text:
    NEVA MADAMA, SURVIVING EXECUTRIX OF THE ESTATE OF LIBERATA LATTANZIO, PLAINTIFF-RESPONDENT, v. METROPOLITAN LIFE INSURANCE COMPANY, DEFENDANT-APPELLANT.
    Submitted May 4, 1937
    Decided July 7, 1937.
    Before Justices Lloyd, Case and Donges.
    For the appellant, Clifford I. Voorhees.

    For the respondent, Joseph J. Messina and Herman H. Anekstein.

   Per Curiam.

The judgment under review was entered by the trial judge, sitting without a jury, in favor of plaintiff in an action upon an insurance policy issued by the defendant covering the life of plaintiff’s testatrix. Defendant appeals.

The defendant moved for a nonsuit and for a verdict for defendant upon several grounds, only one of which we think needs discussion.

The policy was dated November 25th, 1935, and the assured died of heart disease on April 26th, 1936. The cause of death was stated in the death certificate as “Chronic Myocarditis, Cardiac Hypertrophy Insufficiency.” The proofs further disclose that the attending physician reported that the disease to his personal knowledge had endured for “four months,” and its duration from history given was “about one or two years.”

The policy contained, amongst other provisions, the following:

“If, (1) the Insured is not alive or is not in sound health on the date of issue hereof; or if (2) before the date of issue hereof, the Insured has * * * within two years before the date of issue hereof, been attended by a physician for any serious disease or complaint, or, before said date of issue, has had any * * * disease of the heart * * * unless such * * * medical attention or previous disease is spefically recited in the “Space for Endorsements” on the fourth page in a waiver by the Company; * * * then, in any such case, the Company may declare this Policy void and the liability of the Company in the ease of any such declaration or in the case of any claim under this policy, shall be limited to the return of premiums paid on the Policy * *

The testimony was that there was no disclosure of any disease or attendance by a physician within two years; that, about eight months or a year before assured’s death, Dr. Falcone was called to attend her, at her home; that he. examined her and found that she had a “positive and serious heart condition known as myocarditis, mitral insufficiency, and cardiac hypertrophy, for which he prescribed a heart tonic,” and “complete rest In bed, and warned her against overexertion oí any kind;” that he did not advise assured as to the seriousness of her condition.

It was testified that physical examinations were not usual before issuing policies of this kind, but the agent who solicited the insurance had a Dr. Csema examine assured, and this physician testified that assured signed the application and that there was no disclosure of any disease or attendance by a physician. He further testified that, on or about November 13th, 1935, he examined assured and that, in his opinion, her heart was normal at that time.

Whether assured was in good health at the time of issue of the policy may be a controverted question of fact, in view of Dr. Csema’s testimony. It is not necessary to pass upon this question.

From the uncontroverted testimony, assured was attended by a physician for a serious disease or complaint within two years before the date Of the policy. It is not disputed that Dr. Falcone treated her for the same disease or complaint which produced death. There was no disclosure by assured of such attendance and no waiver by the company.

The policy provides that, in such situation, the liability shall be limited, in the absence of fraud, to the return of premiums paid. We conclude that under the proofs, there could be no recovery of the sum mentioned in the policy, and the judgment must be reversed. McAuliffe v. Metropolitan Life Insurance Co., 93 N. J. L. 189; 107 Atl. Rep. 258; Orsini v. Metropolitan Life Insurance Co., 9 N. J. Mis. R. 407 ; 154 Atl. Rep. 201; Barrase v. Metropolitan Life Insurance Co., 12 N. J. Mis. R. 631; 174 Atl. Rep. 165.

The j udgment under review is reversed.


source: Caselaw Access Project

author: Pee Cueiam.

license: Public Domain

text:
    CARL A. HOLLENDER, PLAINTIFF-APPELLANT, v. ADOLF HOLLENDER, DEFENDANT-RESPONDENT.
    Argued May 4, 1937
    Decided July 7, 1937.
    Before Justices Lloyd, Case and Donges.
    Bor the appellant, William Cohen.

   Pee Cueiam.

Plaintiff-appellant sued defendant-respondent for $250, balance of a loan of $400 admittedly made by plaintiff to defendant. Defendant counter-claimed in the sum of $125 for an automobile, alleged to have been sold by defendant to plaintiff.

At the trial, there was no dispute as to plaintiff’s claim in the sum of $250, the only dispute being as to circumstances attending the delivery of the automobile. Defendant contended that he sold the car to plaintiff and that it was reasonably worth $125. Plaintiff asserted that his brother, the defendant, gave him the automobile and that there was no question of payment therefor involved in the transaction.

The trial judge found upon the counter-claim for defendant, which resulted in a judgment for plaintiff for $125, being the claim of $250 less the sum of $125, found to be the reasonable value of the automobile. Plaintiff appeals.

One of the grounds of appeal is that defendant never had a bill of sale for the automobile and that, therefore, the defendant did not prove ownership of it, and that, as we gather from the appellant’s brief, defendant is not entitled to be compensated for the automobile unless he had a bill of sale in his name and transferred it by bill of sale to plaintiff.

The fact is that the plaintiff received a bill of sale, apparently in due form, from the owner thereof, one George Johnson, with all prior bills of sale attached. Defendant testified that he was taking the automobile back from Johnson because of non-payment of the amount due him from Johnson, but to avoid another bill of sale, he had title made direct from Johnson to plaintiff. He testified as to his interest in the car and that it was reasonably worth $125. We see no legal error in the admission of this testimony, nor in the finding of the trial judge that defendant would be entitled to be paid for the ear, although the legal title, under the statute, did not pass through him to plaintiff.

The only other question involved was one of fact for the trial judge as to whether defendant gave the automobile to plaintiff or sold it to him. We cannot say, from a reading of all of the testimony, that the conclusion reached by the trial judge was not reasonably supported by the evidence.

Judgment affirmed, with costs.


author: Perskie, J.

text:
    WILLIAM LINDEN, PROSECUTOR, v. BOARD OF CHOSEN FREEHOLDERS OF THE COUNTY OF SUSSEX, RESPONDENT.
    Argued May 4, 1937
    Decided July 3, 1937.

      Before Justices Bobine, Heher and Perskie.
    Por the prosecutor, Morris & Downing.

    Por the respondent, William A. Dolan.

   The opinion of the court was delivered by

Perskie, J.

Was the dismissal of the prosecutor in violation of chapter 212, Pamph. L. 1911, p. 444 (Cum. Supp. Comp. Stat. 1911-1924, p. 2163, § *136-1721c(l)) (tenure of exempt firemen) ?

Prosecutor, the. holder of an exempt fireman’s certificate dated June 27th, 1927, was employed in the engineering department of the county of Sussex in November of 1917, with no fixed term. He was detached from the engineer’s office on April 8th, 1926, and “assigned to the office of the county road supervisor in charge of daily reports, payrolls and other work that in the judgment of the supervisor may be necessary for him to do.” Again no term was fixed. On January 10th, 1928, on recommendation of the county engineer the salary of prosecutor, and others, was increased so that as of January 3d, 1928, he was receiving $160 a month. Thereafter his salary was again increased, and on Pebruary 1st, 1936, it was lastly raised from $175 to $185 a month. Between the date of his last increase and January 6th, 1937, when he was dismissed, the political personnel of the board changed. No charges were preferred against the prosecutor, nor was he accorded a hearing. In fact no complaint of any kind was made against his services. Was his dismissal illegal? We think so.

Chapter 212, Pamph. L. 1911, supra, provides as follows:

“1. No person now holding a position or office under the government of this state, or the government of any county, city, town, township or other municipality of this state, or who may hereafter be appointed to any such position, whose term of office is .not now fixed by law, and receiving a salary from such state, county, town, township or other municipality, who is an exempt fireman * * * holding an exemption certificate issued to him as such exempt member * * * shall be removed from such position or office except for good cause shown after a fair and impartial hearing, but such exempt fireman shall hold his position or office during such good behavior and shall not be removed for political reasons.”

For the respondent it is argued in substance that (1) prosecutor was never appointed to a position or office within the meaning of the act; (2) that he is merely an employe; (3) that he was not the holder of the exempt certificate at the time of his employment; and (4) that his employment was terminated for economic reasons.

First: There seems to be no complaint as to the technique employed by respondent in the appointment of the prosecutor in the first instance, in 1917. Complaint is that on April 8th, 1926, prosecutor was not appointed to the office of the county road supervisor by either ordinance or resolution, and at all events, that being “assigned” to that office was not being “appointed” to a position or office within the purview of the act. There is no merit to these complaints. (1) There is nothing to indicate an improper appointment in the first instance, or the violation of any legislative provision for the change effected on April 8th, 1926, by the respondent in the proper and efficient administration of its affairs. Nor is it made to appear that the work which the prosecutor was thus directed to do was materially different or dissimilar in character than that which he had been performing. Prosecutor made no complaint by reason of the change. The argument as to the distinction between the words “assigned” and “appointed” is, under the facts of the case at bar, a mere juggling with words. (2) Eespondent has construed its own language by its action as creating a position permanent in character, with certain and fixed duties appertaining thereto. Cf. McGrath, v. Bayonne, 85 N. J. L. 188, 191; 89 Atl. Rep. 48. What we shall say on the next point will further amplify this phase of the case.

Second: Did prosecutor hold a position or was he a mere employe? The proof is clear and convincing that prosecutor was recognized and paid as its “time keeper.” That he performed Ms duties as such officer in the same office occupied by the county treasurer and was listed by respondent in the telephone directory as its time keeper. For the past ten years some of his certain and fixed duties consisted of the taking of daily time sheets as they came in, breaking them down into various appropriations for roads, keeping a record of all expenses under road maintenance, making out certificates of progress for submission to the road supervisor and county treasurer, and to the state highway department upon which certificates of progress respondent received the moneys due it for the maintenance of the county roads, consolidating reports for the making and drawing of payrolls, &c. These duties required all of his time and were practically continuous. They were almost the same day in and day out. That these duties were certain and fixed and had to be performed by some one for respondent is best evidenced by the fact that provision for their continuance was made by the respondent. An appropriation of $1,800 a year was made for the one to replace prosecutor. Prosecutor was not merely an employe. The proofs lead to the irresistible conclusion that he was the holder of a legal position within the intendment of the act. Grimm v. Board of Chosen Freeholders, Sussex, 118 N. J. L. 210, and cases therein cited. Nor does it matter that he did not hold the exemption certificate at the time of his appointment. It is sufficient that he was the holder thereof at the time of his dismissal. Grimm v. Board of Chosen Freeholders, Sussex, supra.

Third: Was the dismissal for economic reasons? The meager proofs on this point lack persuasion. We rather are of the opinion that prosecutor has made a clear and convincing showing of bad faith on the part of the respondent. Blair v. Brady, 11 N. J. Mis. R. 854; 168 Atl. Rep. 169; Ziegler v. Hackensack, 113 N. J. L. 215, 219; 174 Atl. Rep. 199; affirmed, 114 N. J. L. 186; 176 Atl. Rep. 324. As we have seen, no complaint was made as to the services rendered by prosecutor, his salary was increased from time to time during his employment, the last increase made was on February 1st, 1936. Prosecutor’s services were not discontinued until after the political majority of the personnel of the board had changed. Was the position abolished? No. Was the position at the reduced salary offered prosecutor? No. In the words of the writer, for this court, in the case of Seaman v. County of Monmouth, 15 N. J. Mis. R. 249 (at p. 252) ; 121 Atl. Rep. 103, where the court examined and treated a like claim under somewhat similar circumstances, “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 his successor.”

Respondent’s action in dismissing prosecutor is set aside, with costs.


text:
    FRANCES MESERVE, RESPONDENT, v. RAY TRAVERSO, APPELLANT.
    Submitted May 14, 1937
    Decided July 13, 1937.
    Before Justices Lloyd, Case and Donges.
    For the appellant, Milton T. Lasher.

    For the respondent, Harry J. Goas.

   Pee Cueiam.

The appeal is from a judgment in favor of the plaintiff in the sum of $100 on four promissory notes for $25 each, and we think must be disposed of on technical grounds. The specification of determinations in the District Court are six in number. The first three allege error in allowing various witnesses to testify as to matters named but without reciting the questions and answers which are claimed to be incompetent; the fourth and fifth state no judicial ruling; the sixth that there was error in entering the judgment. None of these, with the possible exception of the sixth, under our cases states a good ground of appeal. Booth v. Keegan, 108 N. J. L. 538; 159 Atl. Rep. 402; Golden Realty Corp. v. Grant Building and Loan Association, 109 N. J. L. 129; 160 Atl. Rep. 499.

If we accept the sixth specification, which is that “the court below erred in entering judgment for the plaintiff on the main case and on the counter-claim without legal evidence to support said judgments/’ as adequately presenting a ruling in the court below for our consideration, it is nevertheless without merit. As the case stood there was evidence to support the judgment as entered, and while objections were made to the admission and rejection of evidence in the cause and such objections were overruled, the rulings thereon are not adequately presented. With the case as it stood the judgment in favor of the plaintiff was without legal error, and is affirmed, with costs.


text:
    GEORGE SASNETT, PLAlNTIFF-APPELLANT, v. NEW JERSEY WRECKING COMPANY, INCORPORATED, A CORPORATION OF NEW JERSEY, DEFENDANT-RESPONDENT.
    Submitted April 21, 1937
    Decided July 17, 1937.
    Before Beogan, Chief Justice, and Justices Case and Pekskie.
    For the plaintiff-appellant, Albourn A Narol (Abraham Alboum).
    Por the defendant-respondent, George H. Rosenstein and Jacob Lipman.

   Pee Cueiam.

A directed verdict was entered for the defendant corporation. This is the return of a rule to show cause why a new trial should not be granted. Of the eight filed reasons only two are in form to be considered, namely, that the verdict was contrary to the weight of the evidence — a reason not appropriate to the disposition of the cause — and that the plaintiff’s evidence presented a case under the doctrine of res ipsa loquitur. We find that not only was the verdict not contrary to the weight of the evidence but that, unless the appellant is sound in his contention that the doctrine of res ipsa loquitur was applicable, there was nothing upon which the case might properly have gone to the jury.

Plaintiff was injured by the fall of scaffolding at a building which the respondent was wrecking. The complaint alleged that there was an oral contract with the defendant by the terms of which the plaintiff purchased some of the discarded lumber and further alleged that plaintiff’s presence at the scene was at defendant’s invitation. Defendant’s answer denied the making of a contract and the issuing of an invitation. The burden was plainly upon plaintiff to prove these essential and controverted allegations. At the trial the plaintiff testified that the contract had been made by him with a person whom he identified as one Zuckerman, said to be an employe of the defendant company, and the plaintiff identified a man in the court room as the one with whom he had made the oral contract and at whose invitation he was present at the time of the injury. It was demonstrated, and appellant concedes, that the person so identified was in no way connected with the defendant company. We think that the court below did not err in holding that the attorney for the plaintiff had elected to try the case on the theory of agency and invitation and had failed in that undertaking. Plaintiff constructed no foundation upon which the theory of res ipsa loquitur, as a means of holding the defendant to liability in the instant case, might rest.

The rule will be dismissed, with costs.


author: Pebskie, J.

text:
    MARY A. MAHONEY, PROSECUTOR, v. CITY OF PATERSON, RESPONDENT.
    Argued May 4, 1937
    Decided July 17, 1937.
    Before Justices Bodike, Heher and Perskie.
    Por the prosecutor, Isadore Rabinowitz and Nathan Rabinowitz.

    For the respondent, Salvatore D. Viviano and Charles F. Lynch.

   The opinion of the court was delivered by

Pebskie, J.

In this workmen’s compensation case prosecutor seeks a writ of certiorari to review the order made in the workmen’s compensation bureau, under date of April 6th, 1937, dismissing her petition for compensation, and the further order, in this cause, made in the bureau, under date of February 1st, 1937, refusing to set aside its order of dismissal.

On January 17th, 1936, prosecutor filed a petition seeking compensation for the death of her husband, allegedly resulting, but denied by the city, from injuries suffered as the result of an automobile accident arising out of and in the course of his employment as overseer of the poor of the city of Paterson, New Jersey. The accident occurred on June 12th, 1932, and the deceased died on June 18th, 1932. Without detailing the facts set out in the petition and answers thereto and all the legal claims made by the respective parties, suffice it to say that the city denied liability and moved to dismiss the petition on the ground, inter alia, that it was not filed within two years after the day on which the accident occurred. Pamph. L. 1931, ch. 280, p. 708; N. J. Stat. Annual 1931, § **236-46. Prosecutor’s position below was, and it remains unchanged, that since the city made no report of this accident as required by the Labor Recording act, paragraph 6 of chapter 187, Pamph L. 1924, pp. 401, 403; Cum. Supp. Comp. Stat. 1911-1924, p. 3906, § **236-99, it could not avail itself of the statutory period of limitation. The deputy commissioner dismissed the petition for lack of jurisdiction. No appeal was taken from that order. Thereafter, on January 26th, 1937, petitioner gave notice of an application to the deputy commissioner to set aside the order of dismissal, to take proofs to show that the city had not reported the accident, and that upon such proofs being shown the city should be deprived of the defense interposed by it. For the city, it was admitted that no report had been made of the accident. The basis for prosecutor’s application was that paragraph 6 of chapter 278, Pamph. L. 1931; N. J. Stat. Annual 1931, § **236-99, and the like provision (imposition of penalty) in chapter 187, Pamph. L. 1924, were unconstitutional. But, it is argued, since the penalty provision in the act of 1924 was separate and independent of the second provision thereof (denial of the right of employer to plead statute of limitation as a defense), the latter provision was unaffected or untainted by the infirmity of the first provision, and, therefore, was still applicable.

It appears to us that there are, at least, two complete answers to this contention. First. Neither the act of 1924 nor the act of 1931 is subject to the criticism leveled at them, namely, that they contain no provision for a hearing, or trial, or criteria for the enforcement of the penalty therein prescribed, and that the commissioner of labor is without power to impose or exact the penalty therein provided. The penalty imposed by the commissioner of labor, unless voluntarily paid, can only be recovered in the manner provided in the acts, to wit, “in an action of debt brought by the commissioner of labor in the name of the State of New Jersey.” Thus the asserted rights of those penalized are fully and amply protected in such a proceeding. Second. The right of petitioner to be compensated did not come into being, if, in fact, it existed, until June 12th, 1932. At that time chapter 280, Pamph. L. 1931, p. 708, supra, (requiring the filing of a petition within two years from the date of the accident), had been in effect since April 27th, 1931. The latter act deprived petitioner of no vested or existing right of action. Cf. Jackson v. Florence Thread Co., 12 N. J. Mis. R. 774; 175 Atl. Rep. 96; affirmed, 115 N. J. L. 175, 176; 178 Atl. Rep. 729; Tiffany & Co. v. Starzmann, 118 N. J. L. 57; 191 Atl. Rep. 465.

Mr. Justice Heher, after hearing and considering the points urged, denied the application.

We have carefully considered all points argued and are firmly of the opinion that no fairly debatable question is present.

The writ is denied, with costs.


author: Egan, V. C.

text:
    Juliette Ribordy Delaney and Augusta Ribordy. complainants, v. Charlotte Ribordy, Fred Stocker and John Rieck, defendants.
    [Decided July 16th, 1937.]

      Mr. Joseph V. Riggio, for the complainants.

      Mr. Jerome Alper, for the defendants.
   Egan, V. C.

On September 28th, 1926, Maurice Ribordy and Charlotte, his wife, obtained a loan of $2,100 from Caesar Ribordy, a brother of Maurice, for which they gave as security, a bond and mortgage covering the premises No. 35 Brandt street, Little Ferry, New Jersey. The mortgagors held title to the premises by the entirety.

Maurice died July 4th, 1931. Caesar, who was a batchelor, died intestate June 22d, 1935, in Switzerland. On, June 7th, 1936, Charlotte, the widow of Maurice, married Fred Stocker, the defendant. On August 12th, 1936, the administrator of the estate of Caesar, assigned in writing to these complainants, who are children of the said Maurice and Charlotte, the said bond and mortgage covering their parents’ property, as their distributive share of the estate of their uncle, Caesar Ribordy, aforesaid. The complainants seek to foreclose the mortgage. They allege that there is a balance of $1,800 principal and interest due on the mortgage.

The defendants filed an answer and counter-claim. The answer, in effect, alleges that the mortgage has been fully paid. By their counter-claim they seek a decree of cancellation of the mortgage. The bond and mortgage has been in the possession of the mortgagors since before the death of Maurice. The defendant Charlotte claims that they were delivered to her and her late husband, Maurice, on, or about April 20th, 1931, and from that time they were kept in a tin box in their residence, where they remained until they were produced in court at the hearing herein.

The complainants called a witness, Charles Schultz, a real estate broker, and secretary of a building and loan association, who testified that, on April 13th, 1931, Maurice Bibordy made application to his building and loan association for a loan of $2,000 on bond and mortgage on the property; that a search of the title was made by which it was disclosed that a first mortgage of $300 and a second mortgage of $2,100 was open of record against the title; that he discussed those liens with Maurice who told him the first mortgage had been paid, and that there was a balance then due on the second mortgage. The amount of the balance was not mentioned. The loan applied for was not advanced by the building and loan association.

Both complainants testified that they had seen the bond and mortgage in the tin box in the home of their parents several years before the death of their father, Maurice; that their father was requested by his brother, Caesar, to hold it for him, as a precaution against loss; that shortly after his death, or about August or September, 1931, their uncle Caesar. the mortgagee, called at their home and conversed with their mother, Charlotte, about the payment of the balance due on the mortgage; that in the course of that conversation, Charlotte declared she was unable to pay the amount due, and that Caesar told her that she had received moneys from policies of insurance on her said husband’s life, and from other sources, and for that reason he insisted that she should pay the moneys which he claimed to be due on the bond and mortgage.

There does not appear to be any denial that there was money due on the mortgage on April 13th, 1931, when the application was made to the building and loan association for a loan of $2,000. There is evidence, on the part of Charlotte, and her son, Henry Eibordy, who is also the son of Maurice Eibordy, deceased, that on April 20th, 1931, Maurice, Charlotte and Henry called at the home of Caesar and paid him the sum of $200 which they declared was the balance due on the mortgage; that Caesar then and there delivered the bond and mortgage to Maurice and Charlotte. This evidence stands uncontradicted.

The bond shows payments endorsed thereon aggregating the sum of $300; they appear in the handwriting of Maurice followed by the signature of Caesar. The complainants admit the knowledge of the existence of two checks, Exhibits E-5 and D-6 which total $850, which had been paid to their uncle Caesar. Charlotte testified that Exhibit D-.5, a check for $604.75 dated September 13th, 1930, was mailed by her husband, Maurice, to his brother, Caesar, in New York City, on account of the mortgage. She further stated that Caesar informed her that he had received that check and cashed the same at the Little Perry National Bank. She testified as to the sources from which the money came, through which the payments were made on account of the mortgage. She said that payments by check were made from the proceeds of $822 received as the cash surrender value of a life insurance policy, paid by the New York Life Insurance Company, which sum had been deposited in the bank in March, 1931. She also related that her husband, Maurice, received the sum of $800 from the sale of his restaurant in Hackensack, and the same was deposited in the bank on August 25th, 1930. She stated that the payments on the mortgage were made from those receipts. She denied that Caesar Eibordy had called at her home in August or September, 1931, as testified to by the complainants. Henry Eibordy corroborated the essential features of the testimony given by his mother, Charlotte.

The facts in this case, in my opinion, seem to support the claims of the defendants. Possession of a bond and mortgage carries with it the suggestion of payment. 48 C. J. 687 § 190j 48 C. J. 587, 588 footnote 23. “The law assumes that the evidence of debt given by one person to another will be found not in the possession of the debtor but in the hands of the creditor. Therefore, when the reverse is the case, that is, when the evidence of debt is found in the possession of the debtor, a strong presumption arises that the debt has been canceled either by payment or gift.” This quotation is taken from Hall v. O’Brien, 160 App. Div. 851, 858; 148 N. Y. S. 551, affirming 218 N. Y. 50; 112 N. E. Rep. 569. Harrison’s Administratrix v. Johnson, 18 N. J. Eq. 420, sustains the principle appearing in the last quotation. While the opinion was reversed on appeal, because the bond did not accompany the mortgage, the chief-justice, in rendering the decision of the court said (19 N. J. Eq. 500) : “When, therefore, the bond does not accompany the mortgage, the presumption of payment does not arise, but the reverse.” In the instant case, both the bond and mortgage were produced by the defendants. Chief Justice Gummere, in Maddock v. Connelly, 82 N. J. Eq. 609; 90 Atl. Rep. 314, said (at p. 315) : “If he had produced the bond and mortgage from among the papers of the decedent, his possession of them would have been prima facie evidence that the mortgage did remain unpaid.”

The testimony shows that the bond and mortgage in question were “among the papers” of the mortgagor. One of the most recent decisions on the point under consideration is that of Vice-Chancellor Bigelow in Pascall v. Fidelity Union Trust Company of Newark, 120 N. J. Eq. 462; 185 Atl. Rep. 478. In that case, the bond and mortgage were in the possession of the mortgagors, which, the vice-chancellor said, is “prima facie evidence of payment of the debt, for usually a creditor retains' the written obligation until it is satisfied.” From all the evidence in the case, it is my opinion that the complainants’ application for relief should be denied, and that there should he a decree in favor of the defendants for a cancellation of the mortgage.


author: Per Curiam.

text:
    RALP C. PATTON, PETTIONER-PROSECUTOR, v. AMERICAN OIL COMPANY, DEFENDANT-RESPONDENT.
    Argued January 20, 1937
    Decided July 22, 1937.
    Before Justices Lloyd, Case and Donges.
    Por the prosecutor, Samuel P. Orlando.

    Por the respondent, Cecil W. Rotzell.

   Per Curiam.

This is a writ of certiorari to review a judgment of the Burlington County Court of Common Pleas affirming a determination of the workmen’s compensation bureau dismissing prosecutor’s petition for compensation. Prosecutor sought compensation for injuries received as the result of being struck by a railroad train while in his automobile in and about his employer’s business, he alleged on the night of February 17th, 1933. The defense was that the accident did not arise out of and in the course of his employment and further that it was the proximate result of prosecutor’s intoxicated condition on the night in question.

The compensation bureau first dismissed the petition on the ground that the intoxication had been proved, but without making a specific finding that the intoxication was the proximate and natural cause of the injury. The Common Pleas affirmed this determination, and a writ of certiorari resulted in a judgment of the Supreme Court remanding the case to the bureau for the making of a specific determination on the defense of intoxication as the proximate cause of the accident. 13 N. J. Mis. R. 825; 181 Atl. Rep. 651. This judgment was affirmed by the Court of Errors and Appeals, 116 N. J. L. 382; 185 Atl. Rep. 351.

When the ease was returned to the bureau, the deputy commissioner found “that intoxication was the natural and proximate cause of the petitioner’s injury, and that the testimony of witnesses produced in the case sufficiently proves that fact.” This determination was affirmed by the Common Pleas and the judgment of that court is now here for review.

It is urged now that the respondent did not sustain the burden of proving the defense of intoxication by the weight of the evidence. This contention requires a review of the testimony.

Prosecutor, who was the only witness in his own behalf, testified that on the night in question he was working later than usual and that while driving westwardly on Marne highway from Mt. Holly toward Moorestown, he desired to turn off this highway to inspect a sand pit location which a customer or prospective customer was considering using and where he was considering the installation of a gasoline pump. Such a task would be in and about his employment in the business of promoting the sale of gasoline and oil products of the defendant. It had been snowing and there were two or more inches of snow on the ground. He said that he turned left off the highway, crossed the single-line tracks of the railroad and entered the site of the sand pit. He turned his car around and started to re-cross the railroad tracks, and while on the crossing he was struck by the railroad locomotive traveling in an easterly direction. lie admitted having had one drink of whiskey shortly before.

The respondent produced several apparently disinterested witnesses who testified to an entirely different location of the point of collision between train and automobile. Their testimony was to the effect that the tracks of prosecutor’s automobile in the snow indicated he was going westwardly on the highway, turned left to the side road, and then, when he was on the crossing, instead of proceeding straight across to the sand pit, again turned left in an easterly direction along the railroad right of way, with his car astride the south rail of the railroad tracks, for a distance of about one hundred and fifty feet. Por this distance of one hundred and fifty feet there was no disturbance of the snow other than the marks of the automobile tires, but from that point on the snow was disturbed and torn up for a space up to the place where the automobile was thrown clear of the tracks. The condition of the automobile was such as to indicate that it had been struck in the rear on the left part, and not on the side as would be likely if the collision occurred as testified by the prosecutor. Bailroad employes on the train testified that the impact occurred well past the crossing.

Prom this evidence we are constrained to find that the prosecutor’s version of the happening of the accident is not the true one, and that the point of collision was well away from the crossing, down the railroad tracks. We have then a situation where the prosecutor drove his car over the rough ties and roadbed for a distance of one hundred and fifty feet approximately, for which conduct he óffers no explanation; in fact he denies it in the face of a plenitude of evidence. Driving a car into such a situation is not the conduct of a person in his ordinary senses, and in the absence of any reasonable explanation leads to the conclusion that the driver was not in possession of all his faculties.

Coupled with this is the testimony of several witnesses that his breath smelled of alcoholic beverages, and the testimony of the doctor who treated prosecutor upon his arrival at the hospital. The doctor said that prosecutor was in a state of disorientation. He said that this condition was in his opinion contributed to both by shock and by alcohol. Because he was unable to judge the relative contribution of these two elements, he did not feel able to say whether or not prosecutor was intoxicated. He testified that prosecutor admitted he had been drinking but said he did not know how much.

On the basis of this evidence, two indepe2ident tribunals have reached the conclusion that the defense of intoxication has been established. We not only are unable to say that this finding is not justified by the evidence, but conclude that it is supported by the greater weight of the evidence as well as by the probabilities. Therefore, the writ of certiorari must be dismissed, with costs.


author: Lloyd, J.

text:
    THE CLAREMONT-CRANFORD REALTY CORPORATION, APPELLANT, v. HARRY LINDEMANN, RESPONDENT.
    Argued May 4, 1937
    Decided July 13, 1937.
    Before Justices Lloyd, Case and Donges.
    For the appellant, Bender & Brescher.

    For the respondent, Abram A. Golden.

   Lloyd, J.

The parties to this action entered into a written lease of property in Cranford for the period of one year from September 1st, 1932. The lease called for a monthly rental of $60, payable in advance. Having occupied the premises thereunder during the intervening period, the tenant on August 1st, 1936, gave a thirty days’ notice that he would vacate the premises on September 1st, 1936, and moved out in accordance with the notice. The plaintiff sued for one month’s rent claimed to be due September 1st, 1936, contending that the lease was a yearly letting and that one months’ notice of intention to vacate was not sufficient.

The defense interposed was that after the lease expired the landlord brought a dispossess action in the District Court and filed an affidavit stating that the tenancy was one from month to month, and that having so declared, it was estopped from thereafter contending that the lease was one continuing from year to year and required the notice exacted under a yearly letting. The action proceeded to judgment and the trial judge held that this proceeding, together with the continued occupancy of the property by the defendant, changed the relation from a yearly tenancy to that of a monthly tenancy, and gave judgment for the defendant.

The case was argued by counsel for the appellant alone; the respondent did not appear nor was any brief filed by him.

We think the legal effect of the action for possession is determined in the case of Jacobson v. Gruenberg, 100 N. J. L. 77; 125 Atl. Rep. 562. It was there held that the judgment for possession is not conclusive upon the parties in subsequent litigation. This case rested upon the earlier case of McWilliams v. King and Phillips, 32 N. J. L. 21, and the reasoning expressed in that opinion by the late Chief Justice Beasley.

It is a little difficult to determine from the opinion filed by the trial judge whether the judgment in the action for possession was regarded by him as res adjudícala of the present action or whether by reason of that judgment and the affidavits upon which it was based the tenancy was as a matter of fact found to be from month to month. We think, however, that the judge must have had in mind the former status of the case and decided it on legal grounds.

This being true, the judgment cannot be sustained. The affidavit of the plaintiff in the earlier action and the judgment obtained thereon were undoubtedly evidential, though not conclusive, that the tenancy was from month to month, and this being true it was open to the trial judge to determine the nature of the tenancy as a matter of fact. In holding it to be a legal bar there was error.

The judgment is reversed, in order that the nature of the tenancy may be determined as a question of fact.


text:
    RIDGE INVESTMENT CORPORATION, PLAINTIFF-RESPONDENT, v. AGNES NICOLOSI ET AL., DEFENDANTS-APPELLANTS.
    Submitted May 4, 1937
    Decided July 23, 1937.
    Before Justices Lloyd, Case and Dongbs.
    For the appellants, Hendrickson, Greenberg & Jacobs.

    For the respondent, Murray Ludmer.

   Per Curiam.

In a suit on a note given by the defendants-appeilants to plaintiff-respondent, in the sum of $197, representing the difference between the amount due plaintiff on its second mortgage on a property owned by defendants and mortgaged to Home Owners’ Loan Corporation, and the amount of bonds of said corporation and cash received by plaintiff for surrender and cancellation of its mortgage, the District Court judge gave judgment for plaintiff. Defendants appeal and urge that the giving of any pledge or security over and beyond such amount as may be paid by the Home Owners’ Loan Corporation is in contravention of public policy and in violation of the Act of Congress establishing said corporation.

The trial judge found as a fact that the plaintiff had not entered into any collusive agreement with the defendants to obtain more than was assented to by the corporation; that the note was prepared in the office of the closing attorney of the corporation at his direction and executed in his presence; that the appraised value of the property exceeded the mortgage given to the corporation and the amount of the note given to plaintiff; and that the obligation upon which suit was brought was in all respects valid, legal and binding.

The state of the case contains little of the evidence and consists principally of the finding of the trial judge. These findings are reasonably supported by the evidence submitted at the trial, as disclosed by the state of the case before us.

We are unable to agree with the contention of the appellants that agreements for payments over and above the amount of the Home Owners’ Loan Corporation mortgage are entirely void and illegal. The most favorable view of the statute and the cases thereunder cited would be that fraudulent agreements, made in collusion to induce the granting of the mortgage loan by the corporation, are unenforceable. As stated, the factual finding here is that there was no fraud or collusion, and that the arrangement was openly made with the knowledge of all parties, including the representative of the corporation.

TJpon the record before us, we do not perceive any error of law in the action of the trial judge.

The judgment is affirmed, with costs.


author: Brogan, Chief Justice.

text:
    ELEANOR SHOSTOK, BY HER NEXT FRIEND, JOHN SHOSTOK, AND JOHN SHOSTOK AND MARY SHOSTOK, INDIVIDUALLY, PLAINTIFFS-APPELLEES, v. BAYONNE BUILDING ASSOCIATION NO. 2, A CORPORATION OF NEW JERSEY, DEFENDANT-APPELLANT.
    Submitted May term, 1937
    Decided July 23, 1937.

      Before Brogan, Chief Justice, and Justices Trenchard and Parker.
    For the plaintiffs-appellees, Alfred Brenner.

    For the defendant-appellant, Andrew J. Markey.

   Brogan, Chief Justice.

A judgment was had in the Hudson County Court of Common Pleas comprising compensation for personal injuries to an infant and resulting damages to her parents. After judgment, the defendant obtained and argued a rule to show cause why the verdict should not be set aside on the ground that the same was excessive and was against the weight of the evidence.

The grounds argued by appellant for a reversal by this court, while in form they do not directly challenge any judicial ruling, yet by indirection they comprehend and are addressed to the refusal of the trial court to grant defendant’s motion for nonsuit or to direct a verdict for the defendant, or both.

The action of the trial court, discharging the rule to show cause, wherein the reason that the verdict was against the weight of the evidence was included, renders the action of the trial court, in rejecting motion to nonsuit or direct verdict, unavailable to defendant on appeal.

Where a defendant, on rule to show cause, sets down as a reason for granting the rule that the verdict was contrary to the weight of the evidence and, none the less, the rule is discharged, that question is res judicaia. A reason assigned that the verdict is contrary to the weight of the evidence is necessarily embraced within exception to the refusal to non-suit or direct a.verdict. Cleaves v. Yeskel, 104 N. J. L. 497; 141 Atl. Rep. 814.

It follows that there is nothing before us to review.

The judgment is affirmed, with costs.


author: Jayne, C. C. J.

text:
    Atlantic County Circuit Court.
    METROPOLITAN LIFE INSURANCE COMPANY, PLAINTIFF, v. VIOLA M. McGURK, DEFENDANT.
    Decided July 23, 1937.
    Por the plaintiff, Cassman <& Gottlieb.

    Por the defendant, Bolte & Miller.

   Jayne, C. C. J.

A mere summary of the alleged facts will suffice to exhibit the controversial question to be determined. The complaint, in its legalistic significance, alleges that the plaintiff is the owner of a parcel of land to which was previously attached; by an express grant, an easement in the nature of a right of way across a strip of land at present possessed by the defendant. Additionally the plaintiff asserts that the defendant has deprived the plaintiff of the use and enjoyment of the easement with consequent loss to the plaintiff. The land owned by the plaintiff is situate on the southerly side of Atlantic avenue and the alleged right of way extends easterly from it to the westerly side of New Jersey avenue, in the city of Atlantic City. The creation of the easement is evidenced by the recorded conveyances and its existence on the land has been physically visible.

In resisting the alleged canse of action of the plaintiff, the defendant reveals that after the creation of the easement, certain taxes thereafter levied and assessed upon the strip of land so burdened by the easement were not paid by the owner of the servient estate and in due course the land was sold in fee to enforce the tax lien pursuant to the provisions of the General Tax act of 1903, and its supplements then in force. The right of redemption was subsequently barred by the procedure prescribed by the first paragraph of section 59 of that statute. 4 Gomp. Slat., p. 5137. It is not here contended, however, that any notice to redeem was served upon or otherwise given to the owner of the dominant tenement to which the easement was appurtenant. The holder of the tax sale certificate, thus foreclosed, conveyed the land designated in the certificate to one Michael McGurk, who, upon his death, devised the land to the defendant in trust.

The plaintiff first sought immediate relief in the Court of Chancery. In withholding the desired interlocutory relief the learned vice-chancellor concluded that whether the easement sought to be protected had been extinguished by the foreclosure of the tax sale certificate, was a basic legal question which should he initially determined by a court of law in an appropriate action. Hence, the institution of the present action. This motion is intended to project the question for decision by this court.

An examination of all of the pertinent reported decisions to which my attention has been invited exposes some diversity of opinion.

It is said that a purchaser at a lawfully conducted tax sale acquires a new and complete title from the sovereign authority. “But if the tax deed is valid, then from the time of its delivery it clothes the purchaser, not merely with the title of the person who had been assessed for the taxes and had neglected to pay them, but with a new and complete title in the land, under an independent grant from the sovereign authority, which bars or extinguishes all prior titles and encumbrances of private persons, and all equities arising out of them.” Hefner v. Northwestern Life Insurance Co., 123 U. S. 747; 8 Sup. Ct. 337; 31 L. Ed. 309.

A tax title is assuredly in the nature of a new and independent grant from the sovereign authority. But it is to be realized that the tax title is established upon the assessment. In the quantity and character of the property conveyed, the tax sale embraces nothing more or different than did the basic assessment. The property actually assessed and the property conveyed by the tax sale must be the same.

Except in those cases in which the statutory language, unlike ours, has governed the decision, it becomes at once discernible that the diversity of opinion upon the question here debated arises from differential conceptions of the scope of the assessments themselves. In those cases in which it has been concluded that the tax is levied upon the physical and corporeal land itself without regard to the various estates, easements or servitudes that may have been carved out of it or imposed upon it, then in harmony with the principle of that conclusion it has been held, in such cases, that the purchaser at such a tax sale acquires a new and complete title to the land superior to all prior titles, easements or servitudes. Hill v. Williams, 104 Md. 595; 65 Atl. Bep. 413, is typical. In such jurisdictions, the beneficial owner of an easement must protect it either by the payment of the taxes levied upon the servient tenement or by redemption from the tax sale. Thus, the owner of the dominant estate who pays taxes based upon a valuation which presumably includes the values of his easements, must also in order to retain the easements, pay taxes assessed upon the servient tenement.

Courts of other jurisdictions have determined that an easement in the nature of a right of way is essentially different from a lien upon the land in that it is excised from the estate in the servient tenement and attached to the dominant tenement. The consequent course of reasoning is that the tax is only levied on the servient estate, which is valued subject to the existing easement. If the assessment only embraces the servient estate, then, of course, only the servient estate can be sold for the unpaid taxes thereon. Blenis v. Utica Knitting Co., 130 N. Y. S. 740; Jackson v. Smith, 138 ld. 654; Poetzsch v. Mayer, 189 Id. 659, are explanatory of this latter view of the problem.

Vice-Chancellor Bigelow was recently concerned with this question in Ehren Realty Co. v. Magna Charta Building and Loan Association, 120 N. J. Eq. 136. This was a cause in which the jurisdiction of the Court of Chancery was fundamentally invoked by a bill to foreclose a tax lien. The learned vice-chancellor determined that the tax sale of the servient tenement was subject to the easement and that the easement was not extinguished by the subsequent foreclosure of the tax lien. This conclusion seems also to be supported by the greater number of authorities gathered from the reports of. other states.

The following excerpt taken from the opinion in Tax Lien Co. v. Schultze, 213 N. Y. 9; 106 N. E. Rep. 751, is succinctly expressive of the underlying reason for this conclusion : “When an easement is carved out of one property for the benefit of another, the market value of the servient estate is lessened, and that of the dominant increased, practically by just the value of the easement; the respective tenements should therefore be assessed accordingly.”

I shall accordingly hold that the averments of the first and second defenses are frivolous. The third defense is likewise frivolous. O’Malley v. Gerth, 67 N. J. L. 610, 613; 52 Atl. Rep. 563. The remaining averments of the answer which merely deny the allegations of the complaint are manifestly sham.

A rule may be entered striking out the answer for the reasons here stated and the only controversial issues between the parties in this action having boon thus determined, the action may proceed as in the absence of an answer.


author: Herr, A. M.

text:
    Dorothy L. Noel, complainant, v. Henry N. Noel, defendant.
    [Decided June 23d, 1937.]

      Mr. Lionel P. Krisleller, for the complainant.

      Messrs. Kalisch & Kalisch, for the defendant.
   Herr, A. M.

Dor the purposes of the motion the conceded facts are that in March of 1934, while the parties were living in Drance, they entered into a contract of separation bj which defendant agreed to pay complainant a fixed monthly sum of money for her support during her lifetime or until her remarriage, that thereafter complainant secured a decree of absolute divorce against defendant in the Drench courts; that in the divorce proceedings complainant did not pray for alimony inasmuch as defendant was then paying the monthly installments as agreed, for which reason no alimony was awarded to her; that thereafter the parties came to the Hnited States and are now domiciled in New Jersey and that defendant has gradually reduced his payments to complainant to the extent that she complains that her present allowance is insufficient to enable her to maintain herself in her proper station in life and according to the standards of living to which defendant has accustomed her.

The validity of the agreement and of the divorce decree is conceded. It is not contended that under the French law the failure of the decree to provide for alimony bars complainant from applying subsequently therefor in the French courts. The question for determination on this motion is whether under the facts above stated complainant’s bill for alimony may be maintained.

Complainant does not seek the specific enforcement of her contract, although that remedy is available to her in this court. Cohen v. Cohen, 121 N. J. Eq. 299; 188 Atl. Rep. 244; Moller v. Moller, 121 N. J. Eq. 175; 188 Atl. Rep. 505. She fears that the court of errors and appeals might reverse such a decree, oil the strength of its decisions in Second National Bank v. Curie, 116 N. J. Eq. 101; 172 Atl. Rep. 560; Aiosa v. Aiosa, 119 N. J. Eq. 385; 183 Atl. Rep. 219, and Phillips v. Phillips, 119 N. J. Eq. 462; 183 Atl. Rep. 220. She prefers to take what she regards as the safer course of waiving any right she may have to enforce the agreement as such and of asking the court to fix and enforce the payment of a suitable allowance to her by way of alimony.

The defendant contends that the French court has exclusive jurisdiction to decree alimony, if jurisdiction exists anywhere, because alimony is merely an incident of the decree of divorce made by that court, and that section 25 of our Divorce act, which is the sole source of this court’s authority to decree permanent alimony, does not extend to cases where divorce has been decreed in a foreign state or country.

For the purposes of this motion it must be presumed that the same consequences flow from the French decree as if it were a decree of onr own court. Sturm v. Sturm, 111 N. J. Eq. 579, 587: 163 Atl. Rep. 5.

In Pierson v. Pierson, 15 N. J. Mis. R. 117, 129; 189 Atl. Rep. 391, it was suggested that the court of errors and appeals, in declining by its more recent decisions to approve the use of the remedy of specific performance with respect to the particular agreements involved in those cases, intended to designate the statutory remedy as applicable in every case in which, disregarding the agreement, a wife or ex-wife is entitled to be supported. The peculiar jurisdiction of this court in such cases is, of course, well settled. Dennison v. Dennison, 98 N. J. Eq. 280; 130 Atl. Rep. 463; affirmed, 99 N. J. Eq. 883; 133 Atl. Rep. 919. It has been emphasized and reaffirmed in the more recent court of errors and appeals cases above cited, and is there defined as the power, growing out of the existing or pre-existing marital status, in all cases where the wife or ex-wife is entitled to support, to regulate the amount of such support from time to time, to supervise agreements between the parties in that regard, to enforce such agreements if deemed just and to decline to recognize them otherwise. It is the power to enforce the husband’s legal obligation to support, as distinguished from the power to enforce the contract, to fix the measure and enjoin the performance of that obligation in the form of a decree for alimony or separate maintenance, having regard to but not being controlled by any agreement which the parties themselves may have made with respect to the measure of the husband’s duty.

By its recent pronouncements the court of errors and appeals has held in effect that so long as the husband’s legal (as distinguished from contractual) obligation exists the parties are incompetent to make an absolute agreement fixing the measure of that obligation. Because of the lack of inherent jurisdiction to decree permanent alimony (Freund v. Freund, 71 N. J. Eq. 524, 529; 63 Atl. Rep. 756; affirmed, 72 N. J. Eq. 943; 73 Atl. Rep. 1117; Hervey v. Hervey, 56 N. J. Eq. 424, 426; 39 Atl. Rep. 762), it has in effect construed section 25 of the Divorce act as empowering the court to decree alimony in every case in which the husband is under such legal obligation, including such cases as that now before the court where the wife’s decree of divorce was secured in a foreign jurisdiction. The same construction seems to have been applied by it in the earlier case of Ziesel v. Ziesel, 93 N. J. Eq. 153, 157; 115 Atl. Rep. 435, involving the custody and maintenance of a child of parents divorced in a foreign state.

Although it has generally been supposed that section 25 was intended to apply only where the decree of divorce has been entered in this court, the broader construction placed upon it by the court of errors and appeals rests upon established principles. It has long been settled that under that section the wife may bring proceedings for alimony at any time after she secures her decree for divorce, although the decree may contain no provision or reservation therefor. McKensey v. McKensey, 65 N. J. Eq. 633; 56 Atl. Rep. 1073. Her right to support is not affected by litigation involving the status of the marriage unless the litigation results in a decree of nullity or in an adjudication that she has been guilty of a matrimonial offense. This right is not incidental to the right to divorce. Proceedings for divorce and for alimony are distinct although they may be pending coincidentally. Sutphen v. Sutphen, 103 N. J. Eq. 203; 142 Atl. Rep. 817. They involve a different subject-matter and depend upon different jurisdictional principles. “Alimony” and “maintenance” are merely different words used in differing situations to describe the same thing., viz.,, the measure of the husband’s duty to support. The Divorce act by its title and throughout its provisions separates the subject of support from the subject of nullity and divorce and treats them as distinct branches of jurisdiction. The jurisdictional sections 5, 6 and 7 are expressly restricted to nullity and divorce proceedings and have no application to suits for alimony or maintenance. Sections 25 and 26 stand alone, distinct from the other provisions of the statute, and contain all of the statutory provisions touching the matter of support. To give the court jurisdiction under these sections the domicile of one or both of the parties in New Jersey is not required. The proceeding is in personam, or if quasi in rem (as in Maloney v. Maloney, 12 N. J. Mis. R. 397; 174 Atl. Rep. 28) the res consists of the defendant’s property in New Jersey, not of the status of the marriage.

The court of errors and appeals cannot be said to have definitely and finally settled the law with respect to the use of the remedy of specific performance as applied to contracts for the support of a wife or ex-wife. Cohen v. Cohen, supra. So far it has not been called upon to deal with a suit to enforce a contract made in a foreign state, in which the protection of the fourteenth amendment of the United' States constitution has been invoked, or a contract made in a foreign country (such as is involved in the present suit), in which considerations of comity majr be involved. In future, no doubt, other factual situations will be presented involving still different problems. It may well be that had the present bill sought the specific enforcement of complainant’s contract a decree in her favor would have been affirmed.

However that may be, inasmuch as she has elected to proceed under section 25 of the Divorce act, the broad construction of that section which has been adopted by the court of errors and appeals justifies this court in entertaining her bill.

If the French decree of divorce were invalid, this court would have unquestioned jurisdiction to grant relief to complainant under section 26. Freund v. Freund, 71 N. J. Eq. 524; 63 Atl. Rep. 756; affirmed, 73 N. J. Eq. 943; 73 Atl. Rep. 1117; Tehsman v. Tehsman, 93 N. J. Eq. 76; 114 Atl. Rep. 320; affirmed, 93 N. J. Eq. 422; 117 Atl. Rep. 34; Reik v. Reik, 101 N. J. Eq. 523; 139 Atl. Rep. 385; affirmed, 103 N. J. Eq. 23; 141 Atl. Rep. 921. To deny her relief on the ground that her decree is valid, rather than invalid, would be an unwarranted and unconscionable discrimination.

Moreover, in the words of the court in the Dennison Case, supra, “to accede to the contention of the defendant that by removing to this state he can thereby avoid the obligation of this contract would be, jn effect, to offer New Jersey as a haven for all ex-husbands who wished to avoid the results of their alimony contracts and furnish for them a complete refuge from prosecution thereunder.”

Both parties to this suit are residents of New Jersey. Complainant’s support is a matter of peculiar social concern to this state. The defendant has been adjudged guilty of a matrimonial offense which has justified complainant in divorcing him. He has recognized his obligation by making a contract to support her. She alleges that she is destitute of the moans of support except as he supplies it. The matter of her support has not been the subject of adjudication. Her needs are none the less because her divorce was secured in France rather than in New Jersey an.d in my judgment her right to seek alimony in our courts is not affected by that circumstance.

The motion to dismiss will be denied.


author: Pee Cubiam.

text:
    JACOB RICHTER, AN INFANT UNDER THE AGE OF FOURTEEN YEARS, BY PHILIP RICHTER AND JEANNE RICHTER, HIS NEXT FRIENDS; ETHEL RICHTER, AN INFANT UNDER THE AGE OF FOURTEEN YEARS, BY PHLIP RICHTER AND JEANNE RICHTER, HER NEXT FRIENDS; PHILIP RICHTER AND JEANNE RICHTER, INDIVIDUALLY, PLAINTIFFS-APPELLANTS, v. MARTIN R. M. CONWAY, DEFENDANT-APPELLEE.
    Submitted May term, 1937
    Decided July 27, 1937.
    Before Brogan, Chief Justice, and Justices TRehchard and Parker.
    Por the plaintiffs-appellants, John J. Rafferty (James J. Curran, of counsel; Philip Blacker, on the brief).
    Por the defendant-appellee, John C. Stoclcel.

   Pee Cubiam.

, The plaintiffs appeal from a judgment entered for the defendant upon a jury verdict of no cause of action and appeal is grounded on the proposition that the trial court abused its discretion in not granting a new trial on the facts and because of newly discovered evidence, both of which questions were argued on the return of a rule to show cause which was discharged.

The case before us involved personal injuries suffered by plaintiffs, property damages and incidental expenses that arose out of a collision that occurred on route 25, a superhighway, between the automobile of the plaintiffs, which was going north, and the truck of the defendant which was entering the highway by a side road from the east.

The negligence question was properly submitted to the jury and the fact issue determined favorably to the defendant.

On the return of the rule to show cause, the weight of evidence was considered by the trial judge, whose determination not to interfere with the verdict was well within the proper exercise of his discretion.

As to the matter of the newly discovered evidence, four affidavits were presented to the court, two for each side. The sole point presented is that one affiant avers that the defendant, Conway, said at the time of the accident, that he was assuming full responsibility therefor, and that he would see to it that the damages would be paid. This is denied in the defendant’s affidavit, but if accepted, there is a counter-affidavit of one Anderson, an investigator for the insurer, that the plaintiff Eiehter had told him, long before the trial, that this statement was made by the defendant. It is manifest that this, therefore, was not newly discovered evidence in the legal sense; that it was available before trial and could have been procured by the exercise of reasonable diligence. The court was well within its discretion in concluding not to interfere with the verdict. The rule on matters of this kind is thoroughly settled, some of the late decisions being Plaskon v. National Sulphur Co., 114 N. J. L. 109; 176 Atl. Rep. 112; Paradise v. Great Pastern Stages, Inc., 114 N. J. L. 365; 176 Atl. Rep. 711. Compare Fitzpatrick v. Goerke-Kirch Co., 118 N. J. L. 207; 192 Atl. Rep. 238.

The judgment is affirmed, with costs.


text:
    STATE OF NEW JERSEY, DEFENDANT IN ERROR, v. GEORGE TUZENEW, HARRY SUCKOW, MAX KOFFMAN AND HASKILL McKELVEY, PLAINTIFFS IN ERROR.
    Submitted May term, 1937'
    Decided July 31, 1937.
    Before Brogan, Chief Justice, and Justices Trenchard and Parker.
    For the defendant in error, T. Raymond Bazley, prosecutor of the Pleas (Edward F. Jusha, assistant prosecutor of the Pleas, on the brief).
    For the plaintiffs in error, Kremer & Proctor.

   Per Curiam.

The plaintiffs in error, Harry Suckow, George Tuzenew, Max Koffman and Haskill MeKelvey, were convicted in the Monmouth County Court of Quarter Sessions of “making or taking what is commonly known as a book upon the running, pacing or trotting, within and without the state, of horses, mares, gelding,” &c., and “conducting the practices commonly known as bookmaking, and did then and there keep a place to which persons resorted for engaging in such illegal practices,” contrary to the provisions of the Crimes act. 2 Comp. Stai., p. 1766, § 65.

The assignments of error and the specification of causes for reversal invoked for each of the defendants are identical, viz., that the trial court erred in denying a motion for direction of acquittal in favor of each of them at the end of the state’s case and at the end of the entire case, and that the verdict oí guilty in each case was against the weight of the evidence. A further point is made challenging the charge of the trial judge as being erroneous and prejudicial to the rights of the plaintiffs in error. As to this latter point, we have only this to say, that the criticism of the charge is captious and we perceive no merit whatever in it. The entire record anti proceedings, and transcript of the testimony, charge, &c., is before us on the certification of the trial judge.

The case is one essentially of fact.

The “bookmaking” which the plaintiffs in error are charged with conducting, took place on premises known as the Log Cabin Inn, Monmouth county, between Lakewood and Freehold, on the state highway. The Log Cabin Inn, as such, was a building used as a restaurant and bar, consisting of two and one-half stories. To the rear of this building was a smaller structure, perhaps thirty feet square, wherein it is charged the bookmaking was carried on. Admittedly Suckow and Tuzenew owned the Log Cabin Inn. The liquor license was in the name of Suckow or a nominee, one Crosby. Electricity for lighting and a “pay station” telephone was installed on the application of Suckow. Additional telephone service, described as “regular subscribers’ service,” was installed in the small rear building on the application of Tuzenew on April 9th, 1935. Bills for the circuit lines were cleared through the New York Telephone Company. The indictment charged that the gambling was in operation on May 9th, 1935.

It is apparent from the record that the place was under suspicion and under surveillance for some days prior to May 9th, 1935.

From the testimony of the witnesses produced by the state, two from the state department of alcoholic beverage control, and four from the office of the prosecutor of the Pleas of Monmouth county, the jury might readily and properly find that at or about the time in question from forty to fifty automobiles were parked on the premises during the afternoon from two to five o’clock: that on the day in question, when the establishment was raided, the investigators found on the wall, inside the small building, “a blackboard with the names of horses;” that a platform was erected, whereon defendant Koffman was stationed “with ear phones;” that a cashier’s booth was being operated in the premises by the two defendants McKelvey and Sucltow, the former acting as cashier.

All defendants, except Tuzenew, were identified as being-present in the gambling room under circumstances from which the jury might readily infer that they were in charge of the bookmaking operation. One of the witnesses testified that he had placed a bet on a horse race the day preceding the raid. No witness was able to testify that Tuzenew was present on the day of the raid, the only testimony concerning him indicating quite clearly that he was not present but that on the day in question his arrest occurred in the yard outside of the building.

The detectives from the county prosecutor’s office confiscated the money found in the cashier’s desk, amounting to $254.90, as well as slips and racing sheets, which apparently were found at the table where plaintiff in error McKelvey sat. These slips and racing charts were offered in evidence without objection, although we do not find them reproduced as exhibits in the state of case. This was the evidence at the end of the state’s case.

The defense was a categorical denial of the charge laid in the indictment. Bach of the defendants denied that he was engaged in conducting a bookmaking establishment. Tuzenew testified that the building in the rear had formerly been used by himself and his partner as a garage but that he had rented the same a short time previously for $25 'a month to a Doctor John Cannon and that it was at the request of Cannon that the additional telephone service was installed; that the witness had no right of supervision in the place and that the doctor conducted a club in the premises where the members used to play cards and “had racing charts and racing papers.” Doctor Cannon was not produced in court.

Another witness for the defense, one Henry Matter, a carpenter and builder, testified that he had done some work on the premises on the order of Doctor Cannon. He had a helper on this particular job, whose name was Otto, but who was not produced at the trial. This was the state of the proofs at the close of the entire case.

This ease is before us not only on bill of exceptions but on specification of causes for reversal under the one hundred and thirty-sixth section of the Criminal Procedure act (2 Comp. 8tal., p. 1863, and its supplement, 1 Cum. 8upp. Comp 8iai., p. 898; Pamph. L. 1921, ch. 349), which require us, inter alia, to weigh the evidence.

As to the plaintiff in error Tuzenew, we think the verdict was against the weight of evidence. There was no direct evidence connecting him with the gambling operation as such. He was not present in the room with the other defendants and there was nothing to disclose him as a principal in the hookmaking that was in operation. We don’t entertain much doubt that he had notice of the illegal operations hut there is no evidence that he had knowledge, and no proof of circumstances that tended to make him a principal in this violation of the Criminal law. Compare State v. Mausert, 85 N. J. L. 498; 89 Atl. Rep. 1011. The verdict will be reversed in the case of Tuzenew because, in our view, it is against the weight of evidence. As to the remaining defendants Suckow, Koffman and McKelvey, the court was entirely right in rejecting motions to acquit at the end of the state’s case and at the end of the entire ease. The verdict was not contrary to the weight of evidence hut entirely in accord therewith.

The conviction of Tuzenew is reversed, and a venire de novo allowed. The convictions of Suckow, Koffman and McKelvey will be affirmed.


author: Case, J.

text:
    PARK PLACE DISCOUNT COMPANY, A CORPORATION, PLAINTIFF, v. ELIZABETH WEISZMILLER AND ANTON WEISZMILLER. DEFENDANTS.
    Decided August 2, 1937.
    Before Justice Case sitting alone pursuant to the statute.
    For the prosecutor, Morris H. & Charles E. Cohn.

    For the defendant Anton Weiszmiller, Aaron Kaufman.

    For the respondents John F. Toth, Helen Toth and Linden Trust Company, John Fedor, Jr.

   Case, J.

Plaintiff holds a judgment against Anton Weiszmiller upon which execution has issued. Under the execution the sheriff of Union county levied upon all moneys in the hands of Linden Trust Company due or to become due Anton Weiszmiller under a certain building contract. Likewise, the sheriff of Middlesex county, under execution issued to him, levied upon payments due or to become due to Weiszmiller under the said contract, John F. Toth and Helen Toth. It appears that the contract was entered into between John F. Toth and Helen Toth, as owners, and Edward A. S. Weiszmiller, as contractor; that the Linden Trust Company undertook to loan $4,400 to the said Toths under an installment construction mortgage; that Edward A. S. Weiszmiller is the son of Anton Weiszmiller and was the agent of the latter to the extent that the contract on behalf of the building contractor was really that of the defendant Anton Weiszmiller. The contract price was $5,545, of which all but $2,045 lias been paid. $1,400 of the mortgage money is still in the hands of the trust company awaiting progress in the work. Up to and including the completion, of the building the further sum of approximately $2,075 will become due to laborers, subcontractors and materialmen for which stop-notice liens against the contract sum may be served.

On this showing plaintiff seeks to have a receiver appointed under the 1915 supplement to the Execution act. Pamph. L. 1915, ch. 115; 2 Gum. Supp. Comp. SUU. 1911-1924, p. 1205, § 71-9a.

According to the proofs, the profit, if any, of the Weiszmillers will be very slight. There is no proof that it will exceed Anton Weiszmiller’s legitimate and minimum living requirements. The Toths made the contract in good faith. Justice to them requires that no action be lightly taken on the request of the plaintiff which will bring but little advantage to the latter and which will jeopardize the entire contract of the former. Laborers, materialmen and subcontractors will, if they bring the work to the stage where the mortgage funds will be released, have legal claims. The authority of a receiver under the statute to enter upon the completion of a contract on behalf of the judgment debtor is not clear. His appointment is a matter of discretion. The propriety, if not the legality, of diminishing the funds available for prospective lien claimants in order to meet the allowances to and expenses of a receiver under the judgment is at the least questionable. Further, the Toths and the trust company deny indebtedness to Anton Weiszmiller; therefore one of the statutory prerequisites to the making of an order upon the garnishee seems to fail.

Apparently the only one to profit from the appointment of a receiver would be the receiver; so I deny the application. The facts do not justify an order to pay to the sheriff.

The rule will be dismissed.


text:
    CONTINENTAL ADJUSTMENT CORPORATION, PROSECUTOR, v. MATHEW F. MELKO, JUDGE OF THE DISTRICT COURT OF THE CITY OF PERTH AMBOY, AND EDYTHE M. KLAUSE, RESPONDENTS.
    Heard July 3, 1937
    Decided July 22, 1937.
    Before Justice Case sitting alone pursuant to the statute.
    Por the prosecutor, Sol Kantor.

    Por the respondents, Lewis S. Jacobson.

   Case, J.

The prosecutor sued the respondent Klause in the District Court of the city of Perth Amboy and filed its -complaint to which the defendant therein filed her specification of defenses and a counter-claim. The matter seems to have been disposed of by the judge of the District Court sitting .without a jury and on an agreed state of facts.

Prosecutor alleges that a judgment was entered in its favor and against the defendant on June 18th, 1934, and that more than thirty days thereafter,, namely, on August 31st, 1934, the District Court judge, without notice to the prosecutor, reversed that determination and entered judgment for the defendant on the latter’s counter-claim. Prosecutor seeks to set aside that alleged alteration in the judgment. Its case rests upon the basic proposition that a judgment was rendered in its behalf.

The docket is the court’s record. District Court act, Pamph. L. 1898, ch. 228, § 25; 2 Comp. Slai., p. 1961. In the transcript certified by the trial judge there appear those items: “Judge’s opinion filed August 31st, 1934,” and “April 9th, 1937, Judgment was entered for defendant.” The docket shows no entry of judgment for prosecutor. The return contains that which, by its title, is a “copy of envelope,” on which appear the words “Judgment for Plaintiff $500.” What relationship the envelope bears to the case does not appear. Perhaps it is a jacket used by the clerk of the District Court for purposes of filing and convenient notation; hut it is not shown to be an official record. By piecing together what appears to be an exhibit and an affidavit used by the prosecutor in an earlier step in the cause but no longer of any force, we may gather that the clerk of the District Court sent a postcard to prosecutor’s attorney under date of June 18th, 1934, stating that judgment would be entered for prosecutor for $500 upon evidence of payment of costs in another cause and in another court. This, too, lacks the authority of a record.

If the docket entries did not correctly show the court record, it was for the prosecutor to obtain an order from a Supreme Court justice ruling the District Court judge to certify as to any fact or facts claimed to be material and not found in the state of case. Ashendorf v. Delaware, Lackawanna and Western Railroad Co., 11 N. J. Mis. R. 487; 167 Atl. Rep. 27; Smith v. Wendkos, 112 N. J. L. 391; 170 Atl. Rep. 858. Upon the record as it comes to me I must conclude that the prosecutor has not made a case.

The writ will be dismissed, with costs.


author: Sooy, V. C.

text:
    Lehman H. Garrison, executor of the last will and testament of Herbert Garrison, deceased, complainant, v. Samuel Engle, defendant.
    [Decided August 4th, 1937.]

      Mr. David M. Bowen, for the complainant.

      Mr. Frederick B. Edwards, for the defendant.
   Sooy, V. C.

This matter comes before me on the return of an order to show cause why the defendant should not be enjoined in accordance with the prayer of the bill of complaint.

The bill of complaint alleges that on June 16th, 1892, Lehman Garrison, now deceased, being the owner of the ripa abutting thereon, became seized of a certain riparian grant of land under the tide waters of Delaware bay, located at Eortescue, Cumberland county, New Jersey, and that on September 27th, 1918, Lehman Garrison conveyed to his son, Herbert Garrison, the southern portion of said riparian grant, being all the portion of said grant south of the two-hundred-foot passageway to the mouth of Eortescue creek, at Eortescue, New Jersey, aforesaid, which grant extended from Eortescue creek to the division line between property formerly owned by Benjamin F. Lee and property of Lehman Garrison, extending into the Delaware bay approximately one thousand two hundred feet from high water mark.

The bill further alleges that the estate of Herbert Garrison is still the owner of the riparian land aforesaid.

Defendant, in his answering affidavit, says: “It is true that during his lifetime, Lehman Garrison acquired” the riparian lands aforesaid under the grant of June 16th, 1892.

The bill further alleges that the defendant started to erect and is erecting on the riparian lands aforesaid a pier extending from the defendant’s premises at the high water mark in the Delaware Bay and extending beyond and into the Delaware bay on the lands covered by said grant, and that the defendant is conducting a restaurant business on said pier and catering to fishing parties thereon, both of which businesses are in competition to a pier erected by Herbert Garrison during his lifetime and extending out into the Delaware bay over the riparian lands covered by the riparian grant aforesaid.

Complainant avers that immediately upon discovering the activities of the defendant in the erection of the pier aforesaid, he caused notice to be served on said defendant advising him of the riparian grant aforesaid and forbidding the defendant to proceed further in the erection of the pier which he is now occupying.

The defendant admits the receipt of two notices to discontinue his construction of the pier and the occupancy of the property beyond the high water mark and extending into the Delaware bay over the riparian grant which the complainant, as executor of his father’s estate, claims title to.

The defendant justifies his refusal to heed the notices aforesaid to cease the construction of the pier aforesaid because “the said complainant has no rights in the lands in question which are in any way being violated because I am the sole owner of such lands.”

Under a claim of title filed by the defendant, this court would ordinarily send the matter to the law court for a trial on the question of title, but as pointed out in Naphas v. Naphas, 100 N. J. Eq. 534; 135 Atl. Rep. 874, following Hart v. Leonard, 42 N. J. Eq. 416, 419; 7 Atl. Rep. 865:

“Where the legal right, though formally disputed, is yet clear, on facts which are not denied and legal rules which are well settled,” the court has a right and a duty to restrain the trespass of which complainant complains.

The affidavit of the defendant, filed and used on the return of the order to show cause, discloses that the defendant’s contention is that Lehman Garrison, having acquired the lands described in the bill of complaint and covered by the riparian grant of June 16th, 1892, “to Benjamin F. Parker conveyed and released the portion of the lands under water which is the subject of this suit” and that “the said Benjamin F. Parker is a grantor of the lands and premises in question to myself, I having acquired the same from Elizabeth B. Mulford on April 28th, 1937, by general warranty deed. By virtue of said deed I am now the owner of the land bounding the high water mark and also of the lands under the water adjoining, the same having been sold by the said Lehman Garrison on July 21st, 1904, to one of my former grantors, Benjamin F. Parker.”

On the return of the order to show cause, I asked to have marked in evidence certified copies of the original riparian grant, as well as the deed of July 21st, 1904, from Lehman Garrison to Benjamin F. Parker, and also the deed from Elizabeth B. Mulford to the defendant, under date of April 28th, 1927. These deeds are now before me and have been marked' in evidence.

The deed from Lehman Garrison to Benjamin F. Parker contains the following description;

“Beginning at a point in liighwater mark of Delaware Bay. being a corner of lot conveyed by Lehman Garrison to Jonathan B. Parker; thence (1) along said Parker’s lot north sixty four degrees east one hundred feet to a ten foot alley; thence- (2) along said alley north twenty-six degrees west thirty feet to a lot conveyed by Lehman Garrison to Clayton Parker; thence (3) along the lot of said Clayton Parker; south sixty four degrees west one hundred feet to liighwater mark; thence (4) along highwater mark of said Bay south twenty six degrees east thirty feet to the beginning.”

It will be observed that the premises above described is a lot starting at high water mark in the Delaware bay and extending east inland one hundred feet to a ten-foot alley.

The deed from Elizabeth B. Mulford to the defendant, by virtue of which the defendant claims “I am now the owner of the land bounding the high water mark and also of the lands under the water adjoining the same,” contains the following description:

“Beginning at a point in high water mark of Delaware Bay, being a corner of lot convoyed by Lehman Garrison to Jonathan B. Parker; thence (1) along said Parker’s lot north sixty four degrees east one hundred feet to a ten foot alley; thence (2) along said alley north twenty six degrees west thirty feet to a lot conveyed by Lehman Garrison to Clayton Parker; thence (3) along the lot of said Clayton Parker south sixty four degrees west one hundred feet to high water mark; thence (4) along high water mark of said bay south twenty six degrees east thirty feet to the beginning.”

It will be observed that the two descriptions above set forth are identical and that the land conveyed started with the high water mark and was a strip one hundred feet by thirty feet and that it contained no reference to any lands other than those therein described and does not convey any of the lands formerly belonging to Lehman Garrison and located under water south of the high water line of the Delaware bay.

Just how it may be said that the defendant, through these deeds thus describing the lands conveyed, became the owner “of the lands under the water adjoining the same” does not appear and, of course, cannot be so under the law in this state.

But defendant says in his brief “that the high water mark at the time of the original conveyance was far beyond the point of the present high water mark and also beyond the point whore the pier in question is constructed and the boundaries of the lands affected by this suit must be determined, as the determining feature is the high water mark at the time of the giving of the original deed.” He cites Nixon v. Walter, 41 N. J. Eq. 103; 3 Atl. Rep. 385.

The permission from the state under which the defendant Engle constructed his pier was a permit “to construct an open pile timber pier 300 feet long and 10 feet wide, terminating in a ‘T’ 16 feet wide and 26 feet long, in the Delaware Bay, at the foot of Remington Avenue in Downs Township, approximately 0A mile south of the mouth of Fortescue Creek, Cumberland Countjr, New Jersey.”

It is apparent that this pier is over three times as long as the premises described in the deeds under which the defendant claims title to the lands under the water.

The defendant argues that the high water mark is a fixed and permanent boundary and that the question therefore is “the line of high water at the date of the deed,” and the defendant further says that the high water line “did not follow the changes of the high water mark” of Delaware bay.

Assuming, but by no means conceding, that the proposition as stated by the defendant and above quoted is true, it must follow that the lands and premises conveyed to the defendant in the deed from Elizabeth B. Mulford to himself are now completely submerged by water and that the high water line has receded, so that the pier three hundred feet long now has its beginning point “at the foot of Remington avenue.”

A reading of Nixon v. Walter, supra, discloses that “in this case the six-rod strip was, when it was first conveyed, a definite parcel of land. It has been covered by the waters of the bay, so that that which was the high water or beach line when the original conveyance for the strip as a separate tract under which the answering defendant derives her title was given, is now at least six rods below the present high water or beach line. Such being the fact, she has no title under her deed to any part of the land covered by the complainant’s deeds.”

. It is true that in non-navigable waters the case of Nixon v. Walter, supra, is controlling for the proposition that “where a boundary line was ‘along the high water mark’ of a pond, it was held that the line thus given was a fixed and permanent one, the line of high water at the date of the deed, and did not follow the changes of the high water mark of the pond.”

But the law with reference to navigable waters is settled beyond dispute. In Dewey Land, Co. v. Stevens, 83 N. J. Eq. 314 (at p. 317); 90 Atl. Rep. 1040, the court of errors and appeals, through Mr. Justice Swayze, said:

“If the laud was formerly fast land., and the title was not lost by erosion, it became the property of the state, not merely as long as it remained under water, but, if the state made a riparian grant, absolutely. Whatever right the former owners might have as against private persons upon the ocean receding, was of no avail against the state’s riparian grant; the title lost by erosion was then lost forever, unless it was regained by accretion, and the right of accretion was the compensa! ion of the former owner for his loss; each grantee had the same right.”

In Camden and Atlantic Land Co. v. Lippincott, 45 N. J. Law 405 (at p. 417) the court, through Mr. Justice Depue, said:

“The principle on which these cases were decided is that in grants of lands lying along the seashore, the parties act with a knowledge of the variety of changes to which all parts of the shore are subject. The grantee takes no fixed freehold but one that shifts with the changes that gradually take place. The proprietor of lands having such a boundary is obliged to accept the alteration of his boundary by the gradual changes to which the shore is subject. He is subject to loss by the same means that may add to his territory; and as he is without remedy for his loss, so he is entitled to the gain which may arise from alluvial formations, and he will, in such case, hold by the same boundary, including the accumulated soil.”

See, also, Ocean City Association v. Shriver, 64 N. J. Law 550; 46 Atl. Rep. 690, and many other cases, which I will not enumerate.

From the above, it is apparent that the defendant, on the record before me, as disclosed by the defendant’s personal affidavit, is not the owner of the land and premises in question by virtue of the deed from Elizabeth B. Mulford to himself, dated April 28th, 193*7, as it is likewise apparent that Elizabeth B. Mulford was not the owner of the lands in question, riparian lands, through the conveyance from Garrison to Parker, dated July 21st, 1904, in both of which deeds the high water line confined the property conveyed, so that the grantees in either deed had no title to the riparian lands in question.

The above seemed apparent to the court on the return of the order to show cause, but defendant was permitted to file a brief in support of the legal principles raised by the affidavit filed by the defendant or by his counsel at that time, and no other defense was raised, either by counsel or by the defendant through his affidavit, other than the defenses above discussed.

On the coming in of the defendant’s memorandum, he says that another defense is “that the State of New Jersey has granted to the defendant, Samuel Engle, certain rights to construct a pier upon the premises in question, which said rights are expressly reserved by the State of New Jersey in its deed to Lehman Garrison, bearing date June 16th, 1892.”

The permit above referred to was issued by the board of commerce ■ and navigation pursuant to chapter 123 of the 1914 laws of New Jersey.

In the third paragraph of the permit it is provided:

“The granting of this permit shall not be construed to in any way affect the title or ownership of property, and shall not make the Board or the State a party in any suit or question of ownership of property.”

But the defendant contends that “the right to grant any subsequent license, power or authority affecting the lands in question were expressly reserved by the State of New Jersey in its conveyance to Lehman Garrison on June 16th, 1892, wherein it was stated, ‘provided however, that nothing in this instrument contained shall prevent or in any way interfere with the full and ample right of the State to hereafter give license, power or authority effecting lands under water, whether in front of said lands or elsewhere in said State.’ ”

■ These reservations in the riparian grant may not be construed to diminish the thing granted, i. the lands described in the deed, but properly construed, it provides that irrespective of the grant, license, power or authority effecting lands under water generally, whether in front of the lands described in the grant or elsewhere in the state, are not to be interfered with by the terms of the grant.

The phrase, “in front of said lands,” did not refer to the lands described as having been conveyed by the state, but distinctly referred to the lands in front of those lands which have been so conveyed. The phrase “or elsewhere in said State” does not refer to the lands granted, but to other riparian lands that may be located elsewhere in the state, that is, at another place than the locus covered by the description in the grant or, as we find in Corp. Jur. (at p. “somewhere or anywhere else.”

In defendant’s memorandum, filed as heretofore stated, he also contends that the defendant claims title “by reason of adverse possession.” This is evidently an after-thought and is not supported by evidence contained in any affidavit heretofore filed, and the mere statement that he claims it was by adverse possession, without any affidavit to support it, will not suffice, particularly in view of the affidavit heretofore filed, in which the defendant claimed that his reliance was on the deeds aforesaid.

As pointed out by the complainant, the public has a right over and across the waters of the Delaware bay included within the lands granted by the riparian grant, and that light of the public over and across the waters of the bay exists concurrently with the title to the soil under water in the complainant and the exercise of the one will not extinguish the right of the other. Hoboken Land and Improvement Co. v. Mayor, &c., of Hoboken, 36 N. J. Law 540.

From the above it is quite apparent that the title of the complainant in the riparian lands is absolute, notwithstanding the fact that that title had been formerly disputed by the claim of title under the deeds heretofore referred to, which deeds, on inspection, clearly refute the claimed title, and it is very clear that on the facts in this case, which are not denied, and on legal principles, which are well settled, the defendant has no title and that he should be restrained from a continuation of building on complainant’s riparian lands and from occupying them by means of a wooden pier which he has constructed, in defiance of complainant’s rights, and after due notice on the part of complainant that the defendant was proceeding at his peril.

The form of the restraint on this preliminary application will not go to the extent of a mandatory injunction that the pier be removed, but it will go to the extent that the defendant cease from operating and conducting a business or businesses on said pier as constructed beyond the line of high water and extending thence into the Delaware bay, and that the defendant be barred from the use of that portion of said pier for any purpose, including the tying up thereto of boats, no matter how propelled, i. e., whether manually, by sail, by motor or by a combination of any of these means of propulsion.