text:
    THE CITY OF NEWARK, PROSECUTOR, v. BOROUGH OF WEST PATERSON ET AL., RESPONDENTS.
    Submitted December 3, 1923
    Decided March 19, 1924.
    Taxes — Municipal Property In Another Taxing District — Statutes Considered and Exemption For Such Property Found.
    On certiorari, etc.
    Before Justices Teenchard and Campbell.
    Eor the prosecutor, Jerome T. Qongleion and Joseph G. WoTber.

    For the borough of West Paterson, Reuben U. Reifin.

    For the township of Little Falls, Gustav A. Hunzilcer.

    For the borough of Kinnelon, Howard F. Barrett.

    For the township of Pequannock, James V. Beam.

    For the borough of Totowa, Walter R. Hudson.

    I*or the city of Clifton, Willia-m B. Gourley.

    For the township of Wayne, Frederick Beggs (of counsel with respondents, Spaulding Frazer).

   Pee Cueiam.

The facts in this case are undisputed, the question being whether the pipe lines owned by the city of Newark, a taxing district of the state, and used for the transportation of water for domestic and other uses of the inhabitants of the city of Newark, but located outside of the territorial limits of the city of Newark, were subject to taxation by the various taxing districts in which they were located on October 1st, 1921. It is admitted that this property o£ the city of Newark was used for public purposes on that date, although not located within the limits of the city of N ewark.

The respective assessments for taxation under review were made under the provisions of chapter 236 of the laws of 1918, entitled “An act for the assessment and collection of taxes (Revision of 1918).” ' Section 202 of that act (page 848) provides as follows:

“Section 202. All property, real and personal, within the jurisdiction of this state, not expressly exempted by this act or excluded from its operation, shall be subject to taxation annually under this act at its true value * * *.”

Section 203 of the same act provides as follows:

“Section 203. The following property shall be exempt from taxation-under this act, namely * * * : (2) The property of the United States and of the State of New Jersey; property of the respective counties, school districts and taxing district, when located therein and used for public purposes * * *.”

Although section 203 has been frequently amended, the pertinent language remained unchanged on October 1st, 1921, when the assessments in question were made by the respective respondents.

It is the contention of the prosecutor that these assessments are illegal and void, in that sections 202 and 203 in their application to the property of the prosecutor used for public purposes within the territorial limits of the respondent taxing districts, and to that extent contravene paragraph 12 of section 7 of article 4 of the state constitution, which declares that’ “property shall be assessed for taxes under general laws and by uniform rules, according to its true vahre.”

The prosecutor relies upon Essex County Park Commission v. West Orange (Court of Errors and Appeals), 77 N. J. L. 575. In that case the constitutionrdity of a supplement to the Tax act of 1903 (Pamph. L. 1906, p. 273) was under review. This supplement read:

“All lands the property of any county, and all lands the property of any taxing district, which are situated, within the limits of any other taxing district, shall be subject to taxation by the taxing district within which such lands are situated at .the. true value of such lands without regard to any buildings or other improvements, on such lands, notwithstanding any exemption provided for in the act to which this is a supplement.”

The General Tax act of 1903 (Pamph. L. 1903, p. 394) declared that —

“The property, * * * of the State of New Jersey, and of the respective counties, school districts and taxing districts, when used for public purposes * * * ” shall be exempt from taxation. The court there pointed out that the act (of 1906) attempted to classify lands of counties and taxing districts for the purposes of taxation by reference to the location of such lands, and held that such classification was in contravention of the constitution. ' And it was further held that the act, in attempting to classify lands of counties and taxing districts devoted to public use did not include in the class thereby created all the members of such class, and hence was nót a general law, and was unconstitutional.

In the course of the opinion it was said (page 578): “The question therefore arises whether a proper classification has been created by the supplement under review, and, if so, whether into such class have been gathered all its members. * * * Again, a portion only of the property of taxing district is made taxable, depending upon the accident of its location. If the property is situated within the taxing district levying the tax it escapes taxation. If its location be without such taxing district it is to be taxed. It is thus sought to form a class for taxation marked by the characteristic of location merely.”

Again, on page 580: “Classification, according to the location of the property, is not a classification according to any feature inherent in the property itself, but that reference entirely to cliance of location, a circumstance quite as disconnected with the characteristics of the property itself as is its ownership, which was condemned as a distinguishing mark in Tippett v. McGrath, Collector, 70 N. J. L. 110; affirmed, 71 Id. 338. If, however, the class thus erected could be approved, yet the law is vicious, because, as already stated, all of the members of such class have not been included, and thus it lacks generality.”

It thereby appears clearly that the assessments in the instant ease cannot be supported by section 203 of the act of 1918. By the same authority it is equally clear the assessment cannot be supported by section 202, since in so far as it permits the taxation of the property of the prosecutor used for public purposes is not a general law but arbitrary and illusive. It is not uniform, in that it does not act alike and equally upon all such property because of the exemption in section 203, when such property is located within the taxing district.

The difficulty in the instant case is that public property devoted to public use is taxed in part and exempted in part— is taxed if located outside of the taxing district and exempted if located within the taxing district. That is an attempted classification condemned in Essex County Park Commission v. West Orange, supra.

The several assessment of taxes brought up will be set aside, with costs.


source: Caselaw Access Project

author: Lloyd, J.

license: Public Domain

text:
    DEAL PARK COMPANY. PLAINTIFF. v. ELIZABETH S. BANNARD, INDIVIDUALLY AND AS EXECUTOR AND SOLE DEVISEE UNDER THE LAST WILL AND TESTAMENT OF WILLIAM H. BANNARD, DECEASED, DEFENDANT.
    Decided March 17, 1924.
    Deficiency Judgment — Foreclosure Proceedings Did Not Include All Parties in Interest — Proceedings On Bond Cannot Be Had Under Statute Until Proper Foreclosure.
    On motion to strike out parts of answer.
    For the plaintiff, Smith- £ Sling erland.

    For the defendant, Wall, Haight, Garay £ Ilarlpanca.

   The opinion of the court was delivered by

Lloyd, J.

This action is to recover for a deficiency under foreclosure of the mortgaged premises. Being uninformed of the birth of children after the date of the will of the deceased mortgagor, and therefore having- no knowledge of their interest as heirs-at-law, counsel foreclosed the mortgage against Mrs. Bannard as the executor and sole devisee of her husband only. The property was sold, but the interests of the children remained. Under these circumstances a deficiency resulted — most naturally. The defendant now seeks to set up these facts as barring the present action, beceause of the special provisions of the Tail act. Comp. Stat., p. 3421. This act provides:

ifThat in all cases where a bond and mortgage has or may hereafter be given for the same debt, all proceedings to collect said debt shall be, first, to forclose the mortgage, and if at the sale of the mortgaged premises under said foreclosure proceedings the said premises should not sell for a sum sufficient to satisfy such debt, interest and costs, then and in such case it shall be lawful to proceed on the bond for the deficiency, and that all suits on said bond shall be commenced within six months from the date of the sale of said mortgaged premises, and judgment shall be rendered and execution issued only for the balance of debt and costs of suit. Pamph. L. 1880, p. 255, as amended, Pamph. L. 1881, p. 184.”

The statute has been repeatedly held to be one of procedure only (Hill v. Hill, 122 Atl. Rep. 818, and cases there cited), but procedure it is, and as such it must be followed. Had the sale here been by description of one-third of the mortgaged premises, I apprehend that no one would contend that the requirements of the statute had been met. When the result is to effect the sale of but one-third interest in the property by the inclusion of but one interest out of three, I apprehend the same result must follow. Indeed, the sum realized upon such a sale would be less by reason of the undivided nature of the tenure. What fraction shall be sufficient to entitle the mortgagee to proceed for a deficiency? It seems to me that nothing short of a complete exhaustion of the property and all interests therein must be had to satisfy the requirements of the statute. To hold otherwise would be to permit frauds upon the statute and upon the obligor, and frustrate the purpose of the law.

Yor do I think the defendant is .estopped by her failure to raise the question in the foreclosure. The predicament of the plaintiff is a creature of the statute and his own failure to include all interests. Foreclosure is made a condition precedent to the right to proceed on the bond. Yon-joinder of necessary parties might have been availed of by the defendant, but not upon the ground nor by reason of the subsequent disability of the plaintiff which he was imposing upon himself. Such an objection could only be made when the plaintiff sought to avail himself of the proceedings taken and which he alone controlled. If objection had been made in the foreclosure sidt, the defendant would very properly have been told that such was not his concern. As to this question the plaintiff could proceed against all or a part of the owners of the fee, taking the chances of the sufficiency of his course to meet the conditions of the statute.

It follows from the foregoing that the second defense cannot be stricken out, and as, on the agreement, it was conceded that this defense, if legally sufficient, was dispositive of the case, the remaining defenses will not be dealt with on this motion.


author: Per Curiam.

text:
    JENNIE B. JACOBUS v. JESSE L. McEWAN, ET UX., ET AL.
    Decided March 15, 1924.
    Negligence — Motor Vehicle Accident — Injury to Passenger in Car Which .Collided With Another Car — ¡Question of Negligence of Driver of Car.
    On defendant’s rule to show cause.
    Before Gummere, Chiee Justice, and Justice Teenciiard.
    Eor the rule, Collins £ Corbin.

      Contra, Carl F. Hinrichsen.

   Per Curiam.

The plaintiff was injured in a collision between two automobiles, which occurred at the junction of Park place and South street, in the town of Morristown. The defendant Mrs. McEwan was the owner of one of the ears, and was riding in it, with her husband, at the time of the accident. This car was being driven by the defendant Gulick, a chauffeur in the employ of Mr. McEwan. Mrs. Shelley, the other defendant, was the driver of the other caí*. The plaintiff, Mrs. Jacobus, was a nurse in 'the employ of the McEwan family, and was in their car when the collision occurred. As a result thereof she was quite badly injured, and she brought suit against Mr. and Mrs. McEwan, their chauffeur, Gulick, and Mrs. Shelley as joint wrong-doers. The trial resulted in a verdict against all of the defendants, the damages of the plaintiff being assessed at $10,000. McEwan, his wife and Gulick applied for and obtained a rule to show cause, and we are now asked to make that rule absolute.

The first ground for doing so, argued by the defendants, is that the trial court should have directed a verdict in their favor, because there was a complete absence of proof of any negligence on the part of the chauffeur or the McEwaus contributing to the accident. An examination of the state of the case discloses that there was evidence that the accident occurred more than an hour after sundown; that the Mc-Ewan car was being driven without lights; that the lights on the Shelley car were burning, and that it was easily discernible as it approached the intersecting point. The proof's showed that, under the Motor Vehicle law, the McEwan ear had the right of way; but, notwithstanding this, it was the business of the chauffeur to be alert to- existing conditions, and not to insist on the exercise of that right if by doing so a collision was reasonably likely to occur. Under the evidence to which we have referred, we think the question as to whether Gulick was negligent was o-no of fact, to be determined by the jury, and not one of law, to be decided by the court.

The next contention is that the finding by the jury of negligence on the part of the chauffeur, Gulick, was contrary to the weight of the evidence. We do1 nor, think so. Assuming that the accident was largely the fault of Mrs. Shelley, nevertheless, the testimony above recited justified the jury in finding that the chauffeur also was to some degree in fault, and that, if he had been alert and had used reasonable care when he approached the intersecting point, he could have avoided the accident.

Tt is lastly argued that the verdict is excessive, and, we think, this contention is well founded. The plaintiff, Mrs. Jacobus, was well past middle life, being about fifty-eight or sixty years of age. She was badly hurt, but, in our opinion, not so seriously as the verdict suggests. If the plaintiff will consent to a reduction of the verdict to $5,000, she may enter judgment thereon for that amount. Otherwise, the rule to show cause will be made abolute.


text:
    THE STATE, EX REL. THE MORRISTOWN FIREMEN’S RELIEF ASSOCIATION, A CORPORATION OF NEW JERSEY, RELATOR, v. JOHN K. BONIFACE, HENRY M. SMITH, BARTHOLOMEW W. CLIFFORD AND FRED A. TROWBRIDGE, TRUSTEES OF MORRISTOWN FIRE DEPARTMENT CHARITABLE FUND, RESPONDENTS.
    Submitted December 3, 1923
    Decided March 15, 1924.
    Firemen’s Relief Associations — Right to Fund Derived From Foreign insurance Companies.
    On application for mandamus. On rale to show cause.
    Before Justices Trexchard and Campbell.
    Por the relator, Edward L. Stanley, Jr.

    Por the respondents, King & Vogt and Robert II. Schench.

   Per Curiam.

The relator, a corporation organized and existing under “An act concerning firemen’s relief associations” (Pamph. L. 1885, p. 144; Comp. Stat., p. 2430, § 414 et seq.), holds a rule to show cause why a peremptory writ of mandamus should not be granted requiring the respondents to pay over forthwith any and all funds, securities and investments in their hands from whatever source received to such corporation. The respondents are the present trustees of Morristown fire department charitable fund, a trust created by the legislature in 1869 by an act entitled “An act to establish a fund in the town of Morristown for the relief of indigent and disabled firemen and their families.” Pamph. L. 1869, p. 298.

The agreed statement of facts shows that the respondents have in their possession about $78,000 of funds derived in large pait since 1885 from the two per cent, tax imposed by the laws of this state upon the premiums paid for fire insuranee coveiing propel ty in this state written in foreign fire insurance coiporations. This two per cent, tax is collected by virtue of the statute entitled “rkn act to facilitate the collection from file insurance companies not organized under the laws of this state, but doing business herein, and from agents and brokers, of certain premiums for the benevolent funds of the several duly incorporated firemen’s relief associations in this state.” Pamph. L. 1885, p. 310; Comp. Stat., p. 2444, § 457 et seq.

The respondents are required by the second section of the act creating them to administer a fund for “the relief of such indigent and disabled firemen or their families as may in the opinion of the trustees he entitled to its benefits.”

The object of corporations formed, as relator was, under the “Act concerning firemen’s relief associations,” is set forth in section 23 of that act. Comp. Stat., p. 2437, § 436: “To establish, provide for and maintain a fund for the relief, support or burial of indigent exempt firemen and their families and of such persons and of the families of 'such persons as may lie injured or killed while' doing public lire duty or may become indigent or he disabled, or may die as the result of their doing such duty, or may be prevented by such injury or hv sickness arising from their doing such duty from attending to their usual occupation or calling.”

In the act under which relator was incorporated there is a paragraph directing the transfer of assets held “for the relief of indigent or disabled firemen” from the hands of persons holding such assets to any new corporation formed under that act. This is section 6 and the pertinent parts read as follows: “That in case * * * in anywise howsoever, any person or persons, or association or corporation, shall have in possession or charge any moneys derived from any source whatsoever, for the relief of indigent or disabled firemen, or any balance thereof, or any property purchased therewith, or any securities in which the same may have been invested, * * * then and thereafter, upon the legal organization and incorporation hereunder of a firemen’s relief association in such city, town, * * * there shall forthwith be paid over, assigned and conveyed, to such new corporation, any money, accounts payable, property and securities remaining in possession or charge of such old association or corporation, or of any person or persons, or association or corporation’ whatever, for its use or otherwise, or any money, property or securities to which it may be entitled, at law or in equity, derived as aforesaid,” &c. Comp. Stat., p. 2433, § 419.

In the act which provides for the two per cent, tax (Pamph. L. 1885, p. 310; Comp. Stat., p. 2444, § 457, above mentioned), which is the sole source of respondent’s income, except the fines belonging to the fire department and donations, there is an almost identical provision requiring the transfer of assets held by any persons for the relief, of indigent or disabled firemen t'o a duly incorporated firemen’s relief association when formed. It is found in section 7 of Pamph. L. 1885, p. 310.

It further appears by the agreed statement of facts that demand has been made by relator upon respondents for the transfer of such ‘funds, pursuant to such statutory requirement, but that such demand has not been complied with, and this writ is sought to compel such compliance.

It has very recently been adjudicated in a mandamus proceeding that a similar transfer was legal. Pension Comm. v. Atlantic City Fire Department Pension Fund, 116 Atl. Rep. 271; affirmed, 121 Id. 781. In that ease, as in this, the respondents were trustees of a fund for foremen and their families, and the fund was derived in part from the same tax from which the fund in dispute in the present case was derived. The Supreme Court said that it was within the power of the legislature to direct that the funds of the respondent be turned over to the relator, finding that there was no vested interest in such funds by the beneficiaries thereof. The Court of Errors and Appeals, in affirming the judgment of the Supreme Court directing the issuance of a peremptory writ, held that the question of a vested interest in the fund was not in issue; that the only question involved was the change of one legislative trustee for another. That Is in substance the only issue presented on the application for a peremptory writ in this case, and, therefore, we are not now concerned with the contention of the respondents that the class and number of the beneficiaries of the Morristown fund has been enlarged by chapter 75 of Pamph. L. 1922, p. 143. As we have seen, the legislature, in 1869, established four trustees of a fund in the town of Morristown, for the relief of indigent and disabled firemen. In 1885, by identical provision in two separate statutes, it directed that upon the creation, organization or incorporation of a firemen’s relief association under the act of 1885, providing for such incorporation, any and all persons who were then trustees of funds for the relief of indigent and disabled firemen should transfer such funds to such new trustee, namely, the corporation there authorized.

The right of relalor is clear and a peremptory writ of mandamus will be allowed, with costs.


text:
    PHILIP J. CROWLEY, APPELLEE, v. PUBLIC SERVICE RAILWAY COMPANY, APPELLANT.
    Argued November term, 1923
    Decided March 12, 1924.
    Negligence — Trolley Car — injury to Passenger in Boarding Car— Debris Remaining From Repair Work at Point Where Car Stops to Receive Passengers May Be Negligence — Whether Passenger in Failing to Observe Condition of Street, Especially When Traffic Demands a Part of His Attention, is Guilty of Contributory Negligence, Proper Question for Jury.
    On appeal from the Hudson Circuit.
    For the appellant, Leonard J. Tynan.

    For the appellee, Alexander Simpson.

      Before Gummere, Chief Justice, and Justices Minturn and Black.
   Per Curiam.

The suit was instituted to recover damages for- an injury sustained by the plaintiff when about to board a car of the defendant company, at the comer of the boulevard and West Newark avenue, Jersey City. The damage was incurred by reason of the fact that at the point where plaintiff attempted to' get on the car the defendant had been repairing its tracks by tearing up the old ¡lavement adjacent to the tracks and putting down new pavement. In performing this work the defendant had left some loose cobblestones, which were either wholly or partially covered by sand, so disarranged that when the plaintiff stepped on one of the stones at the point where he was to take the car, the stone caused him to fall and the injury ensued. The proofs show that the car stopped at this point just before the accident happened,-so that the plaintiff practically was impliedly invited to board it,-and in his_ effort so to do, without any particular observation of the pavement, he fell and was injured. Upon a former trial the plaintiff obtained a verdict which, upon a rule to show cause (in which exceptions were reserved), was made absolute as to damages onfy. The case was again tried, another verdict for the plaintiff obtained, and this appeal was then taken. No question is raised as to the right of the defendant to take the appeal after the second trial, and, manifestly, no substantial objection can be urged thereto.

The substantial grounds upon which we are asked to reverse are failure to nonsuit and failure to direct a verdict at the first trial. To these refusals exceptions were taken and the exceptions were reserved in the rule to show cause. Both of these actions were properly refused, since there was evidence that the presence of the loose cobblestones covered with sand was the work of defendant’s employes, who were repairing the track at that point, and who thus created the danger which caused the injury. Schreiber v. Public Service Railway Co., 89 N. J. L. 183.

There was also evidence that the plaintiff signaled the car to stop at the corner, and that the car stopped there apparently for the purpose of taking the plaintiff on at that point, which was an implied invitation to him to board the car : and there was no proof offered by the defendant that it did not stop for that pur-pose.

Whether the plaintiff was guilty of contributory negligence in not observing the condition of the roadway at this point, particuarly in view of the fact that traffic conditions at that corner were such as to require the presence of a traffic officer, thus indicating a volume of travel which made it unsafe for one to continually keep his eyes on the ground when attempting to hoard the car, manifestly presented a jury question.

Our examination of the remaining grounds of appeal has convinced us that they are insubstantial.

The judgment will be affirmed.


author: Pee Curiam.

text:
    CHARLES H. TUBMAN. PLAINTIFF-APPELLEE, v. MATILDA HAEHNER. DEFENDANT-APPELLANT.
    Submitted December 3, 1923
    Decided March 12, 1924.
    Contracts — Execution—Evidence Showed That Defendant Did Not Sign Nor Was Her Name Signed With Her Consent, But Against Her Expressed Judgment, By Her Son, Who Did So at Request of Plaintiff — Nonsuit or Direction of Verdict Should Have Been Granted.
    On appeal from the Camden City District Court.
    Before Justices Trex chard, Parker and Campbell.
    For the plaintiff-appellee, Walter S. Keoivn.

    For the defendant-appellant, Wescott & Weaver.

   Pee Curiam.

'This was an action tried in the Camden City District Court. Plaintiff sought to recover damages for the breach of an alleged written contract for the construction of sidewalks in front of the lands of defendants. The cause was tried without a jury and as the testimony was not taken down stenographically, the facts are before us' by a “finding of facts” certified by the trial judge, from which it appears that at the trial the plaintiff offered in evidence a written paper, the alleged contract upon which he sued, and testified that one of the signatures thereto was his.

Defendant, being called as a witness by plaintiff, testified that the other signature to the paper was not hers and was not placed thereon by her authority or consent, and that she made no contract with the plaintiff, that her son, who wrote the contract, had a talk with her, but she did not sign the paper and would not consider doing so until her older son came home, and that the conversation with the younger son, who signed her name to the paper, took place before he so signed the paper.

This seems to have been all the proof of the alleged written contract made by the plaintiff.

A motion to nonsuit was made upon the ground that no contract had been proved.

The motion was denied and an exception taken.

We think from the facts as they are before us that there was no evidence of the execution of the alleged written agreement by the defendant and the motion for nonsuit should have been granted.

Nor was such evidence supplied upon defendant’s case. Defendant’s son, nineteen (19) years of age, testified that he wrote the contract at the dictation of the plaintiff; that he signed defendant’s name thereto because plaintiff told him to do so and he thought it proper so to do, although he had no authority from his mother, the defendant, so to do. A Mr. Adams, a carpenter, testified that while repairing a window in defendant’s home he heard plaintiff dictate the contract to defendant’s son and heard him tell the son to sign his mother’s name thereto; that defendant was not in the room at the time the paper was written and signed and did not authorize her son to place her name thereon.

A motion for direction of verdict was made 'upon the ground that no written contract binding upon defendant had been proved.

The motion was denied and an exception taken.

As we have already said, at the end of plaintiff’s case there was no evidence of a binding character, of the execution by defendant of the alleged written contract, and the request to nonsuit should have been granted. Such was also the situation at the end of the whole case. The proper proof of a written agreement was essential to the right of plaintiff to have a recovery. The only contract he alleged in his state of demand was a written contract, and so far as the proofs are before us, this is the only contract he undertook to establish.

In that he indubitably failed and the motion to direct a verdict in favor of the defendant should have been granted.

-Upon either or both grounds the judgment below must be and is reversed and a venire de novo awarded.


text:
    THE STATE OF NEW JERSEY, DEFENDANT IN ERROR, v. FRANK FLANNAGAN AND WILLIAM BRENNAN, PLAINTIFFS IN ERROR.
    Submitted December 3, 1923
    Decided March 12, 1924.
    Crimes — Robbery—Reyersal Asked on Account of Alleged Improper Examination of Defendant, Alleged Improper Comment of Trial Judge, &c. — No Prejudicial Error Found.
    On error to the Essex Comity Court- of Quarter Sessions.
    Before Justices Tren chard and Campbell.
    Eor the plaintiffs in error, Irving 17. Teefle.

    For the state, John O. Bigelow, prosecutor of the pleas.
   Per Curiam.

The defendants were convicted of robbery at the Essex County Quarter Sessions Court, and have sued out a writ of error. The matter is before us under both section 136 of the Criminal Procedure act and exceptions taken at the trial and sealed.

The matters urged as ground for reversal are: Remarks made by the trial judge and prosecutor during the selection of the jury; alleged improper cross-examination of the defendant Flannagan; refusal to direct a mistrial; alleged improper comment and questions by the trial judge; refusal of the trial judge to direct a verdict and that the verdict is against the weight of the evidence. An examination of these matters leads us to the conclusions that there was no prejudice or harmful error and that the verdict was not against the weight of the evidence.

The judgment of conviction is affirmed.


author: Per Ceeiam.

text:
    CECIL MacCOY AND GUY T. MacCOY, RELATORS, v. JOSEPH F. McCOY COMPANY, RESPONDENT.
    Submitted December 3, 1923
    Decided March 12, 1924.
    Corporations — Inspection of Books, Records, &c. — Case Follows Feick v. Hill Bread Co. — Writ Allowed.
    On application for mandamus.

    Before Justices Trenciiaed and Campbell.
    For the relators, Frank W. Hastings, Jr.

    For the respondent, Warren Dixon.

   Per Ceeiam.

This is an application for a writ of mandamus to compel respondent to accord to relators, with the assistance of counsel and accountants, an inspection and examination of the by-laws and minutes, books, papers, accounts and records of respondent.

We think the proofs fully warrant the awarding of the writ applied for.

The awarding of writs of mandamus in such cases is fully and satisfactorily expressed by the opinion of Mr. Justice Kalisch in this court in Feick v. Hill Bread Co., 91 N. J. L. 486.

A peremptory writ of mandamus may issue as prayed for, with costs.


text:
    ATLANTIC CITY SEWERAGE COMPANY, PROSECUTOR, v. BOARD OF PUBLIC UTILITY COMMISSIONERS, RESPONDENT.
    Submitted December 3, 1923
    Decided March 12, 1924.
    Public Utilities — Rate Making — Value Not Ascertained by Artificial Rules or Formulae — Reasonable Judgment Necessary— Prospective Earnings Proper Subject for Consideration.
    On certiorari.

    Before Justices Trenchard, Parker and Campbell.
    Eor the prosecutor, Joseph Thompson and John J. Treacy.

    For the respondent, Thomas Brown.

    Eor Atlantic City, L. Edward Herrmann.

   Per Curiam.

This is a certiorari to review the decision of the respondent on an application of the prosecutor for an increase of rates in Atlantic City.

Two reasons for reversal are argued by the counsel of prosecutor in the brief.

The first is that the finding of value of the plant at $1,600,000 is not correct and was arrived at by improper methods and upon erroneous principles, in that "there were only two estimates or appraisals of the present value of the property of the prosecutor, neither of which was taken by the board as the basis for fixing rates.”

The two estimates referred to are, the one spoken of as the board’s appraisal, showing a value at the time of hearing of $1,926,747, and the other, referred to as the company’s estimate, showing a value at time of hearing of $1,884,634.

But there were before the respondent other facts, figures and appraisals, with a range, inclusive of the appraisals above referred to, of from $985,914 to $1,926,747.

Undoubtedly, “what the company is entitled to demand in order that it may have just compensation is a fair return upon the reasonable value of the property at the time it is being used for the public.” And the value is of that time at which the fixing of tire rate or rates is being undertaken.

But it is equally true that “the ascertainment of that value is not controlled by artificial rules. It is not a matter of formulas, but there must be a reasonable judgment, having its basis in a proper consideration of all relevant facts.”

The decision of the respondent shows it to be the product of great care and consideration and we do not find that it arrived at the value of $1,600,000 unwarrantedly, nor by the application of any erroneous or illegal principles.

The second reason for reversal is that in fixing rates the respondent not only look into consideration the revenue to be derived from its present business, based upon actual connections with its sewerage system at the time of the closing of the hearing, but also took into consideration revenue that would probably be derived from additional connections that it was estimated would be made for a year thereafter.

In this respect we can find no error. The finding was made upon tangible and competent data and evidence and the fixing of rates was not for the immediate present only, but at least for a reasonable time in the future.

The order of the respondent' is affirmed, with costs.


text:
    THE STATE, EX REL. WALTER H. GRIFFITH, PROSECUTOR, v. THE COUNTY OF HUDSON, A BODY POLITIC AND CORPORATE OF THE STATE OF NEW JERSEY, RESPONDENT. THE STATE, EX REL. WALTER H. GRIFFITH, PROSECUTOR, v. THE COUNTY OF HUDSON, A BODY POLITIC AND CORPORATE OF THE STATE OF NEW JERSEY, RESPONDENT.
    Argued February 19, 1924
    Decided March 11, 1924.
    Public Offices — Mandamus to Compel Payment of Money Alleged Due from County — Treasurer Must Be Made Party to Proceedings — In This Class of Cases, Facts Must Be Undisputed and Legal Right Clear!- — Writ Denied.
    On rule to show cause why writs of mandamus should not issue.
    Before Justices Trenchard, Parker and Campbell.
    For the relator, James A. Hamil'l.

    For the respondent, John J. Fallon.

   Per Curiam.

The application is for writs of mandamus requiring the county of Hudson to make payment of two claims for money said to be owing to the relator from the county. One claim is for $2,364.16 for alleged - service rendered and expenses incurred on account of furnishing men for the purpose of serving warrants in connection with an election in Hoboken, May 13th, 1919. The other is for alleged services rendered and expenses incurred on account of raids made on gamblers at Hoboken and Jersey City, and amounts to $405.07. The application for the mandamus is based upon the statute making it the duty of the prosecutor of the pleas to use diligence for the detection, arrest, indictment and conviction of offenders against the laws and providing that all necessary expenses incurred thereby, certified to and approved under his hand by a judge of the Court of Oj'er and Terminer or the judge of the Court of Quarter Sessions for any county, shall be paid by the board of chosen freeholders thereof. 2 Comp. Stat., p. 1850, § 95.

Depositions were taken in pursuance of these rules to show cause, and the original bills were produced from some county files, and it sufficiently appears that each of them was endorsed as follows: “Approved, Pierre P. Garven v. Prosecutor of the Pleas; approved, Richard Doherty, J.” It further appears, however, that the signature, Pierre P. Garven, as prosecutor, was not placed thereon by the prosecutor himself. but by the assistant prosecutor, who indicated that fact by his initial, and who deposed that the signature was his.

We think that a writ of mandamus in each of these eases should be denied, primarily, because the county treasurer is not a party to the proceeding. It was distinctly held in this court in the case of Murray v. Hudson County, 117 Atl. Rep. 254; 97 N. J. L. 74, that the writ should not be directed to the county, hut to- the disbursing officer. This decision we naturally deem controlling upon and dispositive of the present application.

It might be proper to add that if there were no such difficulty in the procedure, we hardly think that the relator has made out a case entitling him to a writ of mandamus. In this class of cases, the rule is fundamental that the facts should be undisputed and the legal right clear. While it appears in this case that the two hills were certified by the assistant prosecutor apparently in the course of his routine duty, and thereupon were certified by a judge of the Common Pleas, it further appears that the assistant prosecutor had little or no personal knowledge of the services performed, that he had told the relator that he had nothing to do with the bills; and while the prosecutor himself was not produced as a witness at the taking of these depositions because of his absence from the state, it was specifically stipulated at the •argument that if the prosecutor were produced, he would testify that at no time did he as prosecutor employ the relator to do any work for the county of Hudson, nor did he at any time authorize anyone to approve the claims of said relator. Erom the posture of the evidence, it would seem to be clearly improper for the court to award a writ. ’

It further appears that ordinary actions at law have been 'brought and are pending against the county based upon these claims. While we have not considered the pendency of these actions in connection with the question whether a writ of mandamus should be allowed or denied, in view of the doubt thrown on the m'atter by the testimony taken "under these depositions, it may, perhaps, be as well for the relator to proceed with these actions and, if he obtains judgment, he would be in a better position to apply again for writs of mandamus to enforce the collection of such judgment.

The rules to show cause are discharged, with costs.


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    ALEXANDER WISNOWSKI, PROSECUTOR, v. THE MAYOR AND COUNCIL OF THE BOROUGH OF CARTERET ET AL., RESPONDENTS.
    Submitted December 3, 1923
    Decided March 12, 1924.
    Public Offices — Policeman!—Dismissal for Violation of Rules— Validity of Rules Sustained — Fairness of Trial Sustained— Evidence Sufficient to Justify Action.
    On certiorari.

    Before Justices Teenohakd and Campbell.
    For 'the prosecutor, Thomas Brown.

    For the respondents, Emil Stremlau.

   Per Curiam.

This writ of certiorari was allowed to review the proceedings of the mayor and council of the borough of Carteret (formerly borough of Roosevelt) in the trial of charges against the prosecutor, a member of the police force of said borough, and his conviction thereunder and dismissal from the department.

The charges preferred against the prosecutor were: Violation of rule 9 of the general rules of the police department of the borough of Carteret, as follows:

1. On March 29th, 1923, he failed to report for duty from eight p. m. to five A. M., being his hours for duty on that day.

2. On April 15th, 1923, he failed to report for duty from five p. m. to one a. m., being his hours for duty on that day.

3. On April 16th, 1923, he failed to report for duty from seven a. m. to five p. mv being his hours for duty on that day.

And that said prosecutor was not excused from duty on the aforesaid dates by the chief of police.

A trial under these charges was had on April 27th, 1923, of which prosecutor had written notice under date of April 21st, 1923, and appeared at the time and place fixed, admitted he had been served with a copy of the charges on April 21st, 1923 ; pleaded guilty to the charges of March 29th and April 15th, and contended that as to the charge of April 16th, 1923, he being sick, his wife went to police headquarters for the purpose of so reporting him.

He was found guilty on all three charges and by resolution of the borough council, adopted April 27th, 1923, he was dismissed from the police force.

The prosecutor assigns numerous reasons why these proceedings and the judgment of dismissal should be set aside; but in his brief confines himself to three, and these are all we will deal with.

First — The rules and regulations governing the police department of the borough of Carteret are invalid. The specific contention thereunder is that the rules and regulations must be prescribed by ordinance. We have no difficulty in so holding; but the record sent up under this writ shows specific rules and regulations winch appear to have been in existence in 1915. It is true that the ordinance sent up under the writ entitled “An ordinance to establish, equip and regulate a police department in the borough of Eoosevelt, to adopt rules for its government and fix and enforce penalties for the violation of said rules,” adopted April 19th, 1920, does not contain any rules and regulations; but it refers in sections 4 and 10 thereto and the language of such sections, particularly section 10, is sufficient to include any rules and regulations then in existence. The presumption is that the rules and regulations of 1915 were properly adopted and there is nothing before us to show anything to the contrary. Furthermore, Ihe undisputed evidence is that prosecutor, at the time of his appointment, was furnished with a copy of such rules and regulations, and at the trial made no objection of any kind, either as to the existence of the rules or their adoption, and we think he should not be heard now, after admission of guilt, trial and conviction, to say that such rules and regulations were not valid enactments of the borough.

Second — The prosecutor was not afforded a fair trial under the Tenure of Office act. We find nothing substantial in this objection; but, on the contrary, feel that prosecutor was afforded and had a fair trial.

Third — The evidence affords no rational basis for the judgment against the prosecutor. Herein also we find nothing substantial; but also decidedly to the contrary, to find the evidence abundantly and overwhelmingly sufficient to justify the finding and judgment of dismissal.

The proceedings and judgment of dismissal will be affirmed, with eos;ts.


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    STATE OF NEW JERSEY, EX REL. JOSEPH A. CONWAY, RELATOR, v. WILLIAM J. DEVEREUX ET AL., THE CIVIL SERVICE COMMISSION OF THE STATE OF NEW JERSEY, RESPONDENTS.
    Submitted December 3, 1923
    Decided March 12, 1924.
    Public Offices — Constables Acting as Sergeant-at-Arms of District Courts in First-Class Counties — Compensation Provided by L. 1923, c. 203.
    On application for mandamus.

    Before Justices Campbell and Tbenchard.
    For the relator, William, F. Burke.

    For the respondents, Thomas F. McCran, attorney-general.
   Pee Curiam.

This is a rule to show cause why a writ of mandamus should not issue.

The relator is a constable of the county of Hudson attached to the District Court of the first judicial district of that county, and is the acting sergeant-at-arms of that court.

Under chapter 303 (Pamph. L. 1923) the salary of the sergeants-at-arms of District Courts, in counties of the class of Hudson, is $1,500 per year.

Such act further provides: "That if there are any constables in any of the aforesaid counties now acting as such sergeant-at-arms, they shall receive the same compensation as herein provided for, for sergeants-at-arms. Said sums to he paid semi-monthly, by the county treasurer of any county in which the judicial district may he established.”

From the stipulated facts relator is entitled to the benefit of the foregoing statute, and on August 1st, 1933, presented to respondents a certificate of his appointment as constable acting as sergeant-at-arms of the aforesaid District Court or payroll in the form required by respondents showing the salary of $63.50 for the term from July 15th, 1923, to August 1st, 1923, and' requested respondents to certify the said salary and direct the county treasurer of Hudson county to pay the same. This respondents refused to do, and hence this application for a writ of mandamus to compel such certification.

We think relator is clearly entitled to a peremptory writ of mandamus, and such writ may therefore be issued.


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    FLORA McKNIGHT PIERCE, EXECUTRIX AND SOLE BENEFICIARY UNDER THE LAST WILL OF WILLIAM L. PIERCE, PROSECUTRIX, v. NEWTON A. K. BUGBEE, COMPTROLLER OF THE TREASURY OF THE STATE OF NEW JERSEY, RESPONDENT.
    Submitted December 3, 1923
    Decided March 12, 1924.
    Inheritance Tax — Transfers Made in Contemplation of Death— Transfer Made by Husband to Wife While III and Without Consideration — Income Used For Benefit of Husband and Family Until After His Death and Then Divided Among Wife and Children — Held to Have Been Taxable.
    On certiorari, &e.
    Before Justices Trenchard and Campbell.
    Por the prosecutrix, Robert Carey, Harry Lane and William L. Rae.

    Por the respondent, Thomas F. McCran, attorney-general, and Francis H. McGee.

   Per Curiam.

This is a certiorari to review a transfer inheritance tax assessed against the estate of William L. Pierce, deceased.

Five reasons are assigned why the assessment should be set aside. Only three of these are argued, viz.:

1. The personal estate appraised at $427,851.91 by the state, comptroller did not belong to the said William L. Pierce at the time of this decease, but had been transferred by him to Flora McKnight Pierce, on August 10th and 11th, 1918.

2. Said transfer hv decedent to the said Flora McKnight Pierce was not made in contemplation of death.

3. The said personal property listed and appraised by the said comptroller belonged absolutely to the said Flora Me-Knight Pierce, and should not have been taxed as a part of the estate of decedent.

The facts appear to be that the decedent, William L. Pierce, had been a nervous invalid for about eight years prior to his death, which occurred August 31st, 1919. He had delusions and had the idea that he was losing his mentality and the power to use his right hand. On August 10th, 1918, while in a sanitarium in Connecticut, he transferred, without consideration, to his wife, Flora McKnight Pierce, bonds and other securities of a value of upward of $400,000.

From the date of this transfer until the death of her husband the prosecutrix collected the income upon these securities and used the same for the maintenance and support of her husband and sons, and after the death of her husband divided the total corpus of the securities amongst herself and four sons, each taking a one-fifth part.

The return made by prosecutrix, as executrix of William L. Pierce, deceased, to the comptroller, under date of June loth, 1920, did not include the securities transferred to her on August 10th, 1918.

, The examination conducted by the comptroller took place on November 18th, 1921, and December 14th, 1921. The report thereof was submitted January 29th, 1923. A return, including the securities in question, was filed and verified by prosecutrix on January 19th, 1923, and the assessment under review, amounting to $10,278.48, made January 30th, 1923.

The statute in force at the time of the death of William L. Pierce, on August 31st, 1919, was section 148 (1st Supp. Comp. Stat., p. 1538), which provided for the imposing of a tax:

“3. When the transfer is of property made by a resident * * * by deed, grant, bargain, sale or gift made in contemplation of the death of the grantor, vendor or donor, or intended to take effect for possession or enjoyment at or after such death.”

We think the evidence fully warrants a finding that the transfer of securities in question was made in contemplation of death, or at the least “intended to take effect for possession or enjoyment at or after such death.”

Such a conclusion is not out of harmony with the will of the testator of prosecutrix, nor with her treatment of the estate and securities as turned over by him to her on August 10th, 1918, nor with her further very apparent understanding of such transfer as shown by testimony that it was Mr. Pierce’s idea to let her keep this property until he recovered his health, and had the latter happened she certainly would have offered to return the propert}1'.

We think it unnecessary, in view of the conclusion we have come to upon the facts in this case, to determine whether or not the presumption raised by the statute (Pamph. L. 1922, p. 293) could legally have been applied. Such act was approved March 11th, 1922; decedent died August 31st, 1919; the transfer to prosecutrix was made August 10th, 1918, and the assessment of the tax in question having been made January 30th, 1923.

The tax assessed by the comptroller and brought up by this writ will be affirmed, with costs.


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    WALTER F. SUMMERTON, RELATOR, v. CITY OF ELIZABETH AND WILLIAM D. NOLAN ET AL., COMPRISING THE CIVIL SERVICE COMMISSION, RESPONDENTS.
    Submitted December 3, 1923
    Decided March 12, 1924.
    Public Officers — Superintendent of Alms House' — Appointment Contrary to L. 1920, c. 298, and L. 1922, c. 52, Relating to Veterans — Constitutionality of Acts Sustained.
    On application for mandamus.

    Before Justices Trenchard and Campbell.
    For the relator, Stamler, Stamler & Koestler.

    For the respondents, Thomas F. Medran, attorney-general.
    For the city of Elizabeth, Joseph T. Hague.

   Per Curiam.

This is an application for a mandamus to compel the civil service commission to certify for payment by the city of Elizabeth the salary or compensation of relator as superintendent of the almshouse of Elizabeth.

Belator and others submitted themselves to an examination conducted by the civil service commission and he and two. others, the latter being honorably discharged soldiers, were certified to the city of Elizabeth as being eligible for appointment.

The relator was appointed. The civil service commission contends that the appointment should have gone to one of the honorable discharged soldiers, certified, and, therefore, decline to give the certificate necessary to be had in order to pay relator his salary. Eive reasons are assigned by relator why the writ of mandamus should be awarded to him.

1. That the Civil Service act does not apply to the position in question. We are of the opinion that it does.

'2. That chapter 298 (Pamph. L. 1920) is unconstitutional because it violates the fourteenth amendment to the constitution of the United States. We think the act in question has no such infirmity.

3. That chapter 298 (Pamph. L. 1920) is unconstitutional because it violates article 4, § 7, ¶ 4 of the state constitution. We hold that this is not so.

4, That section 21 of the original Civil Service act of 1908 is not mandatory. With this we agree; but chapter 298 (Pamph. L. 1920), amending section 21, is mandatory.

That chapter 52 (Pamph. L. 1922) repeals chapter 298 (Pamph. L. 1920). Not so. the act of 1922 simply increases the rights and preferences of disabled veterans over civilians and honorably discharged, non-disabled veterans.

The application for the writ is therefore denied and the rule to show cause discharged, with costs.


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    ERIE RAILROAD COMPANY, PATERSON, NEWARK AND NEW YORK RAILROAD COMPANY AND THE NEWARK AND HUDSON RAILROAD COMPANY, PROSECUTORS, v. THE BOARD OF COMMISSIONERS OF THE CITY OF NEWARK, RESPONDENTS.
    Submitted December 3, 1923
    Decided March 12, 1924.
    Assessment of Benefits — Railroad Property Located More Than 1,200 Feet From the Street Opened, For Which Assessment Was Made — Assessment Can Be Only For Actual Benefits Conferred.
    On certiorari.

    Before Justices Trenchard and Campbell

      Eor the prosecutors, Parker, Emery & Van Riper.

    For the respondents, Jerome T. Gongleton.

   Per Curiam.

This writ of certiorari brings up for review assessments for benefits against four plots of land of the prosecutors used for railroad purposes.

The improvement, for which the assessments were levied, was the opening of Crittenden street from Rowland street to Bloomfield avenue, in the city of Newark.

The improvement is upwards of twelve hundred feet from the land of prosecutors.

Five reasons are assigned by the prosecutors for setting aside the assessments. Two only are urged, namely:

1. The prosecutors’ property is used for railroad purposes and derives no special benefit, for the uses to which it is devoted, from the opening of Crittenden street.

2. Even if there was any special benefit for railroad purposes, the assessment was excessive.

The rule of assessment to be applied to properties used for, and devoted to, railroad purposes, is that such lands may be assessed to the extent only of actual benefits conferred upon them for the public use to which they are devoted by the improvement under which the assessments are sought to be levied. Erie Railroad Co. v. Paterson, 72 N. J. L. 83; Lehigh Valley Railroad Co. v. Jersey City, 81 Id. 290; New York Bay Railroad Co. v. Newark, 82 Id. 591; Erie Railroad Co. v. Newark, 93 Id. 90.

We think no such benefit accrued to the lands in question, and if any did, then, as was said in Erie Railroad Co. v. Newark, supra, “the special benefit resulting from railroad use, if any, is problematical, and so remote as to be almost entirely the subject of conjecture.”

The assessments are therefore set aside, with costs.


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    DAVID H. BURNETT AND MARY E. BURNETT, HIS WIFE, PLAINTIFFS, v. JULIUS STOCKER, DEFENDANT. HELEN M. BURNETT, PLAINTIFF, v. JULIUS STOCKER, DEFENDANT.
    Submitted December 3, 1923
    Decided March 12, 1924.
    New Trial — Trial Judge Refused to Set Aside Verdict — Application For Rule Denied.
    On application fox rule to show cause.
    Before Justices Trenchard and Campbell.
    For the plaintiffs, Nathaniel C. Toms.

    For the defendant, McDermott, Enright & Carpenter.

   Per Curiam.

. This is an application for a rule to show cause why verdicts should not be set aside and new trials granted.

The causes were tried together at Morris County Circuit and resulted in verdicts in favor of the plaintiffs.

The trial judge refused to allow to defendant rules to show cause why these verdicts should not be set aside.

We fail to find any reasonably debatable reason calling for the review of these verdicts, and the application is therefore denied, with costs.


author: Per Gurtam.

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    KENNETH W. DALZELL, RELATOR, v. REINHOLD OSTERMAN. BUILDING INSPECTOR OF THE TOWNSHIP OF MAPLEWOOD, AND THE TOWNSHIP OF MAPLEWOOD, RESPONDENTS.
    Submitted December 3, 1923
    Decided March 12, 1924.
    Building Permits — Zoning Ordinances — Proper Requirements— Mandamus Issued.
    On application for mandamus.

    Before Justices Teen chard and Campbell.
    Eor the relator, Pitney. Hardin £ Skinner (Carl A. Feiclc, on the brief).
    For the respondents, Samuel D. Williams.

   Per Gurtam.

This is before the court on a rule to show cause why a writ of mandamus should not issue commanding the respondents to issue to the relator a building permit for the erection of a store and office building on premises situate at the northeast corner of Maplewood avenue and Depot place, in Maple-wood.

The granting of the writ is resisted on several grounds, but they may be summed up as follows:

1. That relator did not, in his application for the building permit, comply with the requirements of the building code.

2. That the contemplated building is in violation of the zoning ordinance, which prohibits structures for business purposes in the area or zone in which it is proposed to be erected.

3. That the building, if erected under the plans submitted, would be in violation of a building line ordinance.

The proofs show that relator had upon the premises in question a real estate and architect’s office and intended the erection of an addition providing for three stores.

The building code requires that the application for a permit must be signed by the owner and be accompanied by the plans and specifications, and a fee for such permit paid or tendered.

The original application was made by the agent of relator, August 20t,h, 1923; was not signed by relator, and was not accompanied by specifications.- This application was properly rejected by the building inspector.

The second application was made October 9th, 1923, and seems to have been in proper compliance with the building code, but no fees were paid or tendered, and in that respect was irregular.

That the building proposed to be erected would be in violation of the zoning ordinance, is settled favorably to relator, in this court, in State, ex rel. Ignaciunas v. Risley, 121 Atl. Rep. 783.

The question of non-payment, or possible waiver of payment of fees under the second application for a permit, together with the contention that the building in question would violate a certain building line ordinance, makes proper the awarding of an alternative writ of mandamus only, and such writ may issue.


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    JEROME J. DUNN v. WILLIAM ARMBRUSTER.
    Decided March 24, 1924.
    Real Estate — Marketability of Title-Statute of 1922 Fixing Thirty Years of Uninterrupted Possession Vests Full and Complete Title.
    On defendant’s rule to show cause.
    Before Gummere, Chief Justice, and Justices Mtkturh and Black.
    Eor the rule, L. Edward Herrmann and Albert Moe.

      Contra, Jerome J. Dunn.

   Per Curiam.

This was an action for the breach of a contract for the sale of a piece of land in Hudson county, known as the Green-ville Scheutzen Park, by the terms of which the defendant contracted to sell to the plaintiff the property in question for $85,000. The plaintiff paid $1,500 as a deposit on the execution of the agreement and thereafter expended $125 in having the title searched. The search disclosed that on April 15th, 1872, one Elizabeth D. Baker, who was then the owner of the property, executed a conveyance thereof to one Joseph Godfrey,, and that her husband did not join in the conveyance, although he signed the deed. This fact, in the opinion of the plaintiff, made the title to the property unmarketable, and for this reason he refused to accept a tender of the deed and demanded back his deposit and also the moneys expended by him in the search of the property. The defendant having refused to comply with this demand 'he present action was brought.

It appeared that when the cause was moved for trial Mr. Herrmann, who was the attorney and counsel of the defendant, was not in court, being then actually engaged in the trial of a cause before the United States District Court, in which he represented' the board of public utility commissioners. This fact was represented to the trial judge and air adjournment was requested. The application having been opposed by counsel for the plaintiff, the trial judge, considering that, under all the circumstances which were disclosed, the plaintiff was entitled to move his case, refused the adjournment. Thereupon, a juiy having been drawn and sworn, the plaintiff proceeded to prove the facts above recited, and, the defendant not being represented at the trial, a motion to direct a verdict in favor of the plaintiff was then made and this motion was granted. On the following day the present rule was allowed to the attorney for the defendant, and we are now asked to make it absolute.

We agree with the view of the trial court that it was the duty of the attorney of the defendant, when ho found that it was impossible for him to be present on the day for which the ease had been set for trial, to promptly notify his adversary and the trial court and that the case ought not to have been adjourned except upon condition that the costs of the day incurred by the plaintiff were paid by the defendant. The defendant himself, however, was not responsible for the then existing conditions, and he ought not to be deprived of a valid defense by reason of this failure on the part of his attorney. That he has such a defense is at least probable. The amendment to our statute of limitations, passed in 1922 (Pamph. L., p. 315), declares that ‘"Thirty years’ actual possession of any lands, tenements or other real estate * * * uninterruptedly continued by occupancy, descent, conveyance or otherwise, in whatever wa.y or manner such possession might have commenced, or have been continued, shall vest a full and complete right and title in eveiy actual possessor or occupier of such lands,” &c. Assuming (as is asserted by defendant’s counsel) that the defendant and his predecessors in title have been in actual possession of the lands in question for more than thirty years last past under color of the-title attempted to be conveyed by the deed of April 15, 1872, the claim of the plaintiff is without legal merit. In this situation wo think the defendant should be permitted to establish that defense, if it exists; but, in order to entitle him to do so, he should be required to pay the costs incurred Ire the plaintiff at the trial of the cause.

The rule to show cause will be made absolute, upon condition that these costs he first paid.


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    MARGARET J. DeMOTT ET UX., v. WALTER E. KNOWLTON ET UX.
    Decided March 24, 1924.
    Negligence — Motor Vehicle Accident — Injury to Pedestrian. — Liability of Owner for Negligence of Wife — Evidence of Negligence in Defendant's Wife’s Testimony — No Different Degree of Care to be Used by Woman for That Required of Man.
    On appeal from the Bergen Circuit Court.
    Before Gummere, Chief Justice, and Justices Minturx and Black.
    For the appellants, Edwaul fi. MarMeij.

    For the respondents, Wendell J. Wright.

   Pee Curiam.

This suit was instituted to recover compensation for personal injuries received by Mrs. DeMott The case made by the plaintiffs ivas, that while Mrs. DeMott was walking along the sidewalk on Washington avenue, in the borough of Tenafly, she was run down and injured by an automobile owned by the defendant Walter E. Knowlton and driven by his wife. The trial resulted in a verdict in, favor of the plaintiffs; a rule to show cause was allowed, reserving exceptions, and the case is now before us on the exceptions reserved.

The first ground of reversal urged before us is that the trial court should have directed a nonsuit or ordered a verdict in favor of the defendant Walter E. Knowlton, because' of the fact that there was'no evidence that his wife was at the time of the accident acting as 'the agent and servant of her husband. We think this contention is unsound. There was proof that the car was purchased by him for the purpose of being used by the family for recreation and pleasure, for the enjoyment of Mrs. Knowlton and for the taking of the children out to give them sunshine and air. At the time of the accident Mrs. Knowlton had taken the car out, with the children in it, and had paid a visit to a friend, and was returning home when the accident occurred. These facts bring the ease within the doctrine laid down in Missell v. Hayes, 86 N. J. L. 348, and makes the question of agency one for the determination of the jury.

The next ground of reversal is that a verdict should have been directed in favor of the defendants because of the entire absence of proof of negligence on the part of Mrs. Knowlton, which was the producing cause of the accident. ' But this contention is based upon a misapprehension of fact. Mrs. Knowlton on her cross-examination was asked about a conversation which she had had with Mr. DeMott relating'to this accident, and this question was put to her: “Q. Do you remember telling him that it was all your fault?” "A. Surely, I think it was all my fault.” “Q. I see.” “A. How could I think it was Mrs. DeMott’s fault. Surely, it was all my fault. I took the blame entirely on myself.” With this admission in the case, it would have been clear error for the trial court to have directed a verdict in favor of the defendants upon the ground suggested.

Another ground of reversal is directed at the refusal to charge the following request: “Mrs. Knowlton was only required to use that degree of care that an ordinary, reasonable, prudent woman would use under similar circumstances.” The pith of this request seems to he that a different degree of care is required on the part of a woman from that which would be required on the part of a man. But this, of course, is not so. The law recognizes no difference between the degree of care to be used by a woman and that to .be used by a man under the same circumstances.

It is further urged that the trial court erred in refusing to charge certain other requests submitted by the defendants bearing upon the question of the negligence of Mrs. Knowlton. Most of those requests were charged in effect. Those that were not so charged .were properly refused.

Other reasons for reversal are specified in the grounds of appeal, Lnt are merely formally argned. They are manifestly without merit and do not justify discussion by us.


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    CRESCENT MANUFACTURING COMPANY v. JULIUS KLEMPNER.
    Decided March 24, 1924.
    New Trial — Newly Discovered Evidence — Such Evidence Musi Be of a Nature That it Was Not Reasonably Available at First Trial — What Books Are Competent Evidence to Establish Book Account.
    On defendant’s rule to show cause.
    Before Gum week, Ouieb' Justice, and Justices Musttuen and Black.
    For the rule. John Ij. Ileher and Aaron V. Dawes.

      Contra, Scammell & Besore.

   Per Curiam.

This was an action brought to recover on a book account for goods, wares and merchandise alleged to have -been sold by the plaintiff to the defendant. The defense was that a part of the goods covered by the account had never been delivered. The trial resulted in a verdict in favor of the plaintiff. Upon the allowance of this rule leave was granted to the defendant to take testimony upon a representation that such testimony was “newly-discovered evidence.”

The first ground upon which we are asked to make the present rule absolute is that the court improperly admitted in evidence the books of account of the plaintiff corporation, counsel claiming that these books-were not competent evidence because of the fact that certain memorandum slips or merchandise credits were not also produced. This fact, however, does not render the books incompetent as evidence (Oberg v. Breen, 50 N. J. L. 146), but merely goes to the credit to be given to them.

It is further contended that the verdict was against the weight of the evidence submitted on the trial. Our examination of the testimony in the cause satisfies us that this contention is without merit and that on the evidence then sub.mitted the finding of the jury for the full amount of the plaintiff’s claim was justified.

Lastly, it is argued that the evidence taken under the permission granted in the rule to show cause makes it plain that a considerable part of the plaintiff’s claim was without legal justification; in other words, that the defense set up in the answer was shown by this testimony to be true. The defendant, however, is not entitled to have this testimony considered under the present rule. A new trial will not be granted upon evidence alleged to be newly discovered, but. the existence of which could have been ascertained by the exercise of reasonable diligence before the ease was moved for trial. Servis v. Cooper, 33 N. J. L. 68; Dundee Mfg. Co. v. Van Riper, Id. 152. There has been no attempt to show in the present case that this so-called newly-discovered evidence was not available at the trial; that it could not have been readily discovered by the use of due diligence before the trial took place. On the contrary, a reading of it justifies the conclusion that the opposite was the fact. In this situation the court will not interfere with tlie verdict upon the ground now urged.

The rule to show cause will be discharged.


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    ALFRED EPSTEIN v. AMERICAN HAMMERED PISTON RING COMPANY.
    Decided March 24, 1924.
    Contracts — -Distributing Agent — Contract Denied — Defendant Not Having Assigned to Plaintiff Any Work, Last Year’s Business is Fair Basis for Fixing Per Centum Compensation— Proper Charge to Jury When Report of Referee is to go Before Jury.
    On defendant’s rule to show cause.
    Before Gummere, Chief Justice, and Justices Mixture and Black.
    For the rule, McCalter & English.

    Contra, FranTc E. Bradner.

   Pee Curiam.

This suit was hi ought to recover damages for the breach of an alleged contract made by the plaintiff with the vice president of the defendant company, by the terms of which he was to be employed as sole distributor of the defendant’s products in tlie State of New Jersey for one year, beginning on September 1st, 1919 — his compensation to be calculated on a percentage basis of sales made. The trial resulted in a verdict in favor of the plaintiff for $4,085.20. The defense was a denial of tlie making of any such contract by the vice president of the defendant company, although his authority to enter into it on behalf of the defendant was not questioned.

The first contention made before us¡ is that the verdict establishing the existence of the contract is against the weight of the evidence. Our examination of the proofs sent up on the return of the rule satisfies us that the finding of the jury upon this question was fully justified.

The next contention on the part of the defendant is that the court erroneously admitted in evidence a record of the defendant’s sale of its products in the State of New Jersey during the year preceding the term of the plaintiff’s employment as sole distributor. The plaintiff’s case was that, although he was ready to take up- the duties of his position on the first of SejDtember, 1919, in accordance with the contract, he was prevented from doing so by the defendant and was never permitted to engage in the employment. In this situation he was entitled to recover the compensation to which he was entitled under the contract, and, as that compensation was to be a percentage upon the moneys received from the sale of the product, the amount of sales made by the company during the preceding year afforded a basis for estimating the sales which might have been made during the period of his employment under normal conditions. We consider, therefore, that the overruling of the motion to exclude this testimony was proper.

Next, it is argued that the court erred in refusing to charge the following request: “Plaintiff has failed to prove any damages in this case.” It is enough to say in disposing of this contention that the request was not justified by the evidence -in the cause, which showed substantial loss sustained by the plaintiff, if the jury believed his testimony.

. It is further urged that, as this 'case was first tried before a referee and that this officer reported in favor of the defendant, the court should have charged the jury in compliance with the defendant’s request, that this report “is entitled to great weight in the consideration of the jury.” Our statute provides that the report of the referee shall be “prima facie evidence of all of the facts therein found and reported.” The trial judge so charged, but refused to go further and add the request of the defendant in this instruction. In the following this course, we think, he was clearly right. To say that because a party has made out-a prima facie case the jury must give its great weight in its consideration of the matters submitted for its determination is a novel proposition, and, we think, plainly without merit.

The last contention is that the verdict was excessive. We cannot concur in this view. The jury could have found, under the evidence, that the plaintiff would have made during the year as sole distributor approximately $6,500. They would have been justified in finding that his earnings in another business after the contract was broken approximated $3,100, and that the loss sustained by him, consequently, was about $3,400. This, with interest, is about the sum the jury awarded him.,

The rule to show cause will be discharged.


text:
    REBECCA LEVINE v. B. H. & S. AUTO WRECKERS, INCORPORATED.
    Decided March 24, 1924.
    Contracts — -Sale of Scrap — Rule to Show Cause Asked on Ground That Verdict was Not Justified by Proof — Evidence Considered and Rule Discharged.
    On defendant’s rule to show cause.
    Before Gumiegee, Citiet? Justice, and Justices Mintuen and Black.
    For the rule, Edward R. McGlynn.

      Contra, Gross & Gross.

   Per Curiam.

This was an. action for damages alleged to have been sustained by the plaintiff on the breach of a contract by the-defendant. By the terms of the contract, as the plaintiff claimed, the defendant agreed to sell to her a heap of scrap-iron, uncertain in quantity, at the rate of $5 per ton, to be delivered upon the promises of the defendant. The plaintiff claimed that in this heap of scrap there were approximately seventeen tons of cast-iron automobile heads and some eighteen tons of automobile springs. There was no dispute as to the fact of the contract for the sale of the scrap nor of the price of that scrap. The defendant, however, contended that the sale was conditioned upon immediate removal of the scrap from its premises, and that that condition had been broken, and that it was, therefore, justified in disposing of it to a third person, which it did. The defendant also contended that there was no sale of cast-iron automobile heads or of automobile springs. The trial in the cause resulted in a verdict for the plaintiff, the amount of the award being $1,085.41.

The only ground argued before us for making the present rule absolute is that the verdict cannot be justified by the proofs. The testimony on the part of the plaintiff was that there were some two hundred and fifty to three hundred and seventy-five tons of scrap, besides some thirty to thirty-five tons of automobile springs and heads. The defendant’s estimate of the number of tons of scrap was from seventy-five to ninety tons. Assuming that the jury rejected the plaintiff’s claim with relation to the automobile heads and automobile springs, they were then called upon to determine the number of tons in the heap of scrap-iron which was embraced in the contract of sale. The plaintiff’s low estimate of that quantity- was two hundred and fifty tons; the defendant’s low estimate was seventy-five tons. The unreliability of the estimates would seem to have been apparent to the jury, and they apparently took the mean between these two estimates, which would lie one hundred and sixty-two tons. The purchase price thereof was $5 per toil at ilie defendant’s yard. The market value of the scrap was to he determined, as both paities agreed, at the mill in Bethlehem, wheie the plaintiff intended to dispose of it. That value,’ delivered at Bethlehem, was admitted to be $15 ¡ser ton; hut before delivery the plaintiff was required to cut it in pioper sizes for use at the mill, and pay the cost thereof, and also the cost of caitage and freight. These expenses, taken all together, were, according to the testimony, approximately $4 per ton. This sum added to the purchase price, made the cost to the plaintiff at the place of delivery $9 per ton. The profit on the sale, therefore would have been the difference between that amount and the market value of $15 per ton at Bethlehem, namely, $0 per ton, or $972 for one hundred and sixty-two tons. It appeared in the evidence that the plaintiff had paid a deposit of $100 to bind the bargain. This, added to the profit above mentioned, makes a total of $1,072, which is practically the amount of the verdict. Apparently, the jury based its verdict on some such method of calculation as we have indicated and we cannot say that it was wrong in doing so.

The rule to show cause will be discharged.


text:
    JOHNSON PLUMBING AND HEATING COMPANY v. THE BERGENFIELD PRESS, INCORPORATED.
    Decided March 24, 1924.
    Contracts — Installing Heating Plant — Defendants Rule Asked on Ground of Refusal to Direct Verdict, and That Verdict was Both Against Weight of Evidence and was Excessive.
    Oil defendant’s rule to show cause.
    Before Guianans, Chief Justice, and Justices Mixture and Black.

      Eor the rule, Frank G. Turner.

      Conira, Morris Cohn.

   Per Curiam.

This suit was brought by the plaintiff to recover the contract price for installing a heating apparatus in the printing plant of the defendant, at Bergenfield, and for extra work done in connection therewith. The trial resulted in a verdict for the plaintiff for the full amount of its claim. We are now asked to set aside that verdict, because the court erroneously refused to direct a nonsuit, because it refused to direct a verdict in favor of the defendant, because the verdict is against the weight of the evidence, and because it is excessive.

The verdict now under review was rendered at a second trial of the cause. On the first trial, a rule to show cause having been allowed, this court made it absolute because it was against the weight of the evidence ns to one of the items comprised in the plaintiff’s claim, considering that in other respects the rule to show cause was without merit. The item which the jury allowed on the first trial and for which we set aside their verdict as against the weight of the evidence was for extra work, amounting to $606.72. The second trial resulted in a concurring verdict with relation to this item. In this situation we do not feel that we would be justified in interfering with the finding of the second jury in allowing this part of the plaintiff’s claim.

As to the other grounds upon which we are asked to make the rule absolute, it is sufficient to say that we considered them without merit when presented on the return of the first rule to show cause and see no reason to doubt the soundness of that conclusion.

The rule to show cause will bé discharged.


text:
    MARGARET RENAULT v. NEW YORK LIFE INSURANCE COMPANY.
    Decided March 24, 1924.
    Contracts — Life Insurance Policy — Alleged Error in Overruling Evidence and in Excluding Policy When Offered by Defendant — Rule Discharged.
    Oil defendant’s rule to show cause.
    Before Gummerk, Chief Justice, and Justices Minturn and Black.
    For the rule, Bourgeois & Coulomb.

      Contra, Clarence L. Cole.

   Per Curiam.

This action was brought to recover the amount claimed to be due on a policy issued by the defendant company upon the life of one Ale.xan.der Benault, his widow, the present plaintiff, being named therein as beneficiary. The trial resulted in a verdict for the plaintiff, and a rule to show cause was thereupon allowed to the defendant.

The first ground upon which we are asked to make the rule absolute is that the court improperly overruled certain questions asked of one Dr. Darnell, a witness called by the defendant. It had been made to appear from the testimony of this witness that the insured and bis wife called at his (the witness’s) office between the date of the application for the policy and the elate of the issuing of that instrument. The questions overruled all related to what occurred on the occasion of this visit by the insured and his wife, but the purpose for which the intended testimony was offered was not disclosed to the trial court. There was no suggestion that on the occasion of the visit the insured had consulted the doctor professionally, or had made any statement to him which were contradictory of any of the declarations contained in the application for insurance; and, in the absence of anything to show the materiality of the testimony, it was properly excluded. Moreover, there were no objections made to the rulings of the trial court; and, when no objections are taken thereto this court will not, as a usual thing, consider the propriety of the rulings. That we have the power to do so, of course, must be conceded, under our decided cases; but that power will not be exercised unless it is made very clear that the exclusion of the testimony produced legal injury to the prosecutor of the rule.

The next contention is that the court erroneously excluded the policy of insurance when offered by the defendant. The action of the trial court was based upon the failure of the defendant to properly prove the instrument, and it is conceded on behalf of the defendant that ordinarily this ruling would have been proper; but it is argued that, because the plaintiff had previously offered in evidence a photographic copy of the policy the instrument was thereby made competent as evidence. Assuming the soundness of this rather novel proposition, we do not find in it any reason for setting aside the present verdict, for the photographic copy of the policy having been submitted to the jury no harm could have come to the defendant by the exclusion of the original.

Another ground upon which we are asked to make the rule absolute is that the court erroneously excluded certain questions' put by defendant’s counsel to its assistant medical director. The questions were all of them directed at provisions in the policy, and the purpose of the questions was to obtain from the witness his opinion of the reasons why these provisions had been inserted therein. The mere statement of the situation, we think, demonstrates the incompetency of the offered testimony. The exclusion of the questions was perfectly proper.

Lastly, it is argued that the verdict m this case is against the weight of the evidence and is contrary to the charge, of the court. Our examination of the record satisfies us that tlie jury was entirely justified in its findings of fact and that in their findings they did not disregard any of the instructions delivered to them by the trial judge.

The rule to show cause will he discharged.


text:
    JAMES MOONEY v. ELIZABETH O’REILLY, EXECUTRIX, ETC.
    Decided March 24, 1924.
    Contracts — 'Services Rendered as Nurse — 'Objections to Questions to Witness and Alleged Excessive Award — Plaintiff’s Judgment Affirmed.
    On appeal from the Bergen Circuit Court.
    Before Gumlwere, Chief Justice, and Justices Mintcrx and Black.
    Eor the appellant, Thomas J. TIuckin.

    For the respondent, Edward A. Kenney.

   Pee Curiam.

This is an appeal from a judgment recovered by the plaintiff against Mrs. O’Reilly, as the executrix of the estate of Terrence O’Reilly, deceased. The suit was brought to recover for services rendered to the decedent during his lifetime by the plaintiff’s wife as a nurse. The trial resulted in a vrdiet for the plaintiff, and the defendant appeals.

The first ground of reversal is directed at the overruling of a question asked of T)r. M. J. .Sullivan, a witness produced by the plaintiff, and wlm was the family physician of the decedent for a number of. years prior to the latter’s death and up to the time of that occurrence. The question objected to was as follows: ‘Tn your opinion, doctor, will you give me a fair and reasonable value of the services rendered [by Mrs. Mooney] during the year beginning the early part of 1916 until December 6th, 1915?” The doctor had already testified that Mrs. Mooney had aided in the care of the patient during the period specified in the question. The ground of the objection was that there was not sufficient evidence as to the services rendered during that period to justify an opinion. An examination of the proofs sent up with the state of the case shows that this contention is without merit.

The only other ground of reversal is based upon the assertion that the damages awarded are excessive. But, as has been frequently declared by this court, this question cannot be raised upon appeal.

The judgment under review will be affirmed.


author: Katzenbach, J.

text:
    HENRY A. CIESLA, PLAINTIFF, v. VULCAN TOBACCO CORPORATION, DEFENDANT.
    Decided March 21, 1924.
    Contracts — Opening of Judgment at Request of Defendant's Trustee in Bankruptcy — Defendant Not Represented at Trial.
    On rule to show cause why a judgment should not be opened.
    For the application, Harvey F. Carr.

      Contra, Harold W. Bennett.

   The opinion of the court was delivered by '

Katzenbach, J.

In March, 1922, the plaintiff instituted a suit against the defendant to recover an amount claimed to be due him from the defendant for labor performed, build-mg materials furnished and salary and commissions earned while in the employ of the defendant. The defendant filed an answer denying that any money was due the plaintiff, and setting up that the defendant had paid the plaintiff in full for all work done and materials furnished the defendant by the plaintiff. The defendant also filed a counter-claim demanding payment of the value of tobacco, cigars, cigarettes and other merchandise alleged to have been appropriated by the plaintiff.

The case was placed upon the trial list at the April term, 1922, of the Camden Circuit. On April 16th, 1923, the plaintiff recovered a judgment for the sum of $1,639.47 damages and costs. No attorney appeared for the defendant at the trial. On May 28th, 1923, the defendant was adjudged a bankrupt by the District Court of the United States for the district of New Jersey. On September 28th, 1923, Mr. Walter R. Carroll, of Camden, was appointed a trustee in bankruptcy proceedings, and has duly qualified. Mr. Carrol] has presented his petition asking that the judgment he opened. It appears that a dividend of probably seventy-five per cent, will be paid by the trustee to the creditors of the defendant corporation. While the judgment of the plaintiff is not a preferred claim, having been recovered within four months of the institution of the bankruptcy proceedings, yet if ihe judgment is not opened the trustee will be obliged to pay to the defendant a dividend upon the amtount of the judgment.

Upon presentation of the petition a rule to show cause was allowed and leave given to both parties to take affidavits. Affidavits have been taken. I have examined them. From them it seems to me that it is at least a debatable question as to whether the amount claimed by the plaintiff is owing him. The defendant holds a number of receipts, signed by the plaintiff, which would cover a very considerable portion of the plaintiff’s claim. The plaintiff contends that these receipts were signed by him, but that he never received from the corporation the amount mentioned therein. This presents a question of fact for the determination of a jury.

The testimony also reveals the circumstances by which the 'defendant was not represented at the-trial. At the time of the trial the defendant was in dire financial straits. Its most material 'witness, its president, - was not available as a witness. The officers of - the company had apparently abandoned its service. The creditors were really the parties in, interest. In view of these facts, I have concluded that it is a proper case to allow the judgment to be opened. I will sign an order opening the judgment and permit the ease to be placed upo-n the list for trial at the next-term of the Camden Circuit.

The plaintiff was justified in taking judgment. The trustee, who will probably be substituted as the defendant in the action, must pay to the plaintiff the costs incurred in entering judgment, and the costs incurred by the plaintiff on this application..


author: Stickel, Jr., J.

text:
    Essex County Court of Common Pleas.
    Henry Lorenz, petitioner-appellant, v. Aluminum Goods Manufacturing Company, respondent-appellee.
    Workmen’s Compensation — Loss of Hand — Loss of Separate Fingers — Total Loss of Hand.
    On appeal from determination made by Workmen’s Compensation Bureau.

      Mr. Samuel Press, for the petitioner.

      Messrs. Edwards & Smith, for the respondent.
   Stickel, Jr., J.

Idle petitioner in an accident arising out of and in the course of his employment, and wh'cJi took place January 4th, 1921, lost the second, third and fourth fingers of his right hand entirely, all but one phalange of his first finger and the thumb of his left hand. There was also some slight testimony that there is an atrophy and loss of tone of the muscles of the right hand as the result of the amputation of the fingers.

The commissioner awarded compensation on the basis of an eighty-five per cent, loss of the right hand, and compensation, according to the schedule, for the loss of the thumb of the left hand.'

The petitioner appeals, contending that there was, in fact, an injury to both hands, or that the usefulness of each of the hands was impaired, and, therefore, that' compensation should have been awarded for a-partial or permanent injury to both hands.

It seems to me that the finding of the commissioner was; correct.

The statute in subdivision C, paragraph 11, provides for the loss of a thumb, fifty per cent, of daily wages during sixty weeks; for the loss of the index finger, the same percentage of daily wages during thirty-five weeks; the second finger, thirty weeks; third finger, twenty weeks, and fourth finger, fifteen weeks. It then provides that the loss of the first phalange of a thumb or a finger shall be considered equal to the loss of one-half of such thumb or finger, while the loss of more than one phalange shall be considered as a loss of the entire finger or thumb. Then follows this very significant language: “Providing, however, that in no case shall the-amount received for more than one finger exceed the amount provided in this schedule for the loss of a hand.”

This, it seems to me, clearly indicates the intention of the legislature to allow as for an injury to the hand where there is a loss of more than one finger, provided that in no case may such award or allowance exceed the amount of compensation provided in the schedule for the loss of a hand. The legislature apparently had in mind that the loss of a single finger could be compensated as for the loss of a finger, but that the loss of more than one finger might' involve something more than mere loss of fingers, and, consequently, permitted a latitude which is limited by the amount of compensation provided by the schedule for the loss of a hand.

In this ease the loss of the three fingers and all but a stump of the fourth, even aside from the atrophy of the muscles of the hand produced by such loss, certainly involves an injury to the hand, and in view of the testimony and the statute permitting it the award of compensation on the basis of an eightv-five per cent, loss of the hand seems to me to be entirely justified. Switchkard v. Arrow Motor Cartage Co., Ill., Ind., Bd., February 6th, 1915. cited in case note in 8 Neg. Comp. Cases, anno. 478, Kline v. A. J. Johnson & Sons Furniture Co. (the same industrial board), November 23d, 1914, cited in said case note; Blackford v. Green, 87 N. J. Law 359.

Rut to say that the left hand is injured or its usefulness impaired within the meaning of the statute by the loss of the left thumb alone, is to ignore the statutory schedule entirely.

When we speak of a hand we undoubtedly have in mind the fingers and the thumb, the ends of the hand, and if the .statute made no provision for compensation for loss of fingers and thumbs as such, compensation must be allowed for the loss of a thumb on the basis of an injury to the hand or the impairment of the use of that member.

But by the statute the hand, as we know it, is divided •and provisions made for the loss of an entire hand, and for the loss of part of it, the ends, the fingers and thumb. The legislature has not left to speculation what percentage of the .-award for the loss of a hand shall be allowed for the loss of •a thumb or a given finger but has determined it itself, fixed the value in compensation for the loss of such member itself.

And it is interesting to note that the allowances made for the loss of four fingers and a thumb total one hundred and •sixty weeks, while the compensation provided by the schedule for the loss of the whole hand only amounts to one hundred •and fifty weeks.

How, then, can the loss of a thumb be compensated for on the basis of an injury to the hand when the statute declares it shall he compensated for as the loss of a thumb and has fixed the value of such thumb in terms of compensation? Certainly, if the only injury suffered by petitioner had been the loss of his left thumb, the only possible award must have been that called for by the schedule for the loss of a thumb.

But the petitioner contends that having in the same accident suffered an injury to the right hand in the loss of almost four fingers thereof', the loss of the thumb of the left 'hand is no longer mere loss of a thumb compensable according to the fixed compensation value established by the statute, but has become a statutory injury to the hand member, a statutory impairment of the hand compensable under that clause of subdivision C of paragraph 11, which reads ras follows:

"In all lesser or other cases involving permanent loss, or where the usefulness of a member or any physical function is permanently impaired, the compensation shall be sixly-six and two-thirds per centum of daily wages, and the duration of the compensation shall bear such relation to the specific periods of time stated in-the above schedule as the disabilities bear to those produced by the injuries named in the schedule.”

I am unable to fiud any warrant for this view either in the statute itself or in the cases cited by the petitioner or in those I have examined. The cited clause relied upon is designed to provide for situations not covered by the schedule. It does not eliminate the schedule, it rather supplements it and includes those cases in which there is no actual loss of a member, but merely an impairment of the usefulness of the member or of some physical function. Eor instance, if instead of having lost his left thumb petitioner’s thumb had been paralyzed, the instant section would apply. There being no injury to the hand or to its usefulness other than that arising from the loss of the thumb, compensation must be according to the schedule for the loss of such member, namely, an allowance of sixty weeks’ compensation. Fountona v. American Rubber Manufacturing Co. of New Jersey, 39 N. J. L. J. 92; Barbour Flax Spinning Co. v. Hagerty, 85 N. J. Law 407; Bateman Manufacturing Co. v. Smith, 85 N. J. Law 409.


author: Buchanan-, Y. O.

text:
    In re estate of Charles E. W. Harvey, deceased.
    [Decided March 26th, 1924.]
    Taxes — Inheritance—Transfer of Property in Contemplation of Death — Transfers Where Grantor Retains Beneficial Interest Until Death.
    On final hearing.

      Mr. Andrew Foulds, Jr., for the appellant.

      Mr. Edward L. Eatzenbach, attorney general, for the respondent.
   Buchanan-, Y. O.

The executor of the estate of Charles B. W. Harvey appeals from the assessment of transfer tax by the comptroller.

Testator died July 9th, 1922, a resident of this state. In April, 1907, he had made an agreement with the Moravian Seminary, of Bethlehem, Pa., whereby he was, within” sixty days, to pay to the seminary $25,000 and convey to it also a certain residence property in Essex county. The seminary was to pay him five per cent, interest on the $25,000 during his life and lease the property to him, for his lifetime, rent free, for his own occupancy or to sublet for his own benefit, he to pay the taxes and upkeep.

This agreement was performed on both sides. The comptroller has assessed a tax in respect of the said $25,000, and in respect of the residence property, appraised at $19,000, as a gift or transfer to take effect at death. Appellant contends this was error; that the transfers took effect immediately in 1907.

Of course, as a matter of legal technicality, the actual transfers of title did take effect in 1907. The question to be determined, however, is what was the substance and effect of the entire transaction? As to the house, it-amounted to a conve3rance of the remainder, subject to a life estate in testator; it was a transfer intended to take effect in beneficial possession and enjoyment at testator’s death. Until testator’s death he himself retained the beneficial enjoyment of the property. So also with the $25,000. He retained the beneficial enjoyment of that during his lifetime, for by the terms of the agreement the donee was to pay_ him “interest” on that very sum of $25,000 during his life, at five per cent, (which is the generally accepted ordinary rate for safe investment income).

Appellant further contends that in any event the transfers in question are not taxable, because the statute in force in 1907 did not provide for the assessment of a tax thereon, the provisions in that behalf being enacted in 1922, shortly before testator’s' death. In view of Carter v. Bugbee, 91 N. J. Law 438; Id., 92 N. J. Law 390, and American Board, &c., v. Bugbee, 118 Atl. Rep. 700, that question cannot be considered as open for determination b3r this court.

The appeal must be dismissed.