text:
    SCHAFFER BELTS, INC., A CORPORATION OF THE STATE OF NEW JERSEY, PLAINTIFF-APPELLANT, v. DIVISION OF TAX APPEALS OF THE DEPARTMENT OF TAXATION AND FINANCE OF THE STATE OF NEW JERSEY AND CITY OF JERSEY CITY, A MUNICIPAL CORPORATION OF THE STATE OF NEW JERSEY, DEFENDANTS-RESPONDENTS.
    Superior Court of New Jersey Appellate Division
    Argued November 1, 1948
    Decided November 16, 1948.

      Before Judges Jacobs, Eastwood and Bigelow.

      Mr. Stephen P. Piga argued the -cause for the plaintiff-appellant (Mr. Stephen P. Piga, attorney).

      Mr. John J. Meehan argued the cause for the defendants-respondents (Mr. Charles A. Rooney, attorney for City of Jersey City). .
   The opinion of the court was delivered by

Eastwood, J. A. D.

Certiorari was allowed by the former Supreme Court to review the assessment -made by the City of Jersey City against certain personal property of appellant -having a situs within the taxing district for the year 1944. The original assessment was made in the amount of $35,000, which was subsequently reduced by the Hudson County Board of Taxation to $30,000. In the proceedings -before the Hudson County Board of Taxation and on the appeal to the Division of Tax Appeals the taxpayer asked for a reduction of the assessment to $10,000, and Jersey City, by way of cross-appeal, sought a restoration of the assessment to $35,000. On appeal the Division of Tax Appeals affirmed the assessment as determined by the county board.

Under R. S. 2 :81-8 “it was the function” of the 'former Supreme Court in tax assessment proceedings “to evaluate the evidence and determine the facts and the quantum of each assessment in accordance with the standard -prescribed by the law.” Meltzer v. Division of Tax Appeals, 134 N. J. Law 510 (Sup. Ct. 1946), 48 Atl. (2d) 842. Under Rule 3:81-8 appeals from state administrative agencies are now cognizable by the Appellate Division of the Superior Court. Rule 3:81 — 13 vests the court with power to review the facts and make independent findings thereon, which power may be exercised by the court to such extent as the interests of justice may require.

There is a presumption of law in favor of the assessments as revised by the County Board of Taxation; and the onus of proof of an excess of valuation is upon the property owner. In the absence of credible and convincing evidence contra, the presumption operates so as to validate the determination of the County Board of Taxation and the Division of Tax Appeals. Meltzer v. Division of Tax Appeals, supra, opinion by Mr. Justice Heher, citing Jersey City v. Sun Holding Co., 134 N. J. Law 119 (Sup. Ct. 1946), 46 Atl. (2d) 156; Newton Trust Co. v. Atwood, 77 N. J. Law 141 (Sup. Ct. 1908), 71 Atl. 110.

The only witness -before the Division of Tax Appeals was Jacob I. Schaffer who testified that the appellant is a partnership, consisting of himself and wife, residents of New York City, who claimed among other things, that the business office of the partnership was in New York City, and that the manufacturing activities were located in Jersey City. He testified that the taxpayer was engaged in manufacturing woman’s ornamental, novelty 'belts; that although the inventory had a ■book value between $20,000 and $25,000, its market value was only $7,500; that the market value of the machinery was $2,-500; that the annual volume of -business was approximately $500,000 a year and that his monthly payroll was about $10,-000. Mr. Schaffer made no attempt to establish the value of component parts of the personal property, produced no inventory, but merely relied upon his statement. Appellant argues that it proffered substantial evidence to prove that the assessment in question was excessive and thereby overcame the presumption of its correctness, citing Meltzer v. Division of Tax Appeals, supra, in support of its contention. However, in the Meltzer case there was competent, convincing testimony by qualified witnesses as to the value of the personal property assessed, which the Supreme Court held overcame the presumption of law in favor of the assessment as revised by the County Board of Taxation. Mr. Schaffer’s testimony was vague and inconclusive, and for the .purpose of the proceedings under review was unsatisfactory and unconvincing. In fact, the tax commissioners who presided at the hearing before the State Division of Tax Appeals, in commenting upon Mr. Schaffer’s testimony and attitude upon the stand, said:

“The attitude of Schaffer on the stand, as observed by the members of the Panel, especially during the examination by Commissioner Conklin, as well as his ability to remember many details of the business but not as to the TJ. C. C. and income tax accounts, makes it extremely difficult to rely too heavily upon his testimony.”

We have reached the conclusion that the appellant has not borne the burden of overcoming the presumption of the accuracy of the assessment as determined by the county board and the Division of Tax Appeals.

We might have, at the outset, refused to entertain this appeal on the ground that Schaffer Belts, the alleged partnership, is not a .party to these proceedings. The appeal has been brought in the name of Schaffer Belts, Inc., a corporation of this State. Rule 3:17-1 requires that every action shall be prosecuted in the name of the real party in interest. This has not been done. However, we have considered the merits of the appeal rather than a strict application of the rule.

It has been stipulated that the cause relating to the assessment of 1944 shall be considered as presented and filed in the cause relating to the assessment for the year 1945, which was made on the same property and in like amount. Our determination of the validity of the assessment for the year 1944 will, therefore, apply with like effect to that made for the year 1945.

Our determination makes it unnecessary to consider plaintiff’s other grounds of appeal.

The judgment of the Division of Tax Appeals is affirmed, with costs.


source: Caselaw Access Project

author: Jacobs, S. J. A. D.

license: Public Domain

text:
    CATHERINE COSSARI, PETITIONER-RESPONDENT, v. L. STEIN & CO., RESPONDENT-APPELLANT.
    Superior Court of New Jersey Appellate Division
    Argued November 1, 1948
    Decided November 17, 1948.

      Before Judges Jacobs, Eastwood and Bigelow.

      Mr. Isidor Kalisch argued the cause for the respondent-appellant (Messrs. Kalisch & Kalisch, attorneys).

      Mr. Isadore Rosenbloom argued the cause for the petitioner-respondent (Messrs. Marcus & Levy, attorneys).
   The opinion of the court was delivered by

Jacobs, S. J. A. D.

This matter is before the court pursuant to a writ of certiorari allowed by the former Supreme Court to review a judgment of the Passaic County Court of Common Pleas affirming an award by the Workmen’s Compensation Bureau in favor of the petitioner.

On January 25, 1946, petitioner, Catherine Cossari, was in the employ of the appellant, L. Stein & Co., a clothing manufacturer. Her employer was a tenant in the mill premises located at 8 Morris Street, Paterson, New Jersey, and maintained his place of business on the fourth floor. On January 25, 1946, which was a stormy day, petitioner was due for work at 8 a. m. and arrived in front of the mill premises at about 7:45 a. m. She tried to enter the front door but found it locked. This was not unusual in bad weather and in such instances the employees customarily entered through a back door. In order to reach the back door it was necessary for the petitioner to leave the sidewalk in front of the premises, walk on a cobblestone driveway or alleyway alongside the 'building and then turn to where the back door was located. At the beginning of the driveway there was a large iron entrance gate which was attached to and, when open, placed directly alongside the building. Petitioner, after having walked along the driveway turned to enter the back door and fell on the icy ground. The Bureau’s award in favor of the petitioner was for the injuries resulting from this fall and the appellant, although denying liability on the ground that the accident did not arise out of and in the course of her employment, does not question the quantum of the award.

The evidence established that the driveway led to other buildings beyond the mill premises and was used by the employees of the appellant and other tenants in the mill premises as well as by other persons, such as deliverymen, having business in the mill premises or in the other buildings. There was no occasion for .the general public to use the driveway and we are satisfied that it was no't so used.

In Popovich v. Atlantic Products Corp., 125 N. J. Law 533, 535 (Sup. Ct. 1941) the principles with respect to the applicability of the Workmen’s Compensation Act to employees on their way to or from work, were succinctly expressed as follows:

“As we understand our cases, the general rule is that where the employe is simply on his way to work and has not entered the employer’s premises, or has undertaken to enter those premises by an unauthorized route, he is not yet in the course of his employment; and, convex-sely, where the employe has left the employer’s premises, the course of employment has ceased for the time being; but where the employe is actually in the process of entering the premises at a proper time and in a proper manner in connection with his work and an accident occurs under those circumstances, it arises in the course of the employment.”

Thus, in Gullo v. American Lead Pencil Co., 119 N. J. Law 484 (E. & A. 1938;, the court held that an accident which occurred on the public sidewalk in front of the employer’s factory was not compensable pointing out that the “street was a public highway on which the public in general had the paramount right of user and this of course included the sidewalk.” See also Grady v. Nevins Church Press Co., 120 N. J. Law 351 (E. & A. 1938). On the other hand in Essex County Country Club v. Chapman, 113 N. J. Law 182, 184 (Sup. Ct. 1934) where an employee was injured on his way to work while proceeding along a driveway within the employer’s premises, the allowance of compensation was sustained. The fact that under these circumstances the accident occurred shortly prior to the hour for reporting for work is immaterial. See Grady v. Nevins Church Press Co., supra, at p. 355; Terlecki v. Strauss, 85 N. J. Law 454 (Sup. Ct. 1914) affirmed 86 N. J. Law 708 (E. & A. 1914).

We have concluded that the case before us does not fall within the rule of the Gullo decision, but falls rather within that group of cases which allows compensation where the employee has left the public highway and is entering his employer’s premises through a proper means of ingress so closely related to the place of employment that it may be deemed incidental thereto. See Bolos v. Trenton Fire Clay and Porcelain Co., 102 N. J. Law 479, at p. 483 (Sup. Ct. 1926;, affirmed 103 N. J. Law 483 (E. & A. 1927); Bountiful Brick Co. v. Giles, 276 U. S. 154, 158, 72 L. Ed. 507, 509 (1928); In Re Vincent C. Leatham, 289 N. Y. 804, 47 N. E. (2d) 51 (1943); Cohn v. Morningstar Nicol, 265 App. Div. 579, 41 N. Y. S. (2d) 466 (1943); Mannerings Case, 290 Mass. 517, 195 N. E. 757 (1935); Dougherty v. Bernstein & Son, 160 Pa. Super. 587, 52 Atl. (2d) 370 (1947); Northumbrian Shipping Co., Ltd. v. McCullum, 25 B. W. C. C. 284, 301 (H. of L. 1932). In the Gullo case the court rested its decision largely on the ground that the place of the accident was not the approach provided by the employer but was a public highway on which the general public had the paramount right of user. In the case before us ¡the place of the accident was not such public highway; on the contrary, it was a driveway no't available for use by the public generally, but available as a means of ingress and egress to those employed at or properly entering its adjacent buildings. 'Compare the decision by the Supreme Judicial Court of Massachusetts in Mannerings Case, sustaining an award where the accident occurred on a private way not owned by the employer but available, as here, to his employees and located between the public sidewalk and the building entrance, with the decision in Dougherty v. Bernstein & Son, supra, where the Superior Court of Pennsylvania went further than we need here and sustained a compensation award where ¡the accident occurred along a strip of land, reserved to the owner of the building ’but actually used by the general public as well as persons employed in the building, and located between the public sidewalk and the building entrance.

In In Re Vincent C. Leatham, supra, the New York Court of Appeals affirmed, without opinion, an award of compensation to a claimant who, while seeking to enter his place of employment from the public highway, found his way blocked by a truck which had backed up against a loading platform, and was injured while climbing through the truck to enter the building. Similarly in Cohn v. Morningstar Nicol, supra, the New York Appellate Division sustained an award of compensation where the employee was injured while mounting a step at the front entrance of the employer’s premises, pointing out that the “claimant’s employment required that she mount the steps and this act was a risk incidental to the particular premises in which claiman was employed and was not one to- which pedestrians on the sidewalk generally were exposed.” In the Bountiful Brick Co. case supra, the United States Supreme Court, in dealing with the issue as to when the relation between employer and employee may properly -be said to have -begun within the contemplation of Workmen’-s Compensation Acts, said:

“ * * * Probably, as a general rule, employment may be said to begin when the employee reaches the entrance to the employer’s premises where the work is to be done; but it is clear that in some cases the rule extends to include adjacent premises used by the employee as a means of ingress and egress with the express or implied consent of the employer. Id., p. 426. And see generally, Procaccino v. E. Horton & Sons, 95 Conn. 408, 111 Atl. 594; Merlino v. Connecticut Quarries Co., 93 Conn. 57, 104 Atl. 396; Corvi v. Stiles & R. Brick Co., 103 Conn. 449, 130 Atl. 674; Starr Piano Co. v. Industrial Acci. Commission, 181 Cal. 433, 436-438, 184 Pac. 860; Sundine's Case, 218 Mass. 1, 4, L. R. A. 1916A, 318, 105 N. E. 433, 5 N. C. C. A. 616.”

There is no occasion for us to attempt to- define the precise line to be drawn in determining when an employee ceases to become a member of the general public traveling along the public highway to work and becomes an- employee entering his employer’s premises for purposes of the Workmen’s Compensation Act. It is sufficient for us to hold, as we do, that within the cited authorities and under the particular facts presented, the petitioner was well within the latter class .and that the accident arose out of and in the course of her employment. Any narrower interpretation, in the language of Lehigh Navigation Coal Co. v. McGonnell, 120 N. J. Law 428, at p. 431 (Sup. Ct. 1938) affirmed 121 N. J. Law 583 (E. & A. 1939), “would not be a liberal construction of a remedial statute; but a reversion to the injustices which resulted in the enactment of the Workmen’s Compensation law which the courts lave heretofore liberally construed.”'

The judgment below is affirmed.


author: McGeehan, S. J. A. D.

text:
    MARY DOUCHES, PLAINTIFF-RESPONDENT, v. ALBERT E. ROYAL AND WILLIE L. DILVER, DEFENDANTS-APPELLANTS.
    Superior Court of New Jersey Appellate Division
    Argued October 18, 1948
    Decided November 22, 1948.

      Before Judges McGeehan, Donges and Colie.

      Mr. Herbert A. Kuvin argued the cause for defendants-appellants (Mr. John E. Ryan, attorney).

      Mr. Charles Barman argued the cause for plaintiff-respondent (Messrs. Berman, Neiss and Miller, attorneys).
   The opinion of the court was delivered by

McGeehan, S. J. A. D.

Plaintiff sued to recover for damage to her automobile, sustained in a collision with an automobile owned by defendant Royal and operated by defendant Dilver; judgment for $255 was entered against both defendants after trial by the District Court Judge, sitting without a jury; 'and both defendants appeal.

The collision occurred on December 22, 1947. Plaintiff’s car was a 1947 Pontiac sedan purchased on May 6, 1947 from the Broad St. Pontiac', Inc. The car was repaired by the same company, and its manager testified as to the damage to the car and that the reasonable value of and the actual amount paid for the necessary repairs was $255. Defendants’ expert testified as to the damage to the car, omitting several items of damage found by plaintiff’s expert; that the reasonable cost to repair the damage found by him was $98.80; and that the market value of the car before the collision was $2,500 and after the collision $2,400.

Defendants contend that the court erred in awarding damages of $255 when the only testimony as to the diminution in market value due to the injury was that such diminution amounted to $100, citing Moeller v. Weston Trucking and Forwarding Co., Inc., 136 N. J. L. 643 (Sup. Ct. 1948). The applicable rule is set forth in Parisi v. Friedman, 134 N. J. L. 273 (E. & A. 1946):

“The damages sustained by an automobile in a collision may be established by showing the reasonable cost of the repairs necessary to restore it to its former condition, although the general rule is that the measure of damages to personal property is the difference between its market value immediately before and immediately after the injury. This rule is subject to the limitation: first, that the cost of repairs must not exceed the diminution in market value due to the injury; secondly, that the cost of repairs must not exceed the market value of the automobile immediately before the injury.”

The Moeller case cites the Parisi case and follows it.

The experts differed as to the damage sustained. by plaintiff’s car in the collision. The court could and did give credence to the testimony of plaintiff’s expert. The testimony of defendants’ expert as to value before and after was based upon less damage than that found by the court, and idonsequently imposed no limitation under the rule of the Parisi case.

We have examined the other points argued by the appellants and find no merit in them.

The judgment under appeal is affirmed.


text:
    FRANK BERNSTEIN AND DAVID GOLD, PLAINTIFFS-APPELLANTS, v. RAY ROSENZWEIG AND HERMAN ROSENZWEIG, DEFENDANTS-RESPONDENTS.
    Superior Court of New Jersey Appellate Division
    Argued November 1, 1948
    Decided November 16, 1948.

      Before Judges Jacobs, Eastwood and Bigelow.

      Mr. Murray Greiman argued the cause for the plaintiffs-appellants.

      Mr. Edward Barison argued the cause for the defendants-respondents.
   The opinion of the court was delivered by

Jacobs, S. J. A. D.

This is an appeal from a judgment rendered by the First District 'Court of Jersey City in favor of the defendants-respondents.

Under date of November 21, 1945, the defendants, as sellers, and the plaintiffs, as buyers, entered into an agreement for the sale of property located in Jersey City. At that time the plaintiffs paid a deposit of $200 and the following memorandum was duly signed:

“Receipt for deposit of Two Hundred Dollars ($200.00), from Frank Bernstein and Dave Gold .for property of 2709, 2711, 2713 Boulevard, Jersey City, N. J., subject to search of property. Total price is ($26,500) Twenty Six Thousand Dollars and Five Hundred without commission. Deposit is binding until search is completed. This also includes option to purchase tailor store for One Thousand Dollars. Option to expire'in one week.
Nov. 21, 1945
FRANK BERNSTEIN c/o GOLD 2861 Boulevard
J. C., N. J.
Jo. Sq. 2 — 4081
300 hundred dollars more Deposid due Saturday
Ray Rosenzweig Herman Rosenzweig”

The plaintiffs, being dissatisfied with their purchase, -failed to make the additional payment of $300 as provided in the memorandum and refúsed to'-proceed with any of the steps required for consummation -of the transaction. Thereupon, under date of December 5, 1945, the defendants advised the plaintiffs by letter that their right to purchase the -premises -commonly designated 2709-2713 Boulevard, Jersey 'City, was -cancelled. No further action in the matter was taken until February 19, 1946, when plaintiffs instituted their -action in -the First District Court of Jersey City to recover the $200 deposit paid by them.-

Plaintiffs testified before the district judge that it had been represented to them that the property referred to in the memorandum of November 21, 1945, included a rear yard; that the rental income of the property 'had been misrepresented; and that the parties had orally agreed that the property would be conveyed subject to an existing mortgage of $17,500 and that the balance due on the purchase price would be paid in cash. There was no dispute by the defendants as to the agreement with respect to the conveyance of the property subject to the mortgage and the payment of the -balance of the purchase price. However, the defendants, in their testimony, expressly denied the allegations with respect to the rear yard and the rental income and the judgment for defendants, rendered by the district court, may be taken as a factual finding in their favor on this issue. See Pollack v. New Jersey Bell Telephone Co., 116 N. J. Law 28, 30 (Sup. Ct. 1935); Frayne v. Bahto, 137 N. J. Law 109, 111 (Sup. Ct. 1948).

Plaintiffs, in support of their appeal, contend (1) that .the deposit was recoverable because the parties never entered into a binding contract, (2) that the memorandum dated November 21, 1945, was insufficient under the statute of frauds, and (3) that the defendants by their cancellation letter of December 5, 1945, defaulted thereunder.

1.

Where the prospective buyer pays a deposit to the prospective seller, merely as a step in the negotiations, and the parties fail to execute the contract contemplated by them, the deposit may be recovered by the buyer. See Mattson v. Slack, 134 N. J. Law 278 (Sup. Ct. 1946); Thompson v. Killheffer, 99 N. J. Law 439 (E. & A. 1924). On the other hand, where the parties have entered into a binding agreement, and the buyer defaults thereunder, the seller may, in general, retain the deposit as damages. See Katz v. Katz, 134 N. J. Law 303, 304 (Sup. Ct. 1946; where the court said:

“Where a contract contains no stipulation as to damages for its breach a purchaser who alone repudiates the contract without justifiable cause, as in the case sub judiee, cannot recover what he has paid under it. Steinbach v. Pettingill, 67 N. J. L. 36; Thompson v. Kill heffer, 98 Id. 359; reversed on other grounds in 99 Id. 439; Blank v. Berger, 104 Id. 569; Moore v. Durnam, 63 N. J. Eq. 96; affirmed, 69 Id. 828.”

Question may occur as to whether the Katz case should he applicable where the deposit was so proportionately large that its entire retention by the seller would appear to be a penalty or forfeiture rather than damages. Cf. Restatement, Contracts (1932) § 357; 5 Williston, Contracts (rev. ed. 1937) § 1476. However, this issue need not concern us in view of the nature of plaintiffs’ deposit which constituted less than one per cent of the purchase price.

The parties had agreed on the essential terms of the transaction and had signed a memorandum which, though informal, fairly embodied them. No further written contract was contemplated and the failure to consummate the sale was due entirely to the plaintiffs’ default. In view of these circumstances, there is no merit to plaintiffs’ contention that the deposit is recoverable because there was no binding agreement. See Steinbach v. Pettingill, 67 N. J. Law 36 (Sup. Ct. 1901).

2.

Plaintiffs urge that notwithstanding the foregoing determination the defendants are not entitled to retain the deposit on the ground -that the memorandum of November 21, 1945, did not satisfy the statute of frauds. Since this is neither an action to enforce the agreement (R. S. 25:1-5) nor one in which the defendants are seeking to retain benefits received thereunder while resisting its enforcibility, (Restatement, Contracts (1932) § 355) the statute of frauds would seem to have no application. Cf. Stasi v. Nigro, 135 N. J. Law 473, 474 (E. & A. 1947); Eaton v. Eaton, 35 N. J. Law 290, 293 (Sup. Ct. 1871). In any event, however, the memorandum of November 21, 1945, was sufficient to satisfy the statute. The property was adequately identified by street number. See Stasi v. Nigro, supra; Story v. Walker, 71 N. J. Law 256, 258 (Sup. Ct. 1904); Claphan v. Barber, 65 N. J. Eq. 550 (Ch. 1903). The purchase price was clearly specified and in the absence of provisions to the contrary, payment thereof would ordinarily be required contemporaneously with the transfer of the property. Weyl-Zuckerman & Co. v. Schnell, 96 N. J. Law 558, 560 (E. & A. 1921). Since there was no dispute between the parties as to the manner of the payment of the purchase price and the buyers’ default did not pertain thereto, we need not consider the admissibility or effect of the evidence as to the oral arrangement in this connection. Plaintiffs, cannot, in any event, assert any harm since the memorandum of November 21, 1945, was sufficient to bind them, whether it was considered alone, or in the light of the more favorable oral arrangement as to the manner of payment of the purchase price. Cf. Blank v. Berger, 104 N. J. Law 569 (E. & A. 1928).

3.

In support of their final contention that the letter of cancellation of December 5, 1945, constituted a default by defendants, plaintiffs cite King v. Ruckman, 21 N. J. Eq. 599 (E. & A. 1870), which states the established doctrine that, in equity, time for performance is not deemed to be of essence unless so stipulated in the contract. Without considering whether that doctrine would have pertinence if the plaintiffs had sought performance of the agreement and the defendants had rested on their letter of -cancellation, it has no bearing whatever under the facts before us. Here the plaintiffs, while receiving the full benefit of a week’s option to purchase the tailor -store, not only defaulted on their obligation to make -an additional deposit, but, by -their conduct and with the defendants’ knowledge, repudiated the entire contract and never altered their position. The defendants were not obligated to hold themselves indefinitely in readiness to convey the premises; on the contrary, upon being advised of -the repudiation they had -the right to “-treat the contract as terminated for all purposes of performance and maintain an action at once for the damages occasioned by such repudiation.” See O’Neill v. Supreme Council, American Legion of Honor, 70 N. J. Law 410, 412 (Sup. Ct. 1904); Holt v. United Security Life Insurance and Trust Co., 74 N. J. Law 795, 801 (E. & A. 1907). In lieu of maintaining -an action defendants chose to retain -the deposit as damages, consider the matter terminated, and so advise the plaintiffs. Under the circumstances, there was nothing improper in their having •taken this -course of action.

The judgment of the district court is affirmed.


author: Eastwood, J. A. D.

text:
    IDA TRIGGIANI AND LOUIS TRIGGIANI, HER HUSBAND, PLAINTIFFS-RESPONDENTS, v. OLIVE OIL SOAP CO., A CORPORATION, DEFENDANT-APPELLANT.
    Superior Court of New Jersey Appellate Division
    Argued November 1, 1948
    Decided November 16, 1948.

      Before Judges Jacobs, Eastwood and Bigelow.

      Mr. John W. Hand argued the cause for the appellant (Messrs. Evans, Hand & Evans, attorneys).

      Mr. Louis Santorf argued the cause for the respondents (Mr. Louis Santorf, attorney,).
   The opinion of the court was delivered by

Eastwood, J. A. D.

Defendant appeals from an adverse judgment of the Passaic County Court of Common Pleas. The grounds of appeal are based on the trial judge’s refusal to grant a non-suit at the close of the plaintiffs’ case and a directed verdict at the close of the whole case. The trial judge submitted the case to the jury, which returned verdicts in favor of plaintiffs, Ida Triggiani and her husband, Louis Triggiani, for $2,500 and $700 respectively.

Plaintiff, Ida Triggiani, suffered personal injuries as the result of a fall on the stairway of a factory building owned by the defendant, the fourth floor of which was leased by it to Mrs. Triggiani’s employer, Vitale Silk Co. She had been employed for a period of 11 months prior to the accident on November 11, 1942, and on that day had worked on the 3:30 p. m. to 11:30 p. m. shift. The means of ingress and egress to and from the fourth floor of the building consisted of a flight of stairs inside the building with a landing on each floor and between the floors. Mrs. Triggiani had quit work at 11:30 p. m. on the night of the accident. She testified that she descended the stairs from the fourth floor to the third floor where she found the stairway leading to the second floor in darkness. Although the stairway was in complete darkness and she was unable to see anything, she proceeded to descend, grasping the stairway railing for guidance. In so doing, she missed her step and fell to the bottom of the stairs between the third and second floors. She further testified that the stairway where she fell was equipped with lighting fixtures but that the light had remained unlit for a period of two to three months preceding the accident. She also testified that other employees, with whom at times she descended the stairs used searchlights, but that when she was alone she descended the stairs in darkness, never having provided herself with a searchlight. There was no testimony other than Mrs. Triggiani’s with respect to her accident and the lighting situation o'f the stairway.

On a motion to non-suit the function of the court is to determine whether a jury question is presented by the evidence. In this case the burden of proof was upon the plaintiffs to make out a prima facie case of actionable negligence against defendant. If the plaintiffs have not succeeded in doing so, a non-suit is proper. In passing upon the motion for non-suit, the plaintiffs were entitled to have the court draw the most favorable inferences from their evidence to which such testimony is legitimately susceptible.

Where as here, a landlord retains in his possession and control the passageways and stairways for the common use of the tenants and those having occasion to use them lawfully, he is bound to see that reasonable care is exercised to have such passageways and stairways reasonably fit and safe for use. However, there is no duty with respect to the safe use of the means of passage provided by him. Thus, if 'a passageway reasonably fit for use is provided, but a light is requisite to use it safely at night, the obligation is not upon the landlord to provide lights, unless the landlord has assumed to furnish light, either expressly by contract, or by implication of law, or by reason of statute he is required to provide lights under the circumstances. Gleason v. Boehm, 58 N. J. Law 475 (Sup. Ct. 1896), 34 Atl. 886; Solomon v. Finer, 115 N. J. Law 404 (Sup. Ct. 1935), 180 Atl. 567. Plaintiffs did not produce any testimony to establish that defendant had assumed the duty to light the stairway. In fact, plaintiffs’ case is completely lacking in establishing any actionable negligence on the part of the defendant. Viewing Mrs. Triggiani’s evidence in the light of the most favorable inferences to which her testimony is legitimately susceptible, it appears that there were no hidden defects in the stairways, nor were they defective. Likewise, plaintiffs proffered no testimony whatsoever establishing any contractual duty on the part of the defendant to furnish light. Their argument seems to be that the stairways having been lighted during the time of her employment, with the exception of a period of two to three months before the accident on November 11, 1942, it was the duty of the defendant to have had the lights in operation on that i date. This argument is clearly untenable in the absence of proof showing that the defendant controlled and maintained the lights during the period that plaintiffs claim they were lighted. Where a defective condition is alleged to have arisen from negligent maintenance the burden is on the plaintiffs to produce evidence tending to show such facts as will justify an inference of such negligence. Plaintiffs have not carried the-burden of establishing any facts from which a reasonable-man might so infer. As stated, the testimony is barren of any contractual responsibility on the part of the defendant to-keep the stairway-lighted at nights, nor is there any testimony in the plaintiffs’ case whatever as to who controlled and turned on the lights when they were in use. The mere presence of light fixtures 'in hallways gives rise to no duty on the part of the landlord to keep the lights lighted at night in the absence of the landlord assuming the obligation of so doing. Rhodes v. Fuller Land and Improvement Co., 92 N. J. Law 569 (E. & A. 1918), 106 Atl. 400; Leech v. Atlantic Delicatessen Co., 104 N. J. Law 381 (E. & A. 1927), 140 Atl. 423. This being so, there is no evidence from which it might legitimately be inferred that the defendant landlord had even assumed this responsibility.

Viewing the plaintiffs’ evidence as a whole and in its most favorable light, we conclude that plaintiffs failed to establish a prima facie case of actionable negligence against the defendant, and, therefore, it was error for the trial court to deny defendant’s motion for a non-suit.

Defendant has also raised the questions of contributory negligence and assumption of risk on the part of plaintiff. Our determination is dispositive of the appeal and, therefore,, it is unnecessary for us to consider the other grounds of appeal.

The judgment is reversed.


text:
    JOSEPH TUZIO, PLAINTIFF-APPELLANT, v. MATHIAS SAYLOR AND PAUL L. WEIDEN, DEFENDANTS-RESPONDENTS.
    Superior Court of New Jersey Appellate Division
    Argued November 29, 1948
    Decided December 7, 1948.

      Before Judges Jacobs, Eastwood and Bigelow.

      Mr. Abraham L. Friedman argued the cause for the plaintiff-appellant.

      Mr. Joseph Coult argued the cause for the defendant-respondent, Mathias Saylor.

      Mr. William V. Breslin argued the cause for the defendant-respondent, Paul L. Weiden.
   The opinion of the court was delivered by

Jacobs, S. J. A. D.

This is an appeal in a negligence action from a judgment rendered in favor of the defendants by the District Court of the First Judicial District of the County of Bergen.

Plaintiff wa-s driving his car in an easterly direction along the Pulaski Skyway in a line of traffic traveling approximately 35 miles an hour. The day was clear, traffic was heavy both easterly and westerly, and the cars were traveling about two or three lengths apart. The two cars immediately preceding plaintiff’s car collided causing him to stop abruptly. Immediately thereafter, the defendant Saylor’s car struck plaintiff’s car in the rear and following that impact, the defendant Weiden’s car struck the defendant Saylor’s car which, in turn, caused the defendant Saylor’s car again to strike the plaintiff’s car. Plaintiff’s car was equipped with a stop light which flashed red when the brakes were applied. On cross-examination 'plaintiff testified that the accident was precipitated by the cars ahead of him stopping without warning, and that hé, in turn, could not give the cars behind him sufficient warning.

In the District Court plaintiff sought recovery from the defendants Saylor and Weiden on the ground that the negligent operation of their -cars had resulted in the damage to his car. After the plaintiff had introduced his evidence, the court reserved decision on motions to non-suit. The defendant Weiden rested without introducing any evidence and moved for a directed verdict. The court likewise reserved decision on this motion. The defendant Saylor then presented his evidence and at the close thereof rested. After hearing summations by counsel for the plaintiff and the defendant Saylor, the Judge reserved decision stating that he would study the exhibits and his notes and that he might desire the testimony. A week later the court rendered its decision which was in the following form:

“A judgment for the plaintiff against either defendant would have to be predicated upon a finding that such defendant was negligent in the operation of his car at the time of the accident and that such negligent action was the proximate cause of the collision in which the plaintiff suffered damages; after having given the matter careful consideration I am satisfied that plaintiff has failed to establish such negligent operation on the part of either defendant.
“Defendants’ motions are therefore granted and judgment of No Cause of Action will be entered.”

Plaintiff does not dispute that if the trial below had been before a jury which had found for the defendants, its finding would not, under the evidence presented, be subject to attack. See Simpson v. Snellenburg, 96 N. J. L. 518, 520 (E. & A. 1921). Nor does he dispute that if the District Court sitting without a jury had simply entered judgment for the defendants, its action would be deemed to. constitute a finding of fact, sufficient under the evidence presented, to sustain the judgment. See Pollack v. New Jersey Bell Telephone Co., 116 N. J. L. 28, 30 (Sup. Ct. 1935). However, he does -contend that the District Court did not make a finding -of fact against -the plaintiff but decided, “as a matter of law,” that there was no evidence of negligence -and that in doing so he fell into error. This contention is rested on cases such as Higgins v. Goerke Kirch Co., 92 N. J. L. 424, 425 (E. & A. 1919) where the court stated that:

“If the judge, sitting as a jury, had said he did not think plaintiff had shown negligence, his finding would be impregnable on an appeal raising only matters of law; but in dealing with the question ^.s one for the court rather than for the jury, he fell into an error * *

The distinction, as sought to be applied to the situation before us, would seem somewhat tenuous since a trial judge, sitting without jury, who has concluded from all the testimony in the case, that there would be insufficient evidence of negligence to be submitted to a jury if one had been drawn, has presumably determined, as a fact, that no negligence has been •shown. However, the distinction need not detain us since we •are satisfied from the entire record that the trial judge did make a finding of fact, rather than of law, -that the plaintiff had not established negligence.

In his decision he expressly stated that a judgment against either defendant “would have to be predicated upon a finding that such defendant was negligent” and that after having given the matter careful consideration, he was “satisfied that plaintiff has failed to establish such negligent operation on the part of either defendant.” That was a clear determination on the facts against the plaintiff and in favor of the defendants and the “judgment of no cause of action” >was properly entered on the basis thereof. While it is true that the trial judge made the additional statement that the defendants’ motions were granted, this did not harm the plaintiff and may be disregarded, as surplusage, in view of the explicit finding that negligence had not been established and the entry of judgment thereon.

In the light of the foregoing conclusion, the only question remaining is whether this court will upset the trial judge’s factual finding in favor of the defendants on the issue of negligence. Under the former practice, the finding, being based on competent evidence, would be binding. See Underwood v. Katz, 135 N. J. L. 214, 216 (Sup. C.t. 1947). Under the present Rules this court is empowered to review the facts. See Rtiles 1:2-20 and 4:2-6. However, since there was ample evidence in the record to justify the trial judge’s finding, we see no justification for disturbing it. See DeMoors v. Atlantic Casualty Insurance Company of Newark, 1 N. J. Super. 1, 61 Atl. (2d) 511 (App. Div. 1948).

The judgment is affirmed.


author: Colie, J. S. C.

text:
    RAYMOND CHASAN, PETITIONER-APPELLANT, v. MARY KOLB, DEFENDANT-RESPONDENT.
    Superior Court of New Jersey Appellate Division
    Argued October 18, 1948
    Decided December 1, 1948.

      Before Judges McGeehan, Donges and Colie.

      Mr. Maurice C. Brigadier, for appellant.

      Mr. Murray Greiman, for respondent.
   The opinion of the court was delivered by

Colie, J. S. C.

This appeal is from an order of the Hudson County Court of Common Pleas, denying the petition of Raymond Chasan for the fixing and determining of an attorney’s lien against the defendant, Mary Kolb, or upon her property. The essential facts are that one I. Charles Wilson in April 1946 retained petitioner to bring suit against the defendant to recover the sum of $7,500. The retainer signed by the plaintiff provided for the payment to petitioner of a percentage of the amount recovered and a further provision that the plaintiff would not settle or extinguish his claim nor substitute any other attorney for petitioner without his consent first had in writing. Petitioner started an attachment suit in the Hudson County Court of Common Pleas and certain property of defendant was levied upon. Subsequently the Court of Common Pleas quashed the levies. Petitioner applied for and was allowed, on March 22, 1947, a writ of certiorari to review the aforesaid order. On March 25, 1947 plaintiff wrote petitioner instructing him to withdraw the suit against the defendant, and requesting him to send a bill. Some time thereafter the certiorari proceedings were discontinued as was the civil action between the plaintiff and defendant. The petitioner then filed a petition under the provisions of R. S. 2:20-7 to establish his lien upon the cause of action of Wilson v. Kolb in the Hudson County Court of Common Pleas and against the plaintiff and defendant therein, and to have the amount of his lien determined by the court.

It is argued that the court erred in holding that there was no proof of a fraudulent and collusive scheme to deprive petitioner of his lien by a discontinuance of the action. Collusion and fraud are not presumed but must be proved. The testimony before the Pleas falls far short of proving a case of fraud and collusion. It is next argued that the court erred in concluding that, if the action was discontinued for no valuable consideration, the asserted lien, in the absence of fraud,, has no Value. The petitionér’s right to a lien arises out of the statute, which, so far as applicable, reads: “After the service of a summons and complaint in any action at law, * * * the attorney, * * * who shall appear in the cause for the party instituting the action at law, * * * shall have a lien for compensation, upon his client’s cause of action, suit, claim or counterclaim, which shall contain and attach to a verdict, report, decision, decree, award, judgment or final order in his client’s favor, and the proceeds thereof in whosesoever hands they may come. The lien shall not be affected by any settlement between the parties before or after judgment or final order or decree.” The question would seem to arise whether after discontinuance, and in the absence of a settlement or fraud, there exists a cause of action, suit, claim or counterclaim to which a lien may attach. The right to the lien is predicated upon the existence of a cause of action, suit, claim or counterclaim. With the filing of the discontinuance, and in the absence of a settlement or fraud, the cause of action, in the sense of a judicial proceeding, ceased to exist. As pointed out in Levy v. Public Service Railway Co., 91 N. J. L. 183 (E. & A. 1917) “the statute, * * * does not fake away the right of parties to settle their litigations, neither does it alter the conclusive effect of such a settlement when honestly made.” Here there was a discontinuance and not a settlement but we discern nothing in that fact to deprive the parties of the right to terminate the action.

In view of our disposition of this point, it becomes unnecessary to deal with the remaining points argued.

The order under review is affirmed.


author: Bigelow, J. A. D.

text:
    EDWARD J. ACKERMAN AND JEANE G. ACKERMAN, PLAINTIFF-APPELLANTS, v. BOARD OF COMMISSIONERS OF THE TOWN OF BELLEVILLE, ET AL., DEFENDANT-RESPONDENTS.
    Superior Court of New Jersey Appellate Division
    Argued November 15, 1948
    Decided December 9, 1948.

      Before Judges Jacobs, Eastwood and Bigelow.

      Mr. Edward J. Abromson argued the cause for plaintiff-appellants.

      Mr. Lawrence E. Keenan argued the cause for defendant-respondent Board of Commissioners of the Town of Belleville, etc.

      Mr. Gerald T. Foley argued the cause for defendant-respondent George F. Kiernan.
   The opinion of the court was delivered by

Bigelow, J. A. D.

This is a zoning case. A .writ of certiorari brings before the court two resolutions, one by the Board of Adjustment of the Town of Belleville, recommending that the respondent Kiernan be permitted to make a nonconforming use of his land, and the other, an approval of the recommendation by the Board of Commissioners of the town acting under authority of R. S. 40:55-39 (d). Upon the final hearing, the respondents moved to dismiss the writ on the ground that it had not been applied for within the time limited by R. S. 40:55-46, which requires that the application for a writ to review a decision of the board of adjustment shall be made within 30 days. In case the board of adjustment declines to recommend that the proposed structure or use be allowed, its action is final and the statutory limitation controls. Crescent Hill, Inc. v. Allendale, 118 N. J. Law 302 (Sup. Ct. 1937). But where the board of adjustment makes the recommendation, its action is inoperative until approved by the governing body, and the 30-day limitation does not apply. Brandon v. Montclair, 124 N. J. Law 135; 125 N. J. Law 367 (E. & A. 1940). While the statute does not expressly fix a time within which a review of the resolution of the governing body must be sought, yet we are satisfied that to give full effect to the legislative scheme, application for the writ should generally be made within 30 days after the governing body acts. In the instant case, the application was made upon notice to the interested parties 43 days after the date of the resolution of the Board of Commissioners. Whether the timeliness of the application was then argued does not appear. The court may still dismiss the writ because of laches in applying for it, even though the cause is ready for decision upon the merits, Weissinger v. Teaneck, 10 N. J. Misc. R. 1093, (Sup. Ct. 1932,), but the court should do so only if that course would promote substantial justice. None of the parties are prejudiced by the short delay in applying for the writ and so the motion to dismiss is denied.

The prosecutors urge that the recommendation of the Board of Adjustment was invalid because it was not based on the sworn testimony of witnesses. It has been said, in Fonda v. O’Donohue, 109 N. J. Law 584 (Sup. Ct. 1932), for example, that a board of adjustment can act only on “legal evidence.” But more recently it has been decided that the board’s judgment may be founded upon an examination of the site, made either by the board or a committee appointed for the purpose. Amon v. Rahway, 117 N. J. Law 589 (Sup. Ct. 1937); Wilson v. Union Township, 123 N. J. Law 474 (Sup. Ct. 1939). The ruling principle is that the board may not act unreasonably or capriciously; there must be a factual foundation on which its judgment is built. How the facts shall be determined depends on the circumstances of the particular matter. In the instant case, there was no dispute over the facts on which the Board’s recommendation was sought or was opposed; they were well-known to the Board and to all the parties. Under such circumstances, the Board could properly act without taking testimony or making a formal inspection of the site.

The original action of the Board was very brief, merely a recommendation that the requested variance be allowed and contained no finding of facts or other recitals. After the recommendation had been approved by the Commissioners, and after the writ of certiorari had been allowed, the Board of Adjustment adopted a second resolution declaring that at the time of its former action, it had found certain facts which were the bases of its recommendation. If the second resolution had not been adopted, this court might have considered that the lack of a finding of facts by the Board prevented the court from considering the merits of the matter, but in that event the court would have directed the Board to set forth its findings, or at most the court would have annulled the record without prejudice to further proceedings by the municipal authorities, as was done in Brandon v. Montclair, supra. The passage of the second resolution does not impair any right of the prosecutors and it enables the court immediately to come to grips with the real issue. The recitals and findings contained in it will be given the same effect as if they were part of the Board’s original action.

The respondent Kiernan bought a plot of land at the corner of Union Avenue and Lloyd Place, intending to erect there a building to be used as a funeral home and dwelling. But the property is in a zone restricted to one-family residences, and is more than 150 feet distant from a district in which a funeral home is authorized by the zoning ordinance. So he appealed to the Board of Adjustment to recommend to the governing body that he be permitted to carry out his plan.

Union Avenue is one of the four north and south through-streets in Belleville. Two bus lines run along the street — a bus about every ten minutes — and other vehicular traffic is heavy. Opposite Kiernan’s land is a public school with its large playground. Nearby is a non-conforming use that antedates the zoning ordinance — a small grocery store. With these exceptions, all the structures on Union Avenue, from a point 1500 feet south of the premises in question to a point 1000 feet north, are one-family residences. Further north are apartment houses, stores, gas stations. The real estate appraiser whose deposition is presented by the respondents, expresses the opinion that this half-mile stretch of Union Avenue is doomed as a residential district; that the time is not far off when it must be zoned for business. Lloyd Place is a street of attractive residences, most or all of them built within the past ten years.

Do these facts present a situation in which the Board of Adjustment may recommend, and the Board of Commissioners approve, the issuance of the permit which Kiernan seeks ? Paragraph d of R. S. 40 :55 — 39, under which the Boards acted, contains no express restrictions. But by implication the exercise of power under this paragraph is subject to the conditions prescribed in paragraph c. Brandon v. Montclair, supra. To justify the action now under review it must appear that “owing to special conditions, a literal enforcement of the provisions of the ordinance will result in unnecessary hardship, and * * * that the spirit of the ordinance shall be observed and substantial justice done,” by granting the permit.

The supposed hardship resulting from a strict adherence to the zoning scheme bears equally on all land owners along that part of Union Avenue which we have described, or at least on all whose lots are vacant, or whose buildings may readily be converted to commercial uses. There is nothing peculiar in Kiernan’s position. Paragraph d is operative only where the applicant’s plight is “owing to special conditions,” that is, to circumstances uniquely touching his land as distinguished from conditions that affect the whole neighborhood. Brandon v. Montclair, supra; Potts v. Board of Adjustment of Princeton, 133 N. J. L. 230 (Sup. Ct. 1945).

Again, it does not appear that Kiernan suffers “unnecessary hardship.” “Is the environment such that the lot is not reasonably adapted to a conforming use? It is not per se a sufficient reason for a variation that the non-conforming use is more profitable to the land owner.” Brandon v. Montclair, supra; Scaduto v. Bloomfield, 127 N. J. Law 1 (Sup. Ct. 1941); National Lumber Products Co. v. Ponzio, 133 N. J. Law 95 (Sup. Ct. 1945). For cases from other jurisdictions, see valuable note in 168 A. L. R. 13. Keirnan’s intention lo use his building not only for business but as his home indicates that the land is suitable for residential use in conformity with the zoning ordinance.

We have not considered to what extent the amendments to the zoning statute which were approved August 9, 1948, P. L. 1948, c. 305, enlarge the powers of boards of adjustment. The validity of the Board’s action depends upon the law then in force. Peshine Realty Co. v. Scott, 4 N. J. Misc. R. 977 (Sup. Ct. 1926).

The resolutions under review will be vacated.


text:
    ROBERT J. DUCASSE, PLAINTIFF-RESPONDENT, v. WALWORTH MANUFACTURING CO., DEFENDANT-APPELLANT.
    Superior Court of New Jersey Appellate Division
    Argued November 15, 1948
    Decided December 10, 1948.

      Before Judges Jacobs, Eastwood and Bigelow.

      Mr. Frank Fink argued the cause for the respondent (Mr. James J. Carroll, attorney).

      Mr. Everitt Rhinehart argued the cause for the appellant (Mr. John W. Taylor, attorney).
   The opinion of the court was delivered by

Eastwood, J. A. D.

A writ of certiorari was allowed by Mr. Justice Bodine, of the former Supreme Court, to review the propriety of a judgment of the Hudson County Court of Common Pleas entered on May 24, 1948, affirming an award of additional compensation by the Workmen’s Compensation Bureau to respondent under R. S. 34:15-27, for increased disability amounting to 35 per cent of total permanent disability occurring subsequent to the original award to respondent ih June, 1943.

Ducasse was injured in the course of his employment on October 7, 1940, while sliding a 150-pound valve on a skid into a truck. The employment was admitted; payments of temporary disability were made; and a consent judgment was entered in the original proceedings establishing petitioner’s permanent disability at 15 per cent of total, which defendant also paid. The dispute is medical in nature and the ¡weight and credibility to be given to plaintiff’s proofs is the question presented to us. Following the accident of October 7, 1940, petitioner went the next evening to Dr. D’Ambola, who treated him until about the middle of December, for what he diagnosed a§ a “strain of the upper abdominal muscles.” He was treated also by Dr. DePalma, to whom he had been referred by Dr. D’Ambola. Dr. DePalma, in turn, sent him to Dr. Wheeler for further treatment and he was then 'sent to Dr. Eisenberg who treated him for a period of three months. He was also seen by Dr. Clemens and Dr. Leon Lewis until the time of the original hearing on May 25, 1943. The findings of the treating physicians during this period may be summarized as being referred to the lower back and. left leg. It is contended by petitioner that his condition became worse almost immediately after the award; that he then consulted Dr. Grinwiss, a neighborhood physician; was examined at the Orange Orthopedic Hospital; that on September 1, 1943, he went to Johns Hopkins Hospital in Baltimore, where he was examined by three doctors, and an operation was performed on his back by Dr. Walter E. Dandy, an'eminent surgeon. Petitioner remained at the hospital for approximately ten days and remained out of work until January 31, 1944. He then returned to his employment, doing lighter work, and remained there until March 1, 1944. Thereafter, he secured employment as a taxicab driver. In September, 1944, petitioner claimed that he was compelled to remain in bed for a period of two weeks and that the pain in his back became so intense that he was hospitalized at St. Michael’s Hospital in Newark by Dr. D’Ambola, where he remained for five and one-half weeks. Part of the treatment at that institution consisted of an asbestos cast extending from a few inches below petitioner’s neck down to his hips in which he remained for three weeks. The treatments at St. Michael’s Hospital apparently effected no improvement in petitioner’s condition and he remained home for a period of five months. He did not work again until March 1, 1945, when he resumed his employment at the taxicab company as a part-time clerk answering the telephone and other kindred light duties.

Petitioner contends that his condition is now worse than it was at the original hearing on May 25, 1943; that he cannot bend, his back is stiff, he has pain radiating down his left leg, he is constantly in pain day and night and cannot do any heavy work at all; that he has a list of the back and is unable to move normally in all directions; that he wears an abdominal belt constantly. Through his medical experts, Dr. D’Ambola and Dr. Watman, his partial permanent disability is established as high as 66% per cent of total.

In opposition to the lengthy case history hereinabove recited, the respondent contends that the award of increased permanent disability is erroneous in four respects: (1) that the increased disability, if any, resulted from the surgical operation for which there is no evidence produced as to the nature of or the necessity for such operation; (2) that petitioner had certain pre-existing injuries prior to October 7, 1940, which contributed in some degree to the disability, and that the award is erroneous in that there was no proof as to how much of the disability is due solely to the compensable accident; (3) that the judgment of the Common Pleas is against the weight of the evidence; and (4) that the principle of res adjudicata was violated by the award of compensation for increased incapacity predicated in part on evidence that the testimony forming the basis of the original judgment was erroneous.

The testimony discloses that prior to the injury involved here, petitioner had some osteo-arthritic changes in the lumbar vertebrae, a curvature of the spine with convexity to the right side at the dorso-lumbar level, and apparently a non-fusion of the spinous processes of the first and lower sacral segments; that he was struck by an automobile in 1931, injuring his left leg, and that in 1937, he strained his back which was taped by a physician. Our review of the evidence leads us to the conclusion that these injuries left practically no residual effects in existence at the time of the accident of October 7, 1940.

With reference to-the contention that petitioner’s preexisting physical defects and disabilities may be raised to defeat petitioner’s award of compensation, in the case of Bernstein Furniture Co. v. Kelly, 114 N. J. Law 500, 177 Atl. 554 (Sup. Ct. 1935), affirmed 115 N. J. Law 500, 180 Atl. 832 (E. & A. 1935); Marshall v. C. F. Mueller Co., 135 N. J. Law 75, 50 Atl. (2d) 158 (Sup. Ct. 1946), the court held, inter alia, that the act extends to the weak as well as to the strong, and an employer takes his -employees with their physical defects and disabilities.

The main controversy rages over the surgical operation and its effects performed at Johns Hopkins Hospital by Dr. Dandy on September 1, 1943. Petitioner contends that the operation was performed for the removal of the intervertebral disc. Dr. Dandy is deceased and his testimony as to the minutiae of the operation was not available. The records of Johns Hopkins Hospital were not produced. Petitioner testified, and properly so, that an operation was performed by Dr. Dandy upon his lower back. The testimony as to the precise nature of the operation was excluded under the hearsay rule. All the physicians conceded that petitioner had been operated upon at Johns Hopkins Hospital. Dr. Watman testified that he had examined the X-rays taken on January 10, 1947, and found that there were residual effects of a ruptured disc. Petitioner bears a healed 3%-inch vertical post-operative scar in the lumbo-sacral region. We pause here to observe that it would have been very helpful to the court if petitioner had produced the records of Johns Hopkins Hospital with supporting testimony thereon. Although we are able to arrive at a decision on the evidence submitted, we cannot refrain from pointing out that counsel should have made some effort to procure the hospital records and supporting testimony or explained why they were not offered in evidence. It is conceded by appellant that petitioner’s disability was increased following the operation. Dr. Eisenberg, testifying for the appellant, said that the structural damage caused 'by the surgery increased the disability from five per cent of total to IS per cent. Dr. Klaus, also testifying for the appellant, said that following the operation the disability had increased from five to 7}/á per cent of total, to 15 to 20 per cent of total.

We are impressed with the evidence presented by petitioner. We think he was fully justified, following the injury on October 7, 1940, in pursuing his endeavors to alleviate the effects of his injuries. The fact that the operation was unsuccessful and resulted in increased disability does not, under the law, deprive a conscientious and deserving employee from the benefits of the statute. See Selak v. Murray Rubber Co., 108 N. J. Law 548, 159 Atl. 93 (E. & A. 1931). Also, Kelly v. Lembeck & Betz Eagle Brewing Co., 86 N. J. Law 471, 92 Atl. 282 (Sup. Ct. 1914). As was said by. Mr. Justice Perskie in Lazzio v. Primo Silk Co., 114 N. J. Law 450, 177 Atl. 251 (Sup. Ct. 1935), affirmed 115 N. J. Law 506, 180 Alt. 881 (E. & A. 1935);

“Should one afflicted with what is presently characterized as an incurable disease, simply sit by, abandon all hope and do nothing about it? Such a course of conduct is not followed by the average, ordinary, prudent person. It is unnatural to expect one to so act. It is not human.”

The happening of the accident and injuries caused thereby have been established, following which we have a history of pain and incapacity suffered by plaintiff, continuous and persistent medical treatments, climaxed by an operation (which obviously failed of its purpose), and increased partial permanent disability. Petitioner legitimately was attempting to effect a cure and underwent the operation for that purpose, although the results were not beneficial, he is nevertheless, under the cases cited, entitled to be compensated for his present increased disability stemming from the original injury. Our courts, have. consistently held that, irrespective of prior awards for disability, additional compensation may be awarded where the disability is proved to have increased. The Bureau has continuing jurisdiction for the purpose of modifying- the award of compensation to accord with an after occurring enlargement or diminution of the incapacity so found to have ensued from the established compensable injury. See the opinion of Mr. Justice Heher, speaking for the Court of Errors and Appeals, in Drake v. C. V. Hill & Co., 117 N. J. Law 290, 187 Atl. 637 (E. & A. 1936). Cf. DeSantis v. Turner Construction Co., 120 N. J. Law 590, 1 Atl. (2d) 202 (Sup. Ct. 1938), opinion by Mr. Justice Case.

Where, as here, the evidence justifies a finding for the plaintiff and the defendant seeks to attribute the disability to some cause unrelated to the accident in question, the burden ■of proof is cast upon the defendant to establish such other ■cause. The defendant has failed to carry that burden. Serignese v. Air Reduction Sales C.o., 135 N. J. Law 317, 51 Atl. (2d) 543 (Sup. Ct. 1947).

The evidence produced on behalf of the petitioner establishes, in our judgment, that his increased disability was the natural and probable result of the accident on October 7, 1940, in contra-distinction to the claims of the appellant that no causal relation exists. Petitioner has, therefore, brought himself within the protection of the doctrine of “the more probable hypothesis” as enunciated in Sunkimat v. Senger Coal & Ice Corporation, 137 N. J. Law 103, 58 Atl. (2d) 226 (Sup. Ct. 1948). Opinion by Mr. Justice Wachenfeld, wherein Mr. Justice Wachenfeld stated:

“The petitioner need only establish the claimed conclusion from the facts is a probable or a more probable hypothesis with reference to the possibility of other hypotheses. Gilbert v. Gilbert Machine Works, Inc., 122 N. J. L. 533, 6 A. 2d 213; Jones v. Newark Terminal & Transportation Co., 128 N. J. L. 190, 24 A. 2d 564, affirmed, Jones v. Court of Common Pleas of Essex County, 129 N. J. L. 58, 28 A. 2d 96; Marshall v. C. F. Mueller Co., 135 N. J. L. 75, 50 A. 2d 158; Serignese v. Air Reduction Sales Co., 135 N. J. L. 317, 51 A. 2d 543.”

Considering all of the evidence, and its rational inferences, we hold that it preponderates in favor of the hypothesis tendered by plaintiff and we arrive at the inescapable conclusion that plaintiff’s increased disability is causally related to the accident in question.

Our determination is dispositive of the issue here. A consideration of other arguments advanced by appellant convinces us that they are without merit.

The judgment below is affirmed with costs.


text:
    HENRY FINSTON, DAVID NAIDECH AND AUGUSTA NAIDECH, CO-PARTNERS TRADING AS NEW JERSEY COAL & SUPPLY CO., PLAINTIFF-APPELLANTS, v. TOWN OF NUTLEY, A MUNICIPAL CORPORATION, AND GEORGE A. FITTING, BUILDING INSPECTOR OF THE TOWN OF NUTLEY, DEFENDANT-RESPONDENTS.
    Superior Court of New Jersey Appellate Division
    Argued November 29, 1948
    Decided December 9, 1948.

      Before Judges Jacobs, Eastwood and Bigelow.

      Mr: Edward R. McGlynn argued the cause -for plaintiff-appellants (Messrs. McGlynn, Weintraub & Stein, attorneys).

      Mr. Aaron Heller argued the cause for defendant-respondents.
   The opinion of the court was delivered by

Bigelow, J. A. D.

Prosecutors desire to install at their place of business in Nutley underground tanks for the storage of fuel oil. An ordinance of Nutley forbids the storage of “oil that i-s volatile below the temperature of 100° Fahrenheit” without a license to be issued by the Town Clerk upon the special authorization of the Board of Commissioners of the town. Thinking that this ordinance applied to fuel oil, prosecutors sought and received a license under the ordinance. Later, the Commissioners, for reasons that the prosecutors say were insufficient, rescinded the license, and that is the action which is before us for review.

Fuel oil at a temperature less than 100° is not volatile and therefore is not within the scope of the ordinance. As to this, the parties are agreed. The license was of no benefit to prosecutors and they are no way harmed by its revocation. The question whether the revocation was illegal or not is of academic interest only. For this reason, the writ of certiorari will be dismissed.

After the Commissioners had annulled prosecutors’ license, the Building Inspector of the town ordered that work on the tanks cease. Seemingly, while the prosecutors held the license of the Town Clerk, the Inspector did not require them to obtain from him the usual permit for construction work. Now, as we understand, he refuses to issue a permit to them. Prosecutors, in addition to the writ of certiorari, obtained an order to show cause why they should not be awarded a writ of mandamus commanding the Building Inspector to issue a permit for the installation of the tanks. On this branch of the controversy, counsel have debated whether or not the zoning ordinance forbids the underground storage of fuel oil awaiting sale, in the district where prosecutors’ property lies. We express no opinion on the question. The Zoning Act in force when this matter arose, R. S. 40 :55-39, and the amendment approved last summer, P. L. 1948, c. 305, give an appeal to the Board of Adjustment from decisions of the Building Inspector, and also empower the Board to authorize in certain cases and to recommend in others, variances from the terms of the zoning ordinance. The administrative remedies should have 'been exhausted before judicial relief was sought. Crescent Hill, Inc. v. Allendale, 118 N. J. Law 302 (S. C. 1937). If the record before us showed clearly that prosecutors were entitled to the permit, we might well grant the mandamus, even though the appeal -to the Board of Adjustment had not been pursued. Lane v. Bigelow, 135 N. J. Law 195 (E. & A. 1946). But the record is too scanty, the prosecutors’ right too uncertain. The order to show cause will be discharged.


text:
    WALERYA (VIOLA) FEICK, PLAINTIFF-APPELLANT, v. THE PRUDENTIAL INSURANCE COMPANY OF AMERICA, A CORPORATION, DEFENDANT-RESPONDENT.
    Superior Court of New Jersey Appellate Division
    Argued November 1, 1948
    Decided December 9, 1948.

      Before Judges Jacobs, Eastwood and Bigelow.

      Mr. Jacob M. Goldberg argued the cause for plaintiff-appellant.

      Mr. Martin B. O’Connor argued the cause for defendant-respondent (Messrs. O’Connor & O’Connor, attorneys; Mr. Ralph V. Mancini, of counsel).
   The opinion of the court was delivered by

Bigelow, J. A. D.

This appeal depends on the operation of military service clauses in a policy of life insurance. In June, 1943, the defendant, the Prudential Insurance Company, issued' its policy on the life of Stanley Hromiko, payable to -the plaintiff as beneficiary. The policy provided that the company would pay double the face amount of the policy in the event of the death of insured by accident, unless death should happen while insured was “a member of the Military, Naval or Air Forces of any country at war (declared or undeclared).” And in another part of the policy was a clause similar to the last: “If this policy contains a provision for a benefit in event of death by accidental means, the conditions and exceptions specified in the policy are hereby supplemented and amended to provide that no such benefit shall be payable if death results from any cause while the insured is in the Military or Naval Force's of any country at war.”

The winter after the policy was written, young Hromiko applied for admission to the Navy College Program. He took the examinations, and was accepted, enlisted in the Naval Reserve and was ordered to duty as a V-12 student at Trinity College, Hartford, Connecticut. This was in February, 1944, at a time when insured -was 17 years old. The following January 6, a Sunday, while insured was still a V-12 student at Trinity, and while he was on leave, he was involved in an automobile accident on the public highway in Hartford and suffered injuries from which he died two days later. The insurance company paid to the plaintiff the face of the policy but refused to pay double that amount, whereupon she brought action to recover the additional sum. Judgment was rendered for the defendant on the ground that the company was -saved from the additional liability by the military service clauses. The plaintiff appeals.

The two military clauses are not repugnant to each other. They are separate bars, so that either clause is sufficient to defeat liability if the facts bring the case within its terms. Hayes v. Home Life Ins. Co., 168 Fed. (2d) 152 (1948). The second clause is the more favorable to the company and we will confine our attention to it.

Most of the cases dealing with such clauses turn on the question whether it is the cause of death or the status of the insured at the time of death which determines liability. In the second clause quoted .above, the company is relieved of double liability “if death results from any cause while the insured is in the Military or Naval Forces of any country at war.” It would be difficult to express more clearly that the cause of death is immaterial to the question of liability. Liability depends entirely on the status of the insured. Jorgenson v. Metropolitan Life Ins. Co., 136 N. J. Law 148 (S. C. 1947), where are collected a large number of authorities from other jurisdictions. We add two excellent, recent cases : Coit v. Jefferson Standard Life Ins. Co., 28 Cal. (2d) 13; 168 Pac. (2d) 163; 168 A. L. R. 673 (1946), and Merchants Natl. Bank v. Commonwealth Life Ins. Co., 249 Ala. 58, 29 So. (2d) 350 (1947). The real problem in the present suit is whether insured, at the time of death, was a member of the naval forces within the meaning of the policy.

The circumstance that insured was “on leave” the Sunday of the accident which resulted in his death, seems to us immaterial. We are not informed of the length of the leave. He may háve been home for the Christma-s holidays, or perhaps he was permitted to leave the campus for the day, or for the week-end. The leave did not change his status. Life and Casualty Ins. Co. v. McLeod, 70 Ga. App. 181, 27 S. E. (2d) 871 (1943); Bending v. Metropolitan Life Ins. Co., 74 Ohio App. 182, 58 N.E. (2d) 71 (1944).

“The Military or Naval Forces” is not a technical term. The expression is to be construed in accordance with the presumed intention of the parties to the contract, with what reasonable men would have meant by the words. If the meaning is 'doubtful, the words should be construed most strongly against the insurer and in favor of the insured. Gans v. Columbia Ins. Co., 99 N. J. Law 44, affirmed 100 N. J. Law 400 (1924); Jorgenson v. Metropolitan Life Ins. Co., supra.

The purpose of the military clause was to exempt the insurer from the additional liability in case the insured was a member of a class in which the hazard of death by accident (and battle deaths are so considered) is greater than normal. A member of the Naval Reserve, not on active duty, but pursuing his ordinary civilian calling, would not be considered in the naval forces within the meaning of the policy, although under the statutes of the United States, the Reserve is one of the components of the naval forces. Similarly, a member of a federally recognized National Guard unit which had not been ordered into active federal service. On the other hand, officers and enlisted men on duty in Washington or in one of the numerous naval offices scattered throughout the United States, are-■clearly within the terms of the clause in the policy, although they are not more liable to accidental death than civilians.

The Navy College Program V-12 was open to boys between the ages of 17 and 20, who were high school or preparatory school graduates, and who might or might not be-in college at the time of making application for the program. The purpose of the program was to provide officers for the Navy, Marine Corps, and Coast Guard. If the candidate, after examination and interview, was selected, he was immediately taken into the Naval Reserve and -assigned as early as possible to a college under Navy -contract. His preference for a -specific college was an important factor in the assignment. The length of time an individual student continued in the program -depended on his previous college education, if any, and the type of course which he pursued. For example, the curriculum for desk officer candidates covered four 16-week terms in the V-12 program, followed by four months in a Midshipmen’s School, while candidates for the medical corps took five 16-week terms -of premedical work, plus a complete medical course. Students in the program pursued the regular college -course, were taught by the college faculty, and lived in a dormitory assigned by the college to the Navy students. But technically, -at least, they were seamen on active -duty; they wore the uniform and were under military discipline. The expenses of the -students were paid -by the Navy, and they received regular Navy pay.

There were, however, some peculiarities in the position of the V-12 students, beyond the nature of their work and their surroundings. Generally, an officer or enlisted -man of the Navy may be transferred at any time from one kind of duty to another and from one post or ship to another. But these young men were first accepted as V-12 candidates and then enlisted as a necessary step toward college, to be followed later by ordinary naval duty. So long as they kept up -with their studies and behaved themselves, they could not be reassigned to- a different kind of service without a breach of faith by the Naval authorities. Their anomalous status is recognized by Navy Regulations which disentitle to mustering out pay “personnel whose only service has -been as a student under the college training program (Class V-12, Naval Reserve, Class III, D, Marine Corps Reserve) while actually in college while pursuing academic training.” Navy Regulations, 34 C. F. R. 22.2. See also Veterans Administration Regulation, 38 C. F. R. 36.216(c) for computing period of active .service unde.r the Servicemen’s Readjustment Act.

With some hesitation, we have come to the conclusion that the enlistment oath, the uniform, the Navy pay, the Navy discipline, would fix the status of the insured in the mind of most people rather than the circumstance that he was a student in a New England college. His status was that of a member of the naval forces, and therefore the judgment will be affirmed, but without costs.


author: Colie, J. A. D.

text:
    STATE OF NEW JERSEY, PLAINTIFF-APPELLANT, v. ROSECLIFF REALTY CO., INC., IRVING ROSENTHAL, JACK ROSENTHAL AND ANNA S. HALPIN, DEFENDANTS-RESPONDENTS.
    Superior Court of New Jersey Appellate Division
    Argued November 8, 1948
    Decided December 7, 1948.

      Before Judges McGeehan, Donges and Colie.

      Mr. Hiram Elfenbein argued the cause for plaintiff-appellant (Mr. Meyer Pesin, attorney).

      Mr. Albert S. Gross argued the cause for defendants-respondents.
   The opinion of the court was delivered by

Colie, J. A. D.

This the plaintiff’s appeal from a judgment for defendants entered in the District Court of the Second Judicial District of the County of Bergen.

Harold O. Cox and Melba Valle brought suit, in the name of the State, against the defendants under the Civil Rights statute, R. S. 10:1-1 et seq. A voluntary non-suit was taken in the Cox action and therefore we are not concerned therewith.

The amended state of demand set forth that the plaintiff, a negress, on June 29, 1947 purchased an admission ticket to Palisades Amusement Park; that thereafter she caused to be bought a ticket to the swimming pool and bathhouse which she offered to the defendants requesting admission, hut that the defendants denied her the accommodations, advantages, facilities and privileges of the public bathhouse and swimming pool because of her race and color. She concluded with a demand for the maximum penalty provided for in the statute.

Plaintiff’s first three points deal with the action of the trial judge in trying the cause without a jury. Specifically, the asserted errors consisted in permitting the defendants to waive a jury trial in the particular circumstances of the case; in denying plaintiff’s application for a jury trial, and finally it is said that the court, under the circumstances hereinafter set forth, had no jurisdiction to try the action without a jury. The summons was served on July 22, 1947, returnable July 31, 1947. Two days after service the defendants filed a written demand for jury and paid the requisite fee to the clerk. On February 4, 1948, the date set for trial, the defendants applied to the court to waive the jury previously demanded and the court over plaintiff’s objection granted the application. Plaintiff then moved the court for leave “to pay the necessary fee which we deposit with the Court now and ask that the case proceed with a jury, and we tender the amount of money to the Court for the jury fee.” The motion was denied.

The applicable statute, R. S. 2:32-107 reads:

“Unless a demand for a trial by jury is made and notice thereof filed with the clerk of the court within and no later than ten days from the return day of/the summons, and unless the party making the demand pays, at the time of making the demand, the cost of the venire, the demand shall be deemed to be waived, except that the judge may, in his discretion, grant a venire at plaintiff’s expense, to be taxed in the costs of the action, notwithstanding the failure to make demand as herein provided; provided, however, that this section shall not apply to cases in which a judgment has been entered prior to a demand for a trial by jury.”

Under the statute, if either party properly demands a jury, the demanding party’s right thereto is absolute and the court is deprived of jurisdiction to try the case otherwise than by jury. Tambe v. Otto, 113 N. J. Law 71. (Sup. Ct. 1934). Obviously the legislature had in mind the possibility that a situation might arise in which although the demand for jury was not made as provided, nevertheless the power should be given the judge, in his discretion, to grant a venire, hence the exception.

Where one party has demanded a jury trial in conformity with the statute and subsequently waives a trial by jury at a time when the adverse party may no longer, as a matter of right, demand a jury trial, a situation arises which is not covered by the statute, nor is'there any case law in this State. In other jurisdictions where a like situation has arisen under similar statutes, it has been held that a demand by one party to an action inures to the benefit of the other party. 50 C. J. S. p. 805, Juries, sec. 99. In Stukey v. Stephens, 295 Pac. 973 (Arizona) the court, in dealing with a situation similar to the present case, said: “It is apparent that defendants relied upon plaintiff’s written demand for a jury, filed in the case, and for that reason made no formal demand of their own.

“We are of the opinion they were justified in so doing. With the demand of plaintiffs filed as it was, a further demand on the part of defendants would have been useless, and the law does not require a futile act. When one party has made a demand for a jury, we are of the opinion the other party may rely on such demand, and is relieved of the necessity of making one for himself. And if, at a later date, the party making the original demand desires to waive it, the opposing party, ■ no matter when the waiver occurs has then the right to determine whether he will agree to a trial before the court, or insist upon a jury 'trial. Any other rule would be highly inequitable, and productive of fraud.”

In Karch v. Nassau Electric, 107 N. Y. S. 829 (Sup. Ct. 1907) the court said: “In this case, the plaintiff had duly demanded the jury and hence a trial 'by jury was then assured to' both parties. The defendant had the right to rest upon the action of the plaintiff and to assume that the trial would be by jury and there was no reason why it should have then on its part taken a step like unto that already taken by the plaintiff to obtain a like condition for both parties. The plaintiff could not waive the demand against the protest of the defendant, because His demand had assured a right to the defendant, as well as to himself; and the court had no power to dispense with the jury against the protests of the defendant.”

The plaintiff was entitled to assume that the demand for jury was made in good faith by the defendants and she was not required to perform the futile-act of demanding a jury and paying the cost of the venire when the defendants had already done so. In the instant case the talesmen were present in the court room, available for duty; the trial could have proceeded on that date. We find that the court erred in granting defendants’ motion over the objection of the plaintiff who tendered the requisite jury fee.

The plaintiff next argues that the court erred in finding that the Civil Rights statute did not extend to swimming pools and further erred in holding that the statute regulated public bathhouses only at the seashore.

R. S. 10:1-2 provides-that:

“All persons within the jurisdiction of this state shall be entitled to the full and equal accommodations, advantages, facilities and privileges of any places of public accommodation, resort or amusement, subject only to the conditions and limitations established by law and applicable 'alike to all persons.”

The primary rule of statutory construction is to ascertain the legislative intent, and all other rules of construction, are secondary thereto. Where the language is clear, there is. no room for construction; such need arises only where the language of the enactment is doubtful or obscure and such as will leave reasonable minds uncertain as to its meaning. We perceive no room for construction so far as section 2 is concerned. Its patent purpose is to extend to all persons equal rights in any places of public accommodation, resort or amusement. The word “any” means “ * * * one out of many * * * ” and is given the full force of “every” or “all.” Carson v. Scully, 90 N. J. Law 295, at 299 (E. & A. 1916). Applying section 2 to the instant case, the question is whether or not a swimming pool is a place of public accommodation, resort or amusement. In our opinion the answer must be in the affirmative since the language used leaves no doubt as to its meaning.

The court below concluded that the statute did not extend to a swimming pool and that it regulated public bathhouses only at the seashore. The argument which led the court to so hold was predicated on the thought that section 5 restricted the broad scope of section 2. R. S. 10:1-5 reads:

“A place of public accommodation, resort or amusement within the meaning of this chapter shall be deemed to include any inn, tavern, road house or hotel, whether for entertainment of transient guests or accommodation of those seeking health, recreation or rest; any restaurant, eating house, or place where food is sold for consumption on the premises; any place maintained for sale of ice cream, ice and fruit preparations or their derivatives, soda water or confections, or where any beverages of any kind are retailed for consumption on the premises; any garage, any public conveyance operated on land or water, and stations and terminals thereof; any public bathhouse, public boardwalk, public seashore accommodation; any theater, or other place of public amusement, motion-picture house, airdrome, music hall, roof garden, skating rink, amusement and recreation park, fair, bowling alley, gymnasium, shooting gallery, billiard and pool parlor; any dispensary, clinic, hospital, public library, kindergarten, primary and secondary school, high school, academy, college and university, or any educational institution under the supervision of the regents of tho state of New Jersey. Nothing contained in sections 10:1-2 to 10:1-7 of this title shall be construed to include, or to apply to, any institution, club or place of accommodation which is in its nature distinctly private, or to prohibit the mailing of a private communication in writing sent in response to a specific written inquiry.”

The court below was of the opinion “that the legislature went to great length in setting forth and defining ‘place of public accommodation, resort or amusement.’ ” This view is incorrect. The language of section 5 is “a place of public accommodation, resort or amusement within the meaning of this chapter shall be deemed to include” certain enumerated places. If it was the intent to narrow the broad scope of the phrase “any places of public accommodation, resort or amusement,” as used in section 2, inept language was used for that purpose. The verb “include” has not been defined so as to give to it such a restrictive meaning. In Baker v. Soltau, 94 N. J. Eq. 544 (E. & A. 1923) the court said: “Counsel have both quoted authorities as to the distinction between the word ‘consisting’ and the word ‘including.’ There can be no serious difference of opinion that they are not synonymous and that where a bequest is subsequently qualified by an inventory headed by the phrase ‘consisting of’ it is determinative of the extent of the bequest; whereas a similar provision, followed by the word ‘including,’ would not by necessary implication exclude items other than those mentioned.” In Snegon v. Consolidated, &c., Ins. Co., 117 N. J. Eq. 325 (Chancery 1934) Vice-Chancellor Buchanan, in construing section 71 of the General Corporation Act said, “it is to be observed that to accord to the words ‘persons’ and ‘papers’ their full comprehensive meaning is in no wise departing from a literal meaning of the legislative language. Literally those words mean all persons and all papers, and the subsequent phrase, ‘including, &'c.,’ does not literally in any wise restrict that full meaning. The doctrines of construction by associated words or of ejusdem generis are not fixed rules of construction, but merely guides to the ascertainment of the legislative intent.”

We have considered all of the other points argued in the respective briefs and hold that the judgment under appeal is reversed with costs and that the cause be remanded to the end that a venire may issue at the cost of the plaintiff and a new trial be had.


text:
    GUSTAV PROTOMASTRO ET AL., PLAINTIFFS-APPELLANTS, v. BOARD OF ADJUSTMENT OF THE CITY OF HOBOKEN IN THE COUNTY OF HUDSON ET AL., DEFENDANTS-RESPONDENTS.
    Superior Court of New Jersey Appellate Division
    Argued November 22, 1948
    Decided December 22, 1948.
    Before Judges McGeehan, Donges and Colie.

      Mr. Edward Stover argued the cause for plaintiffs-appellants.

      Mr. Nicholas S. Schloeder argued the cause for defendants-respondents (Messrs. Levenson & Levenson and Dominick R. Rinaldi, attorneys.)
   The opinion of the court was delivered by

Colie, J. A. D.

Avenel Industrial Realty Corporation, the owner of property known as 816-820 Washington and 817-825 Bloomfield Streets, Hoboken, New Jersey, applied to the building inspector for a permit to erect a brick store building thereon. The permit was refused because the Bloomfield Street frontage was zoned for residential purposes. Application for a variance was made to the board of adjustment and after public hearing thereon the variance was granted on December 29, 1947 by a majority of the board, and prior to the enactment of chapter 305 of the Laws of 1948. Certiorari was allowed to review the said action. The minutes of the special meeting at which the variance was granted stated that the members of the board had read the testimony, had inspected the property and neighborhood and thereupon the motion to grant the variance was passed. No statement of the reason or reasons which prompted the action was given.

Three points are argued but one of which is worthy of discussion, i. e., can the granting of the variance stand in view of the absence of a finding that “a literal enforcement of the provisions of the ordinance will result in unnecessary hardship.” R. S. 40:55-39. In Brandon v. Montclair, 124 N. J. Law 135 (Sup. Ct. 1940) it was said that a finding of unnecessary hardship to the owner was an indispensable condition to the exercise by the board of adjustment of its authority to grant a variance. In affirming, the Court of Errors and Appeals, 125 N. J. Law 367, pointed out that the recommendation of the board of adjustment and the resolution of the municipal body were silent as to a finding of unnecessary hardship; Mr. Justice Bodine pointing out that “the rule that judicial findings must be made by quasi-judicial bodies, where the proofs support them, is a wholesome one” and that “before the Board of Adjustment can act it must find necessary jurisdictional facts required by the statute.”

The resolution under review is set aside with costs and the matter remanded to the Board of Adjustment for further action in accordance with this opinion.


text:
    ELMER E. WEISE, PLAINTIFF-APPELLANT, v. ANNA B. HUGHES, FALSELY NAMED ANNA B. WEISE, DEFENDANT-RESPONDENT.
    Superior Court of New Jersey Appellate Division
    Argued December 6, 1948
    Decided December 22, 1948.
    Before Judges McGeehan, Donges and Colie.

      Mr. Benjamin M. Ratner, for plaintiff-appellant.

      Mr. George R. Sommer, for defendant-respondent.
   The opinion of the court was delivered by

Colie, J. A. D.

Plaintiff instituted suit to annul his marriage to defendant. The moving papers set up that at the time of the marriage sought to be annulled, defendant had a lawful husband living, one William Hyman, and that her marriage to him was in full force and effect; that defendant obtained a Mexican divorce from Hyman which was a fraud upon the New Jersey court and upon plaintiff in that neither party was a -bona fide resident of Mexico, nor submitted themselves to the jurisdiction of the Mexican court and further that the Mexican proceeding was grounded upon a cause not recognized by New Jersey as ground for annulment.

At final hearing plaintiff admitted that defendant had told him of her divorce but he said he did not know “what type of divorce she had.” Defendant testified that the divorce decree was shown him at her sister’s house and that he read it. The application for a license to marry, made in plaintiff’s presence, set forth the fact of the Mexican divorce and justified the lower court’s statement that “I think that he was aware of the manner in which his wife dissolved her previous marriage and that he can not now be heard to complain.”

We hold that the plaintiff, under the evidence, is estopped from denying the validity of the Mexican divorce after he relied upon its validity to marry her.

The decree appealed from is -affirmed with costs.


author: Per Curiam.

text:
    ANNE K. REILLY, PLAINTIFF-APPELLANT, v. LOUIS A. REILLY, DEFENDANT-RESPONDENT.
    Superior Court of New Jersey Appellate Division
    Argued December 6, 1948
    Decided December 22, 1948.
    Before Judges McGeehan, Donges and Colie.

      Mr. Benjamin M. Ratner, for plaintiff-appellant.

      Messrs. Gilhooly & Yauch, for defendant-respondent.
   Per Curiam.

Plaintiff appeals from a decree of the former Court of Chancery dismissing her bill of complaint for separate maintenance. Defendant filed a cross appeal addressed to the amount of counsel fee awarded plaintiff’s counsel and assessed against defendant. In dismissing the main suit, the dismissal was predicated upon the failure of the plaintiff to bear the burden of proof. The question is one of fact and our study of the testimony leads us to the conclusion that the case was barren of evidence which even approximated establishing a cause of action.

As to the cross appeal, the decree should be modified. No witnesses other than plaintiff and her sister were either interviewed or called. The hearing before the advisory master consumed one day. The legal points germane to the issue were, simple and it is our conclusion that the award of $1,500 was excessive and should be reduced to $500.

Except as so modified, the decree under appeal is affirmed.