author: Grosman, A. M.

text:
    Laura A. Morgan, complainant, v. Robert M. Morgan, defendant.
    [Decided November 24th, 1936.]

      Mr. Herman Golden and Mr. Milton M. Unger, for the petitioner.

      Mr. Reginald A. Creighton (Mr. Thomas Brunetto, of counsel), for the defendant.
   Grosman, A. M.

This is an application by the defendant, Robert M. Morgan, to vacate the service of a writ of ne exeat under which he was arrested; and likewise that of an order to show cause why he should not be adjudged in contempt of this court for failing to pay the petitioner the sum of $15 per week alimony. The basis of the application is that, at the time such service was made upon him, the defendant was voluntarily in attendance upon the Essex county court of common pleas to answer an indictment for criminal desertion, and was then and there privileged from service of process and arrest in a civil action. Michaelson v. Goldfarb, 94 N. J. Law 352; 110 Atl. Rep. 710.

The underlying facts are these: Petitioner and defendant were married on the 26th day of June, 1907. One daughter, now of age and married, was born of the union. They cohabited until about the year 1933, and thereafter continued to occupy separate quarters in the same house until the institution of this suit. On March 28th, 1934, a petition for divorce from bed and board was filed by the petitioner against the defendant, charging him with having committed adultery with one Ethel A. Allan, in New York City and Washington, District of Columbia. No defense was interposed to this action, and on August 24th, 1934, a final decree was entered divorcing the parties from “bed and board” and directing the defendant to pay the petitioner the sum of $140'per month alimony, $150 counsel fee, and to furnish a compliance.bond in the principle sum of $2,000.

Because of the defendant’s recalcitrant and obstructive tactics, considerable difficulty was experienced by this court in fixing the amount of alimony to be paid by him. The matter was referred to one of our special masters to take testimony as to the petitioner’s needs and the defendant’s faculties, with direction “to recommend.” The defendant appeared before the master on July 3d, 1934. He testified that his net income during the year, then last past, was less than $100. He offered a few nondescript bank statements and records of security transactions to support his claim. He also testified that he was then living at 112 Westfield avenue, Elizabeth, New Jersey. The hearing was continued to the 27th day of July, 1934, and the defendant directed to produce “all” his bank vouchers and passbooks in substantiation of his testimony as to income. He contemptuously failed to appear before the master on the adjourned date or at any time thereafter. The special master reports that he disbelieves the defendant’s testimony. This conclusion is warranted by the record. Exceptions were taken by the defendant to the master’s report on the ground that there was no evidence before him to warrant his findings. These exceptions were overruled. What lack of evidence there may have been was due entirely to the conduct of the defendant. It was within his power to make a frank and complete disclosure of his assets and earning ability. He deliberately chose not to do so, and will not be heard to complain on this account. There was evidence, however, before the special master, that the defendant, some time prior to the institution of this suit, was employed as a manager in the Federal Keserve Bank for the District of New York at a salary of $7,000 per year; that subsequently he obtained employment as a security salesman and generally that he is thoroughly familiar with the security business. It was within his province, in view of the defendant’s refusal to testify, to estimate his earning ability by reference to his income in the past, and his known capacity to earn were he to diligently apply himself to his business. Robins v. Robins, 106 N. J. Eq. 108; 150 Atl. Rep. 340.

Pending these complications before the master, all of the defendant’s making, ho permitted the petitioner to remain in the utmost penury. He left the State of New Jersey and went to New York, though according to his affidavits his domicile remained here. On July 17th, 1934, a writ of sequestration was issued out of this court in the hope that some money could bo raised for the petitioner by a sale of the defendant’s home in Montclair. This apparently came to naught. On February 26th, 1935, the defendant, though in arrears of his alimony payments some $1,540, petitioned this court for a modification of the award from $35 per week to $15 per week, and agreed to pay the sum of $400 on account of arrearages. The application was consented to by the petitioner because of her necessitous circumstances, and an order to this effect was entered. He paid no more attention, however, to this modified order than to the original, though he did pay the $400 as agreed. On June 22d, 1936, an order was made directing the defendant to show cause on June 30th, 1936, why he should not be adjudged in contempt for failure to comply with the modified order of April 24th, 1935. At the same time a writ of ne exeat was issued for his arrest.

Because of the petitioner’s destitution, the defendant had been indicted by the Essex county grand jury for the crime of desertion. He was apprehended in the city of New York on or about November 16th, 1934, and placed under arrest. He attempted to escape from the arresting officers, and in so doing stepped into the path of an oncoming automobile and sustained a fractured arm. He was confined to the criminal ward, Bellevue Hospital, in New York, and upon recovery he returned to New Jersey for the purpose of trial. It can hardly be said that this is a voluntary attendance upon our courts, but perhaps it may be technically so classified. Factually, the defendant agreed to come to New Jersey when he had no other alternative.

The defendant was represented in New Jersey by two solicitors, Messrs. Charles Clark and Thomas Doughty. Mr. Doughty was the defendant’s chief counsel. Mr. Clark apparently took charge of the preliminary proceedings. The state was represented in _ connection with the indictment by the Honorable Felix Forlenza, an assistant prosecutor of the county of Essex. The trial upon the indictment was adjourned a number of times, and finally the prosecutor, desiring to dispose of the matter, notified Mr. Clark by letter dated June 15th, 1936, that he had placed the case of the State v. Robert Morgan on the calendar for trial for Wednesday, June 24th, 1936, at which time the matter must be disposed of. Several days prior to the trial date, however, Mr. Thomas S. Doughty, who apparently was to represent the defendant upon the trial of the indictment, called Judge Forlenza and told him that he would not be ready for trial on June 24th, 1936, because he was experiencing difficulty in getting his witnesses. He therefore requested an adjournment, which was granted to him. The prosecutor at the same time informed Mr. Doughty that he had been told by the solicitor for the petitioner that, if the defendant would satisfy him that he was in fact destitute and unable to comply with the order of this court, he would consent to drop further proceedings. Judge Forlenza, according to his affidavit and testimony given by him before me, suggested to Mr. Doughty that it might be a good idea to have a conference between Mr. Golden, the petitioner’s solicitor, Messrs. Doughty, Clark and Morgan, and he offered his services to arrange for such meeting. Messrs. Doughty and Clark, accompanied by the defendant, did thereupon, on the 24th day of June, 3936, attend the office of Judge Forlenza at the court house, in the city of Newark, to confer with Mr. Golden. They went there, not for the purpose of the trial, but for the purpose of furnishing to the petitioner’s solicitor information concerning the defendant’s income. Judge Forlenza, in offering his services to Mr. Doughty, did so out of kindness. It was not an official act on his part. The conference had nothing whatever to do with the trial upon the indictment which had previously been adjourned by agreement between Mr. Doughty and Judge Forlenza. I find this to be the fact.

It is the settled law of this state that a non-resident is privileged from arrest or the service of civil process while necessarily going to, attending at, or returning from, judicial proceedings in any court of this state. Michaelson v. Goldfarb, supra. This privilege is not merely personal to the defendant but also to our courts, to the end that the administration of justice may not be impeded b}f the fear of litigants or witnesses of arrest or service of process. Nelograph Manufacturing Co. v. Scrugham, 133 App. Div. 760; 118 N. Y. S. 212; affirmed, 197 N. Y. 377; 90 N. E. Rep. 96,2; 27 L. R. A. (N. 8.) 333; 134 Am. St. Rep. 886.

This exemption, however, extends only to non-residents of this state and not to residents. Kutschinski v. Kutschinski, 112 N. J. Eq. 341; 164 Atl. Rep. 560 (Court of Errors and Appeals)) Brown v. Brown, 112 N. J. Eq. 600; 166 Atl. Rep. 643. Service of civil process, even upon a non-resident, is not void but voidable. The exemption afforded a nonresident by law may be waived. If, however, he desires to claim his immunity, it is incumbent upon him to do so by a proper notice to vacate the service. The notice must, of course, state the grounds of his objection with particularity, so that both the court and all parties interested may be apprised of the grounds upon which the application is based.

In the instant case, the petitioner was served with the writ of ne exeat and order to show cause in contempt, on the 24th day of June, 1936. On the 21st day of July, 1936, he served notice of an application to set aside the service of the writ of ne exeat and of the ordér to show cause. The grounds upon which he relies are set forth in the notice as follows: (1)

That the service of the said writ was illegally made; (2) that at the time the said writ was served the defendant was voluntarily in attendance upon another court in a criminal proceeding to answer an indictment for desertion before the court of oyer and terminer and was privileged from service of process and/or arrest in a civil action.

I hold the first ground to be worthless. It is no more than a conclusion. Whatever merit there is to the notice must of necessity be predicated upon the second ground stated therein. It will be observed that this ground is limited merely to the proposition “that at the time of service, he was voluntarily in attendance upon another court in a criminal proceeding to answer an indictment for desertion.” This fact, of itself, is not sufficient to entitle him to the exemption provided by law against arrest or service of process. In order that the exemption be available to him, a further necessary and indispensable element must be present, namely, that, in addition to his being in attendance upon a court of this state, he is also a “nonresident.”

The petitioner fails to allege his non-residence, either in the notice or in the subsequent petition for the same relief filed by him on September 1st, 1936. It is evident that, if in fact the petitioner was a resident of this state, he was not immune from arrest or service of process.

I incline to the belief that the petitioner was in fact domiciled in this state at the time such service was made upon him. My conclusion is predicated upon his petition and affidavit filed in this cause on the 26th day of February, 1935, in connection with his application to modify the final decree as to alimony. In paragraph 10 of his petition he states as follows: “After defendant had requested, petitioner in this cause left the premises 15 Edgewood road, East Orange, New Jersey, March 29th, 1934. For a considerable time he resided in the vicinity of East Orange, New Jersey, and as the only child of the marriage between petitioner and defendant, a daughter, was married and living with her husband in New Jersey, together with his associates within the State of New Jersey, he was actually holding his residence in the state, though temporarily, for economy, stopping in New York City, at times when not on the road in the pursuit and conduct of his business.”

.In paragraph 8 of his affidavit, annexed to this petition, he again repeats the foregoing allegation almost verbatim.

In paragraph 11 of said affidavit he amplifies his statement as to his residence in these words: “My residence so far as I have been able to keep it so, has been and will be in the State of New Jersey, except such times as on the road if employed, as at time of being taken to the hospital, or engaged in any employment requiring temporary living elsewhere, and at all times my whereabouts available should information be desired.”

It is to be noted that the petitioner was arrested in the city of New York upon the indictment for desertion on or about the 16th day of November, 1934. His petition to modify the final decree in this cause as to alimony was filed on the 26th day of February, 1935. He alleges under oath that on November 16th, 1934, as well as on February 26th, 1935, he considered himself a resident of the State of New Jersey and intended in the future to continue as such resident. Kesidence in this connection is held to mean domicile. Brown v. Brown, 112 N. J. Eq. 600; 165 Atl. Rep. 643. The moving papers on his present application to vacate the service of the writ of ne exeat and the order to show cause does not charge that ho is a “non-resident.” I think that a fair inference may be drawn from the sworn statements of the petitioner on file in this cause, as well as from his omission to charge the fact to the contrary, that, at the time he was served with the writ of ne exeat and order to show cause in contempt, he was actually domiciled in the State of New Jersey, though his residence may temporarily have been in New York for reasons of economy. It follows that the exemption from service of civil process in the state while attending judicial proceedings does not extend to the petitioner.

But, even though he were in fact a non-resident, his claim for immunity would have to be denied. The exemption covers a non-resident only while “necessarily going to, attending at, or returning from a judicial proceeding.” He is not privileged from the service of process if in this state on other business. In the case of Sampson v. Graves, 208 App. Div. 522; 203 N. Y. S. 729, 731, 732, it was held that the privilege of a non-resident applies only to the trial of the action or some proceeding connected therewith and does not extend to a party attending the argument of an appeal.

In the case of Brown v. Taylor, 174 N. C. 423; 93 S. E. Rep. 982; L. R. A. 1918B, 293, it was held that a nonresident is not privileged, while within the state attending a sale under a court decree.

In the ease of Brown v. Brown, 112 N. J. Eq. 600 (at p. 605); 165 Atl. Rep. 643, 645, Buchanan, vice-chancellor, holds that: “It may be pointed out, however, that the rule as stated in the authorities grants the immunity to the person 'while necessarily going to, staying at, or returning from court.’ In the instant case the wife was not doing any of these things; she had come at the request of state troopers, in order to identify articles which she claimed had been stolen. It seems at least doubtful that the rule of privilege extends to such circumstances.”

Similarly in the case at bar, the petitioner was not engaged in “going to, attending at or returning from a judicial proceeding.” The trial upon his indictment had been adjourned from the 24th day of June, 1936, to a later date, at the request of his counsel, Mr. Doughty. Under the circumstances, even if the petitioner were a non-resident, which does not appear to be the fact, he is not privileged to claim a non-resident’s exemption. His application to vacate the service of the writ of ne 'exeat and the order to show cause in contempt is accordingly denied.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    STATE OF NEW JERSEY, DEFENDANT IN ERROR, v. JAMES JACKSON BELL ET AL., PLAINTIFFS IN ERROR.
    Submitted January 31, 1936
    Decided January 5, 1937.
    Before Brogan, Chief Justice, and Justices Lloyd and Donges.
    For the plaintiffs in error, Albert J. Shea and John W. Ockfora.

    For the defendant in error, Arthur G. Dunn.

   Per Curiam.

Plaintiffs in error were convicted at the Passaic County Quarter Sessions upon an indictment under what may be called the Gangster act. Chapter 155, Pamph. L. 1934; N. J. Slat. Annual 1934, § 52-43r (14), (15). The indictment contained two counts, one under section 3 of the act and the other under section 4. The first count under section 3 was dismissed with the consent of the stale’s attorney.

The first section of this act declares a gangster to be an enemy of the state. The second section, with certain exceptions, declares any person having possession of a machine gun is a gangster. The third section pertains to convicted persons apprehended while carrying a deadly weapon without a permit. The fourth section, under which the convictions were had, is as follows:

“4. Any person, not engaged in any lawful occupation, known to be a member of any gang consisting of two or more persons, who has been convicted at least three times of being a disorderly person, or who has been convicted of any crime, in this or in any other state, is-declared to be a gangster; provided, however, that nothing in this section contained shall in any wise be construed to include any participant or sympathizer in any labor dispute.”

The state offered evidence to prove that the plaintiffs in error were arrested while occupying, along with four other men, a small house in Wayne township, Passaic county. The place was raided by the state police, detectives from the office of the county prosecutor, as well as police officers from New York and from the local township. The raid occurred on Sunday morning at five-thirty o’clock on June 23d, 1935. A search of the premises uncovered several loaded revolvers, a loaded rifle, a gas riot gun and its accompanying equipment, a handbag containing two German Luger pistols, loaded, and a supply of ammunition. Some of these weapons were recognized as having been stolen, one from an officer of Cumberland county, and one from a salesman of police equipment in West New York. There were two automobiles outside the house, one carrying stolen license plates. Records of criminal convictions in New York were offered and received in evidence.

We are of the opinion that there was ample evidence to support the conclusion that the plaintiffs in error were persons not engaged in any lawful occupation, that they were members of a gang consisting of two or more persons, and that each of them had been convicted of crime.

We are also of the opinion that there was no error in the admission of the evidence complained of, namely, the revolvers, bullets, masks, and other equipment taken in the raid when the plaintiffs in error were taken into custody. These exhibits were proper to show the character of the association of the persons in the house and were material in the effort to show the existence of a gang of two or more persons to which plaintiffs in error belonged.

The remaining point is that the section of the statute under which the convictions were had is unconstitutional. The assignment of error complains that the statute is violative of the fifth amendment to the United States constitution in that it deprives plaintiffs in error of due process of law; of the fourteenth amendment to that constitution in that it deprives them of the equal protection of the law; and of article 1, section 15, of the constitution of New Jersey, in that it provides cruel and unusual punishment.

We are of the opinion that the section of the statute in question is a valid exercise of the legislative function. In the case of Levine v. State, 110 N. J. L. 467; 166 Atl. Rep. 300, the Court of Errors and Appeals passed upon the section of the Disorderly Persons act which provides for the arrest and punishment of “all runaway servants or apprentices, and all vagrants or vagabonds, common drunkards, common thieves, burglars or pickpockets, common night-walkers, and common prostitutes * * The act was held to be valid. Mr. Justice Heher said: “The manifest purpose of this legislation is to check evil in its beginning and thus to insure the public safety. The statute is not arbitrary or unreasonable. It provides for the apprehension and punishment of a class that menaces the security of persons and property.” And further: “It is the undoubted function of the state to apprehend those who would violate laws ordained to protect the person and property of citizens, and who are seeking the opportunity to do so. Such persons are determined and ever active foes of society. They are potential actors in crimes of the first magnitude. To challenge the power of the state to prevent the commission of such crimes by legislation of this character, is to challenge its power to denounce and punish the crime itself.”

This reasoning aptly fits the statute now under consideration and the circumstances under which the plaintiffs in error were found. To hold that the state was powerless to apprehend and punish a gang of convicted criminals who had virtually barricaded themselves in a house, with a veritable arsenal and other implements of crime at their fingertips, equipped with cars with stolen license plates, would be to unreasonably hamper the enforcement of law, and the protection of society. The act does not deprive plaintiffs in error of due process of law.

Nor does it deprive them of the equal protection of law. It is within the province of the legislature to classify persons with respect to the criminal law, provided the classification is a reasonable one. In Patsone v. Pennsylvania, 232 U. S. 138; 58 L. Ed. 539, in upholding a statute prohibiting the killing of game by unnaturalized foreign-born persons, the United States Supreme Court said:

“The discrimination undoubtedly presents a more difficult question. • But we start with the general consideration that a State may classify with reference to the evil to be prevented, and that if the class discriminated against is or reasonably might be considered to define those from whom the evil mainly is to be feared, it properly may be picked out. * * * It is not enough to invalidate the law that others may do the same thing and go unpunished, if, as a matter of fact, it is found that the danger is characteristic of the class named.”

The act under consideration falls within this rule.

The penalty provided by the act is a fine not exceeding $10,000 or imprisonment not exceeding twenty years, or .both. We do not consider that this is a cruel and unusual punishment for the offense committed. It is the character and not the extent of the punishment which is aimed at by the constitutional provision relied on. State v. Griffin, 84 N. J. L. 429; 87 Atl. Rep. 138.

The judgments under review are affirmed.


author: Pee Cueiam.

text:
    JAMES CAMPBELL CARNEY, PROSECUTOR, v. JOSEPH SIEGLER ET AL., RESPONDENTS.
    Argued May 5, 1936
    Decided January 6, 1937.

      For the prosecutor, Herman H. Singer.

    For the respondents, Leo Ertag.

    Before Justices Lloyd and Donges.
   Pee Cueiam.

The writ was allowed to the husband to review an order of support for $30 a week by the Juvenile Court of Essex County in favor of the wife and an infant son.

The ease discloses that the parties were married in 1929. They lived together for a short time and the wife, having given birth to a child, was taken by the defendant to the home of her parents where she continued at the time of the hearing. In January, 1933, the wife filed a bill in Chancery for support of herself and child. The defendant counter-claimed for divorce. The result was dismissal of both bills, appeal to the Court of Errors and Appeals and affirmance there. The present petition was filed in October, 1935, seeking support on two grounds: first, the right of personal support of the wife and her child, and second, that she and the child will become a public charge.

To support the complaint in the present case there was proof of conditions existing prior to the suit in Chancery and the respondent contends on the appeal that this was all foreclosed by the decree in that case and we think it was. These adjudications were conclusive of the rights of the parties existing at that time and res adjudicata of any attempt to revive them in any subsequent proceeding.

Upon the second ground that the wife and child will become a public charge, the respondent contends that there was no evidence to support his claim. We think there was. It appeared in proof that the wife was being supported by her father, now no longer able to do so, and further that she is physically unable to do anything herself — even to adequately care for the child. The result must necessarily be support from some source and this the public, unless the prosecutor be compelled to carry the burden.

The award was for $30 per week. The husband seems to have a substantial income as an electrical engineers’ supply sales agent, but the award does not seem to be justified in amount. It will be reduced to $20 per week and as thus modified the order will be affirmed, with costs.


text:
    STATE OF NEW JERSEY, DEFENDANT IN ERROR, v. MAX ROSS AND NATHAN SPERLING, PLAINTIFFS IN ERROR.
    Submitted January 31, 1936
    Decided January 6, 1937.
    Before Brogan, Chief Justice, and Justices Lloyd and Donges.
    For the plaintiffs in error, Minturn & Weinberger.

    For the defendant in error, Arthur G. Dunn.

   Per Curiam.

This writ of error brings up for review the conviction of the plaintiffs in error under the so-called Gangster act, chapter 155, Pamph. L. 1934; N. J. Stat. Annual 1934, § 52-43r (15). The convictions were had under section 4 which defines as a gangster any person not engaged in any lawful occupation, known to be a member of any gang consisting of two or more persons, who has been convicted at least three times of being a disorderly person, or who has been convicted of any crime, in this or any other state.

We are of the opinion that the convictions must be reversed because of the failure of proof of one of the necessary elements set -out in this section, namely that the accused must be “known to be a member of any gang consisting of two or more persons.” A careful reading of the record fails to disclose any evidence from which a jury might properly find that the plaintiffs in error were known to be members of a gang.

The judgments are reversed.


author: Neutze, C. P. J.

text:
    Camden County Court of Common Pleas.
    THE STATE OF NEW JERSEY v. WHARTON T. LaFAYETTE.
    Decided January 13, 1937.
    Por Wharton T. LaFayette, David Novack.

    Eor the state, Sydney T. Smith.

   Neutze, C. P. J.

The police recorder of Haddon Heights sentenced the defendant herein to six months confinement in the Camden county jail on the ground of attempted suicide.

This writ of habeas corpus is prosecuted to test the validity of the recorder’s sentence.

At common law, suicide was a felony, but the only active punishment was forfeiture of property of the decedent. The attempt to commit suicide was therefore a misdemeanor and therefore also an indictable offense. We have done, away with forfeiture of property in this state but the common law tests as to whether an act is a crime or not, is still applied in this state in the absence of statutory changes. Attempt at snicide is an indictable offon.se in this state because it has never been changed by the legislature. State v. Carney, 69 N. J. L. 478; 55 Atl. Rep. 44. Though suicide itself is not punishable in this state because we have no forfeiture, the attempt to commit suicide is punishable because section 216 of the Crimes act (2 Comp. Stat.j p. 1812) provides “Any person who shall attempt to commit * * * or any offenses of an indictable nature at common law though such offense be not actually committed, shall be guilty of a misdemeanor; * * A misdemeanor in this state is punishable by imprisonment not exceeding three years or a fine not exceeding $1,000 or both.

It is clear that the recorder could not impose such sentence upon the defendant in this case, and this rule may not be changed by making the actual punishment inflicted come within the jurisdictional confines of the recorder’s powers. The recorder had jurisdiction to sentence for crimes if the penalty provided for the offense by law does not exceed six months. Laws 1931, chapter 92, page 156. N. J. Stat. Annual 1931, § 160-241 (1). In this case the penalty provided for by law could extend to three years. Manifestly the recorder was without jurisdiction and the sentence is void.


author: Herr, A. M.

text:
    Irene M. Pierson, petitioner, v. Howard W. Pierson, defendant.
    [Decided January 20th, 1937.]

      Messrs. McDonough & McDonough, for the petitioner.

      Mr. Russell S. Henderson, for the defendant.
   Herr, A. M.

This suit is brought by the wife for divorce for the alleged willful, continued and obstinate desertion of her by her husband for a period of more than two years, commencing on May 4th, 1931.

Prior matrimonial litigation between the parties in this court resulted in the entry of a final decree on December 13th, 1934, dismissing the husband’s petition for divorce and granting separate maintenance to the wife (although the proofs showed that she was not entitled thereto on the merits), upon the husband’s consent that such decree be made. The decree was affirmed on appeal. Pierson v. Pierson, 119 N. J. Eq. 19; 185 Atl. Rep. 25.

While the decree did not expressly adjudicate that the defendant, without any justifiable cause, had abandoned his wife or separated himself from her, such adjudication was implied therein. Oertel v. Oertel, 92 N. J. Eq. 327, 112 Atl. Rep. 487. In that case it was said that “it is a necessary implication from the decree for alimony \i. e., maintenance] that the court found the fact of abandonment,” and if the term “abandonment” be understood as describing that element of the statutory cause of action which is comprehended in the language “in ease a husband, without any justifiable cause, shall abandon his wife or separate himself from her,” the decree must of necessity have so adjudicated, since such adjudication was jurisdictional.

Although personally served with process in the present suit the defendant defaulted, and the case was referred ex parte. On the hearing substantially the same evidence was presented on petitioner’s behalf as that presented by her in the earlier litigation. This evidence, undisputed, would have warranted and indeed required the entry of a decree for divorce in petitioner’s favor in the present suit, but the court ordered that a defense be made and appointed a solicitor for that purpose, under authority of section 18 of the Divorce act. P. L. 1907 p. 480 § 18; 2 Comp. Stat. p. 2034; Feichert v. Feichert, 98 N. J. Eq. 444, 448; 131 Atl. Rep. 576. The solicitor so appointed filed an answer denying the allegation of desertion, and by agreement the defense has been presented by stipulating into the present case the evidence taken on the defendant’s behalf in the prior proceedings.

Upon the evidence so presented on both sides it is apparent that the separation has not been against the will of the petitioner. The element of obstinacy is lacking. It is sufficient to refer to the opinion filed in the prior proceedings (119 N. J. Eq. 19), which summarizes the evidence and points out that since their separation in the year 1931 the wife’s attitude toward her husband had been consistent only with a desire to be rid of him. There has been no change in their relations since that time. In short, upon the evidence, there is no doubt that the wife’s present petition for divorce should be dismissed.

Petitioner’s counsel contends, however, that the court must grant her a decree of divorce, in spite of the fact that the evidence does not justify it, because the prior decree adjudicated an abandonment: in other words that the decree of December 13th, 1934, is res judicata of the fact of the commencement of a willful and obstinate desertion on May 14th, 1931. In support of this contention he cites a number of cases which do unquestionably lend him some aid and comfort but which I do not regard as controlling authority in his favor.

Our reported decisions touching this question fall into two main classes, one where the prior maintenance suit was tried on the merits and the decree rested upon the evidence and not upon consent; the other where the decree was consented to. In the first class are included Smith v. Smith (Court of Chancery), 55 N. J. Eq. 282; 37 Atl. Rep. 49; Lake v. Lake (Court of Chancery, not officially reported), 89 Atl. Rep. 534; Scotland v. Scotland (Court of Chancery), 96 N. J. Eq. 49; 124 Atl. Rep. 608, and Popovics v. Popovics (Court of Errors and Appeals), 98 N. J. Eq. 3,50; 129 Atl. Rep. 126. In my judgment none of these cases are in point, for the reason that in all of them the prior decrees were based upon evidence. The significance of the distinction will presently be discussed. The Scotland Case is out of point for the further reason that there the subsequent proceeding did not seek to secure a decree of divorce, but merely to vacate; the earlier decree.

The second class includes Oertel v. Oertel (Court of Chancery), supra, in which, as in the Scotland Case, supra, the subsequent proceedings sought the vacation of the earlier decree, not a divorce; Willis v. Willis, 99 N. J. Eq. 486; 133 Atl. Rep. 529; affirmed, 101 N. J. Eq. 312; 137 Atl. Rep. 920, in which the decree recites that the issue of abandonment was “heard on bill, answer, replication and oral proof's in open court,” so that it apparently rested upon such proofs rather than upon the consent of defendant’s solicitor endorsed thereon, and in which the subsequent suit for divorce was brought by the husband, not by the wife as in the instant suit, so that the application of the res judicata rule was directed toward defeating the prayer for divorce rather than in aid of it: and Holst v. Holst (Court of Chancery), 101 N. J. Eq. 682; 139 Atl. Rep. 333, in which the court examined into the facts and found that the husband was the deserter and that therefore the prior decree was justified regardless of his consent thereto.

It appears therefore that there is no authority in our books which goes to the extent of holding that this court must, contrary to the evidence, recognize a consent decree for separate maintenance as res judicata of the fact of desertion in the wife’s subsequent suit for divorce on that ground, and thoughtful consideration of the question has convinced me that such effect ought not to be accorded to the earlier decree under the circumstances here presented, for reasons presently to be discussed.

The practice of entering separate maintenance decrees upon consent is well established, and there certainly can be no objection to the husband’s waiver of defenses in such a case. The sole purpose of the suit is to liquidate into a money decree the husband’s common law obligation of support. Adams v. Adams, 80 N. J. Eq. 175, 180; 83 Atl. Rep. 190. See Maloney v. Maloney, 12 N. J. Mis. R. 397, 408; 174 Atl. Rep. 28. The state has no interest in discouraging the husband from acknowledging his obligation; on the contrary, its interest lies in securing proper maintenance for the wife and children. This can be accomplished effectually by a decree for maintenance, in which the allowance is fixed by the court, or if agreed upon approved by the court, and modified from time to time by the court to fit the changing circumstances of the parties. So long as the effect of such decree is confined to the matter of support there can be no sound reason for declining to rest it upon the husband’s consent.

It is quite another matter, however, to give to a decree for maintenance, especially a decree based upon consent only, the effect of a final adjudication that the husband has deserted his wife, and to make such adjudication the basis of a subsequent decree for divorce. In my judgment the res judicata rule should not be so applied, for several reasons: (1) Where the decree for maintenance is based upon consent only, the public policy that no divorce shall be granted upon the consent of the parties is subverted. (2) Even where the decree is based upon evidence the requirement of corroboration in divorce suits is avoided. (3) An abandonment as adjudged in the maintenance decree is not always identical with a willful and obstinate desertion.

1. Divorce by consent. If the adjudication of an abandonment in a decree for maintenance based upon consent only is to be regarded as res judicata of the fact of desertion in a subsequent suit by the wife for divorce for desertion, what is to bo said of the fundamental public policy that no divorce shall be granted upon the consent of the parties? Suppose husband and wife both desire to be divorced, but neither has ground. By simply filing a bill for separate maintenance, procuring a consent decree without evidence, and then after the lapse of two years bringing suit for divorce for desertion, in which the husband defaults, is the wife to be permitted to have a decree for divorce by the mere production of the earlier decree for maintenance and proof that since its entry the separation has continued and that the husband has failed to make just advances? The court cannot know that the proceedings amount to a scheme to secure a divorce by consent and upon a fictitious ground, and if the doctrine of res judicata is to be applied, is compelled to grant the decree without further proofs. Or suppose the parties be impatient of delay, could they not avoid it by inserting a clause in the consent decree fixing as the time of the alleged abandonment a date two years or more prior to the date of its entry, or by framing the maintenance proceeding as for a constructive abandonment based upon the defendant’s alleged adultery (Suydam v. Suydam, 79 N. J. Eq. 114; 80 Atl. Rep. 1057) or upon the defendant’s alleged extreme cruelty as of a date six months before? What impediment would there then be to the filing of the divorce petition immediately after the entry of the consent decree, and to the wife’s securing her decree for divorce without evidence of the alleged offense other than the production of the record of the maintenance suit ?

It is fundamental and axiomatic in our law that an action for divorce is sui generis, in that the state, represented by the court, is a party. Grant v. Grant, 84 N. J. Eq. 81; 92 Atl. Rep. 791. Divorce based upon mutual consent is contrary to the public policy. This court is under a peculiar responsibility to forestall all attempts to secure decrees of divorce by collusion and connivance. It is to assist the court in performing this duty that the legislature has clothed it with authority to assign a solicitor for the defendant in uncontested cases. Divorce act, section 18, supra.

The interest of the state is not adverse to the granting of a maintenance decree, but where, as in the instant case, it is sought to give to a maintenance decree, based solely on consent and not justified by the evidence, res judicata effect in a subsequent suit for divorce brought by the wife, the interest of the state is obviously involved to prevent the granting of a decree of divorce. The state was not a party to the maintenance suit, but it is a party to the divorce suit. How then can the rights of the state in the divorce suit be foreclosed by the decree in the maintenance suit ? On what sound principle can the interest of the state be adversely affected by a decree strictly inter partes? To allow res judicata effect to the earlier decree under such circumstances is to sanction divorces by consent, in contravention of the public policy of the state.

2. Gorroboration in (divorce suits. In another respect the public policy is defeated by the application of the doctrine of res judicata in such circumstances, and that is by the avoidance of the requirement of corroboration in divorce cases. Since the maintenance suit is strictly inter partes, corroboration is unnecessary. The complainant may secure a decree upon her uncorroborated testimony, even when the husband actively defends, if the court credits her testimony. Pinkinson v. Pinkinson, 92 N. J. Eq. 669; 113 Atl. Rep. 143; Shore v. Shore, 96 N. J. Eq. 661; 126 Atl. Rep. 320. In suits for divorce, on the other hand, public policy requires that there be corroboration of the petitioner’s testimony in every essential particular. Such has always been the invariable requirement, so universally applied as to need no citation of authority. If a prior maintenance decree is to be the basis of a subsequent decree for divorce, what becomes of the rule that a decree for divorce can never be predicated upon the uncorroborated testimony of the petitioner? It is true that if the subsequent suit for divorce be based upon desertion, the petitioner must testify to the continuance of the desertion following the maintenance decree, and that her testimony of such continuance must be corroborated (Zweig v. Zweig, 12 N. J. Mis. R. 761; 174 Atl. Rep. 763; affirmed, 116 N. J. Eq. 589; 174 Atl. Rep. 485), but what of the evidence of the original separation? And where the maintenance decree is based upon a constructive abandonment, and therefore amounts to an adjudication of extreme cruelty or of adultery, and the subsequent divorce suit is brought upon one of these grounds, is the court to be compelled to decree a divorce without proof, other than the decree, that the alleged offense was in fact committed? If so, the need for corroboration is eliminated, and the public policy further subverted.

The tendency of the earlier cases was to import into divorce litigation, the sui generis nature of which was not fully appreciated, general rules and principles developed in suits strictly inter partes. Equitable maxims and defenses crept in. Principles of estoppel both equitable and legal were applied, among them the res judicata doctrine, with results that were not always fortunate. In my judgment, such general principles may properly be invoked in working out equity between the parties only so long as the public policy is not defeated thereby, and should never be permitted to operate in such wise as to break down the safeguards which the law has set up to protect the institution of marriage. The more recent tendency of this court has been to decline to apply principles of estoppel in divorce litigation where their application would have such effect. See, for example, Hollingshead v. Hollingshead, 91 N. J. Eq. 261, 263; 110 Atl. Rep. 19.

3. Abandonment and desertion distinguished. In divorce suits based upon desertion, such as the instant case, there is a further objection to the court’s blind acceptance of the prior adjudication of abandonment as res judicata of the fact of the alleged desertion, and that is that “abandonment” and “willful and obstinate desertion” are not always synonymous terms. To put it more accurately, “in case a husband, without any justifiable cause, shall abandon his wife or separate himself from her” he is not necessarily guilty of a willful and obstinate desertion such as will, after the two years of continuance, constitute ground entitling the wife to secure a divorce. Originally there was a tendency to regard the two causes of action as identical, due no doubt to the fact that the court of chancery was given jurisdiction to decree divorces for desertion as early as the year 1794 (Pat. Laws 148), whereas it was not until the year 1818 that the maintenance statute was first enacted. P. L. 1818 p. 20. See Lynde v. Lynde, 64 N. J. Eq. 736, 752; 52 Atl. Rep. 694. Our courts in dealing with the 1794 act had formulated certain notions with respect to desertion which were ready to hand in 1818 and seemed accurately enough to fit the cause of action described in the maintenance statute, which has come to be commonly referred to as “abandonment.” But later adjudications under the separate maintenance statute have disclosed certain essential differences between desertion and abandonment, and these differences have their basis in the divergence of purpose between the two statutory provisions, the purpose of the one being to sever or alter the bond of matrimony, of the other merely to make more readily enforceable the wife’s common law right to support. In Weigand v. Weigand, 41 N. J. Eq. 202, 209; 3 Atl. Rep. 699; affirmed, 42 N. J. Eq. 699; 11 Atl. Rep. 112, Vice-Chancellor Van Fleet said that the object of the maintenance statute “is to make the right of the wife to support more secure than it was at common law, by giving her a remedy, whenever her husband fails to perform his legal duty, directly against him, instead of leaving her right in that respect to be wrought out, as it has to be at common law, through a third person. And, in my judgment, the statute should be construed to give a wife a right of action against her husband, whenever she separates from him under such circumstances as will enable a third person to maintain an action against him for necessaries furnished to her.”

This view was again approved by the court of errors and appeals in Dummer v. Dummer, 41 Atl. Rep. 149, 160. And see Baumgarten v. Baumgarten, 107 N. J. Eq. 274, 280; 151 Atl. Rep. 606. At common law the husband is liable for the support of his wife while the parties are living separate and apart with ihe husband’s conseni. Buttlar v. Buttlar, 57 N. J. Eq. 645, 656; 42 Atl. Rep. 755; Aspinwall v. Aspinwall, 49 N. J. Eq. 302, 303; 24 Atl. Rep. 926; Vusler v. Cox, 53 N. J. Law 516, 518; 22 Atl. Rep. 347; Emery v. Neighbour, 7 N. J. Law 142, 146; Nurse v. Craig, 2 B. & P. (N. R.) 148, 152; 127 Eng. Reprint 581. That the statute was ntended to afford a direct remedy to a wife living apart from her husband with his consent is apparent from an examination of its opening words: “In case a husband, without any justifiable cause, shall abandon his wife or sepárale himself from her,” &c. Why the addition of the disjunctive phrase if abandonment alone (in the narrow sense of desertion) had been intended? Coupled with this language is the later provision of the statute that “during the time such maintenance shall be allowed by the decree or order of the court, the husband shall not be chargeable with her debts.”

It is only by such construction of the statute that the distinctions worked out by the later decisions of our courts can be rationalized. Among such distinctions the following may be pointed out: While a constructive abandonment based upon extreme cruelty has been hold to be the same as a constructive desertion based upon the same ground (Locher v. Locher, 112 N. J. Eq. 25, 27; 163 Atl. Rep. 251), yet a constructive abandonment based upon adultery may be quite different from a constructive desertion based upon adultery: a constructive abandonment may be predicated upon adultery committed anywhere (Suydam v. Suydam, supra), whereas a constructive desertion cannot be predicated upon adultery unless it was committed within the matrimonial home. Lake v. Lake, 65 N. J. Eq. 544; 56 Atl. Rep. 296, and cases cited.

Another distinction has developed in cases where a husband has been held guilty of abandonment under section 26 of the Divorce act notwithstanding the mandate of a New York decree a mensa forbidding the cohabitation of the parties. Freund v. Freund, 71 N. J. Eq. 524; 63 Atl. Rep. 756; affirmed, 72 N. J. Eq. 943; 73 Atl. Rep. 1117; Tehsman v. Tehsman, 93 N. J. Eq. 76; 114 Atl. Rep. 320; affirmed, 93 N. J. Eq. 422; 117 Atl. Rep. 34; Reik v. Reik, 101 N. J. Eq. 523; 139 Atl. Rep. 385; affirmed, 103 N. J. Eq. 23; 141 Atl. Rep. 921. Under like circumstances a desertion under section 2 of the Divorce act could not exist or persist so long as the New York decree for separation forbids cohabitation. Kyle v. Kyle, 52 N. J. Eq. 710; 29 Atl. Rep. 316; Reibesehl v. Reibesehl, 106 N. J. Eq. 32, 38; 149 Atl. Rep. 823. See Hofman v. Hofman, 108 N. J. Eq. 161, 163; 154 Atl. Rep. 518.

The fundamental distinction between these two concepts has been more clearly worked out in the later cases, following Vice-Chancellor Van Pleet’s statement of the purpose of the maintenance statute (Weigand v. Weigand, supra), in which the parties have been and have continued to be separated by consent. Obviously, in such circumstances there cannot be a statutory desertion. But there may be an “abandonment” although the separation originated and continued by the consent of the parties. Thus in Barefoot v. Barefoot, 83 N. J. Eq. 685; 93 Atl. Rep. 192, the court of errors and appeals affirmed this court in ordering temporary maintenance in a case in which the husband had consented to his wife’s departure from their home. The court said in its opinion in that case: “[the husband’s] legal duty to support his wife does not cease by reason of her absence from his home at his instance or with his consent. It is only when he desires her presence in his home that her presence in that home can be made a condition precedent to his obligation of support. Until it is made to appear that the wife’s absence from her husband’s home is without the husband’s co-operation or consent or is against his will, the issue as to whether the husband has by his conduct sacrificed his right to her presence in his home is not a live issue. * * * Should he in good faith seek her return, it may afford a ground for terminating alimony pendente lile, but until such time his failure to support her is an abandonment within the purview of our statute, in the absence of evidence that her original departure from his home or her continued absence has been under circumstances and of a nature to relieve him of the obligation of seeking her return. * * * When a wife resides away from her husband with his consent the husband’s obligation to support her continues.”

In the case of Segal v. Segal, 104 N. J. Eq. 457; 146 Atl. Rep. 189, the husband separated himself from his wife with her consent, and thereafter made no bona fide effort to effect a reconciliation. The court of errors and appeals held that his leaving, although with the consent of his wife, did not relieve him of the duty to support her, and in the absence of bona fide overtures on his part his failure to maintain and provide for her entitled her to a decree for separate maintenance.

These cases define the offense described in the maintenance statute as consisting in the husband’s failure or refusal to maintain and provide for his wife as long as he is under legal obligation to do so, the extent of such legal obligation being fixed by the statute in the terms of the common law. If the husband consents to the separation he remains liable for the wife’s support unless he can show “justifiable cause” for the separation, that is unless he can show that his wife has been guilty of a matrimonial offense. Dinnebeil v. Dinnebeil, 109 N. J. Eq. 594, 596; 158 Atl. Rep. 475; McLean v. McLean, 104 N. J. Eq. 208; 144 Atl. Rep. 583. The law favors the continued cohabitation of the parties, and the husband’s consent is not to be deemed justifiable cause for the separation. Nor is the wife’s consent thereto justifiable cause, nor docs her consent absolve the husband of his duty to maintain her. One qualification must be added to what has just been said respecting “justifiable cause,” and that is that while at common law the husband is under obligation to'support his adulterous wife until he divorces her (Whittle v. Schlemm, 94 N. J. Law 112; 109 Atl. Rep. 305; Tomkins v. Tomkins, in Miller v. Miller, 1 N. J. Eq. 386, 391), our cases deny her relief under the maintenance statute (Sabbarese v. Sabbarese, lO4 N. J. Eq. 600, 602; 146 Atl. Rep. 592; affirmed, 107 N. J. Eq. 184; 152 Atl. Rep. 920; Seibert v. Seibert (Court of Chancery, not officially reported), 83 Atl. Rep. 230; Bradbury v. Bradbury (Cowl of Chancery, not officially reported), 74 Atl. Rep. 150; Piper v. Piper, 13 N. J. Mis. R. 68; 176 Atl. Rep. 345. Such denial may be firmly rested upon the application of the doctrine of unclean hands. It is not a disclaimer of the jurisdiction of this court under the statute to afford the wife a direct remedy under all circumstances in which such obligation is imposed upon the husband by the common law.

' Nor is such a liberal interpretation of the statute in conflict with such cases as Taylor v. Taylor, 73 N. J. Eq. 745; 70 Atl. Rep. 323, and Pinldnson y. Pinldnson, supra, in which the wife did not claim that the husband had consented to the separation but sought unsuccessfully to justify her separation from him on the ground of his alleged extreme cruelty, or with such cases as Werpupp v. Werpupp, 108 N. J. Eq. 169; 154 Atl. Rep. 424, in which the wife refused to live with her husband. But if it be thought that these cases cast any doubt upon the disposition of our courts to hold to the broad construction of the statute, such doubt must be set at rest by the more recent pronouncements of the court of errors and appeals in the cases hereinafter noted. In Apfelbaum, v. Apfelbaum, 111 N. J. Eq. 529; 162 Atl. Rep. 543, the suit was brought by a wife who had secured a divorce in this court, for the specific enforcement of an agreement in lieu of alimony. The court said that:

“Our decisions hold uniformly that alimony is a subject specifically committed to the court of chancery and arising from the present or past status of the parties as husband and wife. The jurisdiction not only exists while that relation persists, but by the express language of the Divorce act (Comp. Stat. p. 2035 § 25) continues after decree of divorce.”

In Second National Bank v. Curie, 116 N. J. Eq. 101; 172 Atl. Rep. 560, the same court, following the Apfelbaum Case, in effect held that a wife who was living separate and apart from her husband without any cause of action for divorce against him, although she should not have been permitted to maintain an action for the specific enforcement of his agreement to maintain her, was entitled nevertheless to a decree for maintenance in this court. The court said:

“We take the view that the agreement in these aspects was in its essence and purpose an agreement for the reasonable and suitable support of the wife_ according to her station and according to her husband’s means and ability to support her, and that it comes therefore under the general class of agreements for maintenance where husband and wife are living apart and, as such, is subject to the control of the court of chancery, but not by way qf specific performance. Apfelbaum v. Apfelbaum, 111 N. J. Eq. 529. The agreement itself may be regarded by the court as evidential with regard to the amount of money to be paid, though not controlling in that regard.”

Still more closely in point is the case of Aiosa v. Aiosa, 119 N. J. Eq. 385; 178 Atl. Rep. 63, in which the husband and wife were living separate and apart by mutual agreement. On the authority of the Apfelbaum and Curie Cases the court held that the matter of the wife’s maintenance was subject to the control of the court of chancery, as having been specifically committed to this court because arising from the status of the parties as husband and wife.

Again in Phillips v. Phillips, 119 N. J. Eq. 462; 183 Atl. Rep. 220, a ease in which the wife’s suit for divorce was pending, the court of errors and appeals makes it clear that it regards the same rule as applicable whether the suit be for divorce or for separate maintenance, that is that in either case the wife’s support may be secured to her through the peculiar jurisdiction of this court (aside from decreeing the specific performance of any contract for support) to control the matter. Since the court has no inherent jurisdiction to decree alimony or maintenance (Freund v. Freund, 71 N. J. Eq. 524, 529; 63 Atl. Rep. 756; affirmed, 72 N. J. Eq. 943; 73 Atl. Rep. 1117; Hervey v. Hervey, 56 N. J. Eq. 424, 426; 39 Atl. Rep. 762), it follows that the remedies intended by the court of errors and appeals are those provided by sections 25 and 26 of the Divorce act.

Thus it seems clear that by its most recent pronouncements our court of last resort is adhering to its own earlier views expressed in the Weigand, Hummer, Barefoot and Segal Cases, supra, and is reaffirming the broad construction of section 26 as affording a remedy where the wife is living separate and apart from her husband with his consent. We are not here concerned with the question whether specific performance is the proper remedy for the enforcement of a husband’s contract to support his wife. (As to this, see Cohen v. Cohen (Court of Chancery, not yet officially reported), 188 Atl. Rep. 244). The only point now made is that the ratio decidendi of the recent court of errors and appeals decisions is predicated upon the availability of the remedy afforded by section 26 of the Divorce act where the parties live separate and apart by mutual consent and the husband fails or neglects to make proper provision for his wife.

It is therefore apparent that the cause of action defined by the maintenance statute is essentially different from willful and obstinate desertion as contemplated by section 2 of the Divorce act. B Comp. Stat. p. 2024. How then can it arbitrarily be said that a decree for separate maintenance is res judicata of the fact of desertion in a subsequent suit by the wife for divorce on that ground ? It may be that the evidence upon which the prior decree is based is such as to warrant a decree for divorce for desertion, given the two-year period of continuance, or that one or more of the facts in issue in the maintenance suit may come into issue in the subsequent divorce suit, and if so the prior adjudication may to that extent constitute an estoppel. To determine these questions the proceedings in the prior suit must be examined. Zweig v. Zweig, supra, and cases cited therein. But in view of the fundamental distinction between the two offenses, clarified by the more recent cases, how can it longer be maintained that the doctrine of res judicata, in its strict sense, can under any circumstances be applied arbitrarily to give a decree for separate maintenance controlling effect in a subsequent suit b3 the wife for divorce for desertion P

In the case at bar, since the evidence precludes the granting of a decree for divorce, the argument that the petitioner is entitled to such decree in spite of the evidence is in effect an insistence that this court is a mere rubber stamp, impotent to protect the interests of the state and powerless to perform its duty to decline to grant a decree of divorce where the evidence does not justify it. With such a view I cannot agree.

A decree will be advised dismissing the petition.


author: Porter, C. C. J.

text:
    Essex County Circuit Court.
    IN RE APPEAL OF VARIOUS PROPERTY OWNERS TO BENEFIT ASSESSMENTS FOR LOCAL IMPROVEMENTS FOR THE OPENING OF RAYMOND PLAZA WEST, NEWARK.
    Decided January 14, 1937.
    Eor the city of Newark, Vincent J. Casale.

   Porter, C. C. J.

The city of Newark, through its proper officers, opened a new street, Kaymond Plaza West, from Market to River streets, about seven hundred feet in length and one hundred and twenty-five feet in width.

Its board of assessments for local improvements assessed certain land owners in the vicinity, whose land it found had received special benefits by reason of this street opening, amounting to $216,966. Of this amount‘ objections were made against confirmation by property owners whose assessments aggregated $166,881. This court heard testimony on those objections and under date of March 19th, 1934, returned the report without confirmation for reasons stated in an opinion printed in 12 N. J. Mis. R. 303.

The board thereafter made a revised report, which finds special benefits to lands within a much restricted area to that of the original report. The assessments reported amount, in the aggregate to $68,083. Of that amount property owners whose lands have been assessed $42,749 have objected to confirmation and have now been heard.

It appears from the testimony that under date of January 9th, 1929, a written agreement was entered into between the city of Newark, the United New Jersey Railroad and Canal Company, owner, and the Pennsylvania Railroad Company, its lessee, having as its object, among other things, the construction of a new main passenger station at a new location therein designated. The city agreed therein "to provide cer tain additional area for said new station and the approaches thereto and for the additional tracks and facilities west thereof and to provide adequate street, highway and plaza facilities around said new station in order to improve the surroundings thereof and make more convenient the access thereto, that congestion may be avoided and public safety promoted.

Before this agreement was entered into enabling legislation was obtained. Chapter 145, Pamph. L. 1925; Supp. Comp. Stat. 1925-1930, p. 1504, § 170-30.

The new street was laid out as of July, 1931. The railroad station was built and located on the new street or plaza, as its name implies. It was opened to public use about March, 1935.

.It is the contention of the city that the opening of this new street was a local improvement which conferred special benefit to lands within the following area: those fronting on the new street opposite the railroad station; land on Raymond Boulevard, Commerce street and on the northerly side of Market street westerly from tile new street to within a short distance oí Mulberry street; land on the southerly side of Market street facing the new street; land on River street northerly from the new street to Cherry street, and land on the westerly side of McCarter Highway between Market and Commerce streets.

The conclusion of the board was that the land within this area had benefited specially by increase in market value, a certain scale of amounts per front foot was adopted based upon the location of the land, &e. The method nsed is not attacked.

However, the objectors contend that no special benefits whatever have accrued to their lands.

A sharp conflict in the testimony exists on this factual question.

The objectors also contend that the assessments are not warranted under the law because this improvement is not a local one but is a railroad improvement and so general.

It is the contention of the city that this court has power only to decide whether or not the assessments were inherently improper, unfair, irrational, or arrived at by the use of improper methods.

Ais examination of the statute, however, seems to give the court much broader power. Pamph. L. 1925, eh. 72; Supp. Comp. Stat. 1925-1930, pp. 1137, 1140, §§ *136-2062 el seq. Section 3, page 1139, section *136-2064 provides that the court shali hear “any objection that may be made to such assessment and after hearing any mailer which may be alleged against the same, the court shall by rule or order either confirm the said report, or refer the same to the said officer or board for revision or correction * * *.”

Judge Adams, in In re Branford Blace, Newark, opening, decided March 23d, 1916, and not reported, found that an assessment on the lands of St. Paul’s Episcopal Church, located at the corner of High and Market streets, were unlawful under the proofs and so returned that assessment for revision, or correction, really for cancellation, as a matter of law. It was found that under the terms of the deed to the church the use of the property was restricted to religious purposes. Increased market value, therefore, brought no special benefit. To sustain the assessment it would have to be shown that there was an increase in value of the use for religious purposes, which was not established.

The authority of the court in that case was under the provisions of the charter of the city. It provided for confirmation by the court “as right and justice shall require.” That language does not seem to be any broader or more inclusive than the statute governing the case sub judice, which says that the court may hear “any matter which may be alleged against the same.” Surely, if given power to hear any matter it follows that action may be predicated thereon.

Judge Dungan, in the matter of paving of Fourteenth avenue, Irvington, in 1924, in an unreported decision, held that lands of a cemetery association were exempt from assessment and that the assessment was, therefore, unlawful.

An appeal in that case was taken to the Supreme Court and resulted in an affirmance, 3 N. J. Mis. R. 102; 127 Atl. Rep. 523. The Court of Errors and Appeals also affirmed, 102 N. J. L. 440; 131 Atl. Rep. 923.

The city argues that a question of law such as in the Irving-ton case could only be raised on certiorari and that the Circuit Court was, therefore, without power. Apparently that point was not raised, because neither the Supreme Court nor the Court of Errors and Appeals opinions refer to it. But even though not raised by counsel it cannot be assumed that both appellate courts would have overlooked so important a question.

Certiorari is, of course, the method to be used to attack an ordinance if any illegality existed in its passage or otherwise, but the objectors here make no such claim. They do not attack the ordinance, but, rather, do attack what they claim is an unlawful assessment made thereunder.

This court has concluded that they may do so.

The objectors, in their contention that this improvement is not a local one, point out that it was not a needed thoroughfare, nor was it intended to care for the existing ordinary traffic because streets were in existence near this location (which have been vacated) and which were amply sufficient and suitable for the public need. They contend that the new street was created for a special purpose and use; to provide a plaza for the railroad station and for the use of traffic to and from the station.

The court concurs with that view.

The agreement with the railroad company was made under authority of chapter 145, Pamph. L. 1925; Supp. Comp. Stat. 1925-1930, p. 1504, § 170-30. This is an amendment to section 30 of the General Kailroad act of: 1903. Section 30 of that act, before amendment, authorized municipalities to lay out, open and vacate streets to facilitate operation of railroads without including station improvements.

In chapter 58, Pamph. L. 1915; 2 Cum. Supp. Comp. Stal., p. 2210, § *136-2090A(1), this section was amended to permit municipalities to lay out, improve and maintain parks adjacent to railroad stations. The cost of such improvements to bo borne by the municipality and railroad company as provided by agreements between them.

At the same time another act was adopted, chapter 58, Pamph. L. 1915; 2 Cum. Supp. Comp. Stat. 1911-1924, p. 2210, § *136-2090A (1), giving authority to the municipality to raise its share of the cost of the improvement by levy of a general tax or the issuance of bonds.

Just those two methods of raising funds are authorized. The legislative intent seems clearly to have considered such improvements as general, else it would not have provided for the raising of funds by a general bond issue or general tax levy. It excluded raising any part of the cost by assessing any property which might be specially benefited.

The 1925 amendment aforesaid reads as follows:

“In any municipality it shall be lawful for the proper municipal authorities to enter into such contracts with any railroad company or companies whose roads may lie wholly or partially within the municpality or whose route has been located therein as will secure greater safety to persons or property therein, or will facilitate the construction therein or maintenance of other than grade crossings of streets, highways, or other railroads, or will provide for increased or improved station or terminal facilities and transportation service, or will improve the surroundings of or malee more convenient the access to a station or stations of such railroad within such municipality, and for such purposes the municipal authorities may construct sidewalks on, repave, curb, gutter, lay out, open, vacate, or alter the lines and change the grade of any streets, highways, squares or other public areas or places, and may lay out, improve and maintain public parks, plazas, or other public places, as a part of such improvements, and the railroad company may locate, relocate, change, alter grades of, depress or elevate any of its railroad tracks, bridges or facilities, and construct new or additional tracks and transportation or station facilities as shall be specified and provided for in such contract, and for the purposes of this act such municipality and such railroad company may take by purchase or condemnation any lands required for such improvements, and make such changes or conveyances of their respective lands or any interest therein as will facilitate said work and the cost and expenses of any such lands, changes and improvements shall be borne by such municipality and such railroad company in such shares or proportions as may be provided in said contract.”

As before noted, the agreement under which these improvements were made was made in pursuance with that statute. Hence it is inescapable that this new street is, in fact, a station improvement, a public place true, but none the less a necessary and integral part of the station created for that avowed and necessary purpose and use.

The cost must, therefore, under the law, be borne by the public generally, either by a general tax levy or a bond issue.

This improvement being defined as a general one cannot, of course, be financed wholly or in part by assessments against land of the objectors even though benefited.

A local improvement, under article 20, section 1, of Home Rule act (2 Cum. Supp. Comp. Stat. 1911-1924, p. 2194, § *136-2001), does not embrace streets which are laid out for an approach or plaza to a railroad station.

The power of this court is limited to the confirmation of assessments for local improvements; this being a general improvement, cannot be confirmed.

Whether or not this review of the various legal questions which were presented requires consideration of the factual question as to whether or not the lands were benefited the court deems it advisable, nevertheless, to state its views. A number of witnesses were examined and a great deal of testimony given. Eleven court clays were required in the proceedings. It consisted largely of opinion testimony given by well-recognized experts.

A most careful consideration has been given to this testimony. It has been weighed in the light of the reasons given as the basis for the conclusions arrived at as well as the knowledge and peculiar experience of the witnesses. It appears that the board in its first study prior to the making of its first report did not have the benefit of any experts on behalf of the city.

On its revised and corrected report, however, the city produced the testimony of two such experts, both of whom testified before this court. The three experts for the objectors, who testified here, also appeared before the board.

In addition there testified here one property owner, who also has expert knowledge because of his long years of residence and experience with property in this immediate vicinity.

Two members of the board and its clerk also testified, as did other officials re some technical matters, maps, &c.

It is extremely difficult, if not impossible, to know or with any degree of accuracy to estimate special benefits to land in a locality where several improvements or major changes have occurred at or about the same time and to allocate those benefits among the several improvements. Such was the situation here.

A process of evolution of that entire locality has been in progress for the past few years. First came the building of the new Center Market and the removal of many families residing in the buildings which had to be demolished. Later many more buildings were razed for the establishment of the open market plaza to the east of the market. Then came the abandonment of the Morris canal, which ran directly through the heart of this section, and later the building of the railroad in the bed of the -canal and the new highway on the surface — Raymond Boulevard. Commerce street for many years was almost entirely occupied by produce commission merchants. Two new centers were established for that business and nearly all of the merchants moved to either one or the other. Those remaining and now there, are the least important from the financial responsibility standpoint and, therefore, as desirable and permanent tenants. Another recent improvement was the establishment of a new highway from north to south through the heart of this section called the McCarter highway. Mulberry street just outside of this area was widened and improved. And finally came the great railroad changes, the building of a new railroad station by the Pennsylvania Railroad Company, the rerouting of local traffic by means of the new city subway on the canal bed and the proposed removal of the Hudson and Manhattan terminal at Park Place to the Pennsylvania Railroad station.

All of these major improvements, except the Center Market and market plaza, were accomplished within a short time of each other, many of them being a part of a general plan.

Doubtless each one of these improvements affected the values and usability of various properties either when made or in the immediate future.

Having in mind all of these changes vitally affecting this locality, how is it possible for any one to say what effect the opening of Raymond Plaza west alone and unrelated to any other factor has or may have in the immediate future on the value of the adjacent land? Some of these changes may increase values and some the reverse. The removal of the commission merchants and the failure of the owners to obtain tenants for those properties in Commerce street, most of which are still vacant in the lower part of the street, certainly did not enhance values there. The abandonment of the market was a detriment, also. Changes will naturally follow in any material change in the flow of vehicular and pedestrian traffic, some locations being helped and others hindered.

Another important factor which must not be lost sight of is the general stagnation of the real estate market both as to sales and rentals due to the economic depression covering the years from 1929 to the present.

There have been no sales within this area since this improvement which help in the establishment of values. Eentals have also been so few and under such conditions as to be of little or no assistance, nor have buildings been built or altered to any appreciable extent. The fact that practically no sales, building or changes have been made in the properties in question during the five and a half years which have elapsed since this improvement was made is an important factor to be considered. If the opening of the street has increased values by creating a new and higher use for the property, why has it not already borne that fruit? The argument that the owners are short sighted and are willfully allowing the properties to remain untenanted and unimproved for some ulterior purpose over this period of years is illogical, unsound and without merit. On the contrary the evidence speaks of many efforts made for the utilization of the properties generally with little success.

Both experts for the city, Michael A. Stavitsky and John J. Berry, are of the opinion that the new street has specially benefited the properties of the objectors. The former gives increases in the fifteen properties considered aggregating $52,622, while Mr. Berry’s totals come to $59,306. The assessments on these pieces aggregate the sum of $41,275. On the testimony of these experts the board was, of course, justified in its assessments. In these calculations the property of Marzano State Bank and Trust Company, at 313 Market street, was omitted because of the uncertainty as to whether or not it had withdrawn its objection.

The board found that the reasons for the sjjecial benefits were two-fold: first, the “toning up” of the area by the tearing down of old and undesirable buildings and the elimination of an undesirable lodging house; the elimination of a slum area, and, second, the increase of traffic which would pass the various properties by reason of this new street. Higher uses, it thought, would be created for the land, retail stores of higher class than formerly there, hotels, department stores, restaurants, offices, perhaps later two or three-room apartment houses and, also, perhaps later a sport arena.

Both Mr. Stavitsky and Mr. Berry testified that each one of the major improvements above mentioned had been factors in influencing the values of the property in this area. Neither attempted to say what effect each may have had in values or in percentage of values. Both gave consideration to this matter by using a lesser percentage of decrease in values due to the depression than would have been used had these other improvements not been made. For instance, both found their base values as of a time before the depression and reached present day values by deducting a certain percentage thereof because of “depression factor.” They also testified, as indeed did the two board members, that the benefits had accrued at the time of the opening of the new street or in the reasonably near future. It developed, however, that Mr. Stavitsky considered the reasonably near future to be from five to ten years. Mr. Berry based his testimony on the same theory, except to define the same as from seven to ten years of normal times, excluding the period of the economic depression.

The board adopted the rule that reasonably near future was from five to seven years and based its findings thereon.

The new street was opened in. July, 1931, and the assessments were made as of that time. All of the testimony was likewise directed to that date.

This five to seven-year method adopted by the board was improper. It is speculative and uncertain. The benefits must be present and immediately accruing. Kellogg v. Elizabeth, 40 N. J. L. 274; Barkman v. Hackensack, 114 Id. 506; 177 Atl. Rep. 663; In re Draining Pequest River, 39 N. J. L. 433; Morris v. Bayonne, 53 Id. 299; 21 Atl. Rep. 453.

Dr. Charles F. Kraemer, Edward J. Maier and Theodore "W. Lemassena, experts for the objectors, all testified that in their opinions there had been no benefits to any of the properties by reason of the new street; that eventually there might be because of the new station, but even that had not yet become manifest even though the station had been in use nearly two years; that while values on the land on the -new street liad increased by reason of the new street frontage other factors of a detrimental nature had wiped out such increases.

The factor of toning up seems to have been improperly used. As the term was used by the various witnesses it meant the toning up produced by the tearing down and changing the character of the area from all of the various improvements above set forth. Certainly this must be so because the old buildings torn down on the area covered by Eaymond Plaza west alone was a very small part as compared with what was removed on the site of the railroad station, McCarter Highway, Market Plaza and Eaymond Boulevard. This factor played an important part in the judgment of the board. Commissioner Yeomans did not give the percentage of toning up and traffic at this hearing, but at the previous hearing said that he considered the proportion of the two factors to be ninety-five per cent, for toning up and five per cent, for traffic. Perhaps, however, he has modified his views meanwhile. Commissioner Easnik was not a member of the board at the time of the original assessment. His testimony was that the board considered the two factors in the proportion of seventy-five per cent, for toning up and twenty-five per cent, for traffic. Mr. Stavitsky’s expressed opinion was that each factor was equal. Mr. Berry gave no proportion in percentage figures, but did say that the increased pedestrian traffic was the most important factor.

How as to traffic changes. All of the witnesses for the city consider the increase in traffic as a result of the new location of the railroad station. They speak of the number of people who are now going to and from the station and how many more will do so after the Hudson and Manhattan Bailroad Company moves its station to that of the Pennsylvania Eailroad. The claim is that the vast number of people who will use this approach to the station, especially pedestrian traffic, will give higher uses to the property assessed and enhance its value. In other words, it is argued that the traffic is there and is diffused throughout the assessed area via Eaymond Plaza West. Hence the opening of Eaymond Plaza West has resulted in the peculiar and special benefits. That argument is unsound. What the board has really done is to assess for the new railroad station and not for the new street. The station, in fact, was not opened for public use until March, 1935, nearly four years after the opening of the street and time of this assessment. No increased traffic existed during those nearly four years. This again illustrates the point heretofore made that the street-was created because of necessity for a plaza or approach to the station and only incidentally, if at all, for any other purpose or need.

The established rule in this state is understood to be that while the preponderance of proof is not enough to set aside an assessment and that the judgment of the board is to be accepted as accurate, it cannot be accepted if the proofs are clear and convincing that the judgment be erroneous, unreasonable, unjust or arrived at by the disregard of some rule of law.

For the reasons stated the court has concluded that the proofs are clear and convincing that the judgment of the board was erroneous, unreasonable and unjust.

The report is returned for further revision and correction without confirmation.


text:
    CLARA L. SMITH, PROSECUTOR, v. MAY M. CARTY ET AL., RESPONDENTS.
    Argued May 5, 1936
    Decided December 15, 1936.
    Before Justices Lloyd and Donges.
    Por the prosecutor, Louis Dworetz.

    Por the respondents, Harold D. Green.

   Per Curiam.

The prosecutor, a former teacher in the schools of Paterson, was tried and convicted by the school board on charges justifying her dismissal. Appeal being taken the case was reversed on the ground that a member of the school board hearing the case was not present during the taking of all of the proofs, and the prosecutor was ordered reinstated in her position. This order was complied with by the board. On the same day the charges were renewed in a new proceeding, a new trial had, a second dismissal and affirmance by the commissioner of education, and also by the state board. To review this action the certiorari was allowed.

The respondents have moved to dismiss the writ for reasons subsequently appearing by affidavit and now before us on stipulation of facts. Prom this stipulation it appears that the prosecutor before the allowance of the present writ applied for and received the full proceeds of her portion available in the teachers’ retirement fund, setting forth as a ground of the application for such fund that she was dismissed and that she was not under contract to teach.

Respondents for the motion urge that by so doing she accepted the action of the school board in dismissing her and hence is not entitled to a review of the' action taken.

The basis of this contention is that under the School Board law, sections 249 and 251, by withdrawing from the retirement fund she automatically ceased to be a teacher in the public schools or entitled to consideration as such.

Our reading of the sections relied upon leads us to the conclusion that the contention of the respondents is well founded. These sections are as follows :

. Section 249 (Cum. Supp. Comp. Stat. 1911-1924, p. 3298, § 185-497(2). “All persons who become teachers after the 1st day of September, 1919, and whose appointment is made subsequent to the passage of this act, shall become members of the Retirement System by virtue of their appointments as teachers.”

Section 251 (Cum. Supp. Comp. Stat. 1911-1924, p. 3304, § 185-499, sec. 251(11). “A contributor who withdraws from the service or ceases to be a teacher for any cause other than death or retirement, shall be paid on demand the accumulated deductions standing to the credit of his individual account in the annuity savings fund.”

If the prosecutor were not a teacher she would not be entitled to participate in the fund. As one interested in the fund she was obliged to make regular systematic contributions which inured not only to her own benefit but to the benefit of all fellow teachers in the school system.

The result we reach is that by drawing her proportion of the fund and failing to contribute to it for the period intervening between her dismissal and the application for the writ of certiorari, she automatically ceased to be a teacher in the public schools of the city. That she consequently is without standing as a teacher by virtue of her own act and this makes it unnecessary to consider the sufficiency of the action taken leading to her dismissal.

The motion to dismiss the writ is granted, with costs.


text:
    IN RE APPLICATION OF FRANK VAN SYCKLE FOR A DECLARATORY JUDGMENT.
    Submitted October 6, 1936
    Decided January 19, 1937.
    Before Justices Trenchard, Bodine and Heher.
    For the applicant, Paul G. Kemeny.

   Per Curiam.

There was submitted to the court a petition for a declaratory judgment, “as to the meaning of chapter 185 of the laws of 1936 (N. J. Stat. Annual 1936, § 135-106a (25) and chapter 186 of the laws of 1936 (N. J. Slat. Annual 1936, § 182-92), specifically stating whether or not it is now necessary, in order for a conditional sales vendor to be protected in the reservation of his title as against purchasers from and creditors of the conditional sales vendee, in the case of a sale of an automobile under a conditional sales agreement where such purchasers from or creditors of conditional sales vendee, have had no notice of the conditional sales contract * * * to file with the county clerk such a conditional sales agreement.”

Nothing is presented to us but the bare petition. There is no state of the case and no brief. Nowhere in the petition or otherwise does it appear that there is any actual controversy in respect to the meaning or validity of the statutes in question, and nowhere does it appear that notice of this application has been given to any official of the state or county who manifestly have an interest if and when an actual controversy should arise. In fact it nowhere appears that any notice was given to anybody.

Now the general rule is that the court will not render a declaratory judgment as to the validity or construction of a statute in the absence of an actual controversy, nor in the absence of notice to municipal or state officials affected by the declaration relating to statutes if and when an actual controversy arises respecting such statutes. 1 G. J. S. 1042. See, also, Pamph. L. 1924, ch. 140, p. 312; Cum. Supp. Comp. Stat. 1911-1924, p. 2834, §§ 163-351 et seq.

The application herein will be denied.


author: Porter, S. C. C.

text:
    JOHN RYBASACK, WHO SUES FOR HIMSELF AS WELL AS THE STATE OF NEW JERSEY, PLAINTIFF, v. PRUDENTIAL INSURANCE COMPANY OF AMERICA, A CORPORATION, DEFENDANT.
    Decided January 27, 1937.
    For the plaintiff, William Harris.

    For the defendant, Lindabury, Depue & Faulks (by Walter F. Waldau.)

   Porter, S. C. C.

The defendant moves to strike the complaint, alleging that the same is sham and frivolous. The facts, which do not seem to be in dispute, are that the defendant entered into a contract of insurance with the NTewark Beth Israel Hospital and issued a policy in pursuance therewith for group insurance, insuring the lives of the medical staff of the hospital. The complaint charges that the said policy was not one that was permitted under the law for the reason that the doctors whose lives were insured were not, in fact, employes of the hospital, that therefore they received insurance at less cost than they could otherwise have secured it, and that there was thus a discrimination in violation of section 1 of chapter 168 of Pamph. L. 1895, p. 345, as amended; hence this suit which is to recover the penalties provided for in chapter 74 of the Pamph. L. of 1907, p. 153; 2 Comp. Stat., p. 2876, § 1, one-half for the individual plaintiff and the other half for the benefit of the state.

The statute which the plaintiff contends was violated in the issuance of this policy, section 2-A of chapter 53 of Pamph. L. 1927: Supp. Comp. Stat. 1925-1930, § 99-95a, reads as follows:

“Group life insurance is hereby declared to be that form of life insurance covering not less than fifty employes written under a policy issued to the employer, the premium for which is to be paid by the employer or by the employer and employes jointly, insuring all of his employes, or all of any class or classes thereof determined by conditions pertaining to the employment for amounts of insurance based upon some plan which will preclude individual selection, for the benefit of persons other than the employer; provided, however, that when the premium is to be paid by the employer and employes jointly and the benefits of the policy are offered to all eligible employes, not less than seventy-five per centum of such employes may be so insured. For the purposes of this act the members of any labor union or association who are actively engaged in the same occupation shall be considered employes of such union or association. No policy of group life insurance shall be issued or delivered in this state unless it shall contain in substance the following provisions * *

The defendant contends in support of its motion to strike the complaint that the proofs before the court show that the said policy was what is known as group insurance and that the premiums thereunder are based upon the standard and regular manual of rates for such class of insurance as filed with and approved by the commissioner of banking and insurance of this state; that all of the individuals insured were, in fact, employed by the hospital for the performance of certain special duties in connection with the work and purposes of said hospital; that said employes were under the control and direction of the authorities of the hospital, being duly appointed by said authorities, subject to be dismissed, and subject also to all of its rules and regulations; that, while they do not receive any compensation for their services, they do receive in consideration thereof the use and facilities of the hospital, including the laboratories, instruments, equipment, supplies, library, as well as an opportunity for study and experience in treating a larger number of patients than they would receive in private practice; that, therefore, there was no discrimination in the issuance of this policy because the beneficiaries thereunder, in fact, were employes within the meaning of the statute.

It is further argued by the defendant that the statute which prohibits discrimination in the issuance of life insurance policies (section 1, chapter 168 of Pamph. L. 1895, supra, as amended in chapter 167 of Pamph. L. 1937; Supp. Comp. Stat. 1935-1930, § 99-116) is a penal statute and should be strictly construed; further, that there is no discrimination because the insured are all of one class, and that the premiums charged are precisely the same as charged to others of like class.

It is conceded by the plaintiff in his brief that the primary question to be decided on this motion is whether or not the relationship of employer and employe existed between the insured and the hospital; that, if they were employes within the meaning of the statute, then the group insurance policy was properly issued and the complaint should be struck because, in that event, there would be no discrimination.

A consideration of this question leads to the conclusion that there was a relationship of employer and employe within the meaning and intendment of the statute. Having reached that conclusion, it becomes unnecessary to consider any of the other legal questions presented and the complaint must be struck.

It seems clear that the status of employer and employe as set forth in the statute did not mean, literally, one who was paid for services in money or who devoted his entire time to his employer and was completely under his control and domination, but in a broader and more comprehensive sense where a relationship existed of a group or association of men engaged in a common purpose under an organization directed and controlled by constituted authorities, either as here under the management oí a regularly operated hospital or as the statute specifically points out, “the members of any labor union or association who are actively engaged in the same occupation.”

The facts are not d isputed that these insured are under the direction and control of the hospital and must conform to the instructions given them, to the rules and regulations, and the failure so to do may result in dismissal. Another factor which establishes the relationship is the fact that there is a consideration moving from the hospital to the doctors. The services are not, it is true, compensated for in money, but they are compensated for in the equivalent of money in the form of experience, knowledge and training, together with the use of the various facilities of the hospital. Because they are members of a profession and necessarily called upon to exercise their individual judgment in the performance of their duties does not, it seems to the court, render them any the less employes under the facts here present within the meaning of the statute in question.

In the case of Essex County Country Club v. Chapman, 113 N. J. L. 182; 173 Atl. Rep. 591, it was held that a caddie who was employed on the golf course and who was paid by the members for whom he performed services, was an employe of the club for the reason that the employment was under the control of the club, which was a determinative factor within the meaning of the Workmen’s Compensation act. It seems to the court that that reasoning is equally applicable here and makes for a reasonable and proper interpretation of the statute.

Many cases have been cited by the plaintiff which hold that physicians on hospital staffs are not employes, but all of them are actions in tort where the principle of respondeat superior applies. That is not the question here and those cases have no application to the case at bar. No case has been cited which seems inconsistent with the views herein expressed.

There being no issue of fact raised but simply questions of law, and the question of law considered above being dispositive of the entire matter, the complaint will be struck as sham.