author: Wolber, C. C. J.

text:
    HARRIS J. WESTERHOFF, TRUSTEE IN BANKRUPTCY OF STAR SILK DYEING COMPANY, PLAINTIFF, v. CITIZENS TRUST COMPANY, DEFENDANT.
    Decided July 15, 1936.
    Note — This case was affirmed, by per curiam opinion in 117 N. J. L. 453, Court of Errors and Appeals.
    For the plaintiff, E. Kermit Green and Filbert L. Rosenstein (Spaulding Frazer, of counsel).
    For the defendant, Edward F. Merrey.

   Wolber, C. C. J.

Plaintiff is the trustee in bankruptcy of the Star Silk Dyeing Company. Before its adjudication, it had an account in the defendant trust company. The principal officers of the Star Silk Dyeing Company were Henry Nazzaro, president, and Emilia Hazzaro, secretary. These officers had individual accounts in the same trust company. From time to time during the periods set out in the complaint, checks payable to the order of the Star Silk Dyeing Company by its debtors were endorsed in various form and stjde by these officers and deposited with the defendant for collection in their personal accounts, and the proceeds, when collected, credited to them. This sum, represented by thirty-four checks, aggregated $120,326.87. The plaintiff brings this action to recover that sum upon the theory that the defendant, in crediting the proceeds of these checks to the accounts of the officers, converted the proceeds which were the property of the Star Silk Dyeing Company, to whose rights plaintiff succeeded. This theory is sound and supported by authority. Singer Sewing Machine Co. v. Citizens National Bank and Trust Company of Englewood (Supreme Court, 1933, Perskie, J.), 111 N. J. L. 199; 168 Atl. Rep. 32; affirmed (Court of Errors and Appeals, on opinion below), 112 N. J. L. 497; 171 Atl. Rep. 796. Compare sections 4 and 9 of the Uniform Fiduciaries act (Pamph. L. 1927, ch. 30, p. 69; Supp. Comp. Stat. 1925-1930, § 222-23a(l)), and cases considered thereunder. Robbins v. Passaic National Bank and Trust Co. (Court of Errors and Appeals, 1932, Lloyd, J.), 109 N. J. L. 250; 160 Atl. Rep. 418; New Amsterdam Casualty Co., &c., v. The National Newark and Essex Banking Co., &c. (Court of Chancery, 1934, Backes, V. C.), 117 N. J. Eg. 264; 175 Atl. Rep. 609; affirmed (Court of Errors and Appeals, 1935, on opinion below), 119 N. J. Eq. 540; 182 Atl. Rep. 824.

The defendant in its answer set up various defenses relating to purported authority to credit the checks so deposited by resolutions filed with it by the Star Silk Dyeing Company, as well as other matters, from what will hereafter appear, will not be deemed relevant or material.

While this action was pending, plaintiff instituted a suit in the Court of Chancery of New Jersey against Henry Nazzaro and Emilia Nazzaro, the general object of which was to seek an accounting because of the diversion of these corporate funds. In that suit, the plaintiff sought to charge both Henry and Emilia Nazzaro with the same identical checks upon which this action is founded. The Nazzaros were decreed to account, a reference was had, testimony taken, claims and counter-claims were exhibited, and upon the report and the decree entered thereupon, it was established that on the date of the last check diverted, there was'a credit in favor of the FTazzaros, and a balance between the parties struck. Because of other misappropriations subsequent to the date of these checks, a decree was entered in favor of the plaintiff and against the Nazzaros in the amount of $20,997.23. That decree was never challenged and remains unreversed. The entire record of the proceedings above taken was offered in evidence at this trial by the defendant. It was conditionally received at the time, subject to its competency being established. For reasons to be later advanced, I have concluded to admit the Chancery proceedings, and for the purposes of the record herein, will grant an exception to the plaintiff.

Subsequent to the entry of the Chancery decree, defendant applied to this court and was granted leave to file a supplemental answer, setting up two additional defenses. The “5th” defense was during the pendency of this action considered and therefore requires no further treatment. The “6th” defense asserted that because plaintiff submitted his identical claims against the FTazzaros to diminish or discharge the counter-claim exhibited by them, and the entire sum was credited to the plaintiff, that the claim of the plaintiff was paid, satisfied and discharged, and hence plaintiff cannot again assert his claim against it, because it would operate to give plaintiff a double satisfaction.

The plaintiff argues that the decree settling the rights of the parties was erroneous because under section 68 a and b of the Federal Bankruptcy act, set-off is not available to a debtor of the bankrupt who has been guilty of fraud or violation of a fiduciary duty; and that because of such fact, the allowance of the set-off by the Court of Chancery was erroneous. It is argued that as a result of this alleged error in the Chancery suit, plaintiff was required to permit his entire claim to be so “absorbed” and to be effective as payment. In support of such contention, the case of Libby v. Hopkins (1881), 104 U. 8. 303, and the line of cases following it are cited.

It thus appears that plaintiff has already received payment by credit in the Chancery proceedings. The issue relates to the admissibility of that record to prove the payment.

The issues, therefore, upon which this entire matter may be resolved are thus presented:

(1) Is the record of the Chancery proceeding, to which the defendant was a stranger, admissible against the plaintiff for the purpose of proof of payment of the subject-matter sued upon, so as to prevent “double satisfaction?”

(2) Is the record of the Chancery proceeding subject to collateral attack by plaintiff, so as to enable him to challenge its correctness or demonstrate error?

It seems to be undisputed that there can be but a single satisfaction for any injury. This doctrine is founded on a sound principle of justice and is invariably applied in the greatest variety of cases found in the books. It is argued that the record is inadmissible because the defendant is a stranger. This argument proceeds upon the theory of its proposed use as an estoppel, or as res adjudicada, intended to bind one not a party to it. See Freudenreich v. Mayor and Council of the Borough of Fairview (Court of Errors and Appeals, 1934, Brogan, C. J.), 114 N. J. L. 290; 176 Atl. Rep. 162, and cases therein cited.

This argument is untenable. The record is offered to prove payment of the subject-matter sued upon. That is the use to which it has been devoted by the court. It hardly requires argument to prove that if, instead of payment by credit as found in the record, payment was received in some other form, a certified copy of the satisfied decree would be competent and relevant evidence upon the issue of payment. The absence of this defendant from such a suit, in which the decree has been so satisfied, can hardly be urged so as to defeat its use as evidence, and obviously result in a double satisfaction. I have been influenced in this determination by the authority of Spurr v. The North Hudson County Railroad Co. (Supreme Court, 1894, Beasley, C. J.), 56 N. J. L. 346; 28 Atl. Rep. 582; Rogers v. Cox (Supreme Court, 1901, Collins, J.), 66 N. J. L. 432; 50 Atl. Rep. 143; United Slates Fidelity, &c., v. Goetze (Court of Chancery, 1931, Backes, V. C.), 108 N. J. Eq. 210; 154 Atl. Rep. 524; Brandstein v. The Ironbound Transportation Co. (Court of Errors and Appeals, 1934, Donges, J.), 112 N. J. L. 585; 172 Atl. Rep. 580; Lombardo v. Creamer (Court of Errors and Appeals, 1934, per curiam), 113 N. J. L. 117; 172 Atl. Rep. 584; Moss v. Cherdak (Court of Errors and Appeals, 1934, Perskie, J.), 114 N. J. L. 332; 176 Atl. Rep. 333.

The goal in this matter requires perception of doctrines akin to a “Serbonian bog.” The form of technical niceties will not stand in the way of applying the great principle of a single satisfaction for an alleged injury. The rule preventing double satisfaction is a rule to prevent too much rather than too little. Its application does not depend upon conformance to technical considerations. The wisdom of its enforcement operates to prevent double compensation for a single injury. Its force will pierce through all manner of form and effect the result.

The plaintiff has argued that the mere recovery of judgment against the Nazzaros does not operate to satisfy the claim against the defendant trust company. With this I have no dispute. The Court of Chancery has already decreed the claim to have been paid. The rule fully stated is this:

The recovery of judgment against one of several tort feasors does not operate to satisfy a claim against the others not sued. Nor does it operate as res adjudícala against the remaining tort feasors. But where, as here, the decree effected a payment, it operates to discharge the remaining tort feasors. The payment tends to make the injured person whole and the claim is discharged. Singer Manufacturing Co. v. Skillman (Supreme Court, 1890, Beasley, C. J.), 52 N. J. L. 263; 19 Atl. Rep. 260; Shoemaker v. Maloney (Court of Errors and Appeals, 1925, Kalisch, J.), 102 N. J. L. 363; 132 Atl. Rep. 606; Toscani v. Litsky (Supreme Court, 1927, per curiam), 5 N. J. Mis. R. 100; 135 Atl. Rep. 667; Brandstein v. Ironbound, &c., supra; 65 A. L. R. 1087.

In Bigelow v. Old Dominion Copper Co. (1912), 225 U. S. 111 (at p. 127), Mr. Justice Turton stated:

“But would that judgment, if it had been for the plaintiff in that case, have bound Bigelow in a subsequent suit by the same plaintiff upon the same facts ? If not, upon what principle may he claim the advantage of it as a bar to the present suit ? The cause of action was one arising ex delicto. It was several as well as joint. The right of action against both might have, been extinguished by a settlement with one, or by a judgment against one, and satisfaction. But the claim has come in substance to this, that although the plaintiff had a remedy against Lewisohn and Bigelow severally or jointly, a failure to recover in an action against one is a bar to his action against the other, the facts being the same, although there has been no satisfaction for the injury done. The only basis upon which such a result can be asserted is that Bigelow would have been bound by the judgment if it had been adverse to Lewisohn, and may, therefore, shelter himself behind it since it was favorable to his joint wrongdoer.”

It is unnecessary to resolve the propriety of the application of section 68, a and b, of the Bankruptcy act by the Court of Chancery to the facts in this case. It would constitute a collateral attack upon the record of that court, a court of general jurisdiction. A collateral attack upon the judgment of a court of general jurisdiction can be successful only where and to the extent that it discloses a want of power, as distinguished from error in the exercise of power. That court had jurisdiction of ihe persons and the subject-matter, which was a suit for an accounting.

In Plums v. Howard Savings Institution (Supreme Court, 1884), 46 N. J. L. 211, Chief Justice Beasley (at p. 329), said :

“Courts of general jurisdiction need not set forth in their records the facts upon which their right to adjudicate depends, but such facts will be presumed, and no evidence can be received to contradict them, as such intendments are presumptiones juris et de jure. It is, indeed, this quality that constitutes the principal distinction between courts of superior and general jurisdiction, and those of limited and special jurisdiction. This doctrine is unquestionable, and is too rudimentary to justify discussion. The authorities will be found copiously collected in the notes to Crepps v. Durden, 1 Smith’s L. C. 978.”

That case has been followed in Clark v. Costello (Court of Errors and. Appeals, 1896, Gummere, J.), 59 N. J. L. 234; 36 Atl. Rep. 271; Inhabitants of Hohokus v. Erie Railroad (Supreme Court, 1900, Depue, C. J.), 65 N. J. L. 353; 47 Atl. Rep. 566; Newby v. Blakely (Court of Errors and Appeals, 1913, per curiam), 85 N. J. L. 728; 90 Atl. Rep. 318; Assets Development Co. v. Wall (Court of Errors and Appeals, 1922, Gummere, C. J.), 97 N. J. L. 468; 119 Atl. 10; Hamilton v. Orange Savings Bank (Court of Errors and Appeals, 1924), 99 N. J. L. 503; 124 Atl. Rep. 62; affirmed opinion of Dungan, C. C. J.; Boyle v. Van Splinter (Court of Errors and Appeals, 1924, Gummere, C. J.), 101 N. J. L. 89; 127 Atl. Rep. 257; Lippincott v. Godfrey (Court of Errors and Appeals, 1927, Kalisch, J.), 103 N. J. L. 407; 136 Atl. Rep. 174.

In Lippincott v. Godfrey, supra, Mr. Justice Blaliseh (at p. 409), said:

“Assuming all the irregularities indicated, by counsel of appellant, existed, they did not deprive the court of jurisdiction of the subject-matter of the controversy. The court had jurisdiction to order a judgment, and if its procedure in that regard was erroneous, nevertheless, the validity of the judgment could only be properly subject to an attack by a motion to vacate the judgment in the court where such judgment was entered, or by an appeal therefrom, and not in the collateral manner, as is attempted here.”

Both parties have submitted requests for findings of fact and law. They will be incorporated in the record. Because of the limited and narrow determination upon which this controversy has been decided, I have not deemed it necessary to accede to these requests. The issues as framed by the parties have caused the limitations and the consequent denial of special findings. BTo useful purpose will be served by such findings. Most of the answers will be academic and moot to the actual issues.

I therefore find a verdict in favor of the defendant, no cause of action. I will sign a postea embodying such result.


source: Caselaw Access Project

author: Bodine, J.

license: Public Domain

text:
    ABRAHAM KRUEGER, PLAINTIFF-RESPONDENT, v. VOGEL’S FARM, INCORPORATED, DEFENDANT-APPELLANT.
    Submitted January 19, 1937
    Decided February 19, 1937.
    Before Justices Trenchard, Bodine and Heher.
    For the defendant-appellant, E. A. & W. A. Schilling.

    For the plaintiff-respondent, William Krueger.

   Bodine, J.

Plaintiff had judgment in the District Court upon a check of the following tenor: “Plainfield, N. J., August 3, 1936. No. 1314. The State Trust Company At Plainfield, N. J. 55-195 Pay to the Order of Wm. Krueger $75/100 Seventy-ñve dollars Collectible at Par through the Federal Reserve Bank of New York Vogel’s Farm, Inc. By. . .President. Harry Charles, Secretary. . Treasurer.” The check had been returned by the bank on which it was drawn because of lack of a signature. The only person who had signed it was Harry Charles, the secretary. At the trial, the check was received in evidence after the amount due thereon was proved. The testimony of the defendant’s secretary when called, and producing the minute book containing a resolution, of the company providing that the funds of the company in the State Trust Company of Plainfield, New Jersey, could be withdrawn only by checks of the company signed in defendant’s name by the president, and treasurer, or secretary, was excluded because no affidavit had been filed as required by Pamph. L. 1914, ch. 168, p. 319; Cum. Supp. Comp. Stai. 1911-1924, p. 1197, § 70-20a, providing that a plaintiff in suit upon a promissory note in a District Court, in the absence of an affidavit of invalidity, may recover upon a negotiable instrument without personal proof of the signature thereto. Rossi v. Benedict, 98 N. J. L. 81; 118 Atl. Rep. 713; Mechanics Trust Co. v. Halpern, 116 N. J. L. 374; 184 Atl. Rep. 744.

Whether a corporate officer, or employe, has authority to draw checks upon the corporate account depends upon the well established rules of agency. Slavin v. Passaic National Bank and Trust Co., 114 N. J. L. 341; 176 Atl. Rep. 339.

The only signature to the cheek is that of Harry Charles. The authenticity thereof was admitted, but there was no proof in the case that Harry Charles was alone authorized to draw company checks. The statute is not broad enough to dispense with the necessity of proving the scope of Charles’ authority if the issue was raised. See VanSyckle v. Egg Harbor, 109 N. J. L. 604; 162 Atl. Rep. 627; Hirsch v. Ollendorf, 117 N. J. L. 404; 189 Atl. Rep. 82. The issue was sought to be raised by an affidavit which the defendant offered to file during the course of the trial. The statute (Pamph. L. 1914, ch. 168, p. 319, supra) fixes no time for the filing of such an affidavit. Presumably good practice would require the filing before trial. However, the District Court practice is not designed to be formal, and the plaintiff from the time the check was returned by the bank, on which it was drawn, was fully aware that it lacked necessary signature. The defendant’s proofs had they been received would have barred recovery, since they showed a lack of authority. It would seem that it was reversible error to exclude from the files of the court the affidavit tendered.

Judgment is reversed.


text:
    LOUIS HELLER, ASSIGNEE OF B. & S. EXCAVATING AND CONSTRUCTION COMPANY, A CORPORATION, PLAINTIFF, v. CITY OF PLAINFIELD, DEFENDANT.
    Decided December 10, 1936.
    For the plaintiff, Aaron Heller.

    For the defendant, William Newcorn.

   Wolber, C. C. J.

This case was submitted to the court on a written stipulation of facts, a jury having been waived. It appears that on November 7th, 1930, the defendant, the city of Plainfield, entered into an agreement with the Angelo Paino Construction Corporation for the construction of a storm sower for the sum of $175,895.05. Plaintiff’s assignor was a subcontractor on the same project.

On April 23d, 1931, plaintiff’s assignor served a notice on the city clerk of the city of Plainfield for the sum of $5,275.42 for labor and materials furnished on the job to the said Angelo Paino Construction Corporation, which was filed in the office of the city clerk on that date. On the same date, the city clerk notified the city treasurer of the filing of said stop-notice, and the treasurer entered the same in the lien book of the city of Plainfield, in accordance with the statute. Thereafter the city served a written notice on the Angelo Paino Construction Corporation in compliance with section 7 of “An act to secure the payment of laborers, mechanics, merchants, traders and persons employed upon or furnishing materials toward the performing of' any work in cities, towns, townships and other municipalities in this state (Eevision of 1918). Pamph. L. 1918, ch. 280, p. 1041.” 1 Cum. Supp. Comp. Stat., p. 1861, § 126-57. The Angelo Paino Construction Corporation thereupon notified the municipality that it disputed the lien claim filed by the plaintiff’s assignor and tendered a bond of the Union Indemnity Company for double the amount of the claim filed, which bond was approved by the corporation counsel of the city of Plainfield. After such approval, the city clerk notified the city treasurer, the financial officer of the city of Plainfield, that the Angelo Paino Construction Corporation had filed in the city clerk’s office the above described bond. Por some reason the city treasurer never affixed his formal approval to this bond.

After the filing of the bond, the city of Plainfield made payments to the contractor, Angelo Paino Construction Corporation, and eventually it became involved in difficulties and was adjudicated a bankrupt. The Union Indemnity Company, the surety on the bond, was declared insolvent on January 7th, 1933.

This action is brought by plaintiff, who is the assignee of the creditor of the Angelo Paino Construction Corporation, which had filed the stop-notice above described, and for which the bond was delivered. The theory of this action is that since the statute required the approval of the bond by the financial officer (city treasurer) with whom it was filed, which admittedly was not complied with, the bond was void and therefore the payments by the city of Plainfield to the contractor contravened the rights of this plaintiff, and he seeks to recover the amount which he would have received in the event that the bond had not been accepted by the municipality.

Section 5 of “An act to secure the payment of laborers, mechanics, merchants, traders and persons employed upon or furnishing materials toward the performing of any work in cities, towns, townships and other municipalities in this state (Revision of 1918). Pamph. L. 1918, ch. 280, p. 1041,” supra, pertinent to this controversy, provides (at p. 1860, section 126-55) :

“5. The lien shall attach from the time of the filing thereof to the extent of the liability of the contractor or subcontractor, as the case may be, for the claim preferred upon any funds which may be due or to grow due to the said contractor from the municipality under the contract against which the lien is filed. Provided, however, that the funds due or to grow due to the said contractor from said city, town, township or other municipality may be released and paid to the said contractor by the financial officer of said city, town, township or other municipality upon the filing with said financial officer of a bond in double the sum of all claims filed under the provisions of this act against the said contract or the funds due or to grow due thereunder conditioned for the payment of such sum or sums as may be decreed to be due under any such claims, which bond shall be approved as io form by the chief law officer of such municipality and as to sufficiency by the financial offi,cer with whom it is filed. Pamph. L. 1918, ch. 280, p. 1043.” (Italics added.)

As appears, the matter is entirely statutory. While the object of the statute is to secure payment of persons employed upon or furnishing materials toward municipal works, it also embraces a purpose to prevent the interruption of municipal construction by the claims of creditors thereby secured. It is designed to benefit the municipality as well as the persons employed or furnishing materials for public works. The filing of the bond, as appears, is a statutory substitute to the creditors of the fund represented and held by the municipality. The requirement for approval is to insure a good and responsible surety. When the bond is filed, the creditors are protected; the municipality is protected from creditors; the contractor upon filing the bond receives his money dire him under the terms of the contract and enables him to proceed with the construction of the work under his contract with the municipality. The bond, of course, is required to be a reliable and sufficient one. That is the reason for approval as to form and sufficiency. The test of sufficiency in this case must be determined as of the date of delivery, and not by subsequent events. On the date of delivery of the bond to the defendant municipality, it was apparently sufficient. The failure to approve the bond by the treasurer was not the cause of the plaintiff’s loss. The failure to approve was a formal ceremony that did not contribute to the insolvency of the surety. This is not the case where the defendant is to be held because of avoidance caused by a defect in substance. Even in such an instance, in a suit against the surely, the bond, although not in accordance with the statutory terms and not prohibited by the statute, is nevertheless valid and enforceable as a common law voluntary bond. Emanuel v. McNeil (Court of Errors and Appeals, 1915, Walker, C.), 87 N. J. L. 499; 94 Atl. Rep. 616.

This action, as appears, is based upon the failure of approval of the bond by the treasurer as to sufficiency after delivery. It is to be distinguished from such cases as Wadsworth v. Harrison, 46 N. J. L. J. 329, referred to at some length in Kuestner v. Boscarell (Supreme Court, 1927), 5 N. J. Mis. R. 303; 136 Atl. Rep. 506, per curiam; because in those cases there was involved an election contest, wherein jurisdiction of the Circuit Court to act in the matter depended upon the approval of a bond by a Supreme Court justice, and not by a Circuit Court judge, as was done there. Because of the failure to approve a required bond by the proper statutory officer, the court had no jurisdiction to hear and determine the election contest.

In this case, the plaintiff relies upon the fact that the bond was a nullity because of the non-compliance with the provision as to approval by the municipal financial officer. The plaintiff’s grievance in this case is that the city accepted the bond in the first place, but assigns as his cause of action that the bond was not technically approved by the city treasurer. Of course, the city had a right to accept a bond under the statute. It was a matter for its own protection. The city was not harmed by its failure to approve; the plaintiff was not harmed by the failure to approve. The loss resulted only because of the insolvency of the surety.

In Sooy ads. State (Supreme Court, 1876), 38 N. J. L. 324, Beasley, Chief Justice; affirmed (Court of Errors and Appeals, 1879), 41 Id. 394, Dixon, J., a similar contention as to the invalidity of a state treasurer’s bond, which was required to be approved by the legislature, was held without force or merit. In that ease, Chief Justice Beasley stated (at p. 334) :

“The act with respect to this ceremony of approval is clearly directory, and its non-observance cannot affect the validity of the instrument. It is suggested in the brief of counsel that this legislative approval is an indispensable part of the acceptance of the obligation; if this be so, the result would be that the bond never had any existence, the delivery not being complete, and the defense would be appropriate under the piea of non esl faclum. But I do not think there is any substance even in this suggestion; the bond may be obligatory, even if it has never been approved by the legislature. This plea cannot be sustained.”

Tins is ihe general rule in all cases with respect to the approval of bonds. 9 O. J. 26, § 39:

“ Statutes requiring bonds to be approved by certain officials are not for the purpose of protecting the obligors in the bond, but are aimed to protect the public, to insure their solvency, and to create evidence of au unimpeachable character of the fact of their execution. When they are executed for a legal purpose, before a proper tribunal, and are in fact accepted and approved by the officer or body whose duty it was to approve them, it could serve no useful purpose of the law to hold them invalid, to release all the obligors thereon, and to defeat every purpose of its execution, simply because the fact of approval was not endorsed precisely as had been directed by the legislature/ American Book Co. v. Wells, 83 S. W. Rep. 622, 627; 26 Ky. L. 1159.”

1 believe that non-coinpliance with the statutory provision as to approval of the bond as to sufficiency by the city treasurer was an omission which did not affect the validity of the bond, and therefore the defendant is entitled to a verdict of no cause of action. I will sign a poslea embodying this result upon its presentation.


author: Per Curiam.

text:
    JACOB SHACHAT, PROSECUTOR, v. BOARD OF CHOSEN FREEHOLDERS OF ESSEX COUNTY ET AL., DEFENDANTS.
    Decided February 10, 1937.
    Before Justices Parker, Lloyd and Donges.
    For the prosecutor, Edward B. McGlynn.

    For the defendants, Arthur T. Vanderbilt.

   Per Curiam.

Upon a reading of the statute involved (Pamph. L. 1935, ch. 302, p. 944; N. J. Stat. Annual 1935, § 65-3904B(l)) of the affidavits submitted on this application, and on consideration of the foregoing and of the oral arguments of counsel, and the brief for prosecutor, we find ourselves unable to discern such substantial infirmity in the proceedings attacked on this application as to call for the allowance of a writ of certiorari.

The application is therefore denied.


text:
    Passaic County Circuit Court.
    CHARLES SCHWEITZER, CONTESTANT, v. SAMUEL BUSER, Sr., INCUMBENT-DEFENDANT. IN THE MATTER OF THE CONTEST OF THE ELECTION OF SAMUEL BUSER, Sr., AS COUNCILMAN OF THE BOROUGH OF NORTH HALEDON, IN THE COUNTY OF PASSAIC.
    Decided December 19, 1936.
    For the contestant, William Sheps and Samuel Raff.

    For the incumbent-defendant, Archibald Kreiger.

   Wolber, C. C. J.

The contestant, Charles Schweitzer, on November 16th, 1936, filed his petition with the clerk of the Passaic County Circuit Court which alleged, among other things, that he was on November 3d, 1936, eligible for election to the office of councilman of the borough of North Hale-don ; that an election for councilman was held in said borough on said November 3d, 1936, and that at said election he received the largest number of votes cast for said office of councilman and was duly elected, and should be declared elected thereto; that the board of canvassers of the county of Passaic declared election as follows: Charles Schweitzer, 534 votes; Samuel Buser, Sr., 609 votes; and declared the said Samuel Buser, Sr., duly elected to said office; that said Samuel Buser, Sr., received the certificate of election from said board of canvassers and is about to take possession of said office and exercise the functions and receive the emoluments thereof.

Said Charles Schweitzer contests the said alleged election of Samuel Buser, Sr., upon the ground that illegal votes were received and cast at the polls for Samuel Buser, Sr., in excess of seventy-five votes, which would be sufficient to change the result of the election. The illegal votes, it is alleged, were cast by persons not being legal residents of the first election district of the borough of North Haledon, and the petition of the contestant contains the names of seventy-six persons, who on November 3d, 1936, were enrolled and living at Camp Haledon, located in said borough of North Haledon. If these seventy-six votes were illegally received, and it is proven that they were cast for the incumbent, the contestant would have been legally elected and entitled to his certificate of election. The incumbent, answering the petition of the contestant, denied the allegations of the petition.

The matter comes before me as a contest of the election of Samuel Buser, Sr., to the office of councilman of the borough of North Haledon by one of two defeated candidates for said public office and is controlled by the provisions of article XXYI of “An act to regulate elections (Revision of 1930, approved April 18th, 1930) with the amendments and supplements’ thereto.” Pamph. L. 1930, ch. 187, pp. 671-829; Supp. Comp. Stat. 1925-1930, pp. 491-605, §§ 65-1019 to 65-2601 A.

It appears from the testimony taken before me on November 30th and December 1st, 1936, that the borough of Hale-don, which owned a tract of land within the confines of the borough of North Haledon, leased the premises to the New Jersey Emergency Relief Administration on October 18th, 1934. The lease is in evidence and covers “all lands adjoining the reservoir and waterworks owned by the borough of Hale-don with the exception of that portion used by the water department, to be used exclusively for the following purposes: Transient Training Camp.” The lease was for a term beginning November 1st, 1934, and ending with October 31st, 1935.

The temporary state emergency relief administration, in existence at the time of making this lease on October 18th, 1934, was set up under the provisions of chapter 12 of the laws of 1934, page 47 (N. J. Srat. Annual 1934, § 161-354), which became effective on January 31st, 1934, and was to become inoperative after January 31st, 1935.

By chapter 12 of the laws of 1935, page 34, this act was on Jannarv 28th, 1935, extended to February 28th, 1935, and a new state emergency relief administration was set up on February 26th, 1935, by chapter 35 of the laws of 1935, page 81 (N. J. Stat. Annual 1935, §§ 161-171, 161-173), which shall expire on March 1st, 1938, but shall become inoperative from and after such time as the governor shall, by proclamation, declare that the emergency necessitating its creation had ceased to exist. That act also provided that emergency relief shall continue to he administered under chapter 12 of the laws of 1934, until March 1st, 1935.

On May 4th, 1936, by chapter 83 of the laws of 1936, the emergency relief administration set up under chapter 35 of the laws of 1935, was abolished, and a new public policy declared by the legislature, that public assistance is primarily the duty of the municipality and of civic and charitable organizations.

When chapter 12 of the laws of 1934 was approved on January 31st 1934, the following declaration of a public policy was made by the legislature:

“Whereas, the responsibility for the securing of employment for providing the necessities of life is primarily individual and the result of private effort and industry, and while the providing of relief of various kinds so far as it must be done out of public funds is the responsibility and function of local governments, by reason of the widespread unemployment resulting from existing economic and industrial conditions, relief and assistance that can be provided by private agencies and local governing authorities are not presently sufficient to meet the minimum needs of the people of this state, it therefore becoming necessary to supplement the local public and private relief work by state aid and support; and
“Whereas, the hardships occasioned by and attendant upon the lack of gainful employment and the economic depression generally prevailing are so acute and so affect the public health and welfare of the people that there is now an emergency which requires state recognition and aid; * *

Supplementing the legislation providing for relief of various kinds, the legislature has provided by successive enactments during the period of the present economic emergency, beginning October 13th, 1931, until January 31st, 1938, that dependency or poor relief received by any person, resident of this state, from any of the poor or emergency relief agencies of this state or of the several municipalities thereof, shall not be counted in computing the residence or domiciliary period necessary for any such person to either gain or lose a place of legal settlement under any law of this state, to the end that the place of legal settlement of any person receiving dependency or poor relief shall be and remain the same during this emergency. Pamph. L. 1933, ch. 126, p. 263; N. J. Stat. Annual 1933, § 161-163; Pamph. L. 1934, ch. 9, p. 45; N. J. Stat. Annual 1934, § 161-163; Pamph. L. 1935, ch. 260, p. 840; N. J. Stat. Annual 1935, § 161-401.

There is testimony in this case that the property was used by the New Jersey temporary emergency relief administration for a transient training camp as early as August 15th, 1933. That temporary administration was set up under the provisions of chapter 4 of the laws of 1933, amending chapter 394 of the laws of 1931.

It is undisputed that on December 2d, 1935, the New Jersey state relief administration turned over this camp to the federal government, and it then became a part of the federal works progress administration established under the “Emergency Relief Appropriation Act of 1935 (Public Resolution No. 11, Seventy-fourth Congress)” and executive order No. 7034 of May 6th, 1935. The purpose of public resolution No. 11 is stated as follows: “That in order to provide relief, work relief and to increase employment by providing for useful projects, there is hereby appropriated, * * *.”

I do not find that any rules and regulations prescribed by the works progress administration, “a. to assure that as many of the persons employed on all works projects as is feasible shall be persons receiving relief; and b. to govern the selection of such persons for such employment,” were approved by the president of the United States as required by his executive order of May 6th, 1935.

The evidence shows that on November 3d, 1936, the seventy-six persons whose votes were challenged resided at Gamp Haledon; that they received their compensation from the federal government and paid the federal government for their keep and maintenance. Seventy-two of the seventy-six persons had previous residence in seventeen states of the union; thirty-three of them had resided in New Jersey and thirty-nine hailed from Massachusetts and Ehode Island; as far south as Louisiana, Texas and Florida; and as far west as Montana. Their ages ranged from twenty-one years to seventy-five years, and the earliest entrant of the camp has been there since October 1st, 1933. Ten had previous residences in Passaic county; twenty-three in other counties of the state; four came from other camps within the state; and two from camps outside of the state.

Paragraph 31 of article IV of the New Jersey Election law, Eevision of 1930 (Supp. Comp. Stat. 1925, p. 502, § 65-4), prescribes the following qualifications for exercising the right of franchise:

“Every person possessing the qualifications required by the Nineteenth Amendment to the Constitution of the United States [woman suffrage] and Article II, Section 1 of the Constitution of the State of New Jersey and having none of the disqualifications mentions [sic] therein, and being duly registered as required by this act, shall be entitled to vote in the polling place assigned to the election district in which he actually resides, and not elsewhere; provided * *

Section 1 of article II of the New Jersey Constitution provides as follows:

“1. Every male citizen of the United States, of the age of twenty-one years, who shall have been a resident of this State one year, and of the county in which he claims his vote five months, next before the election, shall be entitled to vote for all officers that are now, or hereafter may be elective by the people; provided, that no person in the military, naval, or marine service of the United States shall be considered a resident in this State, by being stationed in any garrison, barrack, or military or naval place or station within this State; and no pauper, idiot, insane person, or person convicted of a crime which now excludes him from being a witness unless pardoned or restored by law to the right of suffrage, shall enjoy the right of an elector; and provided further * *

While Camp Haledon was a camp in the State of New Jersey on the last general election day under the jurisdiction of the federal works progress administration, the enrollees in the camp were not in the military, naval or marine service of the United States, and, therefore, none of the seventy-six persons whose votes are questioned in this proceeding possessed the disqualification of federal service mentioned in the state constitution.

None of the camp enrollees were residents of the first election district of the borough of North Haledon prior to their residence in the camp. Three had voted in prior elections in other places in New Jersey and none had voted in North Haledon previously. The only question before the court is whether or not the seventy-six persons whose right to vote is questioned actually resided in the first election district of the borough of North Haledon on the last general election day. There is no question in the case that these persons were registered as required bj law (paragraph 170 of article XIV of the Election law, Eevision of 1930), and that each person, when his vote was challenged, took the statutory oath of qualification as required by paragraph 184 of the same article.

Three non-residents of New Jersey who were admitted to the camp on November 11th, 1935, December 29th, 1935, and February 6th, 1936, respectively, failed to meet the requirement of one year’s residence in the state, and were not legally entitled to vote at the general election on November 3d, 1936.

It also appears in this case that all of these persons were unattached and without families, with a single exception. It must be conceded that Camp Haledon was not the domicile of origin of any of these persons whose vote was questioned.

In the case of Harral v. Harral (Court of Errors and, Appeals, 1884), 39 N. J. Eq. 279, which was a case involving a community of property between a husband and wife as an incident of the marriage, under the laws of France, Mr. Justice Depue (at p. 285) said:

“A person sui juris may change his domicile as often as he pleases. * * * There must be a voluntary change of residence; the residence at the place chosen for the domicile must be actual; to the factum of residence there must be added the animus manendi [intention of remaining] ; and that place is the domicile of a person in which he has voluntarily fixed his habitation, not for a mere temporary or special purpose, but with a present intention of making it his home, unless or until something which is uncertain or unexpected shall happen to induce him to adopt some other permanent homo.”

In this case we have a transient training camp converted into a works progress administration camp, designed to furnish sustenance and shelter to American citizens during a period of unemployment emergency. The emergency phase of the works progress administration has been to provide the able-bodied unemployed with jobs at security wages. How can it be said, in view of the consistent public policy of providing relief until economic recovery, declared by state and nation, that these persons made the camp their actual residence which would entitled them to the rights of electors in the first election district of the borough of híorth Haledon at the last general election?

We have here a residence in fact, but where can it be spelled out from the record that any of these persons had by any outward acts indicated an intention to make a home in fact at the temporary relief camp? The intention required for the acquisition of a domicile is an intention to make a home in fact, and not an intention to acquire a domicile. Am. Law Inst. Restatement, Conflict of Laws, § 21.

In Williamson v. Osenlon, 232 U. S. 619, the United States Supreme Court says:

“The essential fact that raises a change of abode to a change of domicile is the absence of any intention to live elsewhere {Story Confl. L., § 43); or as Mr. Dicey puts it in his admirable work: ‘the absence of any present intention of not residing permanently or indefinitely in the new abode. Conflict of Laws (2d ed.), III.’ ”

When the present emergency clears up, there will be an end to the necessity of this camp for relief purposes. The present policy of the federal government is to speed np economic recovery so that private industry will absorb our unemployed as speedily as possible, and nearly all of these enrollees should soon be back to work in private industry at some other place.

Vice-Ordinary Buchanan in the case of In re Dorrance (Prerogative Court, 1934), 115 N. J. Eq. 268; 170 Atl. Rep. 601; affh'med (Supreme Court, 1935, per curiam), 13 N. J. Mis. R. 168; 176 Atl. Rep. 902; affirmed, (Court of Errors and Appeals, 1936), 116 N. J. L. 362; 184 Atl. Rep. 743, per curiam on per curiam opinion of Supreme Court (at p. 274), says:

“There are certain fundamental principles of the law of domicile, so thoroughly established everywhere as to be frequently called ‘axiomatic. Among them are the following:
“1. When a man has acquired a domicile in a particular place, that place remains his domicile until he acquires another domicile.
“2. To effectuate such a change of domicile it is requisite that he shall in fact remove from the old domicile to the new, with the intention of abandoning the old domicile and of remaining permanently or indefinitely in the new.
“3. The burden of proof to establish that a change of domicile has occurred Tests upon the party so asserting.
“4. A man has the right to choose his own domicile, and his motive in such choice is immaterial.

Mere taking up residence is not sufficient, unless there be an intention to abandon a former domicile. Bradley v. Lowry, Speers Eq. (S. C.) 1; 39 Am. Dec. 142; 6 M. & W. 511; Inhabitants of Wayne v. Inhabitants of Greene, 21 Me. 357; Putnam v. Johnson, 10 Mass. 488; 1 Curt. Eccl. 856; People v. Peralta, 4 Cal. 175; Bartlett v. City of New York, 5 Sandf. (N. Y.) 44; Price v. Price, 156 Pa. 617; 27 Atl. Rep. 291; State v. Dayton, 77 Mo. 678; nor is it even prima facie evidence of domicile when the nature of the residence either is inconsistent with, or rebuts the presumption of the existence of an animus manendi. Dicey Dom. Rule 19; 34 L. J. Ch. 212. Nor is intention alone of constituting domicile sufficient, unless accompanied by some acts in furtherance of such intention. Chaine v. Wilson, 1 Bosw. (N. Y.) 673; Ring- gold v. Barley, 5 Md. 186; 59 Am. Dec. 107; Wright v. Boston, 126 Mass. 161; Carey's Appeal, 75 Pa. 201; Morris v. Gilmer, 129 U. S. 328; 9 Sup. Ct. 289; 32 L. Ed. 690.

Mr. Justice Vroom, in Watkinson v. Watkinson (Court of Errors and Appeals, 1904), 68 N. J. Eq. 632; 60 Atl. Rep. 931, a ease in which it was sought to set aside a divorce decree (at p. 638), approved the rule as to domicile set forth by Mr. Justice Depue in Harral v. Harral, supra, and further said:

“The doctrine laid down by the courts of the United States is that a domicile having been once acquired, continues until a new one is actually acquired animo er facto. 10 Am. & Eng. Encycl. L. 15; Cadwalader v. Howell, 18 N. J. L. 138; Clark ads. Likens, 26 Id. 207.”

Judge Donges, now Mr. Justice, in Snyder v. Callahan (Ocean County Circuit Court, 1925), 3 N. J. Mis. R. 269, said (at p. 272) :

“And while, in determining the animus manendi, the declarations of the claimant are material and important yet, as was said by Vice-Chancellor Van Fleet in Firth v. Firth (Court of Chancery, 1892), 50 N. J. Eq. 137: The best and most trustworthy evidence of it is to be found as a general rule in his acts rather than in his declarations/ ”

The instant case is bare of any facts to show a change of residence outside of the attendance at Camp Haledon of the persons whose votes are challenged in this proceeding. In the acquistion of a new domicile, more is required than a mere change of residence; there must be a fixed intention to renounce a birthright in the place of the original domicile and to adopt the political and municipal status involved by permanent residence of choice elsewhere. A student does not change his domicile by residence at college. In the Matter of Goodman, 146 N. Y. 284, Judge Finch. This case was cited and approved in In re Matter of Garvey, 147 Id. 117.

My worthy predecessor, the late Judge Mackay, in the case of Brueckmann v. Frignoca, 9 N. J. Mis. R. 128; 152 Atl. Rep. 580, held that the inmates of a sanitorium or hospital were not entitled to vote in Haledon at a General Election for a municipal office.

As to the right of sojourners, laborers and railway workers to vote, see 6 Am. d Eng. Encycl. L. (1st ed.) 277, and the eases of Barnes v. Adams (3 Congressional Election Cases 711), and Cessna v. Meyers (Congressional Election Cases, February 7, 1872).

Mr. Justice Close, in a recent ease in the New York Supreme Court for Westchester county, October 26th, 1936, denied the right' of prospective voters employed in the national park service and living at a camp to vote in the camp election district.

I have, therefore concluded that these seventy-six persons were not qualified to vote in the first election district of the borough of North Haledon on November 3d, 1936, and I will, therefore, fix next Tuesday morning, the twenty-second instant, at the court house in Paterson, New Jersey, for a continuation of the hearing on the petition of the contestant herein, in order to determine whether or not the seventy-six illegal votes cast at the last general election for the office of councilman of the borough of North Haledon in the county of Passaic are sufficient to change the result of said election as between the contestant and incumbent, in accordance with the statute.


text:
    New Jersey Department of Labor, Workmen's Compensation Bureau.
    WHITFIELD SMITH, PETITIONER, v. ESSEX COUNTY PARK COMMISSION, RESPONDENT.
    Decided January 23, 1937.
    For the petitioner, Stone & Kleinberg (Perry E. Belfatto, of counsel).
    For the respondent, Gray & Reid (A. Lionel Reid, of counsel).
   This is a proceeding brought by Whitfield Smith, as petitioner, against the Essex county park commission, respondent, seeking a review of a judgment heretofore entered thereon upon the ground that his incapacity has subsequently increased, pursuant to the provisions of section 21 (f) of the Workmen’s Compensation act. Cum,. Supp. Comp. Stat. 1911-1924, p. 3882, § **236-24, subsec. 21(f).

A supplemental petition and an answer thereto were duly filed with the secretary of the workmen’s compensation bureau at his office in Trenton, New Jersey, and in regular course the matter came on for hearing before me, John J. Stahl, a deputy commissioner of compensation, at the Newark chambers of the workmen’s compensation bureau.

Briefly stated, the material facts are essentially as follows: On July 21st, 1932, the petitioner, while engaged by the respondent in pick and shovel work at the South Mountain Reservation, sustained an injury to his right testicle, as the result of an accident arising out of and in the course of his employment, when he was struck in the region of the right scrotum by a piece of stone which he was breaking up by means of a pick. On July 13th, 1933, the petitioner and respondent entered into a compromise agreement upon which judgment was accordingly entered, by the terms of which petitioner received thirty weeks compensation at the rate of $13 per week for temporary disability and seventy-five weeks at the same rate for partial permanent disability or the equivalent of fifteen per cent, of the total, based on a condition of traumatic hydrocele and epididymitis on the right side.

The sole question dispositive of the present issue is whether or not the petitioner is suffering from an increased disability due to the original injury.

The petitioner, appearing as a witness on his own behalf, testified that his physical condition has grown steadily worse since the award recovered in 1933; that he has lost considerable weight; that he is weak and unable to work; that at the present time both testicles are painful, swollen and enlarged; that the pain from the testicles radiates up the entire spine; that the left hip feels as though it is paralyzed; that his left side is numb and has no feeling; that he is unable to walk in comfort or ride in a bus because of the pain in his scrotum ; that he is nervous and unable to sleep at night.

The testimony of the several physicians appearing for the respective parties presents the usual contrariety of medical opinion. Drs. Henry A. Davidson, Francis S. Myers and Lewis H. Loeser, appearing on behalf of the petitioner, expressed the opinion that the petitioner, in addition to his physical condition for which he had been previously compensated, is suffering from a permanent disability ranging from twenty-per cent, to twenty-five per cent., based on a neurosis resulting from the accident. Drs. Joseph Koppel, M. Weinstock Bergman and Jack Blumberg, appearing for the respondent, expressed the opposite view. However, it was admitted by Dr. Bergman, on cross-examination, that upon examination of the petitioner in 1933, he found Smith a potential psycho-neurotic; that at the present time he finds him definitely psycho-neurotic; but that he does not attribute this neurotic condition to the accident, ascribing it to environmental, economical and family difficulties.

In addition to these physicians there was medical testimony adduced on behalf of both parties pertaining to the urological condition of the petitioner. Dr. Mac}dn Baker and Dr. Jacob Holder testified for the petitioner, while Dr. Sidney C. Keller and Dr. Joseph F. Londrigan testified for the respondent. In the main their testimony seems to be in accord, indicating by their opinions that the physical condition of the petitioner has remained static and that both téstieles function normally.

In view of the widely conflicting opinions of the medical experts on the question of the neurosis, it becomes necessary for me, in order to arrive at a decision, to adopt the viewpoint which appears to be the more reasonable and which deserves the greater weight in the evidence. Neurosis is a nervous disorder of a functional nature, and is characterized by a chain of varying symptoms of psychic, nervous, motor and vasomotor disturbances, usually without any organic basis or background. While most any type of emotional shock such as worry over business losses; economic distress; family difficulties and disappointments is a competent producing cause for a neurosis, it is conceded, nevertheless, by all the well recognized medical authorities that neurosis quite often follows as a result of trauma. Particularly is this so where the injury, as here, involves the genital organs and where the neurotic manifestations promptly follow such cause. And the fact that the petitioner had a pre-disposition to a neurosis in that he was a potential psycho-neurotic at the time or shortly after the accident is immaterial. Likewise, that the petitioner, but for the want of sufficient will power, could have thrown off the condition of neurosis caused by the injury, does not deprive him of this right to compensation. See Sigley v. Marathon Razor Blade Co., 111 N. J. L. 35; 166 Atl. Rep. 518. Upon carefully weighing the evidence I am satisfied that the petitioner is suffering from traumatic neurosis as a result of the scrotal injury; that from my observation of him in court and by his demeanor on the stand, I am thoroughly convinced that he is definitely neurotic, and that while I find as a fact that his neurosis is augmented and accentuated to some extent by conditions wholly unrelated to his injury, namely economic distress, financial worries, family troubles and difficulties with the relief authorities, the conclusion is inescapable that the accident was the initiating cause of the neurosis, contributing to a large extent to his present disability. Upon eliminating the elements of disability which bear no relation to the accident, I find the petitioner is suffering from a traumatic neurosis approximating ten per cent, total disability.

It is therefore on this 33d day of January, 1937, ordered, that judgment be entered in favor of the petitioner and against the respondent.

John J. Stahl,

Deputy Commissioner.


author: Pee Curiam.

text:
    GEORGE P. HEWSON COMPANY, A CORPORATION OF THE STATE OF NEW JERSEY, PLAINTIFF-APPELLEE, v. WALTER O. SPANNHAKE, DEFENDANT-APPELLANT.
    Submitted October 6, 1935
    Decided March 2, 1937.
    Before Justices Trenchard, Bodine and Heher.
    For the defendant-appellant, Gross & Gross (Bernard A. Green, of counsel).
    For the plaintiff-appellee, Barr & Barr (Morris Barr, of counsel).
   Pee Curiam.

This suit was tried before the judge sitting without a jury; judgment was entered in favor of the plaintiff for $250. The parties having been unable to agree upon a state of the case on appeal, the judge settled the state of the case, and therein found, among others, the following facts:

By written agreement dated October 22d, 1935, the defendant agreed to pay the plaintiff $1,000 in connection with the leasing of premises owned by the defendant, if the plaintiff obtained such lease; $500 was to be paid at the time of execution of lease; $250 payable three months thereafter and $250 payable six months from the execution of the lease; and the plaintiff also agreed to cancel a judgment which it had obtained against the defendant in the Irvington District Court. A lease was made in accordance with the agreement. The plaintiff did cancel the judgment in the Irvington District Court in accordance with its agreement. The defendant did pay $500. The payment of $250 to be made in three months from the date of the execution of lease has not been paid, although it was due when this suit was brought therefor. Judgment was entered in favor of the plaintiff for $250.

The contention of the defendant on this appeal may be summed up in his specification of error that the court “erred in rendering judgment in favor of the plaintiff in the sum of $250 because said defendant had already paid to the plaintiff all that it was entitled to under the said agreement of October 22d, 1935.”

That contention rests upon the fact that defendant had paid the $500 which was to have been paid at the time of the execution of the lease.

The trial judge, however, rightly took the view, as we have seen, that $250 was payable three months thereafter, by the plain terms of the contract.

The construction of a written contract is generally a court question, and the cardinal rule of construction is to ascertain and give effect to the mutual intention of the parties as manifested by the language employed and the objects to be accomplished. Basic Iron Ore Co. v. Dahlke, 103 N. J. L. 635; 137 Atl. Rep. 423; Bullowa v. Thermoid Co., 114 N. J. L. 205; 176 Atl. Rep. 596.

So construed it seems quite apparent that in addition to the $500 which was to be paid upon the execution of the contract, $250 was also to be paid three months thereafter.

While the contract was crudely drawn and ungrammatical in some aspects, it seems plain to us, considering the entire contract, that the conclusion reached by the trial judge as to the interpretation thereof cannot reasonably be avoided.

The judgment will be affirmed, with costs.


author: Hartstorne, C. P. J.

text:
    Essex County Orphans Court.
    IN THE MATTER OF THE ESTATE OF PHILIP BLOCK, DECEASED.
    Decided February 24, 1937.
    Eor the petitioners, Harry Dudkin.

    Eor the respondent, Benjamin Cohn.

   Hartstorne, C. P. J.

We have here for consideration the “somewhat difficult question of the effect of the cancellation of a later will upon an earlier one.” Re Diament’s Estate, 88 N. J. Eq. 552; 103 Atl. Rep. 199. Unfortunately the Court of Errors and Appeals did not find it necessary to answer such question in the above ease, and in the two other leading New Jersey cases on the subject (Randall v. Beatty, 31 N. J. Eq. 643; Re Moore’s Will, 72 Id. 371; 65 Atl. Rep. 447) it is far from clear whether the courts apply the rule originally adopted by the English courts of common law or the differing one adopted by the English ecclesiastical courts, for both are referred to. Turning from the New Jersey courts to outside jurisdictions we find “confusion worse confounded.” Eor in England at first the common law courts adopted one rule, the ecclesiastical courts another, and later upon the enactment of the Statute of Victoria as to wills, a third was fixed upon. Statute of Victoria, 1837, 7 Wm. IV and 1 Vic., ch. 26, § 22. Turning to this country we find that one group of courts has followed the English common law rule (Connecticut, Illinois, Horth Carolina, Ehode Island, Vermont), another group the rule of the English ecclesiastical courts (Iowa, Maryland, Massachusetts, Michigan, Minnesota, New Hampshire, Pennsylvania), a third the English rule adopted under the Statute of Victoria (California, Indiana, Kansas, Missouri, New York, Ohio), while two other groups diverge still further. 1 Page on Wills (2d ed.), Iff 442 to 448. To understand more clearly the difficulties which have thus caused our courts to differ so 'variously, the typical facts, appearing in this case, should be borne in mind.

Philip Block executed his first will in 1922, leaving same with his then attorney, Benjamin Yawitz, to keep for him. This will is now produced by the attorney for probate. In 1928 testator returned to his attorney and executed a second will, telling the latter to keep both because “I want to see how the children are going to act towards me.” There is a dispute as to this, a son claiming that at or about the time of the execution of the 1928 will the 1922 will was thrown by Yawitz into the scrap basket in testator’s presence. But not only do we have the attorney’s denial of this, but that of several disinterested witnesses, who say no such thing occurred and that the son was not present at the execution of the 1928 will. Later the decedent obtained his 1928 will from his lawyer and took it home, where he kept it till a few months before his death, in his safe. To this safe only he and this son had access. The 1928 will was not found after decedent’s death, and there being no motive fox the son’s destroying it, and no testimony even hinting same, it is well established that the 1928 will must be deemed to have been destroyed by testator animo revocandi. Re Calef, 109 N. J. Eq. 181; 156 Atl. Rep. 475; affirmed, 111 N. J. Eq. 355; 162 Atl. Rep. 579; Re Willett’s Estate, 46 Atl. Rep. (N. J.) 519.

So far the situation creates small difficulty. The real difficulty arises due to the fact that the 1928 will, a copy of ■which exists, contained a clause expressly revoking former wills. The question thus is, whether the 1922 will now produced by decedent’s attorney, Mr. Yawitz, is in effect, despite the execution of the later will containing the revocation clause, and the latter’s revocation subsequently.

According to the rule of the English common law courts, as stated in Randall v. Beatty, supra, “where one will is revoked by another, the revocation is testamentary, and the revocation of the latter will revives the former.” According to the rule of the English ecclesiastical courts, apparently applied in Re Moore's Will, supra, the revocatory clause included in the later wilL takes effect at once, on execution, to revoke the earlier will, it being a question of testator’s intention as to whether or not the earlier will is revived by the subsequent destruction of the later will. Both these differing viewpoints are well set forth in Whitehill v. Halbing, 98 Conn. 21; 118 Atl. Rep. 454, with their supporting and conflicting authorities throughout the United States, exhaustively, not to say exhaustingly, discussed, if we may judge from the language in the dissenting opinion of the Supreme Court of Errors of Connecticut, where the Chief Justice takes pointed issue with his colleagues. The third major rule is that adopted by the English courts subsequent to the enactment of the Statute of Yictoria, supra, in 1837. Major v. Williams, 3 Curt. Roc. 432; 1 Page on Wills, § 446. This rule, which has in turn been followed by another series of American state courts, is to the effect that the execution of a later will, with a revocatory clause, revokes the first, but that, on the revocation of the later will, the earlier will is not revived unless re-executed and republished.

To guide our footsteps in this confusing situation the following landmarks stand out:

1. The devolution of property at death is a matter of such importance both to the individuals involved and to the public, and so subject to possible fraud when the lips of the previous owner have been sealed by death, that the public, through the legislature, has fixed definite rules as to how property may so pass.

2. The intention of the testator is important, but in view of such danger of fraud, the evidence of such intention must be definite, and ofttimes of statutory character.

3. Wills are ambulatory in character, i. e., speak only from date of death.

4. The law abhors intestacy.

Before the establishment of the above rules by the courts and their general recognition as landmarks, a duly executed will could be revoked by mere word of mouth. This was soon found so uncertain and subject to fraud that provisions were inserted in the statute of frauds as early as 1687 to prevent such oral revocation of a will. .29 Gar. II, ch. 3, §■§ 6, 22. These provisions of the English statute of frauds have been re-enacted substantially verbatim in the New Jersey statute of wills and now constitute sections 2 and 25 of such statute, as follows:

“Sec. 2: That no devise or bequest in writing, of any lands, tenements, hereditaments or other estates whatsoever in this state, or of any estate pur auter vie, or any clause thereof, shall be revocable, otherwise than by some other will or codicil in writing, or other writing declaring the same, or by burning, canceling, tearing or obliterating the same by the testator himself or in his presence, and by his direction and consent; but all devises and bequests of any lands, tenements, hereditaments, or other estates whatsoever in this state, or of any estate pur auter vie, shall remain and continue in force until the same be burnt, canceled, torn or obliterated by the testator or by his directions in manner aforesaid, or unless the same be revoked or altered by some other will or codicil in writing, or other writing of the devisor signed in the presence of three or more subscribing witnesses declaring such revocation or alteration.
“Sec. 25: That all written revocations of wills shall be executed in the same manner as wills are hereby required to be executed, and when so made shall be sufficient to revoke any last will, or any part thereof.” 4 Oomp. Stat. 1910, tit. “Wills” pp. 5861, 5870.

It will first be noted that these sections do not speak of revivors, but only of revocations. On the other hand, the Statute oí Victoria above alluded to, not enacted in New Jersey, does speak of such revivors. “And be it further enacted, that no will or codicil, or any part thereof, which shall be in any manner revoked, shall be revived otherwise than by the re-execution thereof, or by a codicil executed in manner hereinbefore required, and showing an intention to revive the same; and when any will or codicil which shall be partly revoked, and afterwards wholly revoked shall be revived, such revival shall not extend to so much thereof as shall have been revoked before the revocation of the whole thereof, unless an intention to the contrary shall be shown.” 7 Wm. TV and 1 Vic., oh. 26, § 22 (July 3, 1837).

It will be noted next that the first of the above quoted sections of the New Jersey statute applies to real estate only, the second to personalty as well as realty. It will be noted further that the first of the above sections of the New Jersey statute sets forth three classes of revocations of wills: first, by another written will or codicil, second, by a different kind of written revocation, i. e., a deed of revocation, third, by the physical acts of “burning, canceling, tearing or obliterating.” On the other hand, the second of the above quoted sections of the New Jersey statute applies only to written revocations. Clearly, the physical acts of burning, canceling, tearing or obliterating take effect at once. Equally clearly, a deed of revocation takes effect on execution, at least in the absence of clear evidence of escrow. But a revocation by will is, after all, by will. And it is their “ambulatory quality which forms the characteristic of wills.” 1 17arm. Wills (6th ed.) 18, &c., i. e., such will takes effect only at death. It scarcely comports with logic or legal theory, to say that the one instrument executed at the one time takes effect at two times, in part on execution, in part at subsequent death.' And this fact that wills take effect only at death is so well known, oven to the layman, that his actual intent can hardly differ with legal theory, particularly when acting on the advice of counsel. He knows that his statement in the will, “I give, devise, and bequeath” takes effect not when he says it, but at his death. So he can hardly intend his words as to revoking previous wills, to take effect at a different time.

It should be finally noted that section 25 of the New Jersey statute of wills above quoted is not, as is section 2 of such statute, in the exact form of the English statute of frauds, supra. Section XXI of the English act was incorporated verbatim in the New Jersey Wills act down through 1847 (Rev. 1821, page 223, section 17; Rev. 1847, chapter 9, page 361, section 16). Four years later, however, the legislature put such section in its present term. Pamph. L. 1851, p. 218, § 2. As such section originally existed, it covered merely the method of execution of written revocations of wills of personalty, its original phraseology setting up a special statutory method. The obvious purpose of the change to. the present form was to eliminate this special ,-statutory method or form of execution, and to make it comply with the immediately preceding section of the same act, setting forth the method of execution of wills themselves. Since the section concerns itself with form, the provision in the present section as to revocation means not that they shall be efficient to revoke at the time they are so executed, but that they shall be “sufficient” to revoke when they are made in such form. For the statute does not say that they “when so made shall revoke,” but that they “when so made shall be sufficient to revoke,” in accordance with-testator’s intent. In other words, if such’written revocation is by deed, then on execution, but if by will, then at death.

Evidently with this view of the effect of the English statute of frauds in mind, Lord Mansfield laid down the English common law rule in Goodright v. Glazier, 4 Burr. 2512, in 1770, as follows: “A will is ambulatory till the death of the testator. If the testator lets it stand till he dies, it is his will; if he does not suffer it to do so, it is not his will. Here, he had two. He has canceled the second: It has no effect, no operation; it is as no will at all, being canceled before his death. But the former, which was never canceled, stands as his will.” This is both the origin and the essence of the so-called common law rule as to revivor of wills, restated in BandaM v. Bealty, supra. .But it will be noted that Lord Mansfield says nothing whatever about revivor. In truth, in the light of this rule, to speak of revivor is a confusion in terms. For there is no revivor. If the second will, containing the revocation clause, is destroyed before death, it never took effect. If it never took effect, it could not have affected the first will. If the first will has not been affected, it stands, as executed, without any revivor.

But the English ecclesiastical courts were not content with the unassailable logic of this rule, and with its consonance, on the one hand with the actual intent of testator in view of the well known ambulatory quality of wills, and on the other with the will of the English people as embodied in their statute of frauds. They insisted, as do many American courts, that a will with a revocation clause takes effect not once but twice, the revocation portion on execution; the testamentary portion at death. Exactly why they reached, this peculiar result most of such decisions do not explain. Most rest upon the authority of previous cases. Some say that it accords with the actual intent of the testator. But the average testator certainly knows the difference between a will and a deed, and this difference proves their view as to his intent to be in error. The most that can be claimed is that the revocatory clause shows testator’s intention to revoke at the time he wrote it. But, to constitute a revocation in fact, this intention must obviously be made effective. As aptly said in the similar case of Cheese v. Lovejoy, 25 Weekly Rep. (Eng.) 853, “all the destroying [of a will] without the intention will not revoke it; nor all the intention in the world without the destroying [or other effective revocation] there must be the two.” But this alleged intention to revoke at once, by the revocatory clause in the will, which is probably incorrect in fact as above noted, cannot be made effective until the will of which it is a part becomes effective, i. e., at death. Indeed the statute itself is to this effect. As to revocation by will, it provides for such revocation, not by the writing of a clause in a will, but “by some other will” itself. That the ecclesiastical rule is illogical is evident. Nevertheless, the ecclesiastical courts (Uslicke v. Bawden,, 2 Add. Ecc. 116), having thus held the earlier will to have been revoked by the later will, subsequently destroyed, found themselves between Seylla and- Charybdis and faced with an intestacy which they abhorred, despite the existence of a duly executed will before their very eyes. To extricate themselves from their difficulty they thereupon invented the novel legal theory of revivor. And from that day the trouble began.

That this novel, fine spun legal theory, which has caused so many complications, was unnecessary, is obvious on a consideration of the common law theory; that its complications are regrettable, every court will agree which has struggled with the proposition, no matter which one of the three or more variant rules such court has finally adopted. But, of course, the application of the common law rule to the facts is not always as simple as it was in the early and leading case dealt with by Lord Mansfield, supra. Tor, in addition to the question as to the revocation of the later will, which he there dealt with, the courts must ofttimes deal with the question of the possible revocation of the earlier will, due to facts surrounding it, and not the later will. Such was the situation, for instance, in Moore’s Will, supra, where the evidence - showed not onty that the later will had been revoked, but that the earlier will had been practically thrown away by testator and partly burned. Under such circumstances, applying the statute of frauds as it existed in England and as it exists in New Jersey in our statute of wills, supra, we find the earlier will to have been revoked itself by such burning. Thus, whether we apply the illogical ecclesiastical rule or the common law rule based upon the statute of frauds, the result is identic.

Since the Statute of Victoria, supra, which alone of the statutes mentions the “revivor” of wills, is not in effect in New Jersey, the New Jersey courts need not be embroiled in this contention over the revivorship of wills either because of such statute or because of the unnecessary and illogical theory of revivorship created in their despair by the English ecclesiastical courts. The question is not one of revivorship at all. It is a question of revocation pure and simple. Furthermore, it is a question of revocation in accordance with the principles fixed in that regard by the people of this state through their legislature. Bearing in mind our landmarks, as to the importance of the devolution of property on death and ihe public’s consequent control of same, bearing in mind the desire to effectuate testator’s intent, but only so far as such statute permits, and as well the indispensable ambulatory character of wills, we can, in a situation such as the present, reach our goal in a direct course. In the light of the above provisions of the New Jersey statute as to revocation and not revivor, we consider first whether the later will has been revoked or not. If not, it stands, its revoking dause is effective, and the earlier will is revoked. If, on the other hand, the later will has been revoked under the statute, then we consider whether the earlier will has been revoked, under the circumstances surrounding it. If it has been revoked, in one of the ways provided for by the statute, or it cannot be proven because it cannot be found, there is intestacy. But, if not so revoked, it stands. This method, so simple as compared with the confusing, complicated, conflicting revivorship rules, has the further merit, that it embodies on the one hand the basic ambulatory theory of the above common law rule, and on the other the basic intent theory of the above ecclesiastical rule, in so far as the will of the people, expressed in the statute of frauds, permits evidence in that regard, sufficiently reliable to control such an important occasion.

Applying these simple principles to the case at bar we reach the result that (1) the presumed destruction of the 1928 will revoked it; (2) the destruction of the 1928 will before testator’s death prevented its revocation clause from taking effect; (3) the 1922 will having been preserved in a safe place for testator at his direction, was not revoked by him. Therefore, the 1922 will, now in evidence, will be admitted to probate.


author: Eggers, D. C. J.

text:
    First District Court of Jersey City.
    MATEY KORDULAK, PLAINTIFF, v. THE PRUDENTIAL INSURANCE COMPANY OF AMERICA, DEFENDANT.
    Decided February 16, 1937.
    For the plaintiff, Solomon & Miller.

    For the defendant, Drewen & Nugent.

   Eggers, D. C. J.

This is an action by Matey Kordulak, the plaintiff, to recover payments on an insurance policy issued by the defendant, The Prudential Insurance Company of America.

The facts as adduced at the trial are substantially as follows. The policy number 5552309 was issued by the defendant company on August 24th, 1926, and provided among other things, that:

“Total and Permanent Disability Benefits. Monthly Income —One Hundred Dollars per month, payable at the Home Office of the Company to the Insured [plaintiff] in event of total and permanent disability before age 60, subject to the provisions as to Total and Permanent Disability contained in the policy, as follows:
“ ‘Disability Before Age 60: Waiver of Premiums— Monthly Income to the Insured — If the insured shall become totally and permanently disabled, either physically or mentally, from any cause whatsoever, to such an extent that he (or she) is rendered wholly, continuously and permanently unable to engage in any occupation or perform any work for any kind of compensation of financial value during the remainder of his (or her) lifetime, and if such disability shall occur at any time after the payment of the first premium on this Policy, while this Policy is in full force and effect and the insured is less than sixty years of age, and before any non-forfeiture provision shall become operative, the Company, upon receipt of due proof of such disability, will grant the following benefits:
“ ‘Monthly Income to the Insured — the Company will, in addition to waiving premiums, pay to the Insured the Monthly Income specified on the first page hereof under the heading “Total and Permanent Disability Benefits.” The first monthly payment shall be made immediately upon receipt by the company of due proof of such disability and subsequent payments shall be made on the first day of each month thereafter. Interest duo on any indebtedness under this Policy may be deducted from such monthly income payments.
“ ‘Such waiver of premiums and such monthly payment shall be additional to all other benefits and obligations under this Policy and the Policy shall be continued in force and the Monthly Installments of Insurance and of Accidental Death Benefit, if any, less any indebtedness, shall become due and payable at death or maturity in the same manner as if the Insured had actually continued to pay the premiums.’
“Proof of Continuance of Disability — Notwithstanding the acceptance by the Company of proof of total and permanent disability^, the Insured, upon demand by the Company from time to time, but not oftener than once a year after such disability has continued for two full years, for the purpose of verifying that such disability is actually permanent and not temporary, shall furnish due proof that he (or she) actually continues in the state of disability defined above; provided, however, that such demand shall not be made in the case of the ‘Kecognized Disabilities’ specified above other than the loss of the sight of both eyes. In case of failure to furnish such proof, no further premiums shall be waived and no further monthly payments shall be made on account of such disability, but any insurance then remaining under this Policy shall be continued in force subject to the payment by the Insured of any premium or premiums, based on such insurance, the due date of which premium or premiums, as specified on the first page hereof, shall occur thereafter.”

The alleged violation of the provisions of the above sections constitute the basis of the present suit. Testimony was introduced to show that plaintiff’s occupation at the time of the issuance of the policy was that of a boss plumber sometimes referred to as a master plumber. He came to this country from Austria-Hungary when he was a young boy. His total education consisted of three years schooling in some school abroad. Upon arrival here he obtained employment with a lumber company as a laborer; later performing the same duties for the Standard Oil Company of New Jersey. In due course of time he became a pipefitter’s helper, which occupation he followed for some time. After leaving the employ of the oil company he engaged in the plumbing business. He was engaged in that business up to and including the day upon which he allegedly became incapacitated. The proofs disclose he has never engaged in any other occupation other than those above enumerated. The business was conducted from the cellar of his home with the assistance of an occasional laborer whom he had hired. Since his “accident” the business has been turned over to his sons and is being conducted by them. In January, 1935, while installing a range for one of his customers he became weak and felt something happen within him. As part of this job, it was necessary to transport the range up one flight of stairs and while he was engaged in performing that part of the task he felt this strange occurrence. He was taken home and put to bed where he remained for a few weeks because of a pain in his groin. He visited one doctor and after examination by him he visited one, Doctor Perkel. It was disclosed to him that he was suffering from a double inguinal hernia and an apigastric ventral hernia. An operation was advised but plaintiff refused to consider same unless a guaranty could be given; first, that he would survive; and secondly, that the operation would result in restoring him to full and complete health. Such guarantees could not be given and the plaintiff then attempted to pursue his occupation further. This he was unable to do because the hernias resulted in his becoming weak and exhausted after slight effort. Finding himself unable to follow his chosen line of endeavor he filed his proof of claim with the company in March, 1936. He was thereupon examined on behalf of the company by Doctor Louis Dodson, Doctor Nicholas Feury and Doctor Franklin.

The court therefore finds itself with the following factual questions for its determination:

(1) Whether or not the plaintiff is totally and permanently disabled within the meaning of the policy.

(2) Did the plaintiff act as a reasonable and prudent man in refusing to undergo the operations necessary to alleviate or cure his condition.

The language in the policy is that of the insurer and not the insured. A construction of such language most advantageous to the insured will be adopted, since in the opinion of the court no violence is done to the wording. Connell v. Commonwealth Casualty Co., 96 N. J. L. 510; 115 Atl. Rep. 352.

In the case sub judice the words “from engaging in any occupation or performing any work for compensation of financial value” are hereby construed as meaning “from performing any work for compensation of financial value in his regular business and any other pursuit for which he was qualified and which he would reasonably be contemplated to pursue.” Nickolopulos v. The Equitable Life Assurance Society of the United States, 113 N. J. L. 450; 174 Atl. Rep. 759.

That the great weight of authority favors this construction of the policy is best illustrated by the following eases: Nickolopulos v. The Equitable Life Assurance Society of the United Stales, supra; Indiana Life Endowment Co. v. Reed, supra; Industrial Mutual Indemnity Co. v. Hawkins, 127 S. W. Rep. (Ark.) 457; Monahan v. Supreme Lodge of Columbian Knights, 92 N. W. Rep. (Minn.) 972; Storwick v. Reliance Life Insurance Co., supra; McGutcheon v. Pacific Mutual Life Insurance Co., 151 S. E. Rep. (S. C.) 67; Ursaner v. Metropolitan Life Insurance Co., supra; Halperin v. Equitable Life Assurance Society, 210 N. Y. Supp. 720; Medlinsky v. Metropolitan Life Insurance Co., 146 Misc. (N. Y.) 855.

From the evidence presented it is quite evident that the construction of the words in the policy are sound. The plaintiff suffering from three hernias was unable to continue his occupation or in fact to engage in any occupation within the meaning of the terms of the policy; and the court so finds. This despite defendant’s contention and some evidence that the hernias are not complete, i. e., that they have not penetrated the external ring.

In reference to point 2, the conclusion of the court is that defendant was not unreasonable in his refusal to undergo the necessary operations to cure his condition. The medical testimony produced on the part of both plaintiff and defendant was almost unanimous in the belief that practically all operations are attendant with risk. Particularly was this declared to be so in reference to operations for hernia. The court is fully cognizant of that portion of the testimony adduced by Doctors Rector, Peury and Dodson wherein they seek to dismiss as negligible the danger involved. Yet upon direct-questioning by the court they were not so positive as to the lack of danger. The testimony of the defendant’s expert, Doctor Gillespie, was illuminating on this score.

The general rule as enunciated by Mr. Justice Kalisch in McNally v. Hudson and Manhattan Railroad, 87 N. J. L. 455; 95 Atl. Rey. 122, to the effect that “where the operation is one not attended with danger to life or health, or extraordinary pain or suffering, and one to which a reasonable man would submit, and if according to the best medical or surgical opinion, the operation offers a reasonable prospect of restoration or relief from the incapacity from which the workman is suffering, and the workman refuses to submit to the operation, then the statutory obligation of the master to compensate him for the incapacity will cease,” is not applicable to the case sub judice for the reasons heretofore stated; and on the further factual ground, that the element of risk involved in the three operations which the plaintiff would have to undergo, is such, that no reasonable man should be compelled to submit to for the purpose of minimizing defendant’s liability under the policy.

The court therefore finds in favor of the plaintiff and awards as damages the sum of five hundred dollars ($500), the amount due under the policy for the months of March, April, May, June and July, 1936.


text:
    KATHRYN K. JOHNSTON, PLAINTIFF-APPELLEE, v. JOHN B. HUNT, DEFENDANT-APPELLANT.
    Submitted October 6, 1936
    Decided March 2, 1937.
    Before Justices Trenchard, Bodine and Heher.
    For the defendant-appellant, William M. Untermann (Samuel Levin, of counsel).
   Per Curiam.

The action below was instituted by the plaintiff against John B. Hunt for $459.50 the balance due on account of professional services rendered to the defendant by Evans, Smith and Evans, counselors-at-law, from November, 1935, to February, 1936, which account was assigned by Evans, Smith and Evans to the plaintiff.

At the beginning of the trial, plaintiff moved to amend the state of demand by adding a second count, for account stated, to read “that on February 6th, 1936, the defendant tendered to Evans, Smith and Evans a note in the amount of $459.50, the amount now sued for, wherein and whereby he agreed to pay that sum to the firm of Evans, Smith and Evans in sixty days.” The court thereupon permitted the amendment over the objection of defendant. Mr. William W. Evans, of the firm of Evans, Smith and Evans, was then called to the stand and testified as to the nature and extent of the services rendered, and as to the amount consisting of various charges for various services, and certain credits for payments on account, and also testified concerning the facts constituting an “account stated” and that same was due and unpaid.

After much other testimony to the effect that the claim for services was reasonable, defendant then took the stand. At the conclusion of his testimony, the court said: “There

seems to be no dispute as to what the services rendered were. It stands admitted at this point of the examination. The question is whether or not the status between the parties is one of account stated or one where he may seek recovery on a basis of reasonable services rendered. Isn’t that the situation?” To this question the defendant’s attorney replied, “yes.”

The court subsequently directed a verdict for plaintiff on an “account stated.”

We find no fault with that action.

The allowance by the court of amendment to include a second count based upon an account stated was within the discretionary power of the court and as such was proper, inasmuch as the defendant-appellant did not plead surprise nor offer any evidence as to the fact that he was unprepared to proceed to trial in the defense of the new count. Seymour v. Long Dock Co., 17 N. J. Eq. 169; Harris v. Roth, 6 N. J. Mis. R. 1006; 143 Atl. Rep. 557; Joslin v. New Jersey Car Spring Co., 36 N. J. L. 141.

We think that the undisputed evidence was sufficient to establish the plaintiff’s cause of action.

The plaintiff’s testimony was to the effect that the balance of the account of plaintiff’s was confessed by defendant to be due. It was undisputed that the defendant, after becoming dissatisfied with the demands of Evans, Smith and Evans, retained another attorney (not his present attorney) to represent him; that he sent that attorney to Evans, Smith and Evans with a note which he had signed, payable in sixty days, for the full amount of the plaintiff’s claim for which this suit was brought, and tendered it to them. Respecting that note the defendant himself testified “I expected to pay it and I knew I ivas liable for it.”

Such testimony justified the judgment for the plaintiff. Bonnell v. Mawah, 37 N. J. L. 198.

The defendant seeks to escape the effect of that testimony by the contention that he tendered such note under duress. But a sufficient answer to such contention is that it is without evidence to support it.

The judgment will be affirmed, with costs.


author: Perskie, J.

text:
    GEORGE E. SEAMAN, Jr., PROSECUTOR, v. COUNTY OF MONMOUTH, RESPONDENT.
    Submitted October term, 1934
    Decided February 16, 1935.
    Noth — The year 1937 was inadvertently given in the New Jersey Advance Reports.
    Before Justices Trenchard, Heher and Perskie.
    Por the prosecutor, Kremer & Proctor.

    Por the respondent, Walter Fox (Samuel Y. Hampton, of counsel).
   The opinion of the court was delivered by

Perskie, J.

On January 2d, 1934, the board of chosen freeholders of the county of Monmouth, respondent herein, held its organization meeting for the year 1934. At this meeting it passed, among others, a resolution, “that the terms and employment of all officers, agents and employes of the county, whose terms have not been fixed by law, be and the same are hereby declared vacant as of this date and that the Clerk of this Board be and is hereby authorized and directed to notify all such officers, agents and employes of the action by this Board this day taken.”

Pursuant to the aforesaid resolution the clerk of the board did, on January 4th, 1934, notify the prosecutor of the passage of the resolution and authorized him to surrender all property in his possession and belonging to the board to his successors, one Thomas Oakes, who was appointed in his place, on January 2d, 1934, for the term of one year, at the salary of $1,200 for the year.

The prosecutor challenges the propriety of his dismissal.

It appears that on July 30th, 1923, prosecutor was appointed, without a fixed term, as officer on the Shrewsbury river bridge (S-31) between Eumson and Havesink, in Monmouth county, at a salary of $1,800 a year. And while no formal resolution of his appointment is made to appear, nevertheless, the proof is plenary that he was so appointed. His name appeared on the payroll in August, 1923, and continued to be thereon until his dismissal; that a resolution was adopted by the board at each of its monthly meetings for the payment of those holding positions and that the name of the prosecutor regularly appeared on a list appended to and made part of each monthly resolution; that the payment was made monthly by a voucher of the respondent and charged to “bridges” or “bridge appropriations,” at the rate of $5 a day. One of the former members of the board, who served for about thirteen years, corroborated the appointment of the prosecutor; and that the resolutions were introduced monthly for the payment of the salaries for those, as prosecutor herein, who held a “position” with the board.

Prosecutor’s duties were “to protect life, limb and property ; and to take care of traffic; and keep people from fishing over the bridge, as there are no sidewalks, no pedestrian paths; to keep overloaded trucks off the bridge * * * and to maintain peace.” Others described the bridge as an old structure, and therefore needed special supervision. Another witness testified that “the bridge is very treacherous and a very narrow one and with no foothpaths, and they have to bo very particular about the speed of motor traffic because of that and overloaded trucks * * Prosecutor’s duties were of a permanent and continuous character. He performed those duties with marked regularity from the day of his appointment in 1923 to the day of his dismissal in 1934. Ho complaint or charge was ever made against him. He is a war veteran. He thus claims the benefit and protection of what is commonly known as the “War Veterans’ act.” Chapter 29, Pamph. L. 1929, p. 51.

The primary question presented, therefore, is whether, under the facts of the instant case, the prosecutor held a “position” as distinguished from a mere “employment.”

We are of the opinion that the prosecutor held a “position” and is clearly entitled to his asserted rights, as a world war veteran, in the premises. The law applicable is clear and well settled. It will serve no useful purpose to restate it. Suffice it to direct attention to a recent decision of this court in which the cases on the subject are collated. Board of Education of Bayonne v. Bidgood, 11 N. J. Mis. R. 735; 168 Atl. Rep. 162.

It is next argued that the prosecutor’s failure to apply for the instant writ at an earlier day is unreasonable, i. e., he is guilty of laches and therefore the writ should be dismissed. This contention is clearly without merit. This court has had the occasion, in Parker v. Borough of Point Pleasant, 11 N. J. Mis. R. 535; 167 Atl. Rep. 211, to make the observation that there is no hard and fixed rule that can be laid down for guidance, under all circumstances, on this subject. The application for the writ must, of course, be prosecuted with due diligence. And what is due diligence must be determined on the facts of each particular ease. After the prosecutor was dismissed, conferences were held by him and others similarly affected with the board to the end that each might be reinstated or restored to their former status. These conferences continued until and including the meeting of the board held on May 14th, 1934. The board remained obdurate. Whereupon application for a writ was made and granted on May 23d, 1934. Obviously, the question of laches is simply not present in this case.

And lastly respondent asserts that its action was motivated and taken in good faith and in the interest of economy. Proof and not mere bare protestations must form the foundation for such assertions. It is significant that not a scintilla of proof was offered to form a basis upon which the contentions of economic expediency and good faith might be rested. On the contrary, another was immediately appointed in prosecutor’s place.

Respondent could not, of course, reduce the emoluments of the prosecutor’s position for the purpose of terminating his services. (Chapter 14, section 3, Pamph. L. 1907, p. 38; 4 Comp. Stat., p. 4874.) Assuming, but not so deciding, for the dismissal of the prosecutor is not rested on such a contention, that respondent could have reduced prosecutor’s salary in the interest of economy, the best evidence of good faith, of fair treatment of the prosecutor in the premises, factors entirely lacking herein, would have been, at least, to offer the prosecutor the privilege of continuing in his position at the reduced or same salary the board undertook to pay to his successor.

Nor are we at all persuaded by the argument now made that if prosecutor’s position is sustained, the board shall be obliged to make a double payment — to the extent that it has already paid the present incumbent. For here, again, the cry of economy and good faith are clearly mere words; they cannot be squared with the action of the board. The board apparently directed its solicitor, a former attorney-general of this state, to examine into the claim made by the prosecutor and others. This he did; and, on April 17th, 1934, in a comprehensive written opinion, in which he reviewed the cases on the subject, advised the board, inter alia, that the prosecutor was the holder of a position within the meaning of what is commonly called the War Veterans act and that his discharge, without hearing, was in violation thereof. But the majority of the board refused to heed the opinion. In fact they acted directly contrary thereto. In face of such arbitrary action, its present claim of economy and good faith, do not, therefore, ring true.

We conclude, therefore, that prosecutor has a “position” within the meaning of the protective War Yeterans act, and that his dismissal was illegal.

The resolution of dismissal, in so far as it relates to the prosecutor, is set aside, with costs.