suit being brought in this state on a judgment obtained in another state if the proof presented on a motion, of the kind now being considered, indicates that the judgment was not within the issues framed in the proceedings in the sister state the matter should be held for determination at the trial of the cause. Hone of the parties in this case have brought to the court’s attention any statutory law in the State of Hew York that permits or allows a money judgment to be entered as was done in the Fawcett case in the proceedings in the State of Hew York. All that appears according to the proof presented is a petition by Hauptmann in which he seeks to recover papers from Fawcett and a determination that Fawcett has a lien on the papers and upon appeal a direction that the papers be returned to Hauptmann. Some time after this adjudication there appears the entry of a money judgment against Hauptmann. The proof presented in this court indicates that such judgment was not within the issue framed by the petition and the reply thereto. If this is a correct conclusion the courts of the State of Hew Jersey would have the right to' hear the defendant's defenses notwithstanding the judgment entered against him in the State of New York. Mundy v. Vail, 34 N. J. L. 422; Reynolds v. Stockton, 43 N. J. Eq. 211; 10 Atl. Rey. 385; affirmed, 140 U. S. 254. A different situation might be presented on this point if there was an enabling statute in the State of Hew York permitting a money judgment to be found and filed. The proof presented does not disclose a law of this kind in existence or that the Hew York court acted on such a law. As the case is presented on this motion it appears that a personal judgment was ordered entered on a proceeding wherein papers and exhibits were sought to be recovered. Eegardless of the correctness of this conclusion, the motion in this case being in the nature of a general demurrer there appears sufficient reasons in law to deny the motion to strike and an order may be entered accordingly.


author: Pkr Curiam.

text:
    TRUSTEES SYSTEM COMPANY OF NEWARK, A CORPORATION, PLAINTIFF-APPELLEE, v. CHARLES E. STOLL, DEFENDANT-APPELLANT.
    Argued May 7, 1935
    Decided June 11, 1935.
    Before Justices Teenchaed, Hehee and Pebskie.

      For the defendant-appellant, Louis J. Goldberg, (Ralph N. Solo dar, of connsel).
    For the plaintiff-appellee, Victor Samuel (Charles Blume, of counsel).
   Pkr Curiam.

This action was brought against Charles E. Stoll (hereinafter called the defendant), one of the co-makers of a promissory note given to the plaintiff, in accordance with the Small Loan act. Pamph. L. 1932, ch. 62; N. J. Stat. Annual 1932, p. 48, §§ 35-22 to 35-49. The judge of the District Court, sitting without a jury, gave judgment for the plaintiff.

The defendant (appellant) urges that the trial court erred in denying his motion for the direction of a verdict, and the determination of that question will in effect dispose of every question argued.

It is first urged in support of that contention that “the defendant was not given a copy of the statute” and “was not given copies of receipts for moneys paid on account of said note” as directed by sections 13 and 14 of the Small Loan act. N. J. Stat. Annual 1932, p. 54, §§ 35-34, 35-35.

But in the circumstances of the case we think the defendant was not so entitled. The state of the case as agreed to and signed by the attorneys of the parties settled the fact to be that the defendant “signed the note at the request of one Elbert II. Mullen, son of the maker of the note,” that the defendant “was told that Edward E. Mullen was the maker and was going to borrow $150,” and that the defendant “signed the note at his home.”

It was therefore to be legally inferred that the defendant was an accommodation co-maker.

The status of such accommodation party is well recognized in law and clearly defined in the negotiable Instruments act (Comp. Stat., p. 3738, § 29), in the words following:

“An accommodation party is one who has signed the instrument as maker, drawer, acceptor or endorser, without receiving value therefor, and for the purpose of lending his name to some other person; * * *.”

It is to be legally inferred from the state of the case that the defendant received no value therefor. Not only at the trial did it appear that Edward E. Mullen was the borrower but he is so treated in the argument and brief of the defendant. Since the Small Loan act provided merely that the loan company shall deliver to the borrower a copy of section 13, supra, and copies of receipts for payments made, the defendant was not entitled to such copies. The Small Loan act by section 14 reads {supra) :

“Every licensee shall: Deliver to the borrower at the time any loan is made a statement * * *. Give to the borrower a plain and complete receipt * * *.”

Nowhere in the state of the case is there any indication that the defendant made any payments on account, nor was there any testimony that any payments at all were made.

It is further urged in support of the contention that a verdict should have been directed for the defendant, that the note is void “because blanks were left therein to be filled in after the execution thereof by the appellant.”

The statute does provide that no' instrument shall be taken by such licensee “in which blanks are left to be filled in after execution.” (Section 14, supra.) But by “execution” is meant both the signing and delivery of the instrument. The mere signing does not constitute execution. 8 C. J. 42; 23 C. J. 278.

Moreover, our Negotiable Instruments act provides:

“Every contract on a negotiable instrument is incomplete and revocable until delivery of the instrument for the purpose of giving effect thereto; * * Comp. Stat., p. 3737, § 16, and “Delivery means the transfer of possession, actual or constructive, from one person to another.” Comp. Stat., p. 3756, § 191.

Erom the agreed state of facts it was legally to be inferred that after the maker and borrower, one Edward E. Mullen, procured the signature of the defendant and of the other accommodation co-makers, he returned alone to the office of the lending corporation and in his own handwriting filled in the remaining blanks, affixed his signature to the note and then the note was taken by the lending corporation and the sum of $150 was delivered over.

It was therefore competent for the trial judge, sitting without a jury, to infer, as he did, that when the delivery was made there were no existing blanks. And as we have seen “a promissory note has no legal inception or valid existence until it has been delivered.” Polhemus v. Prudential Realty Corp., 74 N. J. L. 570; 67 Atl. Rep. 303.

The foregoing observations completely dispose of every question argued, and we have considered no other question.

The judgment below will be affirmed, with costs.


author: Poetek, C. C. J.

text:
    Passaic County Circuit Court.
    L. TEPLITZ THROWN SILK COMPANY, A CORPORATION, PLAINTIFF, v. PHILIP RICH AND MARGARET VAN NIMWEGEN, EXECUTRIX OF THE ESTATE OF GARRET VAN NIMWEGEN, DECEASED, DEFENDANTS.
    Decided June 17, 1935.
    For the plaintiff, Evans, Smith & Evans.

    For the defendants, Randal B. Lewis.

   Poetek, C. C. J.

By stipulation of counsel the question raised in this case is submitted to the court for decision. It appears that the deceased, Garret Van Nimwegen, guaranteed in writing the payment to the plaintiff of certain obligations of Rich. The guarantor died April 30th, 1934. The executrix of his estate published in a newspaper a notice to bar creditors on June 15th, 1934. Actual notice of his death did not come to the knowledge of plaintiff until early in July, 1934. Between the date of death and before knowledge by plaintiff of that fact, to wit, June 7th, 8th, 12th and 19th, 1934, obligations of Rich to the plaintiff were created and not discharged by Rich to the amount of $154.79.

The question presented is “whether or not the guarantee ceased with the death of Van Nimwegen and whether the plaintiff is entitled to recover for this $154.79 which was for goods delivered after Van Nimwegen’s death.”

Briefs have been submitted by counsel. Both say that there is no reported case in New Jersey on the point. Both also agreed that there is a conflict in the decisions of other jurisdictions. The English rule (Coulthart v. Clementson, 5 Q. B. Div. 42) is that the death of the guarantor does not ipso facto revoke the guarantee, but rather that it is revoked upon notice of the death. This theory is followed in Gay v. Ward, 67 Conn. 146; 34 Atl. Rep. 1025; also National Eagle Bank v. Hunt, 16 R. I. 148; 13 Atl. Rep. 115; In re Larch, 284 Pa. 500; 131 Atl. Rep. 381; note in 42 A. L. R. 927, with cited cases.

The contraiy rule, and in my opinion the better one, is that where the guarantee could have been revoked by the guarantor during his lifetime it terminates by his death as to future obligations. DeColyar on the Law of Guarantees, 276. That view is the law in Massachusetts, Kentucky and Michigan. Highland v. Habich, 150 Mass. 112; Jordan v. Dobbins, 122 Id. 168; Aitken v. Lang, 106 Ky. 652; Illinois Roofing and Supply Co. v. Gorton, 19 Pa. Co. Ct. 124; In re Kelly, 173 Mich. 492.

The Massachusetts rule that death revokes without notice is founded, it seems to me, on good reasoning. The court said in Jordan v. Dobbins, supra: “Death terminates the power of the deceased to act, and revokes any authority or license he may have given, if it has not been executed or acted upon. His estate is held upon any contract upon which a liability exists at the time of his death, although it may depend upon future contingencies. But it is not held for a liability which is created after his death, by the exercise of a power or authority, which he might at any time revoke.” * * * “It is no hardship to require traders whose business it is to deal in goods, to exercise diligence so far as to ascertain whether a person upon whose credit they are selling is living.”

The Kentucky court in Aitken v. Lang, supra, approved and followed Jordan v. Dobbins, and used this language: “The guaranty could only continue during the will of the guarantor, as he could revoke it. The continuing quality being terminable at the will of the guarantor, it is not unreasonable to suppose that it was intended by the parties that when the power to terminate ceased by death, it was to continue until notice of death was in some way given the guarantees? This notice might not be received for a long time, as the real and personal representatives of the deceased might be ignorant oi the guaranty, and in the meantime the estate might be bankrupted. In our opinion, as the guaranty was terminable at the will of the guarantor, when that will no longer existed, by reason of death, it was thereby revoked.”

Following the Massachusetts rule, therefore, I find that the death of Van Mmwegen terminated the guarantee as to future obligations of Rich to the plaintiff.

Judgment will be in favor of the defendant estate.


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

text:
    CHARLES A. WINTER, EXECUTOR OF THE LAST WILL AND TESTAMENT OF MARY WINTER, DECEASED, v. JAMES H. TIPPETT AND HENRIETTA W. TIPPETT, HIS WIFE.
    Decided June 24, 1935.
    Before Joseph L. Smith, C. C. J.
    Bor the plaintiff, Seymour <& Seymour (Arthur B. Seymour).

    Bor the defendants, Edward B. McGlynn (Joseph Weintraub).

   Joseph L. Smith, C. C. J.

Trial by jury is waived, and the case is submitted to the court on an agreed statement of facts. The suit is one to recover a deficiency on a bond after foreclosure of the accompanying mortgage. The bond and mortgage were executed on September 7th, 1927. A sale was held under the foreclosure on October 31st, 1933, and on April 4th, 1934, this suit was instituted. There is only a question of law involved as to whether the act of 1933 (Pamph. L., p. 172; N. J. Stat. Annual 1933, p. 244, § 134-48), requiring actions for deficiencies on bonds after foreclosure of mortgage to be instituted within three months of the date of the sheriff’s sale, affects this action.

This suit was brought more than three months but less than six months of the date of the sheriff’s sale in the foreclosure proceeding.

I do not think there can be any serious argument on the legal question as to whether or not the reduction of the period from six months to three months is unconstitutional. This provision has been held to be constitutional in several reported cases. Union County Building and Loan Association v. Weltchek, 12 N. J. Mis. R. 847; Wootton v. Pollock, 116 N. J. Eq. 490; Marston v. Seabury (Supreme Court, 1808), 3 N. J. L. 28, *435; Warshung v. Hunt (Supreme Court, 1885), 47 N. J. L. 256; (Court of Errors and Appeals, 1886), 48 Id. 613; Barnaby v. Bradley & Currier Co. (Court of Errors and Appeals, 1897), 60 Id. 158; Rader v. Road District, &c. (Supreme Court, 1873), 36 Id. 273.

The contention that the opinion in Vanderbilt v. Brunton Piano Co., 111 N. J. L. 596, holding the fair market value provision in said act unconstitutional should render the entire act unconstitutional is baseless. It seems to me that that portion of the act which provides for the three months within which to bring an action is entirely independent of the provision with respect to the defense of the market value, and that they are not interdependent. That they are not dependent is conclusively shown by the fact that the first portion existed for many years past without the fair value provision, so that the Vanderbilt case, supra, holding the fail-value provision unconstitutional, will not affect the balance of the statute; and, furthermore, the holding in the Vanderbilt case, supra, specifically confines itself to that provision of the statute. Wootton v. Pollock, supra; Union County Building and Loan Association v. Weltchek, supra. Therefore, I am constrained to hold that the provision of the statute before this court is constitutional and applicable to the facts before me.

The motion for the direction of a verdict in behalf of the plaintiff is denied; the motion for a verdict in behalf of the defendant is granted.

Plaintiff’s counsel prays an exception to this ruling of the court.

Exception noted a ground of appeal.


author: Hebe, A. M.

text:
    Eva Engels Gross, complainant, v. George William Gross, defendant.
    [Decided June 15th, 1935.]

      Messrs. Camarata Vüello, for the complainant.

      Mr. Frederick C. Vonhof and Mr. John Clancy, for the defendant.
   Hebe, A. M.

In April, 1935, the complainant filed a bill in this cause for separate maintenance against her husband, the defendant, alleging that he abandoned her in June, 1927, without justifiable cause and refused and neglected to maintain and provide for her; that on or about July 27th, 1927, “the defendant agreed to provide complainant with proper support and maintenance, which agreement the defendant performed until January, 1935, ever since which time he has refused and still refuses to support and maintain he-r;” that defendant is a bona fide resident of New Jersey and has been such a bora fide resident ever since his marriage to complainant; that on February 28th, 1935, he obtained leave of absence from his employer in New Jersey and went to Reno, Nevada, where on April 18th, 1935, he commenced an action for divorce against complainant; that the courts of Nevada have no jurisdiction of such action because the defendant is not domiciled in Nevada, and that the defendant's purpose in prosecuting the action in Nevada was and is “to defraud this court of jurisdiction over all matrimonial causes of action which may exist on behalf of or against either the complainant or defendant.” The bill prays for a decree of separate maintenance and for an injunction against the defendant's further prosecution of the Nevada action.

The defendant resists the application for a preliminary injunction, chiefly on the ground that (as he argues) the bill of complaint fails to set forth a cause of action for separate maintenance in that it does not allege abandonment as of the date of filing the same, but on the contrary shows that complainant abandoned defendant, and that since injunctive relief is prayed for only incidentally to and in aid of the main prayer for separate maintenance, such injunctive relief must be denied, “in that no property rights are involved.”

Assuming that the bill is defective in failing to set out a cause of action for separate maintenance, it does not follow that injunctive relief should be denied. The allegations are quite sufficient to entitle the bill to be regarded as one solely for the protection of the marital status. Mott v. Mott, 49 N. J. Eq. 192; Holland, &c., Society v. De Lazier, 84 N. J. Eq. 442.

Upon the proofs there can be no doubt that New Jersey is in fact the domicile of both of the parties. The defendant's sojourn in Nevada is not such as to make him a Iona fide resident of that state. He is employed in this state, and is on temporary leave of absence from his employment for the express purpose of securing a decree of divorce in the Nevada court. The defendant’s letter incorporated in the affidavit of Henry H. Berg, who has supervision of the Essex Mountain Sanitarium in Verona, the defendant’s place of employment, reads in part:

“I cannot stand the pressure of the added time but I’m out here now and, to go back without what I came for would indeed be a calamity. It’s cost me every penny I had, along with that which 1 could borrow and, even now, I’m broke, but if you will be so kind as to extend my time limit I feel sure my ‘Broke’ condition will be compensated by the successful completion of my errand.”

The residence of the defendant in Nevada is not with the animus manendi essential to effect a change of domicile to that state. Harrall v. Harall, 39 N. J. Eq. 279; Di Brigida v. Di Brigida, 116 N. J. Eq. 208.

Since the domicile of both the complainant and the defendant is in New Jersey, the situs of the entire marital status or res is in this state and this situs is the foundation of jurisdiction in actions for divorce. Coddington v. Coddington, 20 N. J. Eq. 263; Marsh v. Marsh, 86 N. J. Eq. 419; Webb v. Webb, 13 N. J. Mis. R. 439; 178 Atl. Rep. 282.

Prior to the adoption of section 33 of the Divorce act it had been firmly established as a rule of interstate comity that a foreign decree of divorce was not entitled to recognition if obtained in a jurisdicton in which neither of the parties was domiciled. Streitwolf v. Streitwolf, 58 N. J. Eq. 563; affirmed, 181 U. S. 179; 45 L. Ed. 807; 21 S. Ct. 553. This principle of extraterritorial recognition of foreign decrees of divorce is expressly recognized in section 33. Lister v. Lister, 86 N. J. Eq. 30. It is particularly applicable under the proviso of that section in cases where an inhabitant of this state goes into another jurisdiction to obtain a divorce based on a simulated domicile in such state. Di Brigida v. Di Brigida, supra; Lister v. Lister, supra; Newton v. Newton, 58 N. J. L. J. Index p. 181 (May 22d, 1935). The appearance of the defendant in the foreign suit or his consent to the foreign jurisdiction does not cure the want of jurisdiction of the foreign court over the subject-matter of the action, that is, the marital res. Lister v. Lister, supra. The full faith and credit clause of the federal constitution does not in such circumstances compel recognition of a decree of a sister state, for the provisions of that clause merely preclude a re-examination of the cause on the merits. They do not affect the jurisdiction of the court in the sister state or of the courts in this state. German Savings and Loan Society v. Dormilzer, 192 U. S. 125; 48 L. Ed. 373; 24 S. Ct. 221; Thompson v. Thompson, 89 N. J. Eq. 70, 76.

A direct attack in the nature of a bill to annul a foreign decree of divorce on the ground of fraudulent representation of domicile to the court of the foreign jurisdiction is proper where the sole purpose of the bill is to protect a matrimonial res, the situs of which is in New Jersey by reason of the parties’ domicile here. Henry v. Henry, 104 N. J. Eq. 21; Jung v. Jung, 85 N. J. Eq. 372.

The court of chancery may in a proper case enjoin the prosecution of a suit in a foreign jurisdiction. Lehigh Valley Railroad Co. v. Andrus, 91 N. J. Eq. 225; 32 C. J. 115 § 137; 25 L. R. A. (N. S.) 267 n. The issuance of injunctions in such cases does not contravene the full faith and credit clause of the constitution. Cole v. Cunningham, 133 U. S. 107; 33 L. Ed. 538; 10 S. Ct. 269.

In virtue of this general equity jurisdiction this court has restrained the prosecution of foreign suits for divorce, but the question whether a foreign suit for divorce may be enjoined only in aid of or incidentally to an action for other affirmative relief, such as a petition for divorce or a bill for separate maintenance, does not seem to have been squarely raised and adjudicated in any of the reported cases.

In conjunction with an action for divorce or separate maintenance this court has frequently exercised its general equity jurisdiction to prevent the dissolution of the bond of matrimony by a suit in a foreign jursdiction. Streitwolf v. Streitwolf, 58 N. J. Eq. 563; affirmed, 181 U. S. 179; 45 L. Ed. 807; 21 S. Ct. 553; Miller v. Miller, 66 N. J. Eq. 436; Von Bernuth v. Von Bernuth, 76 N. J. Eq. 177; Knapp v. Knapp, 12 N. J. Mis. R. 599; Di Brigida v. Di Brigida, supra. Without a prayer for any other relief this court has restrained a foreign suit for divorce. Kempson v. Kempson, 61 N. J. Eq. 303; Huettinger v. Huettinger, 43 Atl. Rep. 574; Perlman v. Perlman, 113 N. J. Eq. 3. In the Kempson Case, Vice-Chancellor Pitney (at p. 805) remarked that “the bill asked for no relief except an injunction against the Dakota suit.” In the Knapp Case, supra, a suit was brought for separate maintenance and to restrain the defendant from prosecuting a suit for divorce in Mexico. Since personal service of process on the defendant in this state could not be effected, the complainant abandoned her prayer for maintenance. The court remarked that she was nevertheless entitled to a decree restraining the prosecution of the Mexican suit.

The domicile of the parties and consequently the matrimonial status in the ease sub judice are in New Jersey. If a decree be obtained in the Nevada proceedings it would be in fraud of this state. Since under the Henry Case, supra, this court may protect the matrimonial res by entertaining a bill to annul such decree if it is obtained, it certainly possesses the power to enjoin the defendant from securing such decree although no other relief may be asked or granted. See Kempson v. Kempson, 63 N. J. Eq. 783, 785. To refuse aid in such circumstances might be to deny relief to a wife who does not desire or is not yet entitled to a decree of divorce or for separate maintenance. See Henry v. Henry, 104 N. J. Eq. 21, 23.

For the above reasons, an order for a preliminary injunction will be advised.


author: Bodine, J.

text:
    CITY OF JERSEY CITY, PROSECUTOR, v. STATE WATER POLICY COMMISSION AND OAK RIDGE LAKE PARK REALTY COMPANY, INCORPORATED, RESPONDENTS.
    Decided June 25, 1935.
    For the prosecutor, James A. Hamill.

    For Oak fiidge Lake Park Bealty Company, Xing & Yogi, Harold A. Price and Harry Y. Osborne.

   Bodine, J.

'This is a timely application to review by certiorari the validity of a permit issued by the state water policy commission for the erection of a dam in the Bockaway river, twenty-four miles above prosecutor’s water supply. The property when the lake fills will be used for bathing and bungalow sites. Prosecutor’s interest in safeguarding the health of its people is great. Whether the state water policjr commission had power to pass upon the questions of diversion and pollution they did so. The testimony is in conflict. Failure by the city to move in the matter might result in grave injury, even if abatement of the diversion or pollution might subsequently be obtained. FTot only are debatable questions of fact presented, but also questions of law. The mere circumstances that defendant may be embarrassed in the use of its lands seems no reason to deny allocatur.

The writ may issue.