text:
    FRANCIS CHILD, PROSECUTOR, v. BOARD OF COMMISSIONERS OF THE CITY OF NEWARK, NEW JERSEY; HOWARD L. HAINES AND H. L. H. HOLDING COMPANY, A CORPORATION, DEFENDANTS.
    Argued May 6, 1930
    Decided July 16, 1930.

      Before Justices Parker, Campbell and Bodine.
    Por the prosecutor, Child & Shipman.

    Por the defendant city of Newark, Frank A. Boettner and J. Harry Henegan.

    Por the defendants Howard L. Haines and H. L. H. Holding Company, Biker & Biker and Theodore McC. Marsh.

   Per Curiam.

A taxpayer seeks to review an ordinance of the city of Newark, ratifying the employment of the H. L. H. Holding Company as broker in leasing the Center and Farmers’ Market properties in that city, and fixing compensation for the services rendered. The premises were leased for fifty years at an aggregate rental of $20,000,000. Commissions amounting to $200,000 are payable in six annual installments as and when installments of rent are paid.

The lease is highly advantageous to the city. It provides a large revenue and relieves the city of heavy maintenance charges. The value of the brokers’ services is not questioned nor the reasonableness of their commissions. The validity of the action of the city is challenged on the ground that it may not employ brokers, and further that the ordinance is invalid.

The legislature (Pamph. L. 1928, p. 386), authorized first class cities, of which Newark is one, to lease municipal lands and buildings for fixed terms not exceeding fifty years. Pursuant to this authority the lease in question was procured through the activities of the H. L. H. Holding Company.

Under the “Home Rule act” under which Newark is governed (Pamph. L. 1917, pp. 319 et seq., by section 1 (c) of article 14, Pamph. L., pp. 352, 353; 2 Cum. Supp. Comp. Stat., p. 2145), authority is given to employ those persons necessary for the proper and efficient conduct of its affairs, and this power the legislature specifies (Pamph. L. 1917, art. 37, § 26, at p. 463) is to be construed most favorably to the municipality. Cities and municipal boards may employ and pay commissions to architects for public buildings. Carling v. Jersey City, 71 N. J. L. 154; Weber v. Atlantic City, 102 Id. 79. Special counsel may be employed for special purposes. Byrne v. Wildwood, 95 N. J. L. 287. Stenographers may be employed to take testimony. State, ex rel. Salmon v. Haynes, 50 N. J. L. 97. Auditors may be employed. Heston v. Atlantic City, 93 Id. 317.

It, therefore, seems that where a municipality has the power to lease lands it has the power to employ the necessary real estate brokers. That the city acted wisely, and that the brokers secured an excellent result is not questioned. Land which had caused a loss to the city was converted into a large source of revenue. The services rendered by the brokers were strikingly similar to those rendered by architects who take from their store of knowledge a design for a beautiful and useful building and produce, by reason of their skill and initiative, a productive and useful property.

The city employed the brokers without competitive bidding and such course was proper. Heston v. Atlantic City, supra. The services to be rendered were of such a character as not to require competitive bidding. Further, the interest of the city was served by the quality of the service rather than the cost thereof. Reade v. Asbury Park, 101 N. J. L. 319.

Section 6 of the Home Rule act as added by Pamph. L. 1918, p. 479, has no application to the situation before us. The brokerage commissions are to bo paid out of the rents as they are paid in the first six annual installments. They are payable out of the rentals and not otherwise, and are hence not to be met from city funds,

The writ will be denied.


source: Caselaw Access Project

author: Pee Cdeiam.

license: Public Domain

text:
    MITFORD C. MASSIE, PROSECUTOR, v. COURT OF COMMON PLEAS IN AND FOR THE COUNTY OF MONMOUTH, JOSEPH McDERMOTT, CLERK, AND FRANK L. LAMBERTSON, DEFENDANTS. FRANK L. LAMBERTSON, PROSECUTOR, v. COURT OF COMMON PLEAS IN AND FOR THE COUNTY OF MONMOUTH, JOSEPH McDERMOTT, CLERK, AND MITFORD C. MASSIE, DEFENDANTS.
    Argued May 6, 1930
    Decided July 16, 1930.
    Before Justices Pakkek, Campbell and Bodine.
    Por the prosecutor, Mitford 0. Massie and Arthur Lovell.

    Por the prosecutor, Frank L. Lambertson, Joseph Q. Paul and John Grimshaw.

   Pee Cdeiam.

Prank L. Lambertson was employed as a farm laborer by Mitford C. Massie. On October S^th, 1926, while he was so occupied, he was injured while driving a tractor which struck a stone and unseated him. When he 'regained his seat he struck the iron pommel in such a way as to cause abrasions of the buttocks which resulted in painful abscesses.

The workmen’s compensation bureau awarded compensation, but on appeal and cross-appeal to the Monmouth County Court of Common Pleas the percentage of disability allowed for was increased and the award for hospital and medical bills was disallowed. Both employer and employe seek a review here.

Lambertson’s petition for compensation was filed with the workmen’s compensation bureau January 28th, 1929, more than two years after his injuries were received.

Section 23 (h) of the Workmen’s Compensation act, as amended {Pamph. L. 1919, p. 214), provides as follows: “In ease of personal injury or death all claims for compensation on account thereof shall be forever barred unless a petition is filed in duplicate with the secretary of the workmen’s compensation bureau, at the state house, in Trenton, within one year after the date on which the accident occurred.”

At the hearing before the bureau, in the Common Pleas Court and here, this statute was urged as a bar to the action and there is no doubt that such would be the case (Lusczy v. Seaboard By-Products Co., 101 N. J. L. 170) were it not for a subsequent legislative enactment. Pamph. L. 1924, p. 401, is as follows:

“1. Upon the happening of any accident or the occurrence of any compensable occupational disease in any employment of labor in this state, report thereof shall be made as follows:

“Any employer carrying insurance as required by chapter 178 of the laws of 1917, shall, etc.” * * *

“2. Any employer not carrying compensation insurance shall make report of any accident or compensable occupational disease causing a disability extending beyond the waiting period prescribed by paragraph thirteen of the Workmen’s Compensation act, or causing any permanent injury. Such report shall be prepared and sent immediately upon the employer’s having knowledge of the disability or injury named above, and shall be made out in duplicate upon forms to be secured from the workmen’s compensation bureau. One copy shall be mailed to the above bureau and one copy kept on file by the employer. Within three weeks after the accident, or the obtaining of knowledge of compensable occupational disease, the employer operating under section 2 of the Compensation act shall send to the workmen’s compensation bureau a second report, containing a statement of wages and an agreement to care for the case according to the terms of the Compensation law.” * * *

“6. * * * Any employer or insurance carrier failing to make report as required by this act, shall in such instance be deprived of the defense provided in paragraph 23 (h) of the Workmen’s Compensation act, approved April fourth, one thousand nine hundred and eleven, as chapter 95 as amended by chapter 93, laws of 1919. In any such ease it shall be incumbent upon the employe or dependent to show that the employer had knowledge of the accident and resulting permanent injury or disability extending beyond the waiting period.”

This latter statute applies, first, to employers carrying insurance in accordance with the Workmen’s Compensation Insurance act. Pamph. L. 1917, p. 522. That act expressly does not apply to farmers. Secondly, the act applies to all employers not carrying insurance. They are required to make reports of accidents causing a disability beyond the waiting period of ten days prescribed under the Workmen’s Compensation act. Pamph. L. 1919, p. 208. Since farmers are not exempt from the liabilities imposed by the Workmen’s Compensation act (McGlynn v. Ellis, 99 N. J. L. 283), they are not excused from the making of reports as required by Pamph. L. 1924, p. 401, if they are to save to themselves the defense of section 23 (h) of the Compensation law.

Massie had knowledge of the accident on December 2d, 1926. This was nearly forty days after the accident and it is said that he could not then comply with the reporting act since the second report must be made three weeks after the accident, and since the first notice of the accident was more than two weeks after the second report, due compliance with the statute was impossible, and hence Massie was under no obligation in the premises. The legislative intent is very clearly expressed. It requires a report upon obtaining knowledge of the accident and a second report three weeks after the accident, or the obtaining of knowledge of compensable occupational disease. Certainly, the legislature did not require the employer to report that which he did not have knowledge of. Of course, knowledge of an accident is often immediate, but this is not always so. In the case of occupational disease, knowledge is not immediate. The words in the statute are not to be used in such a way as to defeat the legislative purpose. The legislature intended to place in one bureau all the data as to injuries sustained in cases where the employer does not carry compensation insurance. It is not every accident which must be reported, but only those accidents resulting in a disability extending beyond the waiting period. When the employer gains knowledge of such accident it is his duty to report if he would plead limitation. Franko v. Ohio Chemical Co., 150 Atl. Rep. 221.

The Accident Reporting act like the Workmen’s Compensation act, is a remedial law of prime importance and should be liberally construed. Jersey City v. Borst, 90 N. J. L. 454; Combination Rubber Co. v. Obser, 95 Id. 43; affirmed, 96 Id. 544; Fischer v. Tidewater Oil Co., 96 Id. 103; affirmed, 97 Id. 324.

The proofs that the employer had knowledge of the accident in early December of 1926, satisfied the bureau and the court below. There is no dispute that the injured employe returned to the farm the latter part of October and informed the foreman and the employer’s wife of the accident and of his injury. Later, while in the hospital, he sent for the foreman and told him just how the injuries occurred. There is no concealment on his part. Naturally, he assumed at first that his injury was slight, but he grew progressively worse. Hence, he did the best he could and early in December gave formal notice of the occurrence.

We think that the proofs sustain the court below in saying that if notice of the accident was not given within the thirty days that there was reasonable cause and excuse for not so giving it. The proofs do show that the employe did everything he could, and that the delay was due to the very nature of the injury.

There is no doubt that the evidence does show that the injuries arose out of and in the course of the employment. Such was the finding of the commission and of the court below.

The increase of the award by the Court of Common Pleas was justified by the evidence adduced. One physician testified to a ten per cent, disability; two others to a twenty-five per cent, disability. The testimony of both is credible and predicated upon a careful examination of the injured man. An award for a fifteen per cent, disability is within the bounds of a wise discretion.

The Accident Reporting act of 1924 is entitled: “An act requiring reports of accidents, reports of compensable occupational diseases, and compensation agreements to be made to the workmen’s compensation bureau and to insurance carriers.”

It is urged that the title is insufficient. The rule is settled in this state that the title of an act is a label and not an index. We do not think the Accident Reporting act is supplemental to or an amendment of the Workmen’s Compensation act. It is an act to require reports of accidents and casting certain burdens upon those who fail to comply with it. It is not an act like the one under review in Bryant v. Lindsay, 94 N. J. L. 357; 96 Id. 268.

Clearly, there was no basis for the allowance for medical expenses and hospital bills. Hence, the disallowance of these items by the court below was proper. That court said: “There was a time when the employer, through the foreman, was chargeable with knowledge that the employe Avas home sick in bed and in considerable pain. Although the foreman knew of the injury and the employer was told, nevertheless, the extent of the injury became known only gradually, and I do not see how the emplojrer could have been charged with knowledge that the medical treatment taken could, or did, become necessary, and so we cannot say that the employer neglected to provide it.”

The judgment below will be affirmed.


author: Pee Curiam.

text:
    GODFRIED GUTBRODT, BY HIS NEXT FRIEND, CHARLES GUTBRODT, CHARLES GUTBRODT AND ANNIE GUTBRODT, PLAINTIFFS, v. WILLIAM G. WHERRY, DEFENDANT.
    Submitted January term, 1930
    Decided July 17, 1930.
    Before Justices Teenchard, Lloyd and Case.
    Por the rule, Turner <& 8tatter.

      Contra, William F. McGlosTcey.

   Pee Curiam.

Application for a rule for new trial having been made to the Circuit Court judge who tried the case and refused, the defendant makes a like application to this court, urging as grounds therefor that the verdicts were against the weight of the evidence on the liability of the defendant, that they were excessive in amount, and that trial errors were committed in the conduct of the case.

The verdicts, $30,000 in favor of Annie Gutbrodt, the woman plaintiff, and $5,000 in favor of Godfried Gutbrodt, a child ten years of age, were awarded for personal injuries received in an automobile collision between the car in which they were riding and the car of the defendant.

While the verdict in favor of Mrs. Gutbrodt is large, we cannot say that it was more than was fairly justified by the proofs. The injuries to Mrs. Gutbrodt, as proved, consisted of a broken arm, injuries to the neck which left a large scar, inability to rest, sleeplessness and what was described by the physicians as a double sight which causes her to stagger in walking. Mentally she is left in a weakened condition with loss of memory and is described as unfit to take her place in society or to become a mother. Such a condition, if believed by the jury to exist, presented a serious case of physical impairment and mental disturbance which were not improperly appraised as represented in the verdict.

The verdict in favor of the child was justified by the proofs. The proofs established the loss of a number of teeth and a broken jaw, which caused a distortion of the face, changing his physical appearance. We cannot say that $5,000 was-excessive.

On the question of liability the case was clearly one for the jury and on the evidence produced the jury’s finding should not be disturbed. It was shown that the parties were-driving in opposite directions along the Lincoln Highway between Lawreneeville and Princeton. A collision occurred due, it was claimed, to the defendant swerving his car from its proper side of the highway to the side on which plaintiffs, were proceeding. The facts themselves and the proof to-sustain them were peculiarly jury questions, and we cannot say that the result reached was unjustified.

The remaining grounds consist of alleged trial errors and call for no special mention. Our examination leads us to-the view that none of them are substantial.

It would serve no useful purpose to grant a rule and further extend litigation. The application is therefore denied..


author: Pee Cubiam.

text:
    ELIZABETH M. HAYES, PROSECUTRIX, v. CITY OF ATLANTIC CITY, RESPONDENT.
    Argued January term, 1930
    Decided July 17, 1930.
    Before Justices Tbenciiabd, Lloyd and Case.
    For the prosecutrix, Cole & Cole.

    For the respondent, Joseph B. Perskie.

   Pee Cubiam.

This is a writ of certiorari issued at the instance of Elizabeth M. Ilayes to test the validity of her dismissal from the position held by her in the Atlantic City police department. This is her record: In January, 1926, the director of public safety, being then also mayor of the city, notified the city comptroller that the prosecutrix had been appointed as a stenographer in the detective bureau and directed that she be placed on the payroll. On January 11th, the chief of police wrote to the comptroller confirming the letter of the mayor. On March 3d following, the chief of police wrote further to the comptroller as follows: “This is to notify you that Elizabeth M. Hayes has been appointed as a police woman as of March 1st, 1926, salary to start at $1,500 a year.” Her name was then placed on the police payroll and her salary was paid and increased from time to time as the salaries of the police were increased. There was also deducted two per cent, semi-monthly from her salary for the police pension fund, provided for by chapter 299 of the laws of 1906. This appears to be the whole record upon which is based her claim for the intervention of the court to set aside her dismissal.

We incline to think that the writ should be dismissed. The appointing power was under the city ordinance and the law in the director of public safety. The chief of police was without such authority. The only semblance of right that the prosecutrix has to hold office is under the appointment of January 6th whereby she became a stenographer in the department, and this did not entitle her to the status of a police woman.

It is contended that the ease of Campbell v. Brennan,, 6 N. J. Adv. R. 1791, interpreting chapter 212 of the laws of 1920, is sufficient to give the prosecutrix status. This act provides that “in cities other than those of the first class, clerks of the bureau of detectives, or detective department having charge of the filing and docketing of police records of said bureau, and clerks or secretaries to the chief of police, shall be members of the police force of such city.” There was nothing to indicate that the prosecutrix comes within either classification. She is in the first place a stenographer, and not a clerk, and certainly not a clerk having charge of the docketing and filing of police records; nor was she a clerk or secretary to the chief of police. She is, therefore, not aided by the act, and not being protected by any statute granting tenure of office, we cannot say that the municipal action in dispensing with her services was unlawful.

The writ is accordingly dismissed, with costs.


author: Mathews, J.

text:
    First Judicial District of Burlington County.
    MINNIE IANNUZZI, BY HER NEXT FRIEND, PIETRO IANNUZZI, PLAINTIFF, v. H. V. BISHOP, DEFENDANT.
    Decided July 16, 1930.
    For the plaintiff, Daniel Lichienthal.

    For the defendant, Bennett Ciarle, of Kenworthy Ciarle.

   Mathews, J.

This is a suit brought by the plaintiff by her next friend to recover damages done to her property by reason of the negligence of the defendant. The plaintiff’s testimony upon the question of liability showed the following facts:

On or about the 12th day of November, 1929, the defendant’s automobile truck, after the sound of a crash, was discovered on the front porch of the plaintiff’s house. When seen by Pietro Iannuzzi, the husband and next friend of the plaintiff, on the evening of that date, the porch had one of the brackets at the top of the posts knocked down and another one cracked. One of the porch posts was broken on one side. His testimony was that the porch is about twelve feet hack from the sidewalk and that the hedge is about a foot wide, that three or four feet of the hedge was down, some of it. torn up by the roots and some of it with the limbs broken; that the hedge was about four and a half to five feet high and had been there since he took possession of the property. He also testified that the curb along Bridgeboro street; in Riverside, which is the street in front of the plaintiff’s property, was about eight inches to a foot high. There is further testimony by another witness that he heard the crash and came out and saw the defendant’s truck up on the porch with one wheel against the door; that the porch railing was broken; that the hedge was uprooted and broken in a space about six feet wide.

. The balance of the plaintiff’s testimony was with regard to the damages done.

The defendant put in no testimony whatsoever, except as to the amount of damages.

The proof of defendant’s ownership of the truck was not very strong, but there was sufficient from which such fact could be found.

The crucial point of the case is whether under these circumstances the doctrine of res ipsa loquitur applies. Counsel on neither side has been able to submit any direct authority in point one way or the other in this state, and the court has been able to find none.

There are many cases applying the doctrine, so that it unquestionably exists in New Jersey, and the problem is whether it, as laid down, applies to the facts in this particular case.

In Mumma v. Easton, &c., Railroad Co., 73 N. J. L. 653, the doctrine was applied to a situation where-the plaintiff was a passenger in a horse and carriage passing across a highway bridge over the defendant’s railroad tracks. At the time there was an engine of the defendant company with no cars attached standing beneath the bridge. As the plaintiff was proceeding over the bridge, as aforesaid the engineer suddenly blew the whistle and allowed a quantity of steam to escape from the engine, which came up through the bridge enveloping the horse and carriage. The horse became frightened at the whistle and the steam, ran away and the plaintiff was thrown out of the carriage and injured. In this ease the principle of the doctrine was laid down as follows: “This principle is that when through any instrumentality or agency under the management and control of the defendant or his servants there is an occurrence, injurious to the plaintiff, which, in the ordinary course of things, would not take place if the person in control were exercising due care, the occurrence itself, in the absence of explanation by the defendant, affords prima facie evidence that there was want of due care.

This statement of principle has been followed in several other cases in this state, to wit: Rapp v. Butler, &c., 103 N. J. L. 512: Taylor v. Berner, 7 N. J. Mis. R. 597 (where the principle is applied to the explosion of a bottle of vichy which had been filled by the defendant); National Sheet Metal Roofing Co. v. New York Telephone Co., 5 Id. 503.

I have had some difficulty in reconciling some of these cases with regard to the question of whether or not the case should be submitted to the jury, but that question does not need to be considered here, there having been no motion for a direction by the plaintiff. All these cases recognize the application of the doctrine and generally follow the principle as laid down in Mumma v. Easton, &c., Railroad Co., supra.

It may quite well be, as contended by the defendant although he cites no authority in support thereof, that the mere collision of an automobile with an object, standing or otherwise on the highway, would not be sufficient for application of the doctrine. But that is not the situation here. The proofs in this case establish unquestionably that there was am occurrence which was injurious to the plaintiff, that that occurrence was due to the fact that an automobile truck belonging to the defendant wandered up on the plaintiff’s front; porch. It seems to me that there could be no clearer occurrence which, in the ordinary course of things, would not take place if the person in control were exercising due care. Certainly an automobile on a highway in the control of a person would not perform these playful antics if such person in control were exercising due care, in the ordinary course' of things. It may have been that the mechanism on the truck broke through no, fault of the defendant, but this, of course, does not happen “in the ordinary course of things,” and it seems to me that that phrase used by the court means just this. If that, or some other fact not involving negligence on the part of the defendant was the actual cause of the accident, it seems to me that that would be an extraordinary situation,' because it is a matter of common knowledge that automobiles and trucks as they are made to-day do not ordinarily leave the highway in such a manner, and, if they do, it is the extraordinary and not the ordinary course of things.

There remains the question whether there was an instrumentality or agency under the management and control of the defendant or his servant. There is no direct testimony in the case that the truck at the time of the occurrence causing the. damage to the plaintiff was under the control of the defendant or his servant. However, it would seem that the rule in this state which has been applied in numerous cases and appears to be settled is dispositive of that question here, and that is the rule which holds that proof of ownership of the defendant’s automobile or truck, without more, upon a public highway, raises a presumption that the automobile or truck was in the possession of the defendant either personally or through his servant. Mahan v. Walker, 97 N. J. L. 304.; Tischler v. Steinholtz, 99 Id. 149; Sadofsky v. Fraim, 7 N. J. Mis. R. 1064; Lilly v. Duckworth, 104 N. J. L. 387.

It would he drawing a hairline distinction with no common sense to support it to say that a different rule should apply when the defendant’s truck instead of being upon the highway is upon the plaintiff’s front porch, under the circumstances outlined above. It, therefore, follows that the same presumption would arise if the defendant’s automobile is found in such a position and hence throw the burden upon the defendant to show that it arrived there without any act of negligence upon his part. There is support by parity of reasoning at least in Sheridan v. Arrow Sanitary Laundry Co. et ad., 105 N. J. L. 608, where it was held that the unexplained presence upon the public highway of a “runaway” truck, without driver or occupant, moving along the highway to the far side thereof, mounting the curb and doing serious physical injury to a person lawfully there, raises a prima facie presumption of negligence on the part of the owner and on the part of the owner’s employe in whose charge the car was. In that case there was proof that shortly prior to the occurrence the truck was under the management and control of the defendant’s servant, while in the instant ease there is no testimony as to who was in charge of the truck or exactly how it reached the plaintiff’s porch.

While, of course, negligence is never presumed, nevertheless I feel that the application of these rules under such circumstances as are shown to exist in this case is not violative thereof but in entire accord therewith. I, therefore, find that the truck of the defendant, under his management and control, damaged the plaintiff’s property, and that this occurrence in the ordinary course of things would not have taken place if the person in control were exercising due care, and that hence the doctrine of res ipsa loquitur applies and there is prima facie evidence that there was a lack of due care upon the part of the defendant.

The motion of the defendant for a nonsuit, decision upon which was reserved on the trial, and the motion for a directed verdict for defendant at the conclusion of the trial are both denied; and I find that the damage done to the plaintiff’s property were the proximate result of the defendant’s negligence.

This leaves remaining only the question of damages. There was testimony that plaintiff’s hedge had been uprooted in certain places and branches broken off, but absolutely no testimony as to value. It certainly is the rule that if the defendant by his wrongful conduct causes damages to the plaintiff’s property, which damages are impossible of calculation by any fixed and certain rule, the plaintiff is not deprived of his right to recover, but there is no indication in this case that the value of the portions of the hedge destroyed or damaged could not be so fixed, and we, therefore, are not concerned with any question as to the proper method of arriving at such damages other than whether there is a right of the plaintiff under such testimony to recover at all.

In Teets v. Hahn, 5 N. J. Mis. R. 538, involving the question of damages to an automobile, there was proof that the car' was a certain kind of car of a certain years model, the amount it cost when new on the installment plan and for cash; that prior to the collision the car was in first-class condition, though it needed paint and looked rough; and further that the condition of the car was such after the collision that it was not worth anything except for junk. The Supreme Court in this case sustained a direction by the trial judge of a verdict of six cents nominal damages for the plaintiff, holding that while all of the above recited facts were elements to be considered by the jury, nevertheless that the proof failed at the critical point, and there being no testimony as to the fair value of the car when wrecked such direction was proper. The Court of Errors and Appeals (104 N. J. L. 357) reversed the Supreme Court and said, among other things: “There was, therefore, sufficient evidence which required the trial judge to submit the amount of damages sustained by the plaintiff to the determination of the jury.” And the opinion further states: “Twelve men of ordinary intelligence sitting in a jury box, after hearing the testimony as to the cost of the car, its description and use and its condition immediately before and after the collision, would be fairly enabled to arrive at the damage sustained, without the aid of expert testimony.” The present case, however, differs in the fact that no testimony whatsoever was shown as to the value of the hedge either when new or any other time, nor any other fact concerning value or upon which a jury could base any finding as to the pecuniary loss suffered. Applying what seems to be the necessary effect of the rule above stated, any award for damage to the hedge would be founded upon the wildest kind of guess for which there would be no legal basis.

The testimony of both sides as to the damages to the porch were quite at variance; but considering all of it I find that the amount of damage to the porch was $35.

Judgment will therefore be entered in favor of the plaintiff and against the defendant for that sum, and costs.


author: Peb Ctjbiam.

text:
    JOSEPH ARGENTI AND GEORGE GIANNETTI, PROSECUTORS, v. BOROUGH OF NORTHVALE, RESPONDENT.
    Submitted January term, 1930
    Decided July 17, 1930.
    Before Justices Tbenchabd, Case and Lloyd.
    For the prosecutors, Fred W. Mattocks.

    For the respondent, Dominick F. Pachella.

   Peb Ctjbiam.

The writ of certiorari was issued in this case to test the validity of an ordinance providing for the improvement of Franklin street, in the borough of Northvale, Bergen county, as also a resolution adopted by the borough providing for the carrying out of the provisions of the ordinance.

The reasons filed for setting aside are that within ten days after the publication following the passage of the ordinance a protest against the making of the improvement was signed and filed with the clerk of the borough by taxpayers representing ten per centum of the assessed valuation of property in the borough; that no certificate of the sufficiency of these protests was made by the clerk of the borough, and that no special election has been held or called in accordance with the provisions of section 24 of article 37, chapter 152 of the laws of 1917, and that the ordinance is therefore inoperative.

Other grounds are that the ordinance was not passed in manner required by law, that no plans, drawings, profiles, specifications or a map were filed with the borough clerk before the ordinance was introduced, and finally that the resolution and ordinance are in other respects illegal.

Erom the return and proofs taken under this writ it appears that a protest was filed by.a number of property owners. Article 37 of the act of 1917, known as the Home Eule act, provides in section 24 that “any ordinance authorizing any improvement * * * shall become operative ten days after the publication thereof after its final passage, unless within said ten days a protest against the making of such improvement * * * shall be filed in the office of the clerk of such municipality signed by taxpayers representing ten per centum of the amount of the assessed valuation of such municipality, whose names appear on the last preceding assessment roll thereof.” The section further provides that “the certificate of the clerk of the municipality filed in his office as to the filing or sufficiency of any protest or protests shall be conclusive for the purpose of this section.”

The filing of this paper as a reason for setting aside the ordinance and resolution might well be dismissed on the ground, as appears from the record before us, that the sufficiency of the protest has never been determined by the 'clerk. It is not every paper thus filed that would prove its own sufficiency to arrest the orderly proceedings of a municipal body clothed with the power to pass ordinances and resolutions as here presented. It is quite clear that the legislature, realizing that somewhere must be lodged the right and power to determine the sufficiency of protest filed under the act, has reported this right in the clerk.

While no adjudication by the clerk seems to have been made, the protests were, however, called to the attention of the borough council and turned over to the borough attorney for investigation. In response the attorney advised that the protest as filed did not purport to be signed by the requisite number of qualified persons and that it did not show that the names of the taxpayers who signed appeared on the assessment roll nor were the signatures duly authenticated, and .that in his opinion, in consequence, the protest was_ ineffective. Proofs were taken intended to establish that the requisite number of property owners had signed the protest. Even though such evidence could be received, in view of the lodgment of power to pass upon the sufficiency of the protest in the borough clerk, the proofs taken under the permission granted in the writ failed to establish the legal sufficiency of the protest.

The contention that no plans or specifications were filed preceding the introduction of the ordinance is not sustained by any proof.

The remaining grounds are general in character and call for no comment.

The writ of certiorari will be dismissed, with costs.


author: Pee Cueiam.

text:
    ALBERT V. DEMAREST AND LOUISE ENGLERT, PROSECUTORS, v. MAYOR AND COUNCIL OF THE BOROUGH OF BERGENFIELD, RESPONDENT.
    Submitted January term, 1930
    Decided July 17, 1930.
    Before Justices Tkenchaed, Lloyd and Case.
    Eor the prosecutors, Clyde Christie.

    Eor the respondent, Winne •& Banta.

   Pee Cueiam.

The writ in this case was allowed to test the validity of certain street assessments. The lands sought to be assessed were conveyed to the borough by deed dated December 12th, 1924, and on the same date the prosecutor, Albert Y. Demarest, entered into an agreement in writing whereby the borough should make the street improvements at its own cost and without expense and assessment against the property, this agreement being by way of consideration for the conveyance.

On May 19th, 1925, the other prosecutor, Louise Englert, entered into an agreement in writing with the borough to convey to the borough certain of her lands and in consideration of this agreement and of a deed subsequently executed -in pursuance of it the borough agreed to make the street improvements at its own cost, except as to one-third of such assessment as might be levied. ' Subsequently the assessments now complained of were made in their entirety, disregarding the obligations of the agreement above mentioned.

The borough now seeks to repudiate its own part of the contract and in violation of its terms collect the entire assessment, contending that the agreement in so far as it obligated the borough to make the improvements at its owd cost was ultra vires and against public policy.

Such a contention is neither commendable in morals or valid in law. Having acquired the property, and as part of the consideration therefor agreeing to exempt the properties in whole or- in part from assessment for the cost of improvements, these agreements became part of the purchase price. As was said in the ease of Perth Amboy Trust Co. v. Perth Amboy, 75 N. J. L. 293: “The condition * * * was in effect the price the city was willing to pay for the land. If the city had power to buy the land at such sum it had power to agree to expend such sum upon the land as the condition of its perpetual dedication to public uses. After the expenditure of the sum thus required, the public had no more standing to exact payment from the abutting owners than tlie owners have to exact damages from the public for talcing the land.” This case is controlling here.

The assessments are set aside, with costs, except as to the one-third of the assessment against the property of Louise Englert.


author: Pee Cueiaii.

text:
    FEDERAL ADVERTISING CORPORATION, PROSECUTOR, v. RECORDER OF THE BOROUGH OF FAIRLAWN, RESPONDENT.
    Submitted January term, 1930
    Decided July 17, 1930.
    Before Justices Tkenchakd, Lloyd and Case.
    For the prosecutor, Peter Hofstrn.

    For the respondent, Machay & Machay.

   Pee Cueiaii.

The prosecutor was convicted of violation of section 2 of an ordinance of the borough of Fairlawn regulating the eonstr action and maintenance of buildings for advertising purposes and for the abatement of nuisances. The second section of this ordinance provides that, “every signboard, billboard or other structure intended mainly for advertising purposes * * * erected within the distance of ten feet from the side line of any public street is hereby declared to be a public nuisance.”

The proofs showed that the prosecutor had erected a signboard in violation of this section and refused to remove it within thirty days, as required by the subsequent provision of the same ordinance. Complaint and warrant were issued setting up this violation and its continuance, and on these and the evidence produced the conviction was had.

The ordinance is not a zoning ordinance and in no respects complies with chapter 374 of the laws of 1938 respecting zoning. It • must, therefore, be sustained, if at all, under such police power as the borough possessed independently of that statute and the zoning amendment of the constitution. Relegated to this position the conviction was clearly illegal under the case of Passaic v. Paterson Bill Posting Co., 72 N. J. L. 285.

It appears, however, from the evidence that the signboard extended a fraction of an inch over the line of the street and the borough seeks to sustain the conviction as in violation of section 3 of the same ordinance which prohibits the erection in the body of the street.

Assuming that this tenuous invasion of the highway would, under a proper complaint, justify a conviction, the answer is that the complaint, warrant and conviction were not based on this charge, but wholly on a violation of section 3, which does not contemplate a trespass on the highway. We think the Passaic v. Paterson case is controlling and the conviction will be set aside, with costs.


author: Pee Cttbiam.

text:
    PHILIP PABST, GUSTAVE PABST AND FRED PABST, INDIVIDUALLY AND CO-PARTNERS TRADING AS PABST BROTHERS, PROSECUTORS, v. CHARLES FERNER, BUILDING INSPECTOR OF THE BOROUGH OF NORTH ARLINGTON, BOROUGH OF NORTH ARLINGTON AND ALFRED F. BARNARD, DANIEL RENTSCHLER AND WILLIAM P. MORAN, COMMISSIONERS OF THE BOROUGH OF NORTH ARLINGTON, RESPONDENTS.
    Submitted January 31, 1930
    Decided August 2, 1930.
    Before Justices Tbenciiaed, Lloyd and Case.
    Eor the prosecutors, Klein & Klein and Samuel H. Nelson.
    Eor the respondents, Charles J. McCarthy and Wright, Vander Burgh & McCarthy.

   Pee Cttbiam.

On April 15th, 1929, Charles Eerner, building inspector of the borough of North Arlington, issued to the prosecutors building permit No. 635B and at the same time-issued a permit notice to be attached to the premises. On April 17th Mr. Eerner addressed a communication, received by the prosecutors the following day, attempting to revoke the permit in language following: “I was requested by borough council to revoke your permit No. 635B I issued April 5th, 1929, for store and apartment, said permit was unlawfully issued, as the zoning ordinance was passed by the borough commissioners on April 9th, 1929. Therefore your permit No. 635B issued for No. 174 Prospect avenup is revoked and permit fee is returned. The revokal is to take effect upon service of this notice.” That attempt at revocation is now before us on writ of certiorari.

The reasons given by the building inspector in that communication were untruthful. The borough council had not requested the inspector to revoke the permit. A zoning ordinance was not passed by the borough commissioners on April 9th, 1929, had not therefore been passed and, so far as the proofs indicate, has not yet been passed. No ordinance- of any character is produced before us, and no argument is based on the proposition that the permit was issued contrary to the provisions of an ordinance. Mr. Eerner, in his testimony, states that the plans submitted by the prosecutors at the time of the issuing of the permit did not comply with the building code; but that code, if there be one, is not before us. After the issuing of the permit, and before the attempted revocation thereof, the respondents, acting upon the faith of it, entered into contractual relations with a house mover and actually began the removal of the buildings on the premises in question to make room for the new construction work. The respondents represent that the plans submitted by the prosecutors were defective and that the ■building inspetcor, on issuing the permit, “told them [the prosecutors] to come back the next day with corrected plans because the plans were so bad that nobody could build after them;” that no perfected plans were filed; that on April •9th, 1929, it was decided by the board of commissioners “that the borough attorney be notified to take the initial steps in the creation of zoning ordinances;” and that because the courts have, in certain instances, refused to compel the issuing of building permits pending reasonable opportunity ■to the municipality to adopt a zoning ordinance, relief ought not to be granted in the present instance.

The rule has been clearly stated by the Court of Errors and Appeals in Freeman v. Hague, 7 N. J. Adv. R. 1167, to the effect that the municipality is without lawful power to revoke a building permit after those to whom it has been granted have acted upon the faith of it by the expenditure of moneys in the prosecution of the work and have entered into contractual relation with respect thereto, unless the permit was obtained by -fraud or deceit. It is not contended in the instant Case that there was fraud or deceit. The evidence is persuasive that the contract by which the prosecutors were obligated for the removal of the existing building was a part of the construction enterprise for which the permit was granted; indeed the building inspector states that the reason why he issued the permit was so that the building might be removed.

Our conclusion is that the action of the building inspector undertaking to revoke the permit should be set aside, with costs.


author: Pee Ctjbiam.

text:
    PETER LAZORCHAK, PLAINTIFF, DEFENDANT IN CERTIORARI, v. MILTON DEMAREST, DEFENDANT, PROSECUTOR IN CERTIORARI.
    Submitted January 31, 1930
    Decided August 2, 1930.
    Before Justices Tbenchabd, Lloyd and Case.
    Por the defendant in certiorari, Feder & Binzler.

    Por the prosecutor in certiorari, Collins £ Corbin.

   Pee Ctjbiam.

Peter Lazorchak recovered judgment against Milton Demarest in a small cause court held by a justice of the peace of the county of Bergen. The defendant below caused a writ of certiorari to issue to review the proceedings and alleges that the court had jurisdiction over neither the subject-matter nor the person of the defendant. The reasons advanced are that, under Pamph. L. 1903, ch. 165, § 1; 3 Comp. Stat., p. 2979; amended Pamph. L. 1923, ch. 175, the small cause court has no jurisdiction where any defendant resides within a municipality wherein a District Court is established, and that, under Pamph. L. 1898, ch. 228, § 31, amended Pamph. L. 1908, ch. 49, and again amended Pamph. L. 1921, ch. 211, no justice of the peace or court for the trial of small causes (with certain inapplicable exceptions) has jurisdiction over any cause or proceedings cognizable before a District Court wrhere the defendant resides within any city or judicial district where a District Court is established, and no justice of the peace resident within the limits of any city or judicial court where a District Court is established shall exercise any civil jurisdiction. But the record does not disclose where either the justice of the peace or the defendant resided and this citation of statutes therefore fails of its point.

The record discloses that, the defendant appeared at the trial and also was represented thereat by the attorneys who appear for him here; and it does not show the making of objections of any character.

The judgment below will be affirmed, with costs.


text:
    MICHAEL FERRARO, RELATOR, v. THE BOARD OF MANAGERS OF THE NEW JERSEY STATE PRISON, RESPONDENT.
    Argued January 22, 1930
    Decided August 2, 1930.
    Before Justices Trenciiabd, Lloyd and Case.
    For the relator, Harry Heher.

    For the respondent, William A. Stevens, attorney-general, and Theodore Baches, second assistant attorney-general.
   Pee Curiam.

The relator, Michael Ferraro, on July 20th, 1918, entered a plea of “nolo contendere” to an indictment for a murder committed on May 5th, 1918, and received a sentence of life imprisonment in the state prison. The relator observed all the rules of conduct of that institution, and on April 19th, 1929, had served “a term of fifteen years, less earned commutation thereof.” A Arerv brief stipulation of facts, having set forth the foregoing, alleges that one John 0. Lindsley, likewise under'a sentence of life imprisonment, had on July 1st, 1928, served a term of fifteen years less earned commutation thereof, and that “for the purpose of determining the applicability'to the relator herein and others in the same category of the statutes heretofore enacted vesting in said board of managers the poAver to parole prisoners sentenced under the Indeterminate Sentence act, at the expiration of the minimum term, and fixing the minimum term in cases of sentence to life imprisonment at fifteen years, the principal keeper of said state prison presented to said board of managers for its consideration, at a meeting of said body held in the month of December, 1928, the matter of the right of the said John 0. Lindsley to parole under the aforesaid statutes, and thereupon the board unanimously resolved that, in accordance with the opinion of the attorney-general set forth in the next succeeding paragraph, it would refuse to consider the ease of the said John 0. Lindsley for parole as aforesaid, and that ever since said day the board has refused, and still refuses, to consider said matter;” following which is a copy of the opinion of the attorney-general and other excerpts from the minutes of the board relating to John 0. Lindsley and the further allegation that ever since April 19th, 1929, the board of managers has refused to consider and determine the right of the relator to release on parole.

This and the case of John 0. Lindsley, relator, v. Board of Managers of the New Jersey State Prison, respondent, decided at this term of court, were argued on the samé briefs. In this, as in the Lindsley case, the crime was committed prior to July 1st, 1918, the effective date of the Institutions and Agencies act (chapter 147, laws of 1918). The Eerraro sentence was imposed after that date.

We find no minute of any presentation of the Eerraro ease to the board for consideration or of a refusal by the board to consider. The stipulation does recite that “the said board of managers of said prison has refused, and still refuses, to consider and determine the right of relator to release on parole under the aforesaid statutes;” but the stipulation gives quite in detail the corporate action of the board in the Lindsley case, which, of course, is of only secondary interest to the relator, and we are wondering whether the omission of such record as to Eerraro signifies that there was no actual presentation or other action upon his case. Such importance as this question may have arisen out of the nature of the litigation, as action of the board,’ to be properly so designated, should have been corporate action and not a mere informal understanding that specific cases without record or action were to be presented lor an opinion of the court. However, we reach our conclusion regardless of this observation.

Except as noted above the two cases present the same features.

Notwithstanding the differences, we think that the Eerraro ease is controlled by the same rules and principles as were applied by us in the Lindsley case; and the writ of mandamus is denied for the same reason. If an appeal is to be taken, the pleadings may be moulded for that purpose.


author: Per Curiam.

text:
    PIERCE H. DEAMER, Jr., PROSECUTOR, v. THE MAYOR AND COUNCIL OF THE BOROUGH OF BERGENFIELD, RESPONDENTS.
    Submitted January 31, 1930
    Decided August 2, 1930.
    Before Justices Trenouard, Lloyd and Case.
    For the prosecutor, Pierce H. Dearner, Jr., in propria persona.

    For the respondents, Winne & Banta.

   Per Curiam.

The prosecutor in this case seeks to review an assessment for $87.50 upon his lands in the borough of Bergenfield by reason of a surface water drainage improvement. The same-ordinance and proceedings are involved as in Christie v. Bergenfield, recently decided

The prosecutor first complains that notwithstanding the-newspaper publication of notice of the ordinance, the proceedings are invalid because there was not personal notice. This question was determined adversely to the contention of the prosecutor in Christie v. Bergenfield, supra, and in Specht v. East Orange, also recently decided.

Points two, three and four of prosecutor’s brief are grounded in the proposition that a drainage area was not mapped and. recorded in due season; but our attention is called to no-statute or decision to support the arguments thus advanced and we are not persuaded.

In points five and six the prosecutor contends that no-surface water from his property can ultimately reach any section of the improvement; and that there is a total absence of benefit necessary to support the assessment, in view of which there can be no legal assessment. The first assertion does not appear to be proven. The question of benefit is disputed. As to sewers for surface water there may well be a. present benefit, although the lands do not abut on the sewer. Breakenridge v. Newark, 95 N. J. L. 436, 439.

Prosecutor’s final point is that the cost of the improvement is excessive and particularly that it was in excess of special benefits, and that as to such excess the cost should have been met by general taxation and not by assessment. The alleged facts upon which the point is based are not proved to our satisfaction. Had the prosecutor desired to-contest the assessment on the ground that it was unfair, the question could readily have been determined by appeal to the Circuit Court.

Prom the record we observe that the schedule of costs of' the improvement is precisely the same as in Christie v. Bergenfield, supra, totaling the sum of $45,181.02, one of the* items being “construction. $39,815.24.” From the record in that case we take judicial notice that that item included a disbursement of $3,261.50 for the installation of drain pipe and catch basins in North and South Demarest avenues for which no provision was made in the ordinance. We assume that in the instant case, also, the assessment included, as it should not have, a prorated part of that cost. The assessment is therefore set aside for the last-mentioned reason, to the end that the cost of those drains and catch basins maybe omitted from the aggregate sum to be raised, and that new assessments be laid accordingly. Costs are allowed the ■prosecutor.


text:
    J. G. CARLISLE CHRISTIE ET AL., PROSECUTORS, v. MAYOR AND COUNCIL OF THE BOROUGH OF BERGENFIELD, DEFENDANT.
    Submitted January 31, 1930
    Decided August 2, 1930.
    Before Justices Teenchaed, Lloyd and Case.
    For the prosecutors, Clyde Christie.

    For the respondent, Winne & Banta.

   Pee Cueiam.

The writ of certiorari in this case brings under review a street improvement ordinance of the borough of Bergenfield and the assessments laid thereunder. It is first contended on behalf of the prosecutors that the assessments under review are invalid because notice of the introduction of the ordinance and of the time and place when and where such ordinance would be considered for final passage was not mailed to the prosecutors pursuant to the requirements of Pamph. L. 1926, ch. 228. It is conceded that the newspaper publication required by the statute was duly given.

The legislation had its, inception in sections 9 and 12, respectively, of Pamph. L. 1917, ch. 152, art. 20', “An act concerning municipalities.” Section 9 was amended by Pamph. L. 1918, ch. 163, and the pertinent features were stricken therefrom, and all of section 12 was repealed by Pamph. L. 1925, ch. 155. The last-mentioned legislation also contained substituted matter of the same purport as an amendment to section 1 of article 10 of the Municipalities act. Pamph. L. 1926, ch. 228, amended the legislation into the form existing at the time of the adoption of the ordinance in question. The wording of the present statute is sufficiently close to that of the. earlier legislation to make our decision in Specht et al. v. City of East Orange et al. (decided at this term of court), pertinent and controlling. Eor the reasons there given we consider that the requirement as to mailing of a notice is directory, and that the mandatory provision of newspaper publication, when complied with, is sufficient to sustain the validity of an ordinance and of an assessment imposed thereunder.

The second point presented by prosecutors is that the plans and specifications for the work included certain drains and catch basins in North and South Demarest avenues which were included in the original contract for the improvement and were actually installed in. the progress of' the work at a cost of $3,267.50, although no provision had been made therefor in the ordinance. This contention is. sustained by the facts and causes the assessment based thereon to be defective. The work should have been done by ordinance. Burnett v. Boonton, 75 N. J. L. 467. The municipality should have proceeded in its improvements along the lines laid down by tbe legislature. Gross v. Hague, 99 Id. 457. The assessments therefore fall because they include disbursements not authorized or anticipated by the ordinance. The assessments are set aside to the end that the said sum be omitted from the aggregate to be raised and that new assessments be laid accordingly. Costs are allowed the prosecutors.


author: Pee Ctjeiam.

text:
    THE STATE OF NEW JERSEY, EX REL. WILLIAM J. MALONEY, RELATOR, v. ALEXANDER MacDONALD, DEFENDANT.
    Submitted January 31, 1930
    Decided August 2, 1930.
    Before Justices Tbenciiakd, Lloyd and Case.
    For the relator, Wright, Vander Burgh ■& McCarthy.

    For the defendant, J. Emil Walscheid.

   Pee Ctjeiam.

This proceeding is before the court upon a rule to show cause why leave should not be granted to relator to file an information in the nature of quo warranto to test the defendant’s right to the office of member of the council of the borough of Fort Lee, Bergen county. The borough of Fort Lee is incorporated under the General Borough act and its various amendments and supplements. It is governed by a mayor and council normally consisting of six members. One of the members of the council, Louis F. Hoebel, whose term as a councilman would, not have expired until January 1st, 1931, was elected maj^or at the general election of 1929. On January 8th, 1930, he relinquished his office as councilman and qualified as mayor, leaving five members still in the council. The relator is a taxpayer of the borough and one of the remaining five members of council. Forthwith, after filing his oath of office, Mayor Hoebel appointed the defendant, Alexander MacDonald, to fill the vacancy on the borough council. On this appointment two of the councilmen voted in the affirmative and two in the negative; whereupon the mayor voted in the affirmative and declared the nomination carried. MacDonald was then sworn in as a member of the council, filed his oath of office and assumed his seat.

It is contended by the relator that this appointment to fill the vacancy in the council was not lawfully confirmed. We consider that there is a fairly debatable question presented and that the relator should be given leave to file the information. The rule is made absolute.


author: Pee Oubiam.

text:
    WILMAR COMPANY, PROSECUTOR, v. BOARD OF CHOSEN FREEHOLDERS OF THE COUNTY OF CAMDEN, LESLIE H. EWING, DIRECTOR, AND FRED W. GEORGE, CLERK, RESPONDENTS. WILMAR COMPANY, PROSECUTOR, v. BOARD OF CHOSEN FREEHOLDERS OF THE COUNTY OF CAMDEN, LESLIE H. EWING, DIRECTOR, AND FRED W. GEORGE, CLERK, CENTRAL AIRPORT, INCORPORATED, AND CENTRAL AIRPORT DEVELOPMENT COMPANY, RESPONDENTS. SIGMUND SCHOENAGLE, PROSECUTOR, v. BOARD OF CHOSEN FREEHOLDERS OF THE COUNTY OF CAMDEN, LESLIE H. EWING, DIRECTOR, AND FRED W. GEORGE, CLERK, RESPONDENTS. SIGMUND SCHOENAGLE, PROSECUTOR, v. BOARD OF CHOSEN FREEHOLDERS OF THE COUNTY OF CAMDEN, LESLIE H. EWING, DIRECTOR, AND FRED W. GEORGE, CLERK; CENTRAL AIRPORT, INCORPORATED, AND CENTRAL AIRPORT DEVELOPMENT COMPANY, RESPONDENTS.
    Submitted January 31, 1930
    Decided August 2, 1930.
    Before Justices Teenohabd, Lloyd and Case.
    For the prosecutor Wilmar Company, Joseph H. Carr.

    For the prosecutor Sigmund Schoenagle, Aaron Heine.

    For the respondent board of chosen freeholders of the county of Camden, Walter 8. Keoion.

      Eor the respondents Central Airport, Incorporated, and Central Airport Development Company, Edward L. Katzenbach and Albert E. Scheflin.

   Pee Oubiam.

The petitions in these cases are for writs of certiorari to determine the validity of the vacation by the board of chosen freeholders of the county of Camden of a portion of Browning road in that county. Various reasons are urged for the allowance of the writs, and as the facts • presented in the petitions and proofs submitted under the rule to show cause allowed by this court establish that there are legally debatable questions presented, the writs will be allowed.


author: Peb Cttbiam.

text:
    EDWARD HARVENDER, PETITIONER-RESPONDENT, v. UNITED STATES FIDELITY AND GUARANTY COMPANY ET AL., RESPONDENT-PROSECUTOR.
    Submitted January 31, 1930
    Decided August 2, 1930.
    Before Justices Teenchabd, Lloyd and Case.
    Eor the prosecutor, McDermott, Enright <& Carpenter.

    Eor the respondent, David Boslcein.

   Peb Cttbiam.

This is a workmen’s compensation case and is here on certiorari directed to the Court of Common Pleas of Essex county. Edward Harvender suffered Avith an occupational disease and Avas aAvarded compensation by Deputy Commissioner Goas. Claiming not to have received from his employer, the Cotex Corporation, the compensation directed by the commissioner, a petition was filed in the Essex Common Pleas praying judgment that the corporation and the present prosecutor, the United States Fidelity and Guaranty Company, or, in the alternative, the Travelers’ Insurance Company, be required to pay the moneys due under the aAvard. On this an order to show cause was allowed and after stipulations and argument of counsel, judgment was entered against the Cotex Corporation and the United States Fidelity ■and Guaranty Company. The present writ was taken out by the latter company.

Eighteen reasons are advanced by the prosecutor for reArersal of the judgment and these are argued in its brief under ■five heads.

First, that the court was without jurisdiction against the 'Guaranty Company and for this it relies on the eighth section of the Employers’ Liability act as amended by chapter 178, laws of 1917, which provides that an employer shall be liable primarily for the payment of compensation and that the employer shall have recourse for that amount against the insurance carrier, to which is added this language: “But the insurance carrier shall be directly liable to the injured employe, or his dependents, in the event of the death, insolvency, bankruptcy or other proceedings, as a result of which the conduct of the employer’s business may be and continue to be in the charge of an executor, administrator, receiver, trustee or assignee,” it being contended that this was the limit -of the insurer’s liability to the employe.

Section 10 of the same act, however, provides that the -contract of insurance shall further provide or be construed to provide that “any injured employe or his dependents may enforce the provisions thereof to his or their benefit, either by agreement with the employer and the insurance carrier, in the event that compensation be settled by agreement, or by joining the insurance carrier with the employer in his petition filed for the purpose of enforcing his claim for compensation, or by subsequent application to the Court of Common Pleas, upon the failure of the employer, for any reason, to make adequate and continuous compensation payments.”

The trial judge concluded that paragraph 10 was supplementary to paragraph 8 and that the petitioner in applying to the court for relief in this case was within its contemplation and with this view we agree.

The prosecutor contends, however, among other things, that the right conferred by the last part of section 10 was not available to the petitioner inasmuch as there is no evidence of the failure of the employer to make adequate and continuous compensation payments.

Our reading of the proceedings leads us to the conclusion that this contention is well founded. The petition in paragraph 6 avers that since the rendering of the award theCotex Company and the insurance companies have failed to-make adequate and continuous compensation payments in accordance with the terms of said award. To this petition an answer and amended answer were filed by the Fidelity and Guaranty Company and in both of these answers denial is made that the Cotex Corporation has failed to make compensation, but admits that the insurance company has not paid.

The opinion and findings of the learned judge go principally to the consideration of the proper construction of the-act of 1917, and assumes that there was failure to make payments of the award by the employer. Unfortunately this-does not seem to be the case. The averment in the petition is met by a denial which imposed on the petitioner a burden-of proof and the record is barren of either proof, stipulation or admission of this requisite jurisdictional fact.

As to the other points raised we are inclined to think they are without merit. Points 2 and 3 are concluded by tlie proceedings before the deputy commissioner. We think the act is constitutional and that the proceedings were by duo process of law. The act requires that the contract shall provide or be construed to provide as between the employe and the insurance carrier that jurisdiction of the employer shall be jurisdiction of the insurance carrier. It was, therefore, bound to take notice of the litigation which antedated the present petition, and of the present petition it had notice and to it made response.

Eor the error indicated, the case must go back for further proceedings and to that end the judgment is reversed.


text:
    DEERFIELD REALTY COMPANY, A CORPORATION, RELATOR, v. FRANK HAGUE, WILLIAM B. QUINN, MICHAEL I. FAGEN, ARTHUR POTTERTON AND JOHN BEGGANS, THE MEMBERS OF THE BOARD OF COMMISSIONERS OF JERSEY CITY, CONSTITUTING THE MAYOR AND ALDERMEN OF JERSEY CITY, RESPONDENTS.
    Submitted January 31, 1930
    Decided August 2, 1930.
    Before Justices Tkenchakd, Lloyd and Case.
    Bor tho relator, Carey •& Lane (Marry Lane, of counsel).
    Bor the respondents, Thomas J. Brogan.

   Per Curiam.

This matter comes before the court on a rule directing; the respondents to show cause why an alternative or peremptory writ of mandamus should not be granted to the-relator directing the respondents, the members of the board of commissioners of Jersey City, to issue to the relator a. building permit for a building to be used for the sale of gasoline, oil and automobile accessories on the property of the relator situate on the Hudson County Boulevard in Jersey City. The block in which the property is situate is. zoned for business purposes.

The application is in evidence and is on an authorized, printed form furnished by. the building department of. Jersey-City. It contains appropriate data inserted in the blanks-left for that purpose. The uses to be made of the structure-are set forth, as are also the proportions of the building and the materials of which it is to be built, the specific location of the property, both by numbers, lot. afid block numbers- and chart. The application has attached thereto an acknowledgment on the affidavit form appended setting forth that the representations in the application are true; and the date-of filing is endorsed thereon. The application was made in writing in duplicate, of which one copy was filed with the-city clerk for the board of commissioners and one copy with the building department. The steps taken by the relator appear to be in full compliance with the requirements of the-appropriate ordinance entitled: "An ordinance to regulate-the erection and alteration of all buildings and structures to-be used or designed to be used for any purpose other than as-residences or for living apartments.” The ordinance sets-forth that after the board of commissioners has inspected, or has caused to be inspected, the premises mentioned in the-applications filed, and if the statements set forth in the applications are found to be true, and the judgment of the majority of the board of commissioners is that if permission is granted the same will not jeopardize life, limb or public health and will not increase the fire hazard in the-locality where the proposed erection or alteration is to be-made, the board shall have the power to direct the building department to issue all necessary building permits.

A hearing was held by the board of commissioners on the application and the application was denied “for the reasons assigned;” which reasons, as we gather from the record, were that there were already too many gasoline stations in the neighborhood; that there was no public necessity for more; that a church located at some distance from the site had made objection; that gasoline stations were no improvement to a business street, and that the city was a city of one and two-family houses and must be protected. It appears by the evidence that permits for other gas service stations in the block had been granted by the board of commissioners; that the property immediately adjoining the site on the south is vacant, beyond which is a gasoline service station; that on the northerly corner of the block is a driveway into a gasoline station fronting on McAdoo avenue; that on the corner of the easterly line of the Boulevard and McAdoo avenue there is a gasoline station.

There is no attempt, in the arguments before us, to justify the refusal of the permit upon the grounds heretofore mentioned. The action of the board of commissioners is, however, defended by the argument that the locality has several gasoline stations and that it is necessary that the governing body, having undertaken a comprehensive plan to properly and adequately zone Jersey City, has the right in the interim to refuse to grant permits for a particular business in a particular locality, if in its judgment it is to the best interests of the city to do so; and it is called to our attention that this court has repeatedly recognized the intricacies incident to the proper preparation and enactment of zoning ordinances and has permitted municipalities to pass said ordinances, meanwhile refusing to issue writs of mandamus; wherefore it is submitted that this attitude should be taken in the present ease so that the municipal authorities will not be further embarrassed in their work.

The zoning amendment to the constitution was finally adopted by the people of this state at an election held September 30th, 1937. Pamph. L. 1938, p. 830. The act to enable municipalities to adopt zoning ordinances under the zoning amendment was passed April 3d, 1938. Pamph. L. 1938, p. 696. It was indeed proper that municipalities, being thus given the privilege of passing zoning ordinances, should have a reasonable time within which to survey their respective needs and to adopt, if they would, appropriate ordinances. Such was the holding in Butvinik v. Jersey City, 6 N. J. Mis. R. 803, the opinion of which was filed July 37th, 1938. It does not appear that a zoning commission for the purpose of making a survey and report with regard to zoning was appointed until June 11th, 1939; nor is it made to appear before us that any report has yet been made or that any zoning ordinance has been passed or even introduced.

We are of the opinion that, inasmuch as a period of considerably more than two 'years has elapsed since the passing of the authorizing statute, such a reasonable opportunity has been given and that property owners ought not to be deprived of making such uses of their property as the law permits.

A supplemental point made on behalf of the respondents that the relator is not entitled to a permit because of failure to file plans with the building department is not substantiated.

An alternative writ of mandamus is allowed.


author: Pee Cijeiam.

text:
    EDWARD BELLI, ALBERT HUPPERT, MARTIN J. FARRELL, JOSEPH GALLAGHER, WILLIAM J. BUCKLEY, IRVING EVANSKY, CORNELIUS MILLER, RELATORS, v. CITY OF PASSAIC, RESPONDENT.
    Submitted January 31, 1930
    Decided August 2, 1930.
    Before Justices Tbbnchaed, Lloyd and Case.
    Eor the relators, Sigmund linger (Arthur T. Vanderbilt, of counsel).
    Eor the respondent, Samuel Ililfman.

   Pee Cijeiam.

These seven cases present petitions for writs of mandamus to compel the city of Passaic to restore the applicants to positions in the police and fire departments of the city of Passaic, from which they contend they were removed illegally.

The cases have an extended history. In 1927, on the eve of retirement from office, one Abram Prioskel, city commissioner and director of public safety, made an order promoting the petitioners to the various positions they now claim to hold. The incoming director, Turner, who took office the following day, declined to recognize these promotions and refused to permit the men to perform any duties in the department. Six months later petitioners brought suit in the District Court to recover salaries claimed to be due them. Judgments rendered in their favor in the District Court were reversed in this court on November 23d, 1928, and on appeal to the Court of Errors and Appeals the judgments of reversal were affirmed in October, 1929. On the opening day of the Supreme Court in January the present petitions were presented.

The applications are wholly out of time and under the cases should not be now entertained. State v. West Hoboken, 64 N. J. L. 737; Taylor v. Bayonne, 57 Id. 376. Even passing the delay of six months in the initial proceeding, and assuming that the erroneous method of procedure, which was to recover the salaries without doing the work, ought not to have barred the applicants on the ground of laches, when the Supreme Court so strongly indicated the proper course of procedure it was at least incumbent on the applicants to present the petitions we now have before us. Instead of doing so they contested the original proceedings still- further, and now, after being finally defeated in the effort to collect unearned salaries, they seek to obtain the present writs to enforce rights to offices which, if such rights existed at all, have existed for over three years.

The writs will be refused on the ground of laches alone, but we think the disturbance of the financial and administrative operations of the city naturally resulting from judicial intervention at this late date alike requires that the writs should not issue.

Deeming these reasons controlling, we have not considered the underlying question raised by the respondent of the power of the retiring director to make the promotions.

The petitions for writs of mandamus are denied, with costs.


text:
    THE COUNTY OF HUDSON AND BOULEVARD COMMISSION OF THE COUNTY OF HUDSON, PROSECUTORS, v. THE CIVIL SERVICE COMMISSION OF THE STATE OF NEW JERSEY AND THOMAS J. BROADHURST, RESPONDENTS.
    Submitted January term, 1930
    Decided August 2, 1930.
    Before Justices Trenchaed, Lloyd and Case.
    Eor the prosecutors, J. Emil Walscheid.

    For the respondents, Allan Benny.

   Per Curiam.

Thomas J. Broadhurst, a lieutenant of the Hudson county Boulevard police, was convicted by the Boulevard commission of violation of a rule of the commission which prohibits police officers from recommending bondsmen or the employment of attorneys to prisoners, and was sentenced to demotion from the position of lieutenant to the rank of a patrolman. On appeal to the civil service commission this was set aside and Broadhurst was restored to his former rank and pay.

Under the writ of certiorari allowed herein the Boulevard commission contends that the proceeding before the civil service commission was illegal and unlawful in that the proofs were taken before Commissioner Ruhlman alone, and also that under the evidence the commission was not justi-. fied in making the order of restoration.

An examination of the record discloses that the hearing came on before Commissioner Ruhlman sitting alone. When the evidence was about to be taken Mr. Reich, counsel for the Boulevard commission, objected to the taking of testimony and insisted upon the hearing being rested upon the testimony .taken before the Boulevard commission, and this, apparently was done with the consent of both sides. At the close of the case counsel for the commission stated that he was satisfied to “submit this record to his honor [Ruhlman] for review and for decision."

It, therefore, appears that the irregularity of hearing before a single commissioner, if irregularity it was, was waived by the prosecutors. The statute, however, we 'think is adequate to empower the commissioner sitting alone to hear the evidence. Section 64 of the Civil Service act (Comp. Stab., p. 3797) authorizes the commission “to make investigations, either sitting as a body or as a single commissioner, concerning all matters touching the enforcement and effect of the act and the rules and regulations prescribed thereunder * * * and in the course of such investigations each commissioner and the chief examiner shall have power to administer oaths and affirmations and to take testimony." The testimony was, therefore, properly presented to Commissioner Ruhlman, sitting alone, and the order of the commissioner based thereon was, we think, in strict conformity with the statute.

Without going into the remaining question in extenso it is sufficient to say that the evidence amply justified the conclusion reached by the respondents on the merits of the case.

The order is affirmed, with costs.


author: Pee Gtjbiam.

text:
    F. WILSON DuBOIS, RELATOR, v. WILFRED R. WOODWARD, RESPONDENT.
    Submitted January 31, 1930
    Decided August 2, 1930.
    Before Justices Teenchabd, Lloyd and Case.
    Eor the relator, Paul W. Ewing.

    Eor the respondent, Thomas L. Hanson.

   Pee Gtjbiam.

This matter has relation to a petition for the recall of Edward E. Meeker, Peter Knudson and Julius Engel, commissioners of the township of Raritan, based upon an act originally entitled “An act relating to, regulating and providing for the government of cities, towns, boroughs and other municipalities within this state.” Pamph. L. 1911, ch, 221, and upon two supplementary and amendatory acts (Pamph. L. 1915, ch. 341, and Pamph. L. 1917, ch. 20).

The petition of E. Wilson DuBois, relator, represented that he was the duly authorized and acting agent designated in three petitions signed by thirty per centum of the electors for the recall of the named incumbents, and that on the attempted filing of the petitions for recall, the township clerk refused to accept them, wherefore a writ of mandamus was prayed to the end that the township clerk be commanded to file the petitions and proceed with the election for recall. A rule to show, cause why a writ of mandamus should not issue was allowed, and testimony was taken under the rule. Before the return day of the rule, E. Wilson DuBois, relator in the mandamus proceedings, refused to proceed with the cause, and instructed his attorney to discontinue the proceedings, and, furthermore, filed with the clerk of this court a statement to that effect, asking that the cause be discontinued. The rule was returnable on the opening day of the January term of the Supreme Court. . At that time there was presented to us by the attorney of the relator a state of case in the effort to have the rule made absolute, and at the same time motion was made on behalf of the respondent to dismiss the rule upon the ground that the relator had declined to proceed further and that the relator’s request to discontinue the proceedings was before the court.

We are thus confronted with a rather unusual development. The effort of a party to discontinue a proceeding that he has initiated is combated by his attorney in that proceeding. The reason given bj^ the attornej' is that the relator was not acting in his own behalf but simply as the agent of numerous signers who sought and still seek a recall election, and that the very purpose of his so-called agency will be thwarted if the request of the agent is granted.

The statute to which we have referred recognizes the existence of an “agent,” as, for instance, in Pamph. L. 1915, oh. 341, § 1, as amended by Pamph. L. 1917, ch. 20, where authority is given for the designation of an agent in the petition for recall, and in section 12 of the 1915 statute where the agent is authorized to make complaint to a justice of the Supreme Court holding the, Circuit in which the municipality is located, when necessary to procure a fair and impartial “recall election.” The petition alleges, and it may be accepted as the fact, that the present relator was designated as such agent in the petitions for recall. His position in the present proceeding, however, is that of the moving party. The attorney appears of record as the attorney of E. Wilson DuBois, relator. Lacking proof to the contary, it must, we think, be assumed that the relator is performing the functions of his agency, and that it is not for his attorney to insist upon proceeding with a law suit which he desires to terminate. The signers on the recall petition, numbering, as alleged, thirty per centum of the electors of Raritan township, have not appeared before the court. We fail to grasp the theory upon which the attitude of relator’s attorney may be justified. The very word “attorney” implies the function of acting for another—in the present case, the relator. The relator having clearly manifested his desire to terminate the proceedings, there is no moving party. We conclude, therefore, that respondent’s motion to dismiss should be granted and that the rule should be discharged.


author: Pek Cubiam.

text:
    SUSAN M. SPECHT, MARTIN G. QUINN AND JESSIE A. QUINN, HIS WIFE; ANNE MITTLESDORF, ANNIE WEINZER, ISAAC O. NOLING, PASQUALE BIUNNO AND GENNARO BIUNNO, WALTER H. CRAMP, MASONIC REALTY COMPANY, CHICHESTER C. KERR, CARL J. OLSON, NOSLO REALTY COMPANY, BROM REALTY COMPANY, CYNTHIA M. PALMER AND HATTIE M. MARTIN, PROSECUTORS, v. CITY OF EAST ORANGE AND LINCOLN ROWLEY, CITY CLERK, RESPONDENTS. BALDWIN CONSTRUCTION COMPANY, A CORPORATION, PROSECUTOR, v. THE MAYOR AND COMMON COUNCIL OF THE CITY OF EAST ORANGE, LINCOLN ROWLEY, CITY CLERK, AND WARREN A. CLAPP, TAX COLLECTOR, DEFENDANTS. ABRAHAM RICHTER AND MOLLIE RICHTER, HIS WIFE, PROSECUTORS, v. THE MAYOR AND COMMON COUNCIL OF THE CITY OF EAST ORANGE, LINCOLN ROWLEY, CITY CLERK, AND WARREN A. CLAPP, TAX COLLECTOR, DEFENDANTS.
    Submitted January 31, 1930
    Decided August 6, 1930.

      Before Justices Tkenchaed, Lloyd and Case.
    For the prosecutors Susan M. Specht et al., Grosso, Brundage & Anderson (Norman L. Brundage, on the brief).
    For the prosecutors Baldwin Construction Company, Abraham Eichter and Mollie Eichter, Howe & Davis (Edward L. Davis, on the brief).
    For the respondents, Walter G. Ellis.

   Pek Cubiam.

This is on the return of three related rules to show cause why writs of certiorari should not issue to review a report of the board of assessments of the city of East Orange levying assessments against the prosecutors for the widening and extending of Lincoln street and the proceedings of the city council confirming said report, together with the ordinance under which the proceedings were had.

The main brief of the prosecutors raises the single point that section 12 of article 20 of the Home Buie act (An act concerning municipalities, Pamph L. lOlf, ch. 152), in effect at the passage of the ordinance, February 26th, 1925, was not complied with. That section provided that “a copy of the notice of intention as published shall be mailed to every person whose lands may be affected by such local improvement so far as may be ascertained, directed to his last known post-office address. * * * Failure to mail the notice hereinabove provided for shall not invalidate any proceeding or assessment hereunder.” Section 9 of the same article provides for public notice of the intention of the gov-. erning body to consider the improvement ordinance and directs the character of newspaper publication to be given and the contents thereof. That notice was given.

It is the right of a landowner specially affected by a public improvement to be informed, either by actual or constructive notice, of the time and place appointed for the meeting of the governing body to consider their proposed action. Groel v. Newark, 78 N. J. L. 142. But constructive notice when provided by the statute is sufficient. State, Boice v. City of Plainfield, 38 Id. 95.

We construe section 12 as directory and give full value to that portion of the section which directs that failure to mail the notice provided for in the section shall not invalidate any proceeding or assessment. We have- in mind that Root v. Mayor and Aldermen of Jersey City, 5 N. J. Mis. R. 973, gave a more limited significance to that language. That opinion, however, determined the ordinance under review to be void in Loto for other■ reasons; had the case turned upon the reasoning therein applied to section 12, the proceedings would have been declared valid as to those to whom a mailed notice had been sent. We consider that the expressions with regard to section 12 were dicta. We consider that the constructive notice provided by section 9 and given in the instant case was an adequate notice under the law.

It is further suggested that the assessment was not fair as to some of the more distant properties; but that, we take it, is a proper matter to be raised before the Circuit Court on appeal from the assessment. Pamph. L. 1925, ch. 71, p. 233; Graham v. Ocean City, 98 N. J. L. 426; Florenzie v. East Orange, 88 Id. 438.

Writs of certiorari are denied and the rules are discharged, with costs to respondents.


author: Case, J.

text:
    CORE JOINT CONCRETE PIPE COMPANY, INCORPORATED, A CORPORATION, PLAINTIFF, v. STANDARD ACCIDENT INSURANCE COMPANY OF DETROIT, MICHIGAN, A CORPORATION, DEFENDANT.
    Decided August 14, 1930.
    Por the motion, Child ■& Shipman.

    Contra, Louis Auerbacher, Jr.

   The opinion of "the court was delivered by

Case, J.

The suit was brought by the plaintiff, a material-man, against the defendant, a bonding company, upon a bond given in pursuance of the act entitled “An act to protect persons performing labor or furnishing materials for the construction, alteration or repair of public works,” approved February 16th, 1918 (Pamph. L. 1918, ch. 75), and is for materials furnished Charles E. Soriano and Antonia Borrego, trading as Charles E. Soriano Construction Company, for the construction of a storm sewer under a contract between the last named partnership and the county of Passaic. The defendant filed an answer to which were appended six separate defenses, the character of which may be succinctly indicated by the points raised in defendant’s brief in response to plaintiff’s motion to strike the answer and for summary judgment.

Defendant first contends that the evidence presented by the plaintiff has not properly proved the delivery o£ the materials to the job. The evidence does, however, show that the materials were duly delivered at the site of the construction to a proper person in charge of the work; and inasmuch as the construction could not have progressed without these materials, the presumption is that they were used for the purpose for which they were delivered. Atlantic City Lumber Co. v. Atlantic City et al., 7 N. J. Adv. R. 820. The defendant has not shown facts deemed sufficient to entitle it to defend and the plaintiff is, therefore, entitled to summary judgment (Eisele & King v. Raphael, 90 N. J. L. 219), unless, of course, other and valid reasons are given in opposition.

The defendant recites a Chancery proceeding whereby it sought to bring in the plaintiff as a party defendant and contends that, although its application was refused by the Chancery decree, it has taken an appeal to the Court of Errors and Appeals, and that the appeal constitutes “another action pending” in such fashion as to be a defense to the present action. The reasoning is not clear, nor are authorities cited. The point does not seem well taken.

The defendant next submits that because its ultimate and aggregate liability is limited, there should be a single action or class suit by all claimants, with necessary notices and right of intervention. While the brief does not specifically so state, it appears to be an argument for exclusive Chancery jurisdiction, which obviously is in accord with neither the prevailing practice nor the intent of the statute. There is nothing in the proofs to indicate that the present or prospective demands on the defendant amount, or are likely to , amount, to a sum greater than the defendant’s liability.

The defendant also argues that it is entitled to have the two partners of the Charles E. Soriano Construction Company pay any deficit in the obligation owing plaintiff before the defendant is asked to pay; and this notwithstanding the partnership is in the hands of a Chancery receiver.- The defendant has available the provisions of the Practice act and the Supreme Court rules pertaining to bringing other parties into the cause.. It also is entitled to be subrogated on payment of the claim to the plaintiff’s rights against the contractors. Though the issue in E. J., Lavino & Co. v. National Surety Co., 6 N. J. Mis. R. 478, was different from that of the instant case, the following language from the opinion by Mr. Justice Katzenbach is pertinent:

“This proposed defense is highly technical. In the long list of authorities submitted by defendant’s counsel to show that a surety is favored in the law, there is no case cited which has any similarity in facts' to the present one. In fact, I do not see how any could be cited. The statute is designed for the benefit of those furnishing materials and labor for a public work. In the broadest language possible this intention is shown by the statute and by the language of the bond, of which the form is embodied in the statute.”

I think we may consider that the statute is impressed with the policy that the construction of public works is and should be facilitated in time and favored in price by assuring laborers and materialmen of prompt payment of their claims. The plaintiff’s claim became due from the defendant sixty days after service upon the latter of the statutory notice, and thence forward the defendant was subject to suit for the amount thereof with interest for a longer detention. J. Jacob Shannon v. Continental Casualty Co., 8 N. J. Adv. R. 52.

My conclusion is that the answer is in part sham and in part frivolous. It presents no legal defense to the action. It may, therefore, be struck and summary judgment may be entered.


author: Brown, C. C. J.

text:
    Hudson County Circuit Court.
    MARY PULL, PLAINTIFF, v. GEORGE NAGLE, AS EXECUTOR OF THE ESTATE OF PAUL B. STETKA, DECEASED, DEFENDANT.
    For the plaintiff, Kappes & Hille.

    For the defendant, Joseph H. Gaudielle.

   Brown, C. C. J.

The plaintiff moves to strike out the first and fifth separate defenses filed by the defendant in answer to> an amended complaint. The defenses are to the effect that, the claim, upon which suit is brought, is barred by a rule limiting creditors allowed by the surrogate of Bergen county on the 10th day of March, 1929. The suit is based upon an alleged breach of contract to repay a sum certain entrusted by the plaintiff to the defendant’s testator, in the latter’s lifetime, to invest in specified securities.

The summons and complaint were served on Paul B. Stetka on November 20th, 1928. After issue was joined in the cause and the ease listed for trial Stetka died on April 28th, 1929. In his will Stetka nominated George Nagle as his executor. Upon notice to the defendant and on the application of the plaintiff on May 16th, 1930, an order was entered in the cause substituting the name of George Nagle as executor of the estate of Paul B. Stetka, deceased, as defendant. The amendment did not change the character or substance of the cause of action but resulted in a substitution of parties; notwithstanding, the substituted defendant filed an answer including the defenses sought to be stricken. The fifth separate defense in addition to attempting to plead the rule limiting creditors as a bar to the plaintiff’s action also pleads that the bar has the effect of a statute of limitations. Those defenses are not properly pleaded under the fifth separate defense as the defendant fails to plead the rule to limit with the degree of particularity required by Ryan v. Flanagan, 38 N. J. L. 161, and In re Estate of Steelman, 90 Id. 184. If the defendant intended to plead a statute of limitations he has failed to do so for a like reason. Furthermore, a rule to limit has not the effect of a statute of limitations. The former bars actions against an executor or administrator but all other remedies of the creditors remain unimpaired. O’Donnell v. McCann, 77 N. J. Eq. 188, 196.

The plaintiff’s action is of that class that might be originally prosecuted or maintained against the executor, and under the Abatement act of this state the action did not abate on the death of Paul B. Stetka. 1 Comp. Stat. 1910, p. 4; Alpaugh v. Conkling, 88 N. J. L. 64.

Disregarding the niceties of pleading and assuming the first separate defense is properly pleaded, the question to be determined is whether the plaintiff’s .action is a bar because of his failure to present his claim to the executor notwithstanding the suit pending. The object of the act (Pamph. L. 1920, p. 96) requiring creditors to present their claims within time is to inform the personal representative of the claims which may be outstanding against the estate of- their decedent, that they may know how to administer it and not be subject to suit after they have disbursed all the assets. The case of Newbold v. Fenmore, 53 N. J. L. 307, does not present the same situation as the case at bar. In the New-bold ease suit was brought against the personal representative of the testator and not against the testator during his lifetime. In that case there was no reason to consider the provision of the Abatement act. The ruling in the Newbold case cannot be followed without doing violence to the provisions of the Abatement act and abating the instant case that has rightfully been determined to survive the death of Stetka. This procedure should not be sanctioned. The Home v. Selling, 21 A. L. R. 409.

A statute requiring presentation of a claim to an executor or administrator before a suit can be brought on it has been held to be inapplicable to those cases where a suit was commenced against the testator or intestate before his death, and was revived against his representatives after his death. 34 A. L. R. 373, and cases thereunder cited. 24 Oyc. 746.

The plaintiffs motion is sustained and an order will be entered to that end.


author: John J. Stahl, Referee.

text:
    New Jersey Department of Labor, Workmen’s Compensation Bureau.
    ROSE CURTO, PETITIONER, v. VANDEWEGHE FUR COMPANY, INCORPORATED, RESPONDENT.
    Eor the petitioner, Henry Marelli.

    Eor the respondent, Richard W. BaTcer.

   At the time of the hearing on this case it was explained that the respondent denied that the deceased died as a result of an injury by accident arising out of and in the course of his 'employment, but claimed on the contrary that the death of the deceased was entirely caused by physical conditions and had no relation to his employment. However, the respondent, in order to take care of the children of the deceased, offered to settle the case on the basis of the payment of $2,000 to the widow and a counsel fee of $200 to the attorney for the petitioner.

The petitioner, Mrs. Rose Curto, was placed on the stand and questioned in regard to the settlement, and she stated that a settlement on this basis was entirely satisfactory to her. Accordingly, after a complete consideration of this matter, the referee found that it was to the best interests of all parties to settle the matter on the basis outlined above and accordingly approved of a compromise settlement on that basis.

$$$$$$ *

John J. Stahl, Referee.


author: Chakles E. Corbin, Deputy Commissioner.

text:
    New Jersey Department of Labor, Workmen’s Compensation Bureau.
    FERDINAND RIEHMAN, PETITIONER, v. FERDINAND HOCH, RESPONDENT.
    Eor the petitioner, George W. Allgair.

    Eor the respondent, Frank Turner.

   The petitioner in his own behalf testified that on the 12th day of March, 1929, while employed by the respondent as a painter, he scratched his finger on a board, and that thereafter, to wit, on the 13th day of March, while working for the respondent, some particles of steel wool got into the wound made on the previous day; that thereafter he continued to work for the respondent not seriously bothered by any pain in his thumb except for a sensation which he described as an itching up to the 15th of April, 1929, on which date it was necessary for the petitioner to seek medical attention. Petitioner testified that he notified his employer as to the injury sustained by him and as his employer told him to secure whatever medical care and attention it was necessary for him to have in the treatment of his injury the petitioner further testified that he secured the services of Dr. Benjamin Borow, a physician of Bound Brook, and that he was treated by him over a period approximately seven weeks, and that approximately five days of that time he was confined in the Bound Brook Hospital.

Petitioner while employed by the respondent as a painter was earning a salary of $44 per week, and on the 1st day of April went to work for the respondent as manager in respondent’s delicatessen business at a salary of $25 per week plus a share of fifty per cent, of the profits derived from the business. Petitioner was, according to his testimony, incapacitated for a period of seven weeks as a result of his injury and also according to his testimony incurred bills as follows: Eor medical attention, $99; for hospital care, $59; for medicine, $15.

Dr. Benjamin Borow, a witness, produced in behalf of the petitioner, testified that the petitioner on the 15th day of April, 1929, was suffering from an infection in the thumb; that the infection had existed for several weeks and that it was probably caused in the manner testified by the petitioner. Dr. Borow also stated that a reasonable charge for the services rendered to the petitioner was the sum of $99 for the medical treatment, the sum of $59 for hospital care and attention, and the sum of $15 for medicine.

The respondent produced no witnesses in its behalf except a Mr. Miller, an adjustor of the Constitution Indemnity Company, through whom it offered in evidence statements signed by the petitioner and claim to have been made by him to Mr. Miller. This statement as submitted by Mr. Miller claims that the petitioner did not know the manner in which his injury happened or the date upon which the same occurred, and also a statement to the effect that the petitioner was a partner with the respondent in the conduct of the delicatessen business, the contents of this instrument so far as herein related the petitioner denied.

I am satisfied after a consideration of the entire evidence in this case that the petitioner sustained an injury on the 12th day of March, 1929, that as a result of said injury petitioner’s thumb became infected, that the respondent consented to and authorized the rendition of the necessary medical services to the petitioner.

Chakles E. Corbin, Deputy Commissioner.