text:
    AROLINE P. WRIGHT, DOROTHY P. SLADE AND BARBARA A. PITMAN, PLAINTIFFS, v. RAE E. RENEHAN, ET AL., TRUSTEES UNDER THE LAST WILL AND TESTAMENT OF AROLINE C. GOVE, DEFENDANTS.
    Superior Court of Now Jersey Chancery Division
    Decided January 5, 1950.

      Mr. Hugh D. Wise, Jr., for the plaintiffs.

      Messrs. Riker, Emery & Danzig (by Mr. Charles Danzig), for the defendant trustees.

      Mr. Malcolm D. Watson, for the defendant infant remaindermen.
   Haneman, J. S. C.

On August S9, 1924-, Aroline C. Gove executed a deed of trust of certain real estate in Princeton, New Jersey, consisting of a parcel of land, with the buildings thereon. The pertinent provisions thereof provide that:

“First. To permit my daughter Mary Pitman 1o use, occupy and improve said premises or to receive the rents and profits therefrom for and during the term of her natural life, she paying all taxes and other charges and keeping the premises insured and in good repair and condition.
“Third. Upon the death of my said daughter, Mary Pitman, my daughter Lydia P. Gove of said Salem shall succeed to the Trusteeship hereunder and the title to the Trust property shall thereupon become vested in her without any further action whatsoever and she shall have all the powers above set forth; and thereafter the Trustee hereunder shall permit the children of my said daughter Mary Pitman, or in case of disagreement, such of said children as said Trustee may determine, to use, occupy and improve said real estate, they paying all taxes, and other charges and keeping the premises insured and in good repair and condition, or in case said real estate shall be sold, then to pay the net income from the property held in trust hereunder to said children in equal shares, for and during the terms of their natural lives and the life of the survivor of them, the issue of any deceased child to take the parents share by right of representation.
“Fourth. Upon the death of the last surviving child of my said daughter Mary Pitman to convey and pay over the principal of the trust property held hereunder to the issue of my said daughter Mary, one share for each child, the issue of each deceased child to take the parents share by right of representation. In case all of said children shall have deceased without leaving any issue surviving them, then said trust property shall vest in and become the individual property of my daughter Lydia P. Gove, discharged of all trusts and without any further action whatsoever.” (Italics supplied by the court.)

At the time of the establishment of this trust, the life tenant, Mary Pitman, daughter of the settlor, was 32 years of age and then the mother of one child, Aroline Pitman, now Wright. Two other children were thereafter born to the life tenant, namely, Barbara Pitman in 1925 and Dorothy Pitman, now Slade, in 1927.

The life tenant, Mary Pitman, died in 1934, survived by her three children, all of whom are the plaintiffs in this action. The married plaintiffs have three children, all infants, great grandchildren of the settlor, and are the remaindermen under the deed of trust. They are defendants in this action.

In 1939, Aroline C. G-ove, the settlor, died testate, disposing of her residuary estate in trust. The beneficiaries of this trust and the trustees are also defendants.

The plaintiffs herein (secondary life 'tenants) agree that the Princeton property should be sold, and there is available a purchaser who is willing to acquire same, provided that the validity of the trust deed is established by appropriate proceedings and a trustee qualified to make good title. (It would appear that the office of successor-trustee in favor of the settlor’s daughter, Lydia V. Gove, effective upon the death of her sister, Mary Pitman, is vacant.) The issues as stated by the plaintiff are as follows:

1. Is the deed of trust valid in all respects?

2. Is the deed of trust invalid in part, but valid and effective in part?

3. Is the deed of trust invalid in lolof

The pivotal question propounded necessarily and patently is, whether the deed of trust, in whole or in part, violates the rule against perpetuities. If the answer to this propounded inquiry’ is in the affirmative, a necessary corollary inquiry is the present disposition of the property here involved.

At the outset, although perhaps academic, it might be well to restate the rule against perpetuities. Professor Gray, in The Rule Against Perpetuities, 4th Ed., p. 191, states it as follows:

“No interest is good unless it must vest, if at all, not, later than twenty-one years after some life in being at the creation of the interest.”

In McGill v. Trust Company of New Jersey, 94 N. J. Eq. 657, at 664, 121 A. 760; modified in 96 N. J. Eq. 331, 125 A. 108, the court amplified and explained the rule in the following language:

“That rule requires that all future interests, legal or equitable, in realty (except dower and curtesy and rights of entry for conditions broken) or personalty, which are contingent and indestructible, must be such as necessarily to vest, if at all, within the term measured by the life or lives of a person or persons in being at the time of the creation of the interest and twenty-one years thereafter; otherwise they are invalid and void.”

See also Camden Safe Deposit, &c., Co. v. Scott, 121 N. J. Eq. 366, 189 A. 653; Graves v. Graves, 94 N. J. Eq. 268, 120 A. 420; Clark v. Union County Trust Co., 127 N. J. Eq. 221, 12 A. 2d 365; Guaranty Trust, &c., v. N. Y. Community Trust, 139 N. J. Eq. 144, 50 A. 2d 161, 141 N. J. Eq. 238, 56 A. 2d 907; affirmed, 142 N. J. Eq. 726, 61 A. 2d 239; The Pennsylvania, &c., Co. v. Robb, 118 N. J. Eq. 529, 180 A. 410; affirmed, 123 N. J. Eq. 232, 196 A. 741; Tompkins v. Pryor, 142 N. J. Eq. 523, 60 A. 2d 801; Marx v. Rice, 3 N. J. Super. 581, 67 A. 2d 918.

The test of whether a given state of facts violates the rule, is whether the possibility that the period covered by a life or lives in being and twenty-one years thereafter may be exceeded, and not the certainty or even the probability that it will be exceeded, in a given trust. Graves v. Graves, supra; McGill v. Trust Company of New Jersey, supra; Gillen v. Hadley, 106 N. J. Eq. 286, 150 A. 779; Burlington County Trust Co. v. Castelcicala, 2 N. J. 214, 66 A. 2d 164; Schumacher v. Howard Savings Institution, 128 N. J. Eq. 56, 15 A. 2d 107; affirmed, 131 N. J. Eq. 211, 23. A. 2d. 581; Marx v. Rice, supra; First Camden, &c., Trust Co. v. Collins, 114 N. J. Eq. 59, 168 A. 275; Coleman House, Inc. v. City of Asbury Park, 129 N. J. Eq. 399, 19 A. 2d 889.

.Otherwise stated, the rule against perpetuities has been paraphrased as a “rule against remoteness.” It is aimed against the control of future interests; it has nothing to do except incidentally with present interests'. Gray, Rule Against Perpetuities, 4dh Ed., preface, p. X. It is a rule invalidating interests which vest too remotely. The rule is only applicable to the vesting of estates and not their enjoyment. If an estate vests within the time limited by the rule, then the rule is not violated. It has been stated that if an estate vests within the prescribed period, the postponement of the enjoyment beyond the lives in being and twenty-one years thereafter does not contravene the rule. Camden Safe Deposit, &c., v. Scott, supra; Schumacher v. Howard Savings Institution, supra.

In ascertaining whether a gift or trust is violative of the cited rule, the donor’s or creator’s intention must be first ascertained. Burlington County Trust Co. v. Castelcicala, supra, at p. 218.

It is of no moment whether the trust is testamentary or inter vivos. In the former case, the death of the testator is the point from which the time should be computed, since the trust then comes into existence. In the latter case, the date of the creation of the trust is the fundamental element for the same reasons. Simes, Law of Future Interests, § 494; 41 Am. Jur. 64, § 19; 48 C. J. 942, § 8; Hewitt v. Green, 11 N. J. Eq. 345, 77 A. 25.

With the above cardinal and basic principles in mind, it becomes necessary to analyze the particular instrument in question.

There is no doubt that the estate for the life of Mary Pitman is valid. Upon her death, the creator vested title in Lydia P. Gove as trustee, upon the condition that if any of settlor’s grandchildren desire, they may occupy the premises conveyed or, in case of the sale thereof, to pay the net income from the proceeds to said grandchildren or their issue, until the last surviving grandchild shall have died. Upon sucli death the ultimate remainder becomes vested in settlor’s great grandchildren.

A more succinct statement of the effect of the deed of trust is that there was a gift by Aroline 0. Gove to her daughter, Mary Pitman, for life, and at her death a gift to Lydia P. Gove, in trust for settlor’s grandchildren for life, with a gift of the remainder, upon the death of her last surviving child, to her great grandchildren.

At the time of the creation of the trust, Mary Pitman had one child living, Aroline. Subsequently, she bore two more children, Barbara and Dorothy.

Insofar as the gift for life to the children of Mary Pitman is concerned, we have a gift to a class. This class is open until the contingency, i. e., the death of Mary Pitman, occurs. It is not until this happening that the members of the class are finally ascertained. Technically, however, there having been one of the class in esse at the time of the creation of the trust, the gift is deemed vested subject, of course, to being divested or modified as to quantity only. McGill v. Trust Company of New Jersey, supra; Trippe v. National Newark, &c., Banking Co., 98 N. J. Eq. 462, 131 A. 162; affirmed, 100 N. J. Eq. 356, 134 A. 919; Clark v. Morehous, 74 N. J. Eq. 658, 70 A. 307; Guarantee Trust Co. v. Latz, 119 N. J. Eq. 194, 181 A. 645; Camden Safe Deposit, &c., v. Scott, supra.

It follows that the children of -Mary Pitman were vested within the prescribed period, since they must be ascertained at her death. The measuring life in being is that of Mary Pitman. That the enjoyment of the interest of these children may extend beyond the period provided in the rule does not make the gift obnoxious so long as it vests, within the required time.

The gift of the remainder to the great grandchildren of the settlor, however, is void. Here the contingency upon which they become vested is the death of the last surviving grandchild of the settlor. The measuring lives would then be those of Mary Pitman, the daughter of the settlor, and her children, the grandchildren of settlor. Conceivably, there might be children born to Mary Pitman after the creation of the trust. These latter would not be lives in being at the inception of the interest.

The deed shows a clear intent on the part of the creator to provide a trust not only during a period measured b3r the lives of her daughter and one grandchild living when the deed was executed, but an intent as well to create a trust which would continue during the lives of other grandchildren who might be born to Mary Pitman subsequent to the creation of the trust. As a result, the ultimate vesting of the remainder in settlor’s great grandchildren could be postponed beyond lives in being at the creation of this interest.

Although it has been held above that there is no violation of the rule resulting from the possibility of an enjoyment for a period beyond that measured by lives in esse at the inception of the trust and twenty-one years thereafter, this very possibility makes the vesting of the remainder violative of the rule. The gift of the remainder to the groat grandchildren is therefore void.

Having held that the trust is valid insofar as Mary Pitman and her children are concerned, and invalid as to its other provisions, it becomes necessary to determine who is vested with title to the realty involved.

When a part only of a gift is invalid by reason of the rule against perpetuities and the invalid limitation is an essential part of the general scheme of the gift, the several parts of the grant are treated as inseparable and the whole is adjudged void.

“Where a devise violates the rule against perpetuities, but is made as supporting- life estates, or estates for years, which are concurrent or consecutive, the life estates, or estates for years are not to be vitiated by the invalidity of the subsequent devise, unless it clearly appears that the prior created estates are elements or parts of the plan of ultimate devise.” Glock v. Glock, 110 N. J. Eq. 477, 160 A. 339.

Central Hanover Bank & Trust Co. v. Helme, 121 N. J. Eq. 406, 190 A. 53; Clark v. Union County Trust Co., 127 N. J. Eq. 221, 12 A. 2d 365 (supra), and cases cited at page 226.

The settlor's primary concern, sub judies, was to make provision for her daughter and her grandchildren during their lives, and the successive estates for life so created were not incidental elements of the plan for an ultimate gift to great grandchildren.

The invalid limitation to the lives of the great grandchildren of settlor is not the main purpose of the general scheme.

The deed of trust of Aroline 0. Gove is herewith declared valid insofar as the provision for the lives of Mary Pitman and her children are concerned, as set forth in paragraphs 1, 2 and 3 of the deed of trust, but invalid insofar as the provision for the great grandchildren, as set forth in paragraph 4 of the deed of trust is concerned.

Since the settlor made no valid provision in tire deed of trust for the final vesting of title in her great grandchildren as remaindermen, there remains in the settlor a reversionary estate.

An estate in reversion is the residue of the estate left in the grantor, to commence in possession after the determination of some particular estate granted by him. It arises by operation of law and is distinguishable from a remainder, which must be created by deed or devise. Eeversions are actual estates in praesenti and are vested in the sense of a present fixed right of enjoyment in futuro. A reversion may exist in personalty as well as realty. 33 Am. Jur., § 194, p. 668; 125 A. L. R., pp. 548, 558.

In Fidelity-Philadelphia Trust Co. v. Harloff, 133 N. J. Eq. 44, 30 A. 2d 57, the court said, at pages 51, 52 and 54:

“A reversion has been defined as ‘a future estate created by operation of law to take effect in possession in favor of a lessor or a grantor or his heirs, or the heirs of a testator, after the natural termination of a prior particular estate leased, granted or devised.’ 2 Reeves on Real Prop., par. 863. Sir Edward Coke described a reversion to be the returning of lands to the grantor or his heirs after the grant is over. 1 Institutes 142. ‘A future estate may be indirectly created by giving a livery of seisin for one or more life estates, without an ultimate remainder in fee. The estate remaining in the former owner ready to come into possession on the termination of the life estate or estates is a reversion. The same result is reached when an ultimate remainder in fee is contingent. Until it vests, there is a reversion in the feoffer and his heirs.’ (Emphasis is supplied.) Gray, The Rule Against Perpetuities (4th ed.), § 11. A reversion is never created by deed or writing, but arises from opez-atiozz of law. 2 Bl. Com. 175; Tiffany, Real Prop., par. 135; Todd v. Jackson, 26 N. J. Law 525, 540. ‘A remainder has its origizz in express grant; a reversion merely arises incidentally, in consequezzee of the grant of the particular estate. It is created simply by the law, whilst a remainder springs from the act of the parties.’ Williams, Real Prop. (23d ed.) 362.
“Where did the reversion or inheritazzce sojourn interzziediatc the creatiozz of the contizzgent remainder by the deed of conveyazzce and the death in 1939 of the life tenant without lawful issue? Izz the solution of this point of inquiry, two dissimilar rules of law are perceptible. True, where the contizigent renzaizider is created by devise (and formerly by use), the inheritance or fee (cozistitutizzg the reversion). resides in the testator who can dispose of it, otherwise, it descends to his heirs where it remains until the occurrence of the contingency which takes it from them. Fearne Cont. Rem. 351; 4 Kent Com. 257. The authorities are harmonious in their fidelity to this rule. 33 Am. Jur. 523, § 72.”
“Where contingent remainders hare been created by devise, the courts of our slate have esteemed the commonly accepted rule that the reversion reposes in the testator who may dispose of it and if not so disposed of, it descends to the testator’s heirs where it remains until it deserts them by reason of the happening of the designated contingency. Holcomb v. Lake, 24 N. J. Law 686; affirmed, 25 N. J. Law 605; Vreeland v. Van Ryper, 17 N. J. Eq. 133; Mulford v. Mulford, 42 N. J. Eq. 68, 6 Atl. Rep. 609; Voorhees v. Singer, 73 N. J. Eq. 532; 68 Atl. Rep. 217; In re Peterson, 85 N. J. Eq. 135; 95 Atl. Rep. 613.”

Since Aroliue C. Gove loft a will, the property here involved, not having been specifically devised or bequeathed, will, upon the death of the last survivor of the children of Mary Pitman, pass as part of the residue of her estate.

Upon application, a trustee successor to Lydia P. Gove will be appointed in order to carry out the directions of the deed of trust heretofore held to be legal.


source: Caselaw Access Project

author: Hughes, J. C. C.

license: Public Domain

text:
    IN THE MATTER OF THE APPLICATION OF MICHAEL M. DE LUCCIA FOR WRIT OF HABEAS CORPUS.
    Mercer County Court Law Division
    Decided October 27, 1950.

      Mr. Purvis Brearley, for the petitioner.

      Mr. Richard J. Congleton, County Prosecutor of Essex County, by Mr. C. William, Caruso, Assistant Prosecutor, for the State.
   Hughes, J. C. C.

On the representation that he is illegally confined in the New Jersey State Prison, petitioner De Luccia was granted a writ of habeas corpus under the authority of R. S. 2:82 — 1 et seq. In the petition for the writ, as amended, it is alleged that petitioner has been imprisoned since February 12, 1948, under sentences imposed upon him in the former Essex County Court of Quarter Sessions on February 11, 1948; that such sentences have been served; and that he is entitled to immediate release. The State filed its return, claiming justification of its detention of petitioner under certain commitments allegedly based on such sentences.

On the return of the writ, testimony was taken and stipulations entered of record, resulting in the development of the following issue:

On January 15, 1948, the Essex County Grand Jury returned four bills of indictment, assigned Docket Numbers 427 to 430, inclusive, charging petitioner with separate offenses of larceny and receiving, in violation of the statute. On January 26, 1948, petitioner entered pleas of non vull to each of such indictments. On February 11, 1948, he appeared before the court for sentence and after the sentencing judge had reprimanded him for his conduct, which, of course, was not part of the formal sentence, the court imposed sentence in the following words: — -“I sentence you to Few Jersey State prison for a period of 1 to 3 years.” The petitioner then addressed the court as follows: — “Is that on each count, your Honor?” The court rejoined: — “Yes, on each count.” (It is stipulated that by the word “count” in this colloquy, both judge and prisoner were referring to the indictments mentioned.) The petitioner was then removed from the courtroom and later transferred to the Few Jersey State Prison to commence service of his sentences.

The clerk of the court in due course entered in his minutes, as to Indictment Fo. 427, the following:

“February 11,1948 The Court Ordered and adjudged that the said defendant, Michael DeLuccia, be imprisoned in the State Prison of this State for a minimum term of one (1) year, and for a maximum term of three (3) years, at hard labor upon this conviction without costs.”

As to Indictment Fo. 428, the clerk entered in the minutes the following:

“February 11,1948 The Court Ordered and adjudged that the said defendant, Michael DeLuccia, be imprisoned in the State Prison of this State for a minimum term of one (1) year, and for a maximum term of three (3) years, at hard labor upon this conviction without costs.
This sentence to commence on and after the expiration of a previous sentence imposed upon this defendant on conviction No. 427 December Term 1947.”

Similar entries were made as to the sentences imposed on Indictments Fos. 429 and 430, indicating that each should commence on the expiration of the former, the effect of these endorsements amounting to a recordation that the four sentences were to run consecutively and not concurrently. Commitments were issued in due course, indicating the same consecutive, or cumulative, nature of the sentences imposed.

The petitioner now contends that these sentences were imposed to run concurrently because the court did not specify in its imposition of same that they were to run consecutively. There was no stenographic record of the language used by the judge in imposing these sentences, but the testimony of the petitioner as to the words spoken is persuasive in view of his introduction into evidence of certain correspondence had with the sentencing judge, including a letter from such judge written on September 1, 1949, in response to petitioner’s query as to the nature of the sentences imposed, that “I have long had a definite understanding with the clerk of my Court that when it is not expressly stated that sentences are concurrent they are deemed to be consecutive. * * *” Such letter further stated in substance that there had been no mistake made by the clerk in recording the sentences and that same were in accordance with the intention of the judge. The State did not controvert this description of the sequence of events, and its accuracy will, therefore, be regarded as. settled.

The petitioner having been received in State Prison on February 12, 1948, and being entitled (as stipulated in open court) to the allowance of a total of at least 228 days commutation time for good conduct, to which prisoners of his classification uniformly are entitled under the provisions of It. 8. 30 :4-140, it is obvious that he has served, in legal effect, a maximum of three years. If, therefore, the sentences imposed were to be served concurrently, he has completed service thereof and ought to be released. If they were to be served consecutively, he is not presently entitled to be discharged.

The State argues that it was the intention of the sentencing judge to impose sentences to be served consecutively and points to the letter quoted, as evidence of such intent, and further advances the clerk’s minutes and the commitments based thereon as conclusive evidence of the nature of the sentences imposed. The petitioner contends, however, that the intention of the judge in imposing sentence may not be gleaned from a letter written so long after the event, nor from an instruction to the clerk of the court issued so long before the event. The State argues, too, that petitioner at no time misunderstood the real intention of the judge, and while he contends otherwise I would, if necessary, be inclined to find as a fact that his present denial of this realization is untrue. As I view the matter, however, neither the petitioner’s knowledge nor his good faith in denying it, are in issue. I think that the nature of the sentences imposed constitutes an abstract legal problem, not affected by the mental attitude of the petitioner.

It was, of course, within the power of the court in the instant case to direct that sentences be served consecutively, for at common law a court exercising criminal jurisdiction was empowered inherently to punish distinct violations of the-law with separate and cumulative penalties. 15 Am. Jur., Crim. Law, § 470; State v. Mahaney, 73 N. J. L. 53; United States v. Daugherty, 269 U. S. 360, 70 L. Ed. 309.

The sole question here, however, is whether consecutive sentences were, in fact, imposed. The general rule is that where sentences for separate offenses charged in several indictments, or in several counts of the same indictment, are imposed at the same time, they will be construed to run concurrently and the prisoner will be discharged at the expiration of the longest term, unless the sentences expressly state otherwise, or unless for other reasons not present in the instant case (as that the imprisonment is ordered to be in different places, or where the court is not empowered by law to provide for concurrent service thereof), it clearly appears that the court intended that the sentences should run consecutively and not concurrently. United States v. Patterson, Keeper, &c., 29 Fed. 775 (Cir. Ct. D. N. J.); Puccinelli v. United States, 5 F. 2d 6 (C. C. A. 9); 15 Am. Jur., Crim. Law, § 465.

The language of the sentence should be given its ordinary legal meaning, and should so be construed as to give effect, if possible, to the intention of the jitdge who imposed it; but where the language of the sentence is too ambiguous to be otherwise construed, it will be construed as providing that the sentences shall run concurrently. Fredericks v. Snook, Warden, &c., 8 F. 2d 966 (C. C. A. 5). And where the judgment fails to so state, no presumption will be indrdged in favor of the nature of the sentences as being cumulative rather than concurrent. Lockhart v. State, 29 Tex. App. 35, 13 S. W. 1012; Davis v. Anderson, Warden, &c., 270 Fed. 767 (C. C. A. 8). In case of conflict between the judgment and the mittimus, or commitment, the latter, being the more act of the clerk, does not control the judgment; on the contrary, it is the judgment of the court which is the true source of the right of the keeper of the State Prison to detain the prisoner. Davis v. Anderson, supra; State v. Mahaney, supra; Boyd v. Archer, 42 F. 2d 43 (C. C. A. 9).

If a judge pronouncing sentence were to fix the same at live years, for instance, and a clerk, by inadvertence, were to record nine years, and after service of five years all of this were to be established in a habeas corpus proceeding, it may not be doubted that the prisoner would be entitled to be discharged. Thus the sentence, not necessarily in its technical aspects, but in its essence, comprises the words spoken by the judge and not the clerk’s minutes recording the same, nor the commitment based thereon, and if the minutes or the commitment are in variance with the sentence as so pronounced, i. e., stated verbally by the judge, the pronouncement of sentence controls and is the true source of authority for the imprisonment.

In this case, however, the minutes entered by the clerk and the commitments based thereon, designating the sentences as imposed to run consecutively, wore not set down in error, but apparently in fulfillment of a former direction of the court. This direction by the court, or “understanding” between the judge and the clerk, was one of long standing and of general application and obviously not made or entered into with respect to the particular sentences imposed upon this petitioner. As such, I think it reflected not so much a present resolution as to the action to be taken on the instant sentences, as it did a general' intent, perhaps formulated years ago and communicated then to the clerk, to apply to all sentences, except where otherwise stipulated. I do not believe this sort of intent may aid the construction of these sentences as consecutive in nature. Although it is not suggested in the instant case, it is certainly possible that such an intent could be abandoned by the judge over the years, or such an understanding be forgotten by the judge, without the knowledge of the court clerk of such change of intent.

It has been suggested to this record that such direction by the court, or the “understanding” referred to above, was, in effect, a “standing rule, publicly announced,” in effect for some years in the criminal courts presided over by such judge, that unless sentences “were definitely stated to be concurrent, they were to run consecutively.” There is, of course, no doubt that such a rule, publicly announced and uniformly made effective in such court, would import much greater stability than a mere direction to, or understanding with, the clerk. Nevertheless, without presuming to enter into a discussion of the rule-making power of a single judge presiding in the former Court of Quarter Sessions, and conceding solely for the purpose of argument that sucli power may have existed in matters of procedural nature, I have the most serious doubts as to the validity of a rule such as this which would superimpose, so to speak, a blanket formula upon the individual imposition of each specific sentence.

While rigid exactitude beyond the point of reasonableness or necessity is not required,. there must be precision, formality and individuation in the pronouncement of sentences in criminal cases in order to accord with ordinary concepts of justice. It is well settled that a sentence must be certain, definite and consistent in all its terms and not ambiguous, and not be open to any serious misapprehensions by those who must execute it. 70 A. L. R. 1511 (n). It is this rule which underlies the principle that unless several sentences imposed by the court at the same time clearly express their consecutive character, they must be regarded as imposed to run concurrently. It seems to me beyond dispute that a prisoner appearing in open court to hear his sentences must be informed in the pronouncement thereof, with reasonable clarity, of the nature of such sentences, at least as to whether they are to be served consecutively or concurrently, and this without reference to a separate formula. In the instant case, whatever the petitioner’s understanding may have been, and whatever the judge’s mental attitude may have been, the words of the judge, “Yes, on each count,” applied equally to sentences which would be imposed to run concurrently, as they would have applied to sentences intended to run consecutively, for there is individuation in the service of concurrent sentences (United States v. Patterson, supra), and the passage of the years as a unit, nevertheless fulfills the service of the concurrent terms separately.

Correction of the sentences to accord with the alleged intention of the court is now impossible, for with the service thereof the power of the court over the sentences has been exhausted. These sentences were not illegal, but valid, and they have been served. State v. Weeks, 5 N. J. Super. 505; State v. Kowalczyk, 3 N. J. 231; Puccinelli v. United States, supra; Davis v. Anderson, supra.

Accordingly, I determine that the sentences imposed were to run concurrently, that all have been served, and that the petitioner is improperly detained by the Keeper of the State Prison.

Let the petitioner be discharged.


author: Woods, J. S. C.

text:
    JOHN H. WILLIAMS, PLAINTIFF, v. MAMIE KNOX, DEFENDANT.
    Superior Court of New Jersey Law Division
    Decided November 2, 1950.

      Mr. Samuel Moore (Mr. Irving I. Jacobs, of counsel), for the motion.

      Mr. Isaac Nutter, contra.

   Woods, J. S. C.

Defendant moves for an order to relieve her from the judgment entered against her in the above entitled cause, oh the grounds that the failure to file her answer and counterclaim with the clerk of the court was due to inadvertence or excusable neglect, and for permission to immediately file the same and to defend the action on its merits.

The .facts appear to be that a summons and complaint were served on the defendant, Mamie Knox, on December 8, 1948; that on January 4, 1949, Samuel Moore, Esq., attorney for Mamie Knox, answered and counterclaimed; that the service of the answer and counterclaim was duly acknowledged by S. Paul Ridgway, Esq., plaintiff’s attorney, on January 4, 1949 (by inadvertence endorsed 1/4/48); that on January 18, 1949, the plaintiff’s attorney served on the defendant’s attorney an answer to the counterclaim and filed the copy thereof with the Clerk of the Superior Court at Trenton. In January, 1949, Mamie Knox instituted criminal proceedings against the plaintiff, through other counsel, and at this time borrowed the file from the office of Samuel Moore, Esq., and had the same in her possession for several months. On March 18, 1950, the defendant’s attorney received from the clerk of this court, a notice advising that on April 21, 1950, the case would be dismissed for want oí prosecution and it was then that he learned that the answer had never been filed with the clerk of the court. On April 3, 1950, judgment was entered in favor of the plaintiff by default, and the defendant was notified thereof and advised that execution would issue unless she paid the judgment at once. Three months later, on August 9, 1950, an alias execution issued and on August 18, 1950, the Sheriff of Atlantic County levied upon the household furniture of the defendant. On September 2, 1950, the defendant’s attorney filed notice of motion pursuant to Rules 3 :55 — 3 and 3 :60-2.

We have real the affidavits of the various parties to these proceedings, as well as the briefs of counsel, and we have heard oral argument thereon.

Rule 3 :60-2 provides, inter alia, that on motion and upon such terms as are just, the court may relieve a party or his legal representative from a final judgment, order or proceeding for (1) mistake, inadvertence, surprise, or excusable neglect. The authority so given is to be exercised within the sound discretion of the trial court.

The effort of the defendant to vacate the judgment rests upon the claim that the failure to file the answer and counterclaim with the clerk of the court was an inadvertence or an excusable neglect. The affidavit of Samuel Moore, Esq., states that he prepared the answer and counterclaim and duly served a copy thereof upon Mr. Paul Eidgway, plaintiff’s attorney, and obtained his acknowledgment thereto; that he then delivered the original and copy of said answer and counterclaim to the office of Irving I. Jacobs, Esq., who is associated with him as of counsel in this cause and instructed Mr. Jacob’s secretary to bring it to his attention for filing; that he believes that the original and first copy were inadvertently placed in the office file of this action and was not sent to the clerk’s office! for filing; that he heard no more about the ease until August 7, 1950 (19 months later), when the defendant called him and reported that the sheriff was making a levy upon her property. The defendant’s affidavit states that upon being ■served with the summons and complaint in December, 1948, .she discussed the matter with Samuel Moore, Esq., and Irving I. Jacobs, Esq., and understood that an answer and counterclaim was prepared in her behalf; that in January, 1949, she obtained the complete file in this matter from the office ■of Mr. Jacobs and retained the same in her possession until the conclusion of a criminal matter in the Atlantic County ■Court, when she returned the file to Mr. Jacobs’ office; that she did not know that the original answer and counterclaim was contained in said file; that she believes she has a bona fide defense on the merits of the action; that she did not know the original answer and counterclaim had not been filed in the clerk’s office; that the non-filing was an inadvertence.

It must be observed that the plaintiff was not unduly punctual in taking judgment. He allowed more than a reasonable time to elapse after answer day before he demanded the relief to which he appeared by the record to be entitled.

It has been held by our courts that when an act is adopted in this State which is a substantial reproduction of the statutes of another state on the same subject, the interpretation of the act by the courts of that state will be presumed to have 'been accepted by the Legislature of this State as indicating its purpose and effect. Rutkowsky v. Bozza, 77 N. J. L. 724 (E. & A. 1909); Ford Motor Co. v. N. J. Department of Labor, 7 N. J. Super. 30 (App. Div. 1950). Rule 3:60 — 2 follows Federal Rule of Civil Procedure 60(b) which had its source in a comparable provision of the California Code. In California it has been held that the pressure of other business, the confusion of a pleading among papers in an attorney’s office, are inadequate to show excusable neglect. There, too, the preparation of an answer and the failure to file it under the mistaken impression that it was filed is not such inadvertence as will support relief from the consequences of failure to make the filing. Shearman v. Jorgensen, 106 Cal. 483 (Sup. 1895). It has been held also that neither inadvertence nor excusable neglect within the statute is shown by the fact that an attorney employed by the party, on reeeiving a cross-complaint, delivered it to his stenographer with instructions only to place it in the office files, but took no further step respecting answer, whereupon his client was defaulted. Ross v. San Diego Glazed Cement Pipe Co., 50 Cal. App. 170 (1920). In Doyle v. Rice Ranch Oil Co., 28 Cal. App. 2d 18 (1938), it was considered that a showing that one of the attorneys for the defaulted party prepared an amended complaint during a period of illness of the stenographer of an associate attorney and mistakenly thought it had been transmitted by mail for filing, when in fact the stenographer’s illness had prevented such mailing, was inadequate to disclose excusable neglect. Significantly, the court said: “The affidavit reveals neglect, but not excusable neglect. Carelessness and negligence is not akin to excusable neglect.” The federal courts have followed these cases, and in Ledwith v. Storkan, 2 F. R. D. 539 at page 543, the court said: “Whether inadvertence or neglect be relied upon for relief from default, the offending act or omission must be excusable.” Mere neglect or inadvertence resulting in default will not alone justify the vacation of the ensuing judgment, but the neglect or inadvertence must be excusable and real, and practical grounds for excuse must be factually shown in support of a motion to set aside judgment.

Our own courts have held to the effect that a party seeking relief from a judgment regularly taken against him by default must show a good excuse for failing to appear or plead in due season, E. J. Lavino & Co. v. National Surety Co., 104 N. J. L. 475 (Sup. Ct. 1928); and further that where a defendant was properly served, he was chargeable with knowing the consequences of the law suit. Hanover Trust Co. v. Rizzo, 110 N. J. L. 581 (Sup. Ct. 1933). As a general rule, the negligence of an attorney is imputable to his client, and the latter cannot be relieved from a default judgment taken against him in consequence of the neglect, carelessness, forgetfulness, or inattention of the former, unless the neglect was excusable under the circumstances. 49 C. J. S. 634, O’Neill v. Hendrickson, 147 A. 721. The negligence of an attorney may be excusable when attributable to an honest mistake, an accident, or any cause which is not incompatible with proper diligence. The diligence required of an attorney is such as a man of ordinary prudence gives to his own important business. Fo ordinarily prudent or reasonable man would have ignored the case against him from January 4, 1949, until August 7, 1950, as the defendant and her attorneys appear to have done. Palm Beach Mercantile Co. v. Ivers, 2 N. J. Super. 5, at p. 10.

There is another phase to this case which is noteworthy. Defendant, after starting her civil suit, determined to reach the plaintiff by way of a criminal complaint. In this procedure she failed both in the municipal court and in the county court. Further, for the criminal action she appears to have changed counsel. It is quite apparent that the neglect is to be charged not only to counsel, but to the defendant herself. A plaintiff is not to be penalized or made accountable for the indifference, or inertia, of a defendant properly served. Hanover Trust Co. v. Rizzo, supra.

Consonant with the eases cited by the attorney for the plaintiff and the argument presented to this court, we fail to see how the relief prayed for can be granted. Accordingly, it will be denied on condition, however, that credit be allowed for the Brick Lumber Company judgment paid by the defendant.


author: Ziegener, J. C. C.

text:
    GERTRUDE S. LEIB, PLAINTIFF, v. LEON AUERBACH, DEFENDANT.
    Hudson County Court Law Division
    Decided November 10, 1950.

      Mr. John E. Toolan, for the plaintiff (Mr. Robert Moers, of the New York Bar, on the brief).

      Mr. Sigmund Auerbach, for the defendant (Mr. Murray Greiman, on the brief).
   Ziegener, J. C. C.

This matter is before the court on motion of the defendant for summary judgment, on the ground that he has been discharged in bankruptcy, and said discharge results in the elimination of liability to the plaintiff.

Plaintiff is a sister-in-law of the defendant, and individually maintained defendant’s daughter, Vivian, from June 26, 1938, before which time Vivian was cared for by her grandmother and plaintiff, after the death of defendant’s wife. This suit is to recover the expenses and costs incurred by plaintiff in maintaining defendant’s daughter, Vivian.

After this action was instituted, defendant filed a petition in bankruptcy, listing the claim sued upon, and on September 11, 1950, obtained a discharge.

The complaint contains two counts, one upon an express oral contract and the other upon a quantum meruit. Plaintiff contends that the debt is not dischargeable in bankruptcy because section 17(a)2 of the Bankruptcy Act (U. S. Code 11, § 35 (a) 2) states “that diabilities for maintenance or support of wife or child’ are debts not affected by a discharge.”

Dunbar v. Dunbar, 190 U. S. 340 (1903), is cited by both, parties. This case holds that under said section of the Bankruptcy Act a debt under a written agreement between husband and wife, for the support of children is not discharge-able. Defendant argues that this rule applies only between husband and wife, and not to a third person, such as the child’s aunt, in this case. The Dunbar case points out that although there was an agreement to support a child this obligation cannot be evaded because of the existence of the agreement, by a discharge in bankruptcy.

Defendant also relies upon the case of In re Lo Grasso, 23 F. Supp. 340 (D. C., N. Y.), in which a father had agreed to pay a religious home for the maintenance of his children, and the court held that the debt was dischargeable in bankruptcy. It appears that the said home did not stand in loco parentis, while in this case, the plaintiff contends that she was in that position both by agreement and acts. Being in loco parentis, she comes within the ruling in the Dunbar case, which holds that such a promise constitutes the parent as agent for the purpose of supporting minor children.

I find that the debt described in the complaint is not dis-chargeable in bankruptcy, and therefore the application for summary judgment is denied.


text:
    IN THE MATTER OF THE APPLICATION OF MICHAEL MACEJKA FOR WRIT OF HABEAS CORPUS.
    Mercer County Court Law Division
    Decided November 13, 1950.

      Mr. Earl T. Milsop, for the petitioner.

      Mr. Theodore D. Parsons, Attorney General of New Jersey, by Mr. Eugene T. Urbaniak, Deputy Attorney General, for the State.
   Hughes, J. C. C.

On the representation that he is illegally confined in the New Jersey State Prison, petitioner was granted the writ of habeas corpus under the authority of R. S. 2:82 — 1 et seq. The petition for the writ, the return thereto and stipulations entered into at the hearing on the writ, establish that on May 1, 1936, petitioner, having been sentenced by a court of jurisdiction in the County of Bergen to serve not less than 12 nor more than 15 years in the State Prison on conviction of the crime of robbery, was received in the prison and entered upon the service of such sentence; that by action of the Board of Managers of such prison taken under the authority of R. S. 30 4:106.1 (repealed P. L. 1948, c. 84, effective May 28, 1948), petitioner was paroled on such sentence on September 13, 1944; that on the date of such parole there remained unserved against such sentence a net total of two years, seven months and four days, after application of all of the uniform commutation time credits to which he was then entitled on the maximum of such sentence (B. 8. 30 : 4-140); that one of the conditions of such parole, accepted by petitioner on the granting thereof, was the following:

“If you are returned to prison by revocation of parole, the lime between your release and your return to prison, will not be taken into consideration as a part of your sentence, and you will be required to serve the maximum sentence that was imposed uj)on you.”

It further appeared that petitioner, on May 7, 1945, during the time he was at large and prior to expiration of the maximum term of the parole (R. S. 30:4-106.1, repealed P. L. 1948, c. 84), was convicted in Morris County of another crime and sentenced to serve not less than three nor more than seven years in the State Prison; and that on June 1, 1945, also within the maximum term of such parole, he was sentenced in Essex County on conviction of another offense, to serve not less than three nor more than seven years in the State Prison, such term being ordered to run concurrently (but not retroactively to any extent) with the Morris County sentence referred to; that, accordingly, and in legal effect, the petitioner commenced service of such concurrent terms on June 1, 1945; that as a result of such convictions of crime within the maximum term of his parole, such parole was revoked by said Board of Managers on June 12, 1945.

The return to the writ filed by the State establishes that upon expiration of the concurrent Essex County and Morris Countjr sentences, the petitioner was “reverted” and continued in confinement to serve the unexpired portion of the Bergen County sentence on which he had been paroled,' and such is advanced as the justification for his present detention.

On the basis of the above, petitioner makes three contentions, which may be summarized as follows:

(1) That upon his receipt in prison on the sentences imposed upon him in 1945, he was classified as a multiple offender (R. S. 2:103-9, amended P. L. 1950, c. 315) and was not permitted to earn commutation time (R. S. 30:4-140, supra) on his second and third sentences, and was required to serve such commutation time earned by him on his first sentence.

By reason of the amendment of R. S. 2:103 — 9 and existing decisions on the subject of these sanctions against multiple offenders, not charged and convicted as such in the trial court (In re Breslin, 9 N. J. Super. 356 (Mercer County Court, Law Division, 1950), this point is now academic; all such time credits have been restored to the petitioner and this ground for relief is withdrawn. Upon the adjustment of his prison records to account for all such time so restored, and it appearing that no parole intervened as to these latter sentences, there is yielded the adjusted date oh which petitioner completed service of the maximum terms of the concurrent sentences imposed upon him, i. e., FVbruary 23, 1950, which also marks the date of his “reverting” to complete service of the time remaining to be served on the maximum of the Bergen County sentence, on which he had been paroled and which parole was revoked, as stated.

(2) The next ground urged by petitioner involves a point on which there is some varying authority in the jurisdictions of this country. It has been noted that when petitioner was paroled on September 13, 1944, there remained unserved against the maximum term of his sentence a total of more than two years. The sanction to be imposed upon any revocation of such parole due to subsequent conviction of crime was that such violator would be required to serve the maximum term of the sentence originally imposed upon him. Petitioner contends, however, that since the revocation was brought about by subsequent conviction of crime, and since he was for such crimes sentenced to be imprisoned for minimum-maximum terms, and since the latter sentences did not specify that they would run consecutively to the unexpired term that he was bound to serve as a parole violator, that such terms of imprisonment ran concurrently with such unexpired term and, hence, that by his service of the latter sentences, on which he was confined from June 1, 1945, to February 23, 1950, he served during the same interval the unexpired portion of the original sentencie on which he had been paroled. The petitioner cites, inter alia, the case of Wright v. Youell, 160 Va. 925, 168 S. E. 339 (Sup. Ct. of App. 1933), 24 C. J. S., § 1996 (d), as authority for the view that upon revocation of parole upon subsequent conviction of crime, followed by imprisonment for such crime, the time due on the sentence from which the violator had been paroled runs concurrently with the imprisonment on the current sentence, where the second sentence fails to specify that it shall run consecutively thereto. The Wright case must be distinguished because there was there involved a conditional pardon by the sovereignty, having as its principal condition that if the grantee were again to be convicted of crime, the pardon would be null and void. Upon the voiding of the pardon for such cause, the grantee being in custody, the unserved portion of the sentence on which he had been pardoned commenced to run, and in the absence of a direction to the contrary in the second sentence, that, too, commenced then to run. The petitioner likens this authority to the situation which existed in New Jersey in 1945, at which time there was admittedly no statute existing requiring him to serve the two sentences consecutively. It may be noted parenthetically that presently P. L. 1948, c. 84, specifically denies to a parolee the right to serve a sentence for a subsequent crime and the penalty for parole violation concurrently. It is contended on behalf of petitioner that such statute is not in any sense declarative of existing law.

It must be noted, however, that petitioner had accepted as a condition of his parole the provision above set forth, which, in case of revocation, would require him to serve the remaining maximum term of his sentence, and stipulated that “* * * the time between your release and your return to prison will not be taken into consideration as a part of your sentence * * The paroling authority was authorized to impose this condition (R. S. 30:4 — 108) and such condition was undoubtedly valid and binding on acceptance by the intending grantee of the parole. 46 C. J., § 1207, par. 73.

By force of the condition, when petitioner committed a crime while on parole, for which he was arrested, convicted, sentenced and imprisoned, not only was his parole violated, but service of his original sentence was interrupted and suspended. Erom that point forward his imprisonment was attributable to his latter sentences only; he was not then in actual or constructive custody under the original sentence and this status existed until the expiration of such latter sentences. This time being served on the latter sentences cannot be credited to the unexpired maximum of the original sentence without doing violence to the plain intent and purpose of our statutes providing for the system of parole, and the valid rules, regulations and conditions, including the instant one, made effective by the paroling authority.

Petitioner relies, however, upon the wording of the condition, “* * * the time between your release and yonr return to prison, will not be taken into consideration as a part of your sentence * * *,” and contends that the unexpired portion of his first sentence commenced to run on his “return to prison,” i. e., upon his imprisonment on the concurrent sentences imposed in 1945. It seems clear to me, however, that this language does not mean that a parole violator’s original unexpired sentence shall begin to run from the date he is imprisoned for a new and separate offense, but can only refer to re-imprisonment on the original sentence under the revocation order of the paroling authority. And while the petitioner was declared delinquent and his parole was revoked on June 12, 1945, the sanction flowing therefrom, namely, the required service of the unexpired term of the original sentence, was effective only on the expiration of the latter sentences on February 23, 1950, on which date the unexpired term of the original sentence began to run. Language essentially comparable to that of the instant condition contained in provisions of the parole law applicable to federal prisoners (18 U. S. C. A., c. 22, § 723 (c), repealed by Act of June 25, 1948, c. 645, § 21, 62 Stat. 862, effective September 1, 1948; 18 U. S. C. A., § 4205) has been construed to mean re-imprisonment on the original sentence under order of the paroling authority. Zerbst, Warden, &c., v. Sherman Kidwell, 304 U. S. 359, 82 L. Ed. 1399 (1937).

As held in this case, the proper working of the parole system requires that the Board have authority to discipline, guide and control parole violators whose sentences have not been completed. Parole is intended in its proper concept, as reflected in our Constitution and laws on the subject, to be a means of restoring offenders who are good social risks to society and to afford to a prisoner deemed fit to return to community living another opportunity. Unless a parole violator, however, can be required to serve some time in prison in addition to that imposed for an offense committed while on parole, he not only escapes punishment by being required to serve the unexpired portion of his original sentence, but the disciplinary power of the paroling authority would be practically nullified. The parole grantee’s contract with the State, as represented by its paroling authority, would be meaningless, unless by entering into it he is held to accept full responsibility for his later default. Indeed, if the condition accepted by this petitioner does not require him to serve some time in addition to a sentence imposed for the later offense, the paroling authority has no control over his conduct and he might well be inclined to gamble upon the committing of an offense whose statutory maximum is less than the unserved original term which he contemplates he would have to serve upon revocation of parole. Commission of crime is only one of the parole conditions, the breach of which may lead to revocation of parole, and it would be inconceivable that a violator who commits crime leading to revocation of parole would be in a more favored position than a violator who is declared delinquent for lesser reasons. Punitive control by the paroling authority, under any parole system, is essential to provide the necessary safeguards for the benefit of society. Gong. Bee., Yol. 45, p. 6377. If the parole laws, including the valid condition accepted by this petitioner, were to be construed as he contends, parole might be more reluctantly granted, contrary to the broad, humane purpose of our Legislature in granting relief from imprisonment to those deserving another chance. Accordingly, I determine that the unexpired portion of the original sentence of the petitioner began to run on February 23, 1950, and has not yet expired, and that he is not entitled to discharge from it on the ground advanced by him.

(3) The third point made by this petitioner involves, again, his former classification as a multiple offender, as bearing upon his failure to be paroled pursuant to an application made by him to said Board of Managers in 1947. The statute which formerly dealt with the parole of State Prison inmates imposed certain limitations upon the granting of parole to multiple offenders (R. S. 30 :4-106.2) and essentially similar provisions exist in the new Parole Law (R. S. 30:4-123.12, effective May 28, 1948). The petitioner contends that under the former statute, he was denied parole as ineligible therefor on the ground that at the time of his application in 1947, his eligibility date as a third offender would not have been reached until he had served at least three-quarters of the maximum terms of the sentences then, being served, i. e., the seven-year maximum terms above referred to. He contends tbat the denial of consideration for parole was wrongful because although classified administratively by the prison authorities as a third offender, he had not been indicted nor convicted as such in the trial courts. He thus invokes the rule laid down in State v. Lutz, 135 N. J. L. 603 (Sup. Ct. 1947) :

“There is an aggravation of guilt in the repetition of criminal conduct that warrants the imposition of a heavier penalty when the malefactor is again convicted, if the legislative authority so wills; but it is essential to due process that fhere be an allegation in the indictment of the previous convictions upon which the enhancement of the punishment depends, and proof thereof upon tire trial, or that there be a subsequent proceeding in which shall be determined the identity and status of the prisoner in this regard, and his liability to the increased penalty. Where a repetition of criminal action renders the accused liable to different and greater punishment, the subsequent offense is treated as a first offense, unless the earlier crimes are specified in the indictment and proved on the trial. State v. Garton, 102 N. J. L. 318; Weeks v. State, 101 Id. 15; Graham v. West Virginia, 224 U. S. 616; 32 S. Ct. 583; 56 L. Ed. 917. The procedure must accord with the convict’s fundamental right to be heard on notice as to his liability to the heavier penalty which may he inflicted only upon persistent offenders of the statutory category. Pennsylvania, ex rel. Sullivan v. Ashe, 302 U. S. 51; 58 S. Ct. 59; 82 L. Ed. 43. The usual practice is to allege the prior convictions in the indictment, and to submit the factual issue thereby arising to the jury; and this course is obligatory save where the statute makes other adequate provision for the inquiry, which is not the case here. The procedure has its roots in the fundamental common-law principle that in penal proceedings the accused shall be clearly informed of the charge which he is called upon to meet; and this of necessity includes a specification of the elements of aggravation which under the statute enlarges the grade of the crime by enhancing the punishment. People v. Sickles, 156 N. Y. 541; 51 N. E. Rep. 288; People v. Rosen, 208 N. Y. 169; 101 N. E. Rep. 855.”

On the authority of this case, it has been held that deprivation of commutation time credits, uniformly provided by statute as an incentive for good conduct and work performance (R. S. 30 ;4-140, supra), on the basis of an administrative classification as a multiple offender (R. S. 2:103-8, repealed P. L. 1950, c. 315; R. S. 2:103-9, as amended P. L. 1950, c. 315) is illegal as depriving the prisoner so punished of his fundamental right to be heard on notice as to his liability to lose such commutation time otherwise earned. In re Breslin, supra.

In the instant case, however, the petitioner not having been paroled, for whatever reason, he must be considered to have served the maximum of the concurrent sentences imposed upon him, such service having expired on February 23, 1950. There is no power in this court to grant parole, nor to declare, retroactively, the occurrence of an automatic parole at the time when a prisoner may have become eligible for consideration therefor, despite the fact that such failure of consideration may have been wrongful. Ex parte Fitzpatrick, 9 N. J. Super. 511, 75 A. 2d 636 (Cty. Ct. 1950).

For the above reasons, it seems clear to me that the petitioner is presently serving the unexpired term of his sentence from Bergen County due to revocation of his parole therefrom ; that he is properly detained to complete service thereof, unless and until re-paroled by the Board; and that he is, therefore, not entitled to immediate release.

The writ is discharged and the petitioner remanded to custody.


author: Stein, J. S. C.

text:
    REID DEVELOPMENT CORPORATION, A CORPORATION OF THE STATE OF NEW JERSEY, AND PARK PLACE BUILDERS’, INC., A CORPORATION OF THE STATE OF NEW JERSEY, PLAINTIFFS, v. THE MAYOR AND THE COUNCIL OF THE BOROUGH OF VERONA, A MUNICIPAL CORPORATION, DEFENDANTS.
    Superior Court of New Jersey Chancery Division
    Decided November 21, 1950.

      Mr. Abraham M. Herman, attorney for plaintiffs.

      Mr. William J. Camarata, attorney for defendants.
   Stein, J. S. C.

Plaintiffs, Reid Development Corporation, and Park Place Builders’, Inc., institute this suit against the Mayor and Council of the Borough of Yerona for injunction restraining the defendants from diverting waters from the Porest Avenue drainage S3rstem to the property of the plaintiffs and for mandatory injunction directed to the defendants to remove the outlet of the storm drain from Porest Avenue on to Gerdes Avenue.

Before the court is the return of an order to show cause issued upon the filing of the complaint why final judgment should not be entered in favor of the plaintiffs granting the relief prayed for. The matter was heard on complaint, answer and affidavits from which it appears that the pertinent facts upon which the court’s decision may be rested are not in dispute.

Plaintiffs are the owners of property laid out on “Map of Pairway Estates, Inc.,” which map is dated May 1, 1927. Plaintiffs’ property fronts on a street known as Gerdes Avenue running east from Porest Avenue a distance of some 895 feet. Gerdes Avenue is delineated on the map of Pairway Estates, Inc., which map has been approved and filed by the Borough of Yerona and the Town of West Orange, but Gerdes Avenue has not been accepted as a public street by the defendant Borough of Yerona. Plaintiffs complain that a storm drain on Porest Avenue is not connected to any existing storm drain, but has an open pipe leading into Gerdes Avenue, causing the drainage water to flow upon the lands of the plaintiffs ■ to their damage.

Eorest Avenue running from Hillside Avenue south to Eairway Avenue is a publicly accepted highway. Eorest Avenue contains a storm drain maintained by the Borough which collects waters from a large area immediately west of Porest Avenue.

Sometime in 1940 Gerard Homes, Inc., acquired lots fronting on Porest Avenue and put in certain improvements which it says were required by the Borough of Verona before it would accept a deed for said street. It retained engineers to prepare plans and specifications for what was to be known as Porest Avenue extension, which street was to go through lands in the Borough of Verona between the south side of Hillside Avenue, Verona, and the north side of Pairway Avenue, West Orange. Plans for the extension were prepared and the plan and profile dated August 28, 1940, is attached and made part of an affidavit on file.

The area where Porest Avenue extension was to be located lies on the side slope of a hill commencing in Essex Pells and sloping west to east downward toward the westerly side of Lakeside Avenue. The difference in elevation between the natural surface at the intersection of the center lines of Porest Avenue and proposed Gerdes Avenue is about 51 feet, which, according to the affiant engineer, conforms with the natural slope of the hill to the west. According to the engineer, the natural course that surface water follows along Gerdes Avenue is from west to east.

According to the map, two drainage catch basins appear on the west side of Porest Avenue extension, with 18-inch concrete drain pipe running under the bed of Porest Avenue extension to a point about 141 feet on the proposed Gerdes Avenue, which drains collect the natural surface waters at that point. Gerard Homos proceeded to obtain bids for the installation of the storm drain and the paving of the street, and at its expense paved the street and paid for the storm drains, water main and sanitary sewer. The improvements were made by contractors engaged by Gerard Homes.

The Borough, it is admitted, did not at its own cost and expense, or otherwise, install or do any of the work, nor did the Borough by artificial drains or otherwise, divert surface water in that area from the course it would otherwise take and cast it upon the proposed Gerdes Avenue. Such is the uneontradicted proof.

In order to grant the relief sought the burden rested on the plaintiffs to prove that the defendant municipality by active wrongdoing entered upon a drainage scheme in the mentioned area as a result of which it collected water from the area mentioned and by artificial drains cast it upon the proposed Gerdes Avenue. Field v. West Orange, 36 N. J. Eq. 118 (Ch. 1882); affirmed, 37 N. J. Eq. 600 (E. & A. 1883); Miller v. Morristown, 47 N. J. Eq. 62, 20 A. 61 (Ch. 1890); Kehoe v. Rutherford, 74 N. J. Law 659, 65 A. 1046 (E. & A. 1906); Soule v. Passaic, 47 N. J. Eq. 28, 20 A. 346 (Ch. 1890); Cassini v. Orange, 107 N. J. Eq. 128, 151 A. 871 (Ch. 1930); Peter Wendel & Sons, Inc., v. Newark, 138 N. J. Eq. 69 (Ch. 1946); Truhlar v. East Paterson, 4 N. J. 490 (1950).

Judgment for the defendants.


author: Pindar, A. M.

text:
    MILDRED A. ROTH, PETITIONER-PLAINTIFF, v. WILLIAM ROTH, DEFENDANT.
    Superior Court of New Jersey Chancery Division
    Decided November 22, 1950.

      Messrs. Eisenstein & Eisenstein, attorneys for plaintiff.

      Mr. Julius Kwalick, attorney for defendant.
   Pindar, A. M.

On September 6, 1941, plaintiff (as petitioner) filed her petition to be divorced of her marriage with defendant on the ground of simple desertion, also for alimony for herself and for custody and support of a child then eleven years of age. After due service and defendant’s failure to answer, the cause was heard ex parte, resulting in the entry on October 22, 1942, of a decree nisi which became final January 23, 1943. In said decree it was “further ordered, the defendant consents thereto (sic) that the defendant pay the sum of $100 Dollars a month for the support of the petitioner (now plaintiff) and their child Vilma Roth.” The defendant made certain payments during varying periods as hereinafter set forth. It should be stated here that plaintiff remarried in February, 1943, and the defendant in August, 1943; also that the child who will be twenty years old in December, 1950, has since the decree been raised in the mother’s custody. The said order is still in effect and has not been modified.

Plaintiff on notice of motion and affidavit now seeks (1) an order adjudging defendant in contempt for failing to comply with the support provision of the nisi; and (2) entry of a judgment fixing the amount of arrears due under said order. That application being resisted, the parties by order dated July 7, 1950, were directed to offer oral proofs which were taken at an adjourned date. At the close of the hearing decision was reserved.

As credibly appears in the proof the defendant paid plaintiff $100 monthly from October, 1942, to February, 1943, about when he entered the military service; and from February, 1943, to August 31, 1943, $50 monthly; from September 1, 1943, to April, 1944, or May, 1944, $30 monthly; and from April, 1944, or May, 1944, to October 1, 1945, $20 monthly, was paid plaintiff through Government allotments, which ended then upon defendant’s discharge from the service. Thereafter, defendant paid plaintiff $40 monthly until June, 1949, when he discontinued all payments. However, defendant under the order dated July 7, 1950, has paid $40 monthly since June 23, 1950. It will be noted that this varying manner of making support payments, the remarriage of plaintiff in February 1943, and the absence of an allocation of support fixed in the nisi> combine the bases for determination of the issues at bar.

If the admitted remarriage of plaintiff was the only circumstance no difficulty whatever would confound the court, for that fact alone requires a vacation of the order for allowance (alimony). See R. S. 2:50-38, and the case of Madden v. Madden, 136 N. J. Eq. 132 (E. & A. 1944). But here by the direct terms of the order this court has found that the child should share in the award. It cannot be disputed that the loss by statute of a right to have alimony in the event of remarriage will not deprive a child of its right to have support and maintenance from its father, for his duty in that respect is continuous with necessity. The law recognizes an essential difference between the two. See Davis v. Davis, 5 N. J. Super. 59 (App. Div. 1949). Certainly, the mere failure to allocate the allowance in the case sub judice will not justify a characterization of the entire award as alimony to the exclusion of the child. Bather, I believe, that question must be determined equitably between the wife and child. Obviously, the court by its order of October 22, 1942, intended to provide for the child as well as the plaintiff, and that intention will not be defeated for lack of express words. “Equity looks to the intent rather than to the form.” Defendant’s duty to pay alimony for the use of plaintiff and his continuous duty to support and maintain his child will support but one conclusion — that by the nisi defendant was required to do both. Whatever relief he may be entitled to as to one duty will not nullify the other. Instead, when, as here, the intention expressed in the nisi is that defendant perform his paternal duty, the form of that provision will be molded to conform with the intent and purpose of the relief adjudicated, and this court will act and assume the duty to do what in good conscience ought to be done. I am satisfied that the situation here presented is one which is directed to and concerns the-prerogative of this court to mold this decree' to conform with the shifting circumstances that exist in the case at bar. Rufner v. Rufner, 131 N. J. Eq. 193 (E. & A. 1941).

My conclusion in that respect is with full awareness of what the proportionate share of the allowance theretofore made was intended for the benefit of the child. In other words, what proportion of the $100 monthly award would have been a reasonable sum within the discretion of the court on the date of the decree to support and maintain the child Vilma under the circumstances then existing. Manifestly, no supplementary application to modify the original allowance having been made, the allocation of such amount as fixed herein shall run from the nisi date without fluctuation. So considered the modification nowise contravenes what was intended by the decretal provision for support as contained in the nisi.

The proportionable figures for the stated purpose can be found in the prior record. As appears therein the family, before the unfortunate fracture of their relationship, lived under moderate standard conditions. Defendant’s salary was approximately $65 weekly, which permitted seasonal vacations, use of an automobile, and a comfortable home. Plaintiff was employed and her earnings enhanced that of the defendant. The child was carefully raised and was afforded some special education. It clearly appears that the home was better than average. Duo consideration of the circumstances existing on the date of dissolution shows that the reasonableness of the amount of support found by the learned Advisory Master was at the rate of approximately one-third of defendant’s income. Of that sum I believe a share of slightly more than one-third was intended for the child. It will not be gainsaid that the court considered the plaintiff’s earnings as a means to supplement her personal needs. Other facts or circumstances do not concern my conclusion in this respect.

While the issues on plaintiff’s application are as herein-before set forth, I am satisfied that in the form and manner the proofs were taken at the hearing there was raised the questions of (1) vacation of plaintiff’s right to alimony after her remarriage : (2) the defendant’s duty to continue to render support and maintenance for the child Vilma and, if any. in what amount with respect to the necessity therefor, or the vacation, thereof upon the fact that the said child is capable to sustain herself. Although the record shows references were made to the absence of any application to have the award modified in those respects, a review of the proofs indicates that both parties were examined and offered proof thereon to such extent that the further issues were fully presented and tried. In fact by stipulation the parties submitted for use of the court in reaching its determination certain medical certificates which directly concern the physical condition and capabilities of the child Yilma. Those certificates would have no relevancy on either of the directly raised issues. It will be further noted that the decretal order fixed no period of operation and is otherwise silent as to continuance. Moreover, it is clearly settled by law that the questions here involved are continually and wholly within the jurisdiction of this court. Therefore, I conclude that the aforesaid additional issues are in fact before the court without objection for determination under the authority of the provisions of Buie 3 :15-2. The proceedings before the court will be amended accordingly.

Coming now to the question of defendant's duty to continue support for the child, careful analysis of the proof convinces me that the obligation therefor should be arrested. Yilma at her present age of twenty years has grown to be an attractive young lady. My observation of her while a witness satisfies me she is intelligent, possesses good character, and has an appealing personality. Her education includes a completed four-year high school commercial course, which has qualified her for general business employment. She appears to enjoy good health except in the instance of a persisting difficulty relating to female pathology. That condition causes ill and disabling periods. However, the medical proof relating to the extensiveness of that ailment is controversial and contradictory with regard to her ability to be employed. While it is urged by the plaintiff that Yilma is not able to work, there is no showing that any actual effort to seek employment has been made. Such contention is entirely negalive and not convincing. Rather I am brought to the belief that the time and occasion has arrived for Vilma to take her place in some worldly endeavor for which she is adequately fitted, for a successful and contented career.

Finally, the obvious necessity for this application prompts me to suggest that in every appropriate case the order for support and maintenance ought to provide for a proper allocation of any allowance as between the parties affected thereby and included therein. In such event need for a supplementary application upon a similar change of circumstances will be eliminated, much expense saved, and ensuing difficulties avoided.

In view of what has been said and after full consideration of the applications now before the court and all the circumstances appearing, I will advise orders to provide as follows: (a) That the contumacy of the defendant has not been shown and an order therefor should be denied; (b) that the provisions of the nisi for the payment of alimony to the plaintiff should be vacated as of February, 1943; (c) that the provisions of the nisi for the payment of support and maintenance be modified nunc pro tunc as of the date thereof so as to provide for allocation of the sum of $100 monthly as an award of $65 monthly as alimony for the plaintiff, and $35 monthly as support and maintenance for the infant Vilma; (d) that plaintiff have judgment of arrears for support and maintenance of the child in such amount as may result after a calculation at the rate of $35 monthly from October 22, 1942, to November 22, 1950, less credit for all amounts of money paid by the defendant personally or by reason of Government allotment, from and after the date of the nisi, which net sum may be paid in installments of $20 semi-monthly; and (e) that as of and from November 22, 1950, payments for support and maintenance of said child Vilma shall be vacated. However, provision that defendant pay for necessary medical and dental expenses may be provided for the child of the marriage.

An order in conformity with the foregoing conclusions shall be advised.


text:
    GEORGE LAUREL BRADBURY, PLAINTIFF, v. AMERICO F. GIORDANO AND AMES JORDAN, HIS FATHER, DEFENDANTS.
    Superior Court of New Jersey Chancery Division
    Decided November 22, 1950.

      Mr. Robert F. Moss, attorney for plaintiff.

      Mr. A. J. Grassano, attorney for defendants.
   Stein, J. S. C.

The plaintiff seeks the rescission and cancellation of his agreement to buy a dwelling house and demands, further, the inpayment of a deposit of $1,000 paid by him on account of the purchase price and that a lien be impressed therefor upon the real estate which is the subject of the purchase. The defendants deny liability. By his counterclaim the defendant Americo E. Giordano seeks to compel the plaintiff specifically to perform the latter’s agreement of purchase. The decision of this controversy depends entirely upon the intention of the parties in respect of one clause of the agreement dealing with an anticipated second mortgage, to which- clause reference will again be made.

The agreement in dispute is in writing, was made on July-20, 1949, and was prepared by counsel for the vendor. By that agreement the defendant Americo E. Giordano agreed to sell to the plaintiff, for $12,500, the property which is located in ETutley. The purchaser agreed to satisfy the purchase price in the following manner, as stated in the agreement:

“On execution of this agreement for which this is. also a receipt $1,000.00
On delivery of deed, cash $
By assuming the mortgage at present a lien on the premises, and paying the same according to the terms thereof $9,600.00
On Bond and Mortgage * * * $
The purchaser agrees to assume an F. H. A. mortgage now existing on these premises in the amount of $9600.00, and the purchaser agrees to apply and secure a secondary Q-I mortgage in the amount of 1,900. (Italics mine.) 1,900.00
12,500.00”

It is undisputed that the purchaser did apply for a “secondary GI mortgage” for $1,900 and that such application was denied by the lending authorities. A renewal of that application again resulted in failure. The reason for this refusal was the fact that the lending agency appraised the property at only $11,500, thereby showing that the security for the desired secondary loan was scant. In these efforts to secure the 'desired G. I. mortgage the vendor participated, and when failure was a certainty, the vendor himself offered to take a second mortgage but payable only in four years. This offer was refused by the plaintiff, since the secondary G. I. mortgage would have allowed a 20-year period of repayment. Thereupon the plaintiff gave notice of rescission and made demand for the return of the deposit. On the other hand, the defendant-vendor served notice of a time and place for the performance of the agreement, thereby attempting to make that time of the essence.

The plaintiff asserts, and the defendants deny, that at the time the agreement was signed both defendants assured the plaintiff that the secondary loan could to a certainty be obtained and that all that was needed was for the plaintiff to apply for it. The plaintiff then was a captain in the regular American army and had shortly before returned from service in Korea. He has since been ordered into active service and is somewhere with the army in parts unknown. The plaintiff also claims, and the defendants deny, that at the time the agreement was drawn the defendants assured the plaintiff that if the loan were not obtained there would be no deal. I find the disputed facts in favor of the plaintiff. It is not denied that without the aid of the expected G. I. mortgage he was without means to complete the purchase and that this fact was made known to the defendants. It is highly improbable that, aware of his inadequate means, the plaintiff would have been willing to bind himself absolutely to the purchase and to risk whatever difficulty and loss might result if his application for the G. I. loan were refused. There is considerable significance in the circumstance that where in the printed form of the agreement of sale there is provision for the cash to be paid “on delivery of deed,” no sum is stated but the amount of cash ($1,900) to be paid on the delivery of the deed is later in the agreement linked with the procurement of the expected G. I. second mortgage. This fact strongly indicates that the purchaser was not to pay the $1,900 on the mere delivery of the deed but only if at the time of such delivery the second mortgage had, in fact, been procured. On the other hand, the vendor might have very confidently believed that the veterans’ agency would appraise the property at the full purchase price and therefore grant the desired and needed secondary mortgage. In this situation the vendor unquestionably asserted that the mortgage could be obtained and agreed that if it were not obtained there would be no deal. Implicit in such arrangement was the surrender of the agreement and the return of the deposit money.

Aside from the foregoing, the agreement itself shows that the $1,900, constituting the balance of the purchase price, was to be paid from a certain and named source; viz., the secondary G. I. mortgage. While it is true that it was the plaintiff’s undertaking to apply for that mortgage and to “secure” it, nonetheless it is clear that the payment of the $1,900 was in fact contingent upon a contemplated result, namely, that the loan would in fact be granted. The language we here deal with is the language of the defendants and should he construed strictly against them. It does not require a strict construction to reach the result that both vendor and vendee dealt with respect to an assumed condition to arise in the future and that the performance of the agreement by each of the parties was contingent and conditioned upon the contemplated event arising. The event never arose and the stipulated source for the pajnnent never became available. In that situation, and altogether independent of the parties express stipulation, the agreement came to an end and the plaintiff was entitled to the return of his deposit.

Over objection the court received the testimony of the collateral oral agreement between the parties, that if the mortgage were not granted the deal would be off. The defendants claim that this testimony violates the parol evidence rule. Not so. Evidence of a parol agreement that a written agreement is being delivered conditionally constitutes an exception to the rule. See the leading ease of Naumberg v. Young, 44 N. J. L. 331 (Sup. Ct. 1882), and the many other cases since decided on the authority thereof. Such a collateral agreement does not vary the terms of the written agreement. It recognizes the integrity of the entire instrument but seeks to avoid that agreement, unvaried and unmodified. That is the situation in the instant case. The plaintiff seeks to rescind on the ground that because of the event or contingency collaterally stated, his agreement of purchase lost its legal force.

The thousand-dollar deposit was in fact paid to the vendor’s father, Ames Jordan. The vendor, however, in his agreement of sale acknowledged the receipt of that money. Both are answerable for its return. Judgment will be entered in favor of the plaintiff against both defendants; against the vendor Americo E. Giordano rescinding and cancelling the agreement and against both defendants for the return of the deposit of $1,000. Eor this amount a lien will be impressed upon the real estate here involved. The counterclaim for specific performance will be dismissed. Present judgment accordingly.


author: Donges, A. J. S. C.

text:
    FELIX RIVERA AND ELIZABETH RIVERA, PLAINTIFFS, v. HERBERT R. HUNT, BUILDING INSPECTOR OF THE TOWNSHIP OF MOUNT HOLLY, DEFENDANT.
    Superior Court o£ New Jersey Law Division
    Decided November 16, 1950.

      Mr. James M. Davis, Jr., attorney for the plaintiffs.

      Mr. Robert W. Criscuolo for the defendant (Messrs. Parker, McCay & Criscuolo, attorneys).
   Donges, A. J. S. C.

This case was commenced by a complaint in lieu of prerogative writ and has been submitted to the court upon a written stipulation of facts.

It appears that in October, 1949, plaintiffs became owners of premises situate at 59 Washington Street in Mount Holty, New Jersey. They desired to convert the frame building from a residential to a business property and to make extensive repairs and structural changes for that purpose. Some time thereafter a building permit was issued and plaintiff engaged contractors to do the work. ' After the work was commenced and some moneys expended, the defendant, building inspector, wrote plaintiffs’ contractor a letter stating in part as follows:

“Until I receive further assurance from you as the building contractor and Mr. Rivera as the owner of the premises that the Building Code will be fully complied with as indicated above, you are hereby notified that permit No. 3 issued on January 11th, 1950, is reeinded and further work on these alterations must stop.”

The Building Ordinance of Mount Holly, §§ 6 to 11, defines the fire limits of the municipality and states that within those limits buildings thereafter erected or repaired shall be constructed of non-combustible materials as defined in the ordinance. With one exception, not involved here, the ordinance prohibits the renewal or repair of any building “with any material not fire proof” within the fire limits.

The application did not specify the materials to be used in this work but the applicant certified that “I am acquainted with the ‘Building Code’ of said Mount Holly Township, and that I will, to the best of my ability, assist in the enforcement of such ‘Building Code.’ ”

It is important to note that the Building Code also contains the following language :

“If, during the progress of the work, the Building Inspector shall disapprove of the method or mode of any construction, or the materials used, he shall give notice in writing of his disapproval to the contractor and owner and until the same shall be done in conformity with the requirements of the Building Inspector, it shall be unlawful to do or permit to be done any further work in or upon such building or structure.”

Plaintiffs cite several cases enunciating the principle that if plaintiffs proceed under a permit and expend and obligate themselves to spend moneys, the permit is irrevocable, except for fraud or deception. See Citizens' Holding Co. v. Board of Adjustment, 144 A. 329 (Sup. Ct. 1929) (not officially reported); Freeman v. Hague, 106 N. J. L. 137, 147 A. 553 (E. & A. 1929); Kornylak v. Hague, 150 A. 669 (E. & A. 1930) (not officially reported); Pabst v. Ferner, 151 A. 368 (Sup. Ct. 1930) (not officially reported); Horwitz v. Jones, 171 A. 552 (Sup. Ct. 1934) (not officially reported). There can, of course, bo no quarrel with the law as set forth in these cases. However, 1 do not feel that these cases are in point.

In each of the cited cases the permit was sought to be revoked by the authorities on the ground that it was issued in violation of an ordinance. Such is not the case here. The defendant has not actually revoked the permit. Ho has merely enjoined the plaintiffs from proceeding further on the work until he is assured that the work will be done in accordance with the Building Code. It would certainly be an anomalous situation if a building inspector could not require property owners and contractors to build or repair buildings in accordance with an ordinance merely because he authorized the building or the repair. In granting the permit the building inspector authorized the plaintiffs to make the necessary repairs in accordance with the Building Code. Plaintiffs cannot complain of this. Their contractor certified that they would uphold the ordinance. They were on notice that the Code required certain things to be done. If the Building Code is followed, they still will be permitted to complete the desired work.

Therefore, the complaint in this matter will be dismissed.


author: Smalley, J. S. C.

text:
    IN THE MATTER OF THE APPLICATION OF DAVID TIERSON GRAHAM FOR WRIT OF HABEAS CORPUS.
    Superior Court of New Jersey Law Division
    Decided November 28, 1950.

      Mr. Robert E. Dietz, for the petitioner.

      Mr. Mario H. Volpe, County Prosecutor, Mercer Comity (Mr. Frank E. Lawton, First Assistant Prosecutor, Mercer County, appearing), for the State.
   Smalley, J. S. C.

The petitioner, David Tierson Graham, was convicted of the crime of incest with his infant daughter in the Mercer County Court of Quarter Sessions on September 22, 1947.

On October 3rd of the same year, he was sentenced to the New Jersey State Prison for a term of not less than seven years nor more than ten years.

On the representation that he is illegally confined in the State Prison, petitioner sought and obtained his writ of habeas corpus on the 20th day of October, 1950, returnable November 20th of this year, on the single issue that he was not present at the time the jury rendered its verdict of guilty in open court.

The State, in its memorandum tiled, “disputes the factual basis for the application, and claims that the petitioner was present at the time the jury rendered its verdict.”

This court heard the testimony offered and being satisfied that the petitioner was not in court at the rendition of the verdict by the jury, remanded the petitioner to the Mercer County Jail for trial.

Thereafter, this court, on being advised that its determination would require a further consideration by appeal, the request for the filing by this court of a short memorandum to complete the record seems in order.

The testimony adduced at the hearing on the writ disclosed that the trial judge and petitioner’s counsel were not present when the jury rendered its verdict.

The petitioner testified that he was not present, that he was in the county jail and did not know the result until the next day when he was advised by certain individuals and by the reading of articles in the local newspapers.

The clerk of the court could not say that the defendant was present when the jury rendered its verdict and could not even determine from the minutes what time the jury brought in its verdict. One juror testified that she thought the petitioner was present when the verdict was rendered but “could not swear” that this was the fact.

This may be said to be a fair recital of the testimony offered at the hearing on the writ.

It was argued by the State that a writ of habeas corpus can not perform the functions of a writ of error or appeal to review mere errors or irregularities of a court having jurisdiction of the person.

This court, of course, subscribes to this view and agrees that the rule as laid down in In re Tremper, 129 N. J. Eq. 274 (E. & A. 1941), holds that the trial errors may not be reviewed on habeas corpus.

An opinion from this pen reiterating this rule has found its way in our reported cases in In re Hill, 2 N. J. Super. 598 (Law Div. 1949).

Here is a situation apart from a consideration of mere trial errors. The facts disclose no waiver by the petitioner, no attempt to a consenting by the petitioner to a most undesirable procedure.

This is no instance where the irregularities complained of may be brushed aside as being merely a violation of a procedural rule.

The petitioner was not under bail. He did not voluntarily absent himself. He was lodged in the county jail without counsel being present at the time the verdict was rendered with no opportunity to have a polling of the jury.

The authorities cited by the State are not helpful and I have been unable to find dispositive -authority in our own reported cases, but do find recognition of this view recited in both federal and other states. Diaz v. United States, 223 U. S. 442, 32 S. Ct. 250, and Commonwealth ex rel. Milewski v. Ashe, Warden, 363 Pa. 596, 70 A. 2d 625. Chief Justice Maxey in the opinion for that court said:

“It is fundamental in Anglo-Saxon jurisprudence that the defendant charged with a felony shall be permitted to be present at every stage of the trial. Certainly the rendition of the verdict is one of the most important stages of the trial. The words ‘Prisoner look upon the jurors, jurors look upon the prisoner’ is of great significance. Not only has the prisoner the right to have a polling of the jury but his very presence may move some of the jury to have compassion on him and when polled some may say ‘not guilty.’ In our examination of this question we have not found a single jurisdiction in which the absence of a defendant in a felony ease from the courtroom at the time the jury renders its verdict (unless the defendant is out on bail) is not a fatal error. If he is out on bail and is not present when the verdict is rendered it is taken for granted that he has waived his right to be present.”

All of which makes it appear that petitioner’s constitutional rights were violated, thereby ousting the trial court of its jurisdiction and securing to the petitioner his relief as afforded under the writ of habeas corpus.

The petitioner will be remanded to the Mercer County Jail for trial.

Application for bail on notice may be had.

An order may be submitted.