author: Kixkead, C. C. J.

text:
    ELIZABETH M. ROONEY AND EDWARD ROONEY, PLAINTIFFS, v. GERTRUDE HERRMANN AND HENRY A. SAHKER, DEFENDANTS.
    Decided July 23, 1942.
    For the plaintiffs, Carton £ Abramof..

    For the defendants, Green £ Green (David Green) and Durand, Ivins £ Carton (J. Victor Carton).

   Kixkead, C. C. J.

This matter is before the court on plaintiffs’ rule to show cause why a new trial should not be granted on the ground of newly discovered evidence.

Mrs. Elizabeth M. Boonev was injured in an automobile accident which occurred on July 22d, 3940. She and Edward Boonev, her husband, started suit against Mrs. Gertrude Herrmann, the owner o£ the car involved in the accident, and Henry A. Sahker, who was driving it at the time.

Mr. and Mrs. Herrmann, their daughter, Ehoda, and Sahker were week-end guests at the home of Mr. and Mrs. Herrmann’s daughter, Mrs. Evelyn Horr, in Asbury Park, Hew Jersey. Ehoda Herrmann and the defendant Sahker were engaged to be married at the time.

On Monday morning, July 22d, the week-end visit was terminated, and Mrs. Herrmann left for Hew York by train. Mr. Herrmann, Ehoda and Sahker, with Sahker driving, started out from Asbury Park in Mrs. Herrmann’s car to proceed to the Herrmann home in Paterson. While so proceeding, the accident occurred.

The complaint filed by the plaintiffs alleged that Sahker was operating the Herrmann car as Mrs. Herrmann’s agent at the time of the accident. Messrs. Green & Green filed an answer for Mrs. Herrmann denying the agency.

Shortly after the happening of the accident, the engage- ■ ment of marriage between Ehoda Herrmann and Sahker was .terminated. Sahker filed an answer through his own attorney, David Schneiderman, admitting that, at the time of the accident, he was acting as the agent of Mrs. Herrmann.

The case came on for trial March 9th, 1942, at which time Counsellor J. Victor Carton, of the firm of Durand, Ivins & Carton, appeared on behalf of Green & Green, and stated to the court that the defendant Sahker refused to appear and testify. Mr. Carton asked permission to withdraw from the responsibility of defending him, which permission was granted by the court.

Mr. Schneiderman, the attorney of recoxd of the defendant Sahker, did not appear in court on the trial date, nor did anjume represent him. In fact, Mr. Schneiderman apparently did nothing more for Sahker than to file an answer on his behalf.

The trial proceeded. At the close of the plaintiffs’ case, Mrs. Herrmann testified on her own behalf that, at the time of the accident, her car was not being driven on her business. On eruss-examination, she testified in part as follows:

“Q. And when Mr. Carton asked jura that the car wasn’t driven on your business, by that what do you mean? What do you mean by “business’?
“A. Well, any personal business. It wasn’t driven for me.
“Q. If the car were being driven back to Paterson to convey your daughter and husband back to Paterson-
"A. That isn’t my business; that’s their business.
“Q. I see; but it is as a favor to you? .
"A. It is no favor to me, not favoring me any. They take care of themselves.
“Q. You intended they go back to Paterson that day?
“A. I hoped they would.
“Q. As far as you were concerned, anybody could drive that car ?
"A. It didn’t make any difference, as long as they could drive well * ' * *
“Q. But it was your notion when you left the car that somebody would drive the car up-
“A. What do you mean by ‘notion’ ?
“Q. Well, it was yonr understanding that somebody-
“A. There was no understanding at all. I went to New York in tile morning. I. didn’t know whether they would come home that day or the next, hut 1 did tell them if they could to come home and 1 would serve lunch to them.”

When both sides rested, defense counsel moved for a directed verdict in favor of Mrs. Herrmann. The court ruled that there was no proof in the case to contradict Mrs. Herrmann’s testimony that, at the time of the accident, her car was not being driven on her business, and accordingly, a verdict was directed in favor of Mrs. Herrmann.

Against the defendant Sahker Mrs. Eooney recovered a verdict of $1,500, and her husband was awarded $1,000 by the jury.

After the trial, counsel for the plaintiffs had an interview with the defendant Sahker, at which time Sahker indicated that lie drove Mrs. Herrmann’s car with her knowledge and consent and as her agent. Mr. Sahker signified to counsel his willingness to come to court to testify to this effect. Testimony was taken on this rule, at which time Sahker was asked to tell under what circumstances he drove Mrs. Herrmann’s car on July 22d, 1940, to the point where the accident happened. His answer was as follows: “Well, the evening previous we had packed our luggage preparing to go home the following morning. In the morning, Mrs. Herrmann told me to drive the ear, she told me to take the key and drive the car, and I did that.”

If Mr. Sahker had given his testimony at the trial, the court certainly could not have directed a verdict in favor of Mrs. Herrmann, and it is quite conceivable that the jury would have returned a verdict in favor of the plaintiffs against Mrs. Herrmann as well as against Sahker.

But it will not suffice for the plaintiffs to merely establish that Sahker’s evidence would probably change the result. The rule is well settled in New Jersey that a new trial will not he granted on the ground of newly discovered evidence, unless it be shown, that not only would the evidence probably change the result, but that it was not obtainable bv the exercise of due diligence for use at the trial; and the newly discovered evidence must not be cumulative. Hoban v. Sandford and Stillman Co., 64 N. J. L. 426; 45 Atl. Rep. 819; Christie v. Petrullo, 101 N. J. L. 492; 128 Atl. Rep. 853; Paradise v. Great Eastern Stages, Inc., 114 N. J. L. 365; 176 Atl. Rep. 711; Fulmer v. Equitable Life Assurance Society, 14 N. J. Mis. R. 407; 185 Atl. Rep. 474.

In the case sub judice, when the defendant Sahker did not appear at the trial, due diligence required plaintiffs’ counsel to request an adjournment, until Sahker could be subpoenaed as a witness for the plaintiffs. The admission of agency by Sahker in the answer filed by him was a matter of record. His testimony was most, essential to the plaintiffs in their suit against Mrs. Herrmann. The plaintiffs took a needless risk in proceeding without the benefit of Mr. Sahker’s evidence, because an adjournment would have been granted by the Court, under the unusual circumstances, if one had been' sought/

The words of Chief Justice Brogan in Paradise v. Great Eastern Stages, Inc., supra (at p. 367) of that opinion, are most appropriate: “It is the intendment of the law that litigants make the fullest preparation for trial, and if those additional facts, presented on the rule, were not presented at the trial,, as they readily might have been, that is the misfortune of the defendant.” In the instant case, it is the misfortune of the plaintiffs.

As Judge Oliphant stated in Fulmer v. Equitable Life Assurance Society, supra (at p. 412) : “While sympathetic .with the plaintiff, I can find no grounds which would allow me under the eases and the established law of this state, to grant a new trial.”

Prom the plaintiffs’ standpoint, it is most unfortunate that they chose to proceed without having Mr.- Sahker available as a plaintiffs’ witness. Perhaps, plaintiffs’ counsel was not alert, ■ or perhaps, proceeding with the trial was merely an error of judgment. In any event, the plaintiffs chose to proceed when they did not have the benefit of necessary evidence —evidence which could have been made available ‘by due-diligence.

The motion for a new trial is denied.


source: Caselaw Access Project

license: Public Domain

text:
    New Jersey Department of Labor, Workmen’s Compensation Bureau.
    LUCILLE F. CHMIZLAK, PETITIONER, v. ALFRED LEVINE, RESPONDENT.
    Decided July 20, 1942.
    For the petitioner, Benedict A. Beronio.

    For the respondent, Henry M. Grosman.

   The principal question involved in this case was whether the petitioner, a trained nurse, was an independent contractor or an employee. From the testimony adduced in this court the admitted facts are that the petitioner is a registered nurse and was called to the house of the respondent to treat his wife, who was under the care of Dr. Tyndall. She was called through St. Mary’s Hospital, it being the custom of the hospital to have a Nurses’ Eegistry, and the nurse who is at the top of the list is sent to care for the patient.

The Eegistry was called by Dr. Tyndall, at the request of the respondent, who had asked the doctor to secure someone to take care of the respondent’s wife, and the petitioner was sent by the Eegistry to carry out the duties of a trained nurse in connection with the treatment of the respondent’s wife. On January 16th, 1942, while leaving respondent’s home, after having completed her duties for the day, she slipped on the steps of the respondent’s porch, fell and injured herself.

The issue, as I stated, is whether the petitioner was an employee, whether there was a relationship of master and servant, or whether the relationship was that of an independent contractor.

The only decision that we have on this question is Cantwell v. Delaney, 160 Atl. Rep. 679. I do not feel that that case is in point. That case had to- do with the employment of a practical nurse during a confinement case. That practical nurse did general housework, washing and regular domestic duties. In this case, as testified by the petitioner, the petitioner was hired as a trained nurse, and her duty was to so act as a nurse and care for the patient.

My understanding of the distinction of the relationship between master and servant and an independent contractor is that, in the former case the employer maintains supervision and control over the one who is doing the work. In this case, • I find that the respondent did not maintain supervision and control. The petitioner came in for one duty; she did her work as she saw best under the doctor’s orders. She came in as a professional. While there are some facts brought out to the effect that she did certain other things, I am not especially impressed. I think she did those things not as one being ordered, but in the general course of work as a nurse in a household.

I believe that the case of Renouf v. New York Central Railroad, 254 N. Y. 439, is a case in point. The test is the question of supervision and control, and, from the evidence of the petitioner, it would appear that the respondent did not exercise supervision and control. Petitioner testified her duties were the actual care of the patient. In her testimony she says, “I don’t do housework; I am a trained nurse. The custom is, when a nurse is needed, they call the hospital. I didn’t know the respondent. I was hired through the registry. I went over and took over the case. I went ahead with regular nursing duties, I was under the doctor’s orders, not supposed to do any housework-—simply supervised the patient—food, only eared for the patient in her room. I supervised. I prepared my own meals and the patient’s at night, and had dinner with the family.”

So it does appear that a trained nurse comes under the category of a business. If you called a plumber into your home because there was repair work to be done, you would simply tell him what is to be done and he does the work in his own. way. The fact that the job takes one day, or two days, or two weeks, does not make the plumber an employee even though his hiring is indefinite and he charges by the hour or by the day until the job is finished. He is in a business rendering a specific type of service to such of the public as may require same. So with a nurse. She holds herself out as a professional person, to do a certain type of work and when engaged does nothing else but her particular job. She is called in to care for a patient, and she cares for the patient in her professional way under the direction of the treating physician.

T find that the relationship in this case is one of independent contractor and hereby dismiss the petition filed in this cause.

Chaei.es E. Corbin,

Deputy Commissioner.


author: Lunn, D. C. J.

text:
    Third Criminal Judicial District Court of Hudson County.
    STATE OF NEW JERSEY v. ROBERT McNAMEE AND JAMES GOODMAN.
    Decided July 24, 1942.
    For the state on behalf of complaining witness, Henry A. Matera (James F. Murray, of counsel).
    For the defendant Robert McNamee, Nicholas 8. Schloeder.

    For the defendant James Goodman, Joseph V. Outturn.

   Lunn, D. C. J.

The defendants, Robert McNamee and James Goodman, are charged with conspiracy, in that they willfully and unlawfully combined together, or by other alliance on March 27th and March 31st, 1942, to illegally and corruptly obtain the sum of $120.42, in the form of a salary check issued by the Board of Education of the Township of North Bergen to one William Long and pursuant to and in perpetration of their conspiracy, they committed certain overt acts by withholding the check from Long, who -was legally entitled to it. The defendants, by refusing to waive their rights -to indictment and trial by jury, have declined to stand trial in this court, therefore, the province of this court is solely to determine if the complaint, and evidence offered in support of its allegations, warrant holding the defendants to await action of the grand jury.

The testimony adduced at the hearing, at which Mr. Long, his wife and a Mrs. Facey testified, was to the effect that Mr. Long resided with his family at 1410 Seventy-second Street, North Bergen, New Jersey, and has been continuously and regularly employed for many, years, under tenure, as a manual training teacher by the Board of Education of North Bergen, and that in payment of his salary, the board had made to his order and issued the check involved, and caused it to be given to its secretary, James Goodman, one of the defendants, for delivery to the payee.

On March 27th, 1942, Mr. Long applied to Mr. Goodman at the office of the board, for his salary check and was informed that by agreement with Mr. Bobert McNamee of the mayor’s office (the other defendant) he had delivered the cheek to McNamee and that it would be necessary for Mr. Long to obtain it from McNamee. On March 31st, 1942, Mr. Long (accompanied by his wife and Mrs. Facey) applied to Mr. McNamee for his check and that McNamee exhibited the check to him, but insisted that Mr. Long endorse it to him so that he might deduct therefrom a sum of money which he claimed was owing to the township for rent. Mr. Long declined to comply with this demand, and he and his wife and friend were peremptorily ordered out of the office. It was also established that Mr. Long’s sole source of income is the salary which he receives as a teacher and that he and his wife and four young children are dependent upon his regular salary checks for support and maintenance, and that both of the defendants were acquainted with these circumstances, and did fully realize the great hardship he and his family might be caused as the result of their action.

Attorneys for the defendants moved to dismiss the complaint on several grounds which are herein considered.

It is contended that the defendants are municipal officers and are not civilly liable for illegal acts committed by them in good faith in the discharge of their duties, and therefore, a fortiori, they are immune from criminal prosecution. Grove v. Van Duyn, 44 N. J. L. 654; Tyrrell v. Burke, 110 Id. 225; 164 Atl. Rep. 586.

For the defendants to claim the protection of this established principle of law, it must appear that they acted in good faith in the performance of a duty which they reasonably believed was imposed upon them, either by public statute, or by the nature of their office, concerning a matter “at least colorably under their jurisdiction.”

Title 18, Revised Statutes, entitled “Education,” section 18:5-54, provides that “The custodian of school moneys shall, pay out the school moneys only on warrants signed by the president and district clerk or secretary of the board of education. Each warrant shall, specify the object for which it is given, and shall be made payable to the order of the person entitled to receive the amount named therein.”

Section 18:5-55 provides “In the payment of teachers * * * a pay-roll certified by the president and district clerk or secretary of the board of education, stating the names of the teachers * * * and the amount to be paid to each, may be delivered to the custodian of school moneys * * * the custodian shall deliver to the district clerk or secretary individual checks payable to the order of the teachers.”

Section 18:5-57 provides that “nothing in this article shall be construed as giving to the governing body of any municipality any control over the moneys * * * in. the hands of the custodian * * * Any ordinance, by-law or resolution of a governing body * * * attempting to control such money, or which shall in any way prevent the custodian * * * from paying the warrants of the board of education as and when they are presented for payment, shall be void.”

Section 18:13-17 provides that “No teacher * * * under tenure * * * shall be subjected to a reduction in salary * * * except * * * after a written charge of the cause * * * has been preferred against him,” &c.

The evidence is clear that James Goodman is secretary of the North Bergen Board of Education. There is no evidence, whatsoever, as to the public office if any, held by Robert McNamee. He is referred to in the testimony as “Mr. McNamee of the Mayor’s office,” and in the brief submitted on behalf of the defendants, his attorney, without naming his official title, describes his duties as “general supervision of foreclosed properties acquired by the Township of North Bergen and collection of rents therefrom.”

It must be presumed that the defendants had knowledge of the law applicable to payments of school moneys to teachers and that Goodman as secretary of the board was particularly well versed with the provisions of the. title “Education,” (R. S.) and that he and McNamee knew that under the provisions of section 5-57 of that title, any action of the governing body which sought to control payment of school moneys after they had been duly certified for payment according to law is void. Surely, if the governing body of the township could not control such payments in any way, none of its employees, or the individual officers of the Board of Education could do so. When these defendants agreed to, and did violate the provisions of the statute, it cannot be claimed that they acted either in good faith, or in performance of any duty imposed on them, by statute, or even color-ably within the scope of their duties—ignorantia juris non excusat.

It is also contended that the defendants’ conduct does not affect the public as a whole, and therefore, cannot be a public fraud for which a criminal conspiracy can be committed, and that there is no proof that they conspired “to cheat and defraud a person by any means which if executed would amount to a cheat.”

It is sufficiently proved that the defendants acted in concert to illegally acquire and retain the check belonging to Mr. Long.

In the case of State v. Minch et al., 160 Atl. Rep. 888, the same attack was made upon an indictment based upon section 37 of the Crimes Act (Comp. Stat. 1910) which section is reproduced in R. S. 2:119-1 under which the complaint herein was made. In that case, two individuals were charged with conspiring, confederating and agreeing together to cheat and defraud a private individual of his monies by means, which the language of the indictment shows involved the use of no token, and no particular interest of the public was prejudiced by the acts alleged. The court declared “The question presented for decision, is therefore, whether or not,. a confederation by individuals to commit a mere private fraud is a crime in this state. While the perpetration of a private fraud by a single individual would not constitute a crime at common law, the contrary appears to be the case where the private fraud is accomplished by a combination of individuals for the purpose of perpetrating it.”

This case appears to be dispositive of these contentions of the defendants. Yet, if it were not for this precedent, we would still conclude that the actions of the defendants constituted a public fraud and that the commission thereof was by agreement and arrangement between them, and therefore an indictable conspiracy.

At common law, a conspiracy may be a plan to commit either a crime or an evilly designed scheme or confederacy to cause a civil injury. That the statute (section 37 of the Crimes Act, now B. S. 2:119-1) does not pre-empt common law conspiracy, seems well settled. It contains no negative or exclusive words and does not abolish that common law offense, nor does the statute mean that the acts enumerated shall alone constitute the offense of conspiracy. State v. Norton, 23 N. J. L. 33; State v. Loog, 13 N. J. Mis. R. 536; 179 Atl. Rep. 623.

A combination is a conspiracy in law, whenever the act to be done' has a necessary tendency to prejudice the public or oppress individuals by unjustly subjecting them to the power of the confederates and giving effect to the purposes of the latter, whether of extortion or mischief. Wharton Cr. L. 487.

Chief Justice Beasley—State v. Donaldson, 32 N. J. L. 151, says, among other things, “It may be safely said that a combination will be an indictable conspiracy * * * where the confederacy, having no lawful aim, tends simply to the oppression of individuals.” Cited in State v. Loog, supra.

To render a person criminally liable as a conspirator, it is not necessary - that under the scheme he should have had any pecuniary benefit in the matter, or have joined with the view of obtaining pecuniary benefit. United States v. Bradford, 148 Fed. Rep. 413.

In the case of State v. Continental Purchasing Co. et al., 119 N. J. L. 257; 195 Atl. Rep. 827, it was held, “It is not essential to criminal liability for conspiracy under the common law that the acts contemplated should constitute a criminal offense for which, without the elements of conspiracy one alone could be indicted. The true rule is that all such acts as have the necessary tendency to prejudice the public or to injure or oppress individuals by unjustly subjecting tjiem to the power of the conspirators are sufficiently tainted with the quality of unlawfulness to satisfy the requirements as to conspiracy.”

To enforce payment of a debt from the wages of labor by a proceeding expressly prohibited by statute has been held to be a criminal conspiracy. 229 Pa. 609.

It is the well established public policy of our state and nation to create and maintain an efficient public school system as a bulwark of a democratic, independent and vigorous government. The title of the School Law of 1903, now incorporated in R. S. 18, title “Education,” was “An act to establish a thorough and efficient system of free schools and to provide for the maintenance, support and management thereof.” This public policy has been incorporated in the laws of our state, and provides for the tenure of office of teachers, the maintenance and regular payment of teachers’ salaries, and has set up special safeguards to prevent their being deprived thereof. The outstanding success of our public school system in creating out of peoples drawn from every corner of the world, a united nation devoted to the principles of “liberty and justice for all,” has been due in large measure to the loyalty, devotion, intelligence and unselfishness of the Americaii school teacher, who often receives a salary little better than a pittance, and small recognition for his importance and conscientious public service.

In the instant case, the complaining teacher is endeavoring to support not only himself, but his wife and four young children on a salary of approximately $1,400 a year. It is not the purpose of this court to comment upon the apparent meagreness of this compensation or upon the fact that it is incommensurate with the importance of the duties and responsibilities of the teacher and the high educational and moral qualifications he must possess. It is necessary, however, to emphasize the “consequences of defendants’ harsh, oppressive and unlawful acts” as they may injuriously affect not only Long and his immediate family, but the community as a whole.

In perilous times such as these, the importance of the teacher to the community cannot be exaggerated. The physical safety of our children, now subject to the perils of an all out war, as well as their instruction, devotion and training in our democratic way of life, is committed largely to his care.

There can be no question that the public interest is vitally concerned in seeing that he is not denied or harrassed in obtaining his livelihood.

The American teacher and his means of support cannot be placed at the mercy of the whims, caprice, vindictiveness or political-mindedness of irresponsible public officials. To permit such an intolerable condition would provide a ready and effective means of sabotaging the great and beneficent institution he serves so well, democracy’s first line of defense, the American public school system.

Therefore, the defendants will be held to await action of the grand jury.


author: Cozzi, D. C. J.

text:
    First Judicial District Court of Hudson County.
    ALBERT DONADT, PLAINTIFF, v. CHARLES R. EBERLE, DEFENDANT.
    Decided August 5th, 1942.
    Dor the plaintiff, George Rothstem.

    Por the defendant, llirschberg, Nashel, Zorn & Gronson.

   Cozzi, D. C. J.

This is a suit upon a promissory note given by the defendant, Charles R. Eberle, to Albert Donadt. The facts concerning the details and making of this note are succinctly stated.

The plaintiff knew the defendant to be a broker in real estate, and knew him for many years. The defendant was not a licensed real estate broker. The plaintiff introduced to the defendant, a prospect who wished to invest her money in the purchase of real estate, and it was agreed that if the defendant was able to negotiate a sale, of real estate, to the prospect, he would share equally with the plaintiff, his commissions. Later, apparently the defendant could not transact the deal and called in a licensed broker by the name of Julius Berger to consummate the transaction, agreeing that the commissions realized would be divided equally among the plaintiff, the defendant, and Mr. Berger.

The deal was consummated and a commission from this transaction amounted to $1,980. The defendant received one-half from Mr. Berger. The plaintiff demanded his share of the commissions from Mr. Berger and Mr. Eberle, and after some discussion, he accepted one promissory note in the sum of $250 and a separate note in the same amount from Mr. Berger. Thereafter, the plaintiff instituted a suit in the Second Judicial District Court of Bergen County, predicated upon the original agreement that he had with Mr. Berger and Mr. Eberle, whereby he was to receive one-third of the commissions amounting to $660, upon which he had already received $100, leaving a balance of $560.

Thereafter, the plaintiff filed a complaint with the New Jersey Beal Estate Commission against the defendant, Mr. Eberle, and Mr. Berger, for failure to pay the commissions as agreed; and as a result, Mr. Berger was suspended as a broker for sixty days and Mr. Eberle was fined $200 by the New Jersey Beal Estate Commission.

The plaintiff then filed a suit in this court against the defendant to recover the sum of $250 predicated on the promissory note given by the defendant already mentioned.

There are two questions the court must determine before coming to a conclusion in this matter. First, whether or not the original agreement between the plaintiff, the defendant and Mr. Berger, was a legal one, and if this question is answered in the negative, whether or not the promissory note given for the compromised sum of $250 constituted a new agreement free from the taint of illegality of the original transaction.

A perusal and careful analysis of the statutes applicable to the licensing of real estate brokers is clearly pertinent and significant in determining the public policy of this state.

See the case of Ready v. National State Bank of Newark (Court of Errors and Appeals), 117 N. J. Law. 554; 190 Atl. Rep. 76.

The Bevised Statutes of 1937, title 45 :15-1; N. J. S. A. 45 :lo-l, provides as follows:

“License required to engage in business of real estate broker or salesman.
“No person shall engage either directly or indirectly in the business of. a real estate broker, temporarily or otherwise, except' as otherwise provided in this article, without being licensed so to do as hereinafter provided.”

Section 45:15-2 provides as follows:

“Engaging in business” defined.
“Any single act, transaction or sale shall constitute engaging in business within the meaning of this article.”

Section 45 :15-3 provides as follows :

“ deal estate broker’ and ‘real estate salesman’ defined. A redi estate broker, for the purposes of this article is defined to be a person, firm or corporation who, for a fee, commission or other valuable consideration, lists for sale, sells, exchanges, buys or rents, or offers or attempts to negotiate a sale, exchange, purchase or rental of real estate or an interest therein, or collects or offers or attempts to collect rent for the use of real estate or negotiates or offers or attempts to negotiate a loan secured or to be secured by a mortgage or other encumbrance upon or transfer of real estate for others.
“A real estate salesman, for the purposes of this article, is defined to be any person who, for compensation, valuable consideration or commission, or other thing of value, is emp^ed by a licensed real estate broker to sell or offer to sell, buy or offer to buy or negotiate the purchase, sale or exchange of real estate, * *

Sections 17 to 19, inclusive, and sections 23 to 28, inclusive, prescribe the methods and powers of the dew Jersey Real Estate Commission to charge, convict and penalize any persons for violation of this act.

In addition to this, the Court of Errors and Appeals of dew Jersey, in the ease of Kenney v. Paterson Milk and Cream Co., 110 N. J. L. 141; 164 Atl. Rep. 274, held that this statute, supra, requiring realty brokers to be licensed, is regulatory and not for the purpose of revenue, and consequently denied a recovery to an unlicensed broker in a transaction for the sale of real and personal property, which he negotiated for the parties.

In the case of Ready v. National State Bank of Newark, supra, a layman sought to enforce an express agreement against an attorney who agreed to split a contingent fee with him as a result of his recommendation of a client. The Court of Errors and Appeals, in delivering its opinion through Chief Justice Brogan, stated as follows:

“In defense of the contract it is argued that it is neither malum in se nor malum prohibitum. It is true that certain of our statutes may not be broad enough to include the transaction under review within- their, inhibition. Soliciting actions in negligence cases for pecuniary gain has for some years been denounced by the statute as disorderly conduct. Pamph. L. 1928, ch. 94, p. 201; amended Pamph. L. 1930, ch. 85, p. 320 (Cum. Supp. Comp. Stat. 1930, §-§ 59-8p (1), 59-8p (2)). And it is a misdemeanor for one to practice law without being licensed so to do. Pamph. L. 1913, ch. 198, p. 358 (Cum. Supp. Comp. Stat. 1924, § 52-214d) and it is unlawful for a layman to solicit, directly or indirectly, any claim or demand for the purpose of taking legal action thereon. Pamph. L. 1924, ch. 138, p. 309, §. 2 (Cum. Supp'. Comp. Stat. 1924, § 52-214q).
“Yet these statutes make manifest the trend of the legislative mind in matters of this kind. The practice of law is not open to all as a business but is reserved to those possessing the prescribed qualifications which are attained after years of study and training, and who are licensed as persons of sufficient learning and integrity to prosecute and defend the rights of others. All others are excluded from practicing law--directly or indirectly. The practice of law is the licit and exclusive domain of lawyers. Practice Act, section 17 (3 Comp. Stat. 1910, p. 4055, § 17). The law recognizes no silent partnership whereby one not a lawyer may legitimately share in the fruits of a lawyer’s professional labors. Our statutes to which reference has been made, supra, indicate a policy of protecting litigants and the public, generally, from imposition which, if unchecked, would leave society to the mercy of the unscrupulous.
“The abstract term 'public policy’ is impossible of definition in a statute. Nor can it be reduced to a formula for the reason that, like all abstract terms, it defies formularization.
“In answer to the first alternative of the question before us, we have no hesitancy in saying that a contract between a layman and an attorney-at-law for part of a contingent fee to be earned by the attorney, based on a consideration of the layman procuring a case for-the attorney, is void because it is contrary to public policy.”

I am convinced from the study of the statute and the above decisions, a public policy has been definitely established in this state to exclude a layman from soliciting and engaging, directly or indirectly, in the sale of real estate. In my opinion, the statute regulating the licensing of real estate brokers, precludes any person other than a licensed broker or salesman from engaging, directly or indirectly, in the business of a real estate broker. Consequently, an unlicensed broker or a layman, cannot profit from any commissions derived from his promotion of a real estate transaction.

The plaintiff in this case, certainly did engage, directly and indirectly, in the sale of real estate, by introducing to the defendant and Mr. Berger, a prospect with whom they finally concluded a real estate transaction. The agreement to share the commissions certainly contravenes the spirit and letter of the Revised Statutes 45:15-1, &c., N. J. S. A. 45:15-1, at seq., and therefore, it is illegal and unenforceable.

This brings us to the second question as to whether or not the promissory note given for the compromised sum of $250 constituted a new agreement free from the taint of illegality of the original transaction. This question must be answered in the negative.

In the case of Lubin v. Rosenthal, 117 N. J. L. 270; 187 Atl. Rep. 559, the Court of Errors and Appeals of Hew Jersey, in disposing of a similar question, stated (at p. 561), as follows:

“We also consider it settled that generally, where the suit is between the parties to an agreement infected with usury, tiu: táint remains and is not eradicated by the making of a new agreement or the substitution of securities or new evidences of indebtedness unless the transaction be purged of its original vice. Taylor v. Morris, 22 N. J. Eq. 606; Trusdell v. Dowden, 47 Id. 396; 20 Atl. Rep. 972; Kobrin v. Hull, 96 N. J. Eq. 41; 124 Atl. Rep. 365; affirmed, 97 N. J. Eq. 546; 128 Atl. Rep. 921.”

I, therefore, must come to the conclusion, for the reasons herein stated, that judgment must he entered iu favor of the defendant in this cause.


author: Cqzzi, D. C. J.

text:
    District Court of the First Judicial District of the County of Hudson.
    MARIE ALLIEGRO ET AL., PLAINTIFFS, v. CITY OF BAYONNE, DEFENDANT. WILLIAM KOPISCHKE ET AL., PLAINTIFFS, v. CITY OF BAYONNE, DEFENDANT.
    Decided August 7, 1942.
    For the plaintiffs, Jacob J. Levey.

    For the defendant, William Rubin.

   Cqzzi, D. C. J.

The uncontroverted facts in these matters are that on November 4th, 1941, a general election was held throughout the County of Hudson, including the City of Bayonne. On that dajr, citizens of Bayonne, through a referendum ■ procedure had placed upon the ballots, three referendum questions. In general terms, the questions concerned, 1. Whether members of the police department in the City of Bayonne should be given increases in salary? 2. Whether members of the ffre department in the City of Bayonne should be given increases in salary? and. 3. Whether or not the Board of Commissioners should adopt an ordinance creating a housing authority in the City of Bayonne-?

The superintendent of elections of Hudson County, by reason of complaints received by him that efforts were going to be made to win certain of the referenduüi elections through illegal means, appointed a group of deputies to serve at the polls in the City of Bayonne. The superintendent of elections considered these appointments to be necessary in order to protect the rights of the citizens of Bayonne. No deputies were appointed in any other parts of the county, and deputies would not have been appointed in the City of Bayonne, except for the fact that these referendums were upon the ballot. At the time of the appointments, the superintendent of elections fixed the rate of compensation for these deputies at ten ($10) dollars per day, and following the election, certified to the City of Bayonne that these deputies had been appointed, that their rate of pay was ten ($10) dollars per day, and that they had performed the necessary work, and that the superintendent of elections considered it necessary in order to carry out the provisions of the Revised Statutes pertaining to the Election Laws, for him to appoint these deputies. The City of Bayonne refused to pay the deputies, and hence, these suits. The City of Bayonne, at the trial of these cases, offered no evidence in contradiction to these facts.

Motions for a dismissal of the complaints on the ground that they do not set forth good causes of action were denied. Likewise, motions for nonsuit and direction of verdict were also denied.

The gist of the defendant’s contention is that because the provisions of B. S. 40:46-27 and 19:37-1; N. J. S. A. 40:46-27 and 19 :37-l, which provide that the referenda questions referred to can be voted upon at a general election, the county should pay the expenses incurred for the services rendered by the deputies appointed by the superintendent of elections.

It is pertinent to note that the provisions of B. 8. 40 :4.6-27; N. J. S. A. 40 :46-27, uses the word “shall,” and the provisions of B. 8. 19 :37-l; N. J. S. A. 19 :37-l, uses the word “may” be voted at the next general election in such municipality. The alternative to vote the question provided in provisions of B. 8. 19:37-1; N. J. S. A. 19:37-1, would be to hold a special election pursuant to the provisions of B. 8. 40:35-3; N. J. S. A. 40:35-3, which reads as follows:

“In every case in which a referendum vote of the legal or qualified voters of a municipality is authorized by law such vote may be taken at a special election to be held in such municipality on a day to be specified in a resolution of the governing body thereof. When such a resolution shall be adopted by the governing body specifying a day for the special election, and notice thereof shall be given to the proper officer, he shall cause notice of the special election to be published once in a newspaper published or circulating in the municipality at least ten days before election. The election shall be held, conducted and canvassed as other elections in the municipality, and the same shall be as valid and effectual as if the vote had been taken at.a general election where so provided and all subsequent proceedings may be taken as if the vote had been taken at a general election."

The provisions of the above section clearly indicate that the legislature intended to do away with special procedure pertaining to special elections which was required previously as indicated in the case of Scheible v. Borough of Hightstown, 93 N. J. L. 69. It did not intend to do away with special elections; but merely to liberalize and conform the procedure with that required of general elections. In accordance with this scheme the legislature has merely permitted a combination of elections, general and special, to be decided on a general election ballot.

A special election is defined in 20 Corp. Jur. 56, ¶ 3, as being:

.“Special election is one provided for by law under special circumstances. It is an election held to supply a vacancy in office before the expiration of the full term for which the incumbent was elected, or an election at which some question or proposition is submitted to the vote of the qualified electors, or an election for some particular emergency. It is not necessarily the time or manner of holding an election, but the fact that it is held at a time other than the time fixed by law to elect an officer for the regular or defined term; an election to fill a vacancy is a special election, although held on the same day as a general election. So where a proposition may be submitted at a general or special election, that fact that it is submitted at the former does not change the election on the referendum from a special to a general one. Also the tact that an election on a proposition is set for the day of the holding of a state primary does not alter its status as a special election held at a time selected by certain public officials as distinguished from a general election hold at a time designated by statute.”

It is obvious that what took place on general election day in 1941 was the holding of special 'elections on the referenda questions in accordance with the general scheme of our election laws.

R. S. 19:32-2; N. J. S. A. 19:32-2, provides as follows:

“All necessary expenses incurred in carrying out the provisions of this title when certified to and approved by such superintendent in connection with an election held in and for a municipality only shall be paid by the municipality.”

In conformance with the provisions of this section, the superintendent of elections certified and approved necessary expenses incurred in carrying out the provisions of this title in connection with “an election” held in and for a municipality.

Certainly the referendum questions were held in and for the municipality only and in no other part of the county. The nature and importance of these questions is manifest. Besides firemen, it involved the police, who represent the law and order and since their respective interests were at stake and upon complaints received, the superintendent of elections acted under these local conditions, peculiar to Bayonne alone, because he felt that the sanctity of the ballot and the propriety of the elections were apparently in jeopardy. He, therefore, appointed these deputies to preserve law and order and conduct these proper lawful elections. With the exception of Bayonne, the appointment of deputies in other parts of the county was not necessary. It is clear that his power to appoint the deputies and charge the costs to the municipality, emanates from the provisions of R. 8. 19 :32-2 and 3; N. J. S. A. 19 :32-2 and 3. This was his obvious duty.

The defendant further argues: “If the Court should decide that a ‘special’ election was held in and for a municipality only on November 4th, 1941, the effect would be to require the municipality to pay all the costs, charges and expenses of the county clerk including the compensation of members of the district boards, county board, clerks thereof, &c.” This argument is untenable. It overlooks the plain and choice language used by the legislature in R. 8. 19:32-2 and 3; N. J. S. A. 19 :32-2 and 3, which subtly sets forth a definite and flexible formula, clearly and equitably fixing the responsibility for such expenses. Simple construction of its provisions would create no confusion or undue difficulty in determining the liability under the circumstances, for expenses incurred at elections. There is no problem, at all, in this case, when applying this formula embraced in R. 8. 19:32-2 and 3; N. J. S. A.. 19:32-2 and 3, to the present situation, as it definitely segregates this particular expense from that chargeable to the county, it being incurred, for the reasons stated, solely and primarily to alleviate a local condition created by special elections held upon the referenda questions mentioned.

Tor the reasons stated, judgment will be entered in favor of each plaintiff in the foregoing matters on his respective count in the sum of ten ($10) dollars, against the City of Bayonne.


author: Smith, Joseph L., C. C. J.

text:
    JULIA APPLETON CROSS AND ELIOT CROSS, AS EXECUTORS OF THE LAST WILL AND TESTAMENT OF W. REDMOND CROSS, DECEASED, PLAINTIFFS, v. RICHARD J. CROSS ET AL., DEFENDANTS.
    Decided August 12, 1942.
    For the plaintiffs, 0. Blake Willcox.

    For the defendants Richard J. Cross et al., and pro se as guardian ad litem for the defendant Mary IT. Cross, James I. Rowers.

    For the defendants Robert Strothers et al., Louis Auerbach erj Jr.

    For the defendants Central Hanover Bank and Trust Co. and William R. Cross, Jr., as trustees, Horace M. Bunker.

    Attorney pro se as guardian ad litem for the defendants Richard J. Cross, Jr., and Margaret Lee Cross, T. Girard Wharton.-

    For the defendant Bank of Yew York, as co-trustee, William Byrd.

   Smith, Joseph L., C. C. J.

The facts are found, to be as stated in the record and are made a part hereof as if fully set forth herein.

This is an action brought under the Declaratory Judgment Act, 2:26-68, et seq., to determine the title to 300 shares of capital stock of the New Jersey Zinc Co., in the possession of the defendants, Wood, Struthers & Co., brokers of the deceased, W. Redmond Cross.

The facts are not in dispute and the parties have accordingly joined in an application for determination of their respective rights arising out of the facts hereinafter set forth, and im the record.

The controversy arises from the attempt of the deceased, immediately prior to his death, to make gifts of the stock in question, to his several. children.

There are three groups of parties in the case, namely: the executors and trustees of the estate of the deceased, who deny the completion of the gift; they are joined bjr remaindermen under the will, who would benefit bjr the failure of the gift. The second group consists of the children of the deceased, who maintain that there was an effectual gift and seek to benefit thereby. Then there is the firm of Wood, Struthers & Co., also defendants, who, as the decedent’s brokers, acted as agents in the contemplated transaction, and now hold the shares in question and are indifferent as to the results of this application, merely abiding the ruling of the. court to be guided accordingly.

The decedent, W. Redmond Cross, a resident of Bernardsville, New Jersey, was for many years in the habit of making gifts to his children, and in connection with such donations, sought the advice of his brokers relative to gift taxes; pursuant to one of these consultations, on October 2d, 1940, Milton 'S. Harrison, of the said firm of Wood, Struthers & Co., of New York City, submitted a plan of gifts to be made, limiting individual gifts to $4,000 and making suggestions accordingly. Two of the decedent’s children, William R., Jr., and Mary N., also had accounts with the firm of Wood, Struthers & Co. Two other children, Richard J. and Thomas N., had accounts at the Central Hanover Bank and Trust Co.; and as to the fifth child, Emily, the decedent himself, together with the Central Hanover Bank and Trust Company, were trustees of a trust created by the said child, EmiH, for the benefit of herself and remaindermen.

On November 8th, 1940, eight days before his death, the decedent delivered 300 shares of stock of New Jersey Zinc Company, consisting of three certificates, each for one * * * hundred shares, to Wood, Struthers & Co. in New York City, to be held for further instructions. These shares were unassigned and unendorsed.

On November 7th, 1940, the previous day, writing to Central Hanover Bank and Trust Co., the decedent stated that he had sent “some New Jersey Zinc stock to Wood, Struthers & Co., for splitting up and have instructed them to send a certificate for sixty shares to you to be held in trust above mentioned,” (the mentioned trust being that for Emily).

In the same letter is a postscript, saying: “The New Jersey Zinc stock is a present from me.”

Subsequently, on Friday, November loth, 1940, Wood, Struthers & Co., were instructed to split up the three certificates of 100 shares each, of New Jersey Zinc Co., into five certificates of sixty shares each, the said five certificates to be in decedent’s name, to place two of the said certificates in the accounts of William B., Jr., and Mary N., respectively; to deliver the other three certificates to the Central Hanover Bank and Trust Co., two for the accounts of Richard J. and Thomas N., and a third for the account of a trust created for Emily. Stock powers, that is, assignments separate from the certificates, were to be delivered accordingly for the respective accounts of the intended donees.

With respect to the original 300 shares represented by the three certificates of 100 shares each, no stock powers were included or delivered by the decedent, On the same day the decedent also delivered to Wood, Struthers & Co., two stock powers for the intended new sixty share certificates to be deposited in the accounts of Wood, Struthers & Co., to William B., Jr., and Mary N. On the same day decedent wrote to Central Hanover Bank and Trust Co., advising them that he had instructed Wood, Struthers & Co., to send to them two certificates of sixty shares each,-:for the accounts of Richard J. and Thomas F. Cross, and the postscript stated: “The Few Jersey Zinc stock is a present from me.”

He delivered three stock powers to the Central Hanover Bank-and Trust Co., on the same day, for the three certificates of sixty shares each, intended for Thomas F., Richard J. and Emily.' 'Then he wrote letters to the individual donees, informing them of his instructions to Wood, Struthers & Co. In these letters he'makes statements such as “these shares are gifts from us.” (Meaning himself and his wife.)

Fovember 15th, as stated, was a Friday. Wood, Struthers & Co. received their letters late in the afternoon, and Saturday being a short day, no steps were taken by Wood, Struthers & Co. to cany out the instructions. On Saturday, Fovember 16th, 1940, W. Redmond Cross died, after attending the Princeton-Yale football game at Princeton. Being informed pf this, Wood Struthers & Co. took no further steps in eon.nection with the intended transfer and the splitting up of the three 100 share certificates.

. The executors maintain that the gift was incomplete and therefore ineffective; that is refuted by_the intended donees, and the position of the brokers, Wood, Struthers & Co., is, of course, a neutral one.

Although the question has not been raised by the parties, all having joined in the application for declaratory judgment, it is proper to inquire whether'or not this court has jurisdiction over the subject-matter. B. S. 2:26-68 provides:

“All courts of record in this state shall, within their respective jurisdictions, have power to declare rights, status and other legal relations, whether or not further relief is or could be claimed; and no action or proceeding shall be open to objection on the ground that a declaratory judgment or decree is prayed for.”

It appears from the wording of the statute that the power of the courts to declare rights is confined to matters within their respective jurisdiction; the Declaratory Judgment Act does not confer jurisdiction on any court over any subject-matter which did not theretofore fall within its jurisdiction. Springdale Corp. v. Fidelity Union Trust Co., 121 N. J. L. 536; 3 Atl. Rep. (2d) 565; Moresh v. O’Regan, 122 N. J. Eq. 388; 193 Atl. Rep. 831; 194 Atl. Rep. 156.

Do the facts, as above recited, present a matter for determination by a court of law or of equity? Had this action been brought originally by the present defendants, as plaintiffs, seeking an order to direct the proper transfer of the shares to their names upon the books of the corporation, the entry of such an order would have required equity powers and would thus have been beyond the jurisdiction of this court. As the matter is pleaded, however, the present plaintiffs allege that they are legally entitled to the shares in question; that such shares are in the possession of the defendant Wood, Struthers & Co., and that the latter have refused delivery upon demand; if unjustly refused, this would constitute proper basis for the action Of trover and conversion.

R. S. 2:26-12 provides:

“When declaratory relief is sought, all persons having or claiming any interest which would be affected by the declaration shall be made parties to the proceeding.”

All the other parties are therefore properly joined as parties defendants. The statute provides that the courts may declare rights “whether or not further relief is or could be claimed.” And in McCrory Stores Corp. v. S. M. Braunstein, Inc. (Court of Errors and Appeals), 102 N. J. L. 590; 134 Atl. Rep. 152, the court states (at p. 592) :

“The Declaratory Judgment Act, by its first and second sections, confers upon our courts of record, within their respective jurisdictions, po'wers to declare rights, status or other legal relations, although no further relief is or could be claimed, and empowers these courts, among other things, to determine any question of construction or validity arising under a deed, will, or written contract, and declare the rights, status or other legal relations thereunder of the parties thereto. Such declarations, by the express language of the statute, are given the force and effect of final judgments or decrees. It is true that they are not enforceable by execution or other final process, but relief, based thereon, may be granted, whenever necessary or proper, on application to a court having jurisdiction to grant such relief.”

The conclusion is, therefore, that the matter is property brought before this court, for the purposes pleaded.

The first point raised by the parties is one of conflict of laws, namety, whether the laws of New York or New Jersey apply in determining the question whether there was or was not a gift. The plaintiffs and the remaindermen, whose interests coincide, maintain that the laws of New Jersey apply, and further, that even under the laws of New York, the gift was incomplete; and contra, the donees maintain-that the case is governed by the supposedly more liberal rules of New York, pertaining to gifts; and further, that even under the stricter New Jersey rules, the gifts were complete.

• If, then, the result would be the same under the rules prevailing in both jurisdictions, it will be unnecessary to decide which rule applies.

Considered under the Stock Transfer Act (R. 8.-14:8-27) the attempted transfer of the shares in question was not completed, nor was such transfer put beyond the power or control of the donor, so that at any time before the actual transfer he had it in his power to prevent such transfer. Under B. 8. 14:8-27, two methods are provided for the transfer of title to a certificate, and to the shares represented thereby: (a) by delivery of the certificate endorsed in blank, or to a specified person; (b) by delivery of the certificate and a separate document containing a written assignment.

Neither of these methods were followed, for the original three certificates of 100 shares each were not endorsed, either in blank or to any specified person; nor were they accompanied by a separate written assignment; nor were they delivered to the intended transferees.

As to the subsequent stock powers purporting to cover the several certificates of sixty shares each, in the first place, there were no such certificates to be assigned; and further, there was no delivery of certificates accompanying these stock powers. It appears then that the provisions of the Stock Transfer Act were not fulfilled.

Defendant donees do not seriously dispute this point. They contend, however, that the problem presented in the case is not one of transfer of legal title to stock, but rather, the validity of a gift of a chose in action, an interest in intangible property. The defendants are in error both as to the nature of the problem presented and as to the validity of the gift, even if we were to accept the defendants’ statement of the problem.

As to the nature of the problem presented, the complaint alleges that, under the circumstances recited, the defendant Wood, Struthers & Co. wrongfully refused to surrender the three certificates of 100 shares each, to the plaintiffs. Admittedly a proper transfer of the legal title to those particular certificates had not been made in compliance with the New Jersey Stock Transfer Act. Any claim of an equitable assignment by gift, of a one-fifth interest to each child, in the intangible property represented by the three certificates would not justify a refusal, on the part of Wood, Struthers & Co. to surrender the three; certificates to the executors of the last will and testament of W. Redmond Cross, deceased.

If the defendants’ contention of equitable assignment by gift is correct, the three certificates should have been returned to plaintiffs, and the plaintiffs ordered to hold the same in trust for the claimant donees. The only justification Wood, Struthers & Co. would have for refusing the return of the three certificates would he that a completed gift of these three particular certificates was made.

With respect to the three certificates, the gift failed because neiiher an actual nor a symbolic delivery was made to the donees, or tlieir trustees, if the three certificates, even without the necessary endorsements, had been delivered to the donees, the question of symbolic delivery would then have become relevant. No symbolic delivery was intended by the donor, lie gave the three certificates to his own agents, with instructions to split them into five equal shares, for his five children, and then to deliver each such share to each donee. The delivery of the three certificates was merely preparatory to the creation of the five certificates of smaller denominations.

It is urged by the defendants that Wood, Struthers & Go. were agents of the donees. This is attempted to be supported by the fact that two of the donees had accounts with this firm. Such a contention necessarily concedes that Wood, Struthers & Co. were not agents for the other three donees, and yet it does not' appear that the donor treated Wood, Struthers & Co. in orie capacity with respect to two of the children, and in another capacity with respect to the other three children. Until the 300 shares were split into five, Wood, Struthers & Co. had the same duties to perform with respect to all. Until that was done, they were agents of the donor, W. Bedmond Cross, and it was within his power to revoke such agency at any time before delivery of the five new certificates. His death effected such a revocation.

“Where the subject-matter of a gift is delivered to an agent to be delivered subsequently to the donee, the donor may, at any time before the agent acts, revoke the gift. And an unexecuted gift'is revoked by the death of the donor.

“An unexecuted gift is revoked by the death of the donor. Thus where the donor delivers property to a third person for the donee, with authority to deliver it to the latter, until the authority is executed and the article delivered, such depositary is the agent of the donor, and the latter may revoke the gift and reclaim the property, and where such delivery does not take place in the donor’s lifetime, his death revokes the agency ,and no delivery thereafter is valid.” 28 C. J. 651.

There was no gift by delivery of the original three certificates. It was not completed.

The final argument, strongly urged by the defendants, is that an equitable assignment, or a gift by symbolic delivery, was made to each of the five donees by writing to each (or their trustee) a letter stating that he was making such a gift, and by delivering stock powers, on non-existent certificates. Had the donor written to the donees: “I hereby give you a one-fifth share in 300 shares of stock of the Hew Jersey' Zinc Co., represented by certificates 'A. B. and C.,” or words of similar import, defendants’ contention would have some force, especially under the Hew York rule. See Grymes v. Hone, 49 N. Y. 17. That was not the manner in which decedent planned to make the gifts. He was not making any symbolic delivery of anything to his children, the five donees; he was merely advising the donees of his plan, whereby he had given 300 shares of New Jersey Zinc Co. stock to Wood, Struthers & Co. for subsequent distribution after it had been split into the five certificates of sixty shares each. The letters he wrote to the donees were merely a part of the original scheme, to have his agent do certain things to effectuate the gift. He having died before his agent acted, the entire scheme failed.

The actual transfer of ilie certificates was to await the splitting up of the three certificates; that was to be done by donor’s agents. His death terminated the agents’ power.

It appears then, that the plan or procedure intended by the decedent to effectuate the gifts and actually put in motion, was cut short because he planned to carry it into effect through the hands of agents, and such agents’ authority ceased by the donor’s death.

Judgment in favor of'the plaintiffs, and against the defendants, will accordingly be entered, that legal title to the shares of stock in question, is in the executors.


author: Parker, J.

text:
    EMILE KARAM, PROSECUTOR, v. FRED J. WOLFE, BUILDING INSPECTOR OF WEST ORANGE, ET AL., RESPONDENTS.
    Argued June 27, 1942
    Decided July 1, 1942.
    Pinal hearing before Justice Parker sitting for the court pursuant to statute.
    Por the prosecutor, Ralph N. Solo dar.

    Por the respondents, Gerald T. Foley.

   Parker, J.

The writ brings up the determination of the local authorities of West Orange in a zoning matter. The action under review was a refusal to grant a permit to the prosecutor, the owner of a tract of between one and two acres situate on the north side of the old Northfield Road in West Orange between two intersecting streets called Wiley Avenue and West View Road. On this tract stands an old house originally built for residential purposes, the first floor of which the prosecutor desires to use as a tea-room or restaurant. The property on that side of the road beginning at the easterly corner of that of the prosecutor and extending for about 1,000 feet is zoned as residential. Immediately adjoining the property of the prosecutor on the east and between his property and,Wiley Avenue is a gasoline station on the corner of Wiley Avenue. The easterly corner of Ridge-way Avenue running for something over 200 feet along North-field Road is zoned for business. Ridgeway Avenue and Wiley Avenue enter Northfield Road from the north. Westerly of the 1,000 foot strip, and for over 2,000 feet beginning at Rock Spring Avenue, the north side of North-field Road is zoned for business. Beyond is a stretch o£ 550 feet of “Residence 0.” Beyond that, something over 500 feet, again business. With the exception of the property of the prosecutor and the gasoline station already mentioned, the district fronting on Northfield Road from the gasoline station to the business district on the west appears, according to the map, to be laid out for residential purposes, but for the most part in rather small lots of 50 to 60 feet frontage and 100 to 200 feet in depth fronting on several inner streets. There are six of these residential lots on Northfield Road. The others are all in the interior.

Permit was, of course, refused in the first instance because of the ordinance, and an application to the Board of Adjustment, and appeal to the Board of Commissioners were alike unsuccessful.

I have considered the matter with care and am clearly of opinion that the refusal to grant the variance requested was altogether unreasonable and should be set aside.

There is no dispute with regard to the character of North-field Avenue, which is one great recently enlarged public highway leading westward from Newark through the Oranges and over the Orange Mountain from West Orange across the mountain and to its termination on the other side in connection with Route 10, and which has been turned into a four-lane highway, greatly widened and made adaptable for, and is constantly used by, a large volume of long distance motor traffic.

Now it is a matter of common knowledge, and indisputable, that great highways of this class, so far from being appropriate as frontage for private residences are repellant to them; and that instead of being bordered by private houses, such building improvements as exist are composed principally of garages, service stations with their gas pumps, and restaurants varying from those of the more pretentious sort down to the humble hot-dog stand. These facts need no specific proof. They are a matter of common knowledge to every one using an automobile, but they are amply proved in regard to the particular highway involved in the present case. Indeed, the very map that has been put in evidence is a demonstration of whát has just been said. The southerly side of Worthfield Avenue in this locality, and on the westerly slope of the hill, is occupied in part by a golf course or country club property, and in part by the South Mountain Eeservation of .the Essex County Park system; but the extensive zoning of the north side for business purposes already described is striking evidence of the views now expressed. The premises now in question could conveniently have been used for residential purposes a few years ago before Worth-field Avenue was widened and turned into an automobile speedway. To-dáy they are, in my judgment, useless for any residential purposes, except perhaps that they might be subdivided into small lots with cheaper houses thereon. I therefore conclude that the refusal of the authorities to grant the prosecutor the desired permit should be set aside, with costs.


author: Collestfr, I). O. J.

text:
    Clifton District Court.
    MARVIN CANIN, PLAINTIFF, v. HENRY KESSE, DEFENDANT. SAMUEL CANIN, PLAINTIFF, v. HENRY KESSE, DEFENDANT.
    Decided September 4, 1942.
    Por the plaintiffs, Fred Frieman.

    For the defendant, Henry H. Fryling.

   Collestfr, I). O. J.

These matters come before this court upon defendant’s motion for a judgment in each ease as a matter of law. The essential facts have been presented to the court by stipulation of the parties from which the following are pertinent to the issue. On October 4th, 1940, the defendant, a bus operator for the Public Service Co-ordinated Transport, while operating his employer’s bus, collided with a motor vehicle owned hv the plaintiff Marvin Canin and operated by the plaintiff Samuel Canin. On November 15th, 1940, the plaintiffs brought individual suits against the Public Service Co-ordinated Transport in the First District Court of the City of Newark which resulted in verdicts in favor of the bus company. (For brevity, the actions instituted in the First District Court of Newark are hereinafter referred to as the “Newark cases” and the Public Service Co-ordinated Transport as the “Public Service.”)

On October 22d, 1941, the plaintiffs brought their present individual suits in this court against the defendant, Henry Kesse, the bus operator.

The stipulation entered into between the parties provides that the states of demand in the Newark cases and the states of demand in the cases in this court are to be considered as evidence and that the facts alleged therein are to be considered true for the purposes of this motion.

The motion now before this court is that judgment should be entered in favor of the defendant on the ground that the issues raised are res adjudicata.

An examination of the pleadings filed in the causes of action tried and disposed of in the First District Court of the City of Newark and the pleadings filed in the actions sub judice, show that in every instance the plaintiffs base their respective claims upon the alleged negligence of the defendant, Henry Kesse, who was the agent and servant of the bus company.

The doctrine of res adjudicata, as defined by our Court of Errors and Appeals, is that the judgment of a court of competent jurisdiction on a question of law and fact, when litigated and determined, is, so long as it remains unreversed, conclusive upon the parties and their privies, not only in the suit, in which it is pronounced, but as to all future litigation between the same parties or their privies, touching upon the same subject-matter. In re Walsh’s Estate, 80 N. J. Eq. 565; 74 Atl. Rep. 563. (Italics mine.)

Apparently there has been no determination by our appellate courts on the question of res adjudicata in a case similar in facts to those sub judice. In Carter v. Public Service Gas Co., 100 N. J. L. 374; 126 Atl. Rep. 456, our Court of Errors and Appeals upheld the defense of res adjudicata where an employer was sued for the tort of its agent and it appeared that a prior suit between the plaintiff and the employer’s agent had resulted in a verdict for the latter.

In Hummers v. Public Service Electric and Gas Co., 8 N. J. Mis. R. 689; 151 Atl. Rep. 383, it appeared that a suit brought jointly against a master and servant had resulted in a verdict in favor of the servant and against the master, the Supreme Court reversed the trial court’s decision. The Supreme Court held that the jury’s verdict in imposing liability upon the master although there was no negligence found on the part of the servant, was invalid where it appeared that the negligence alleged against the servant was the same negligence alleged against the master.

In the case at bar it must be determined whether a plaintiff, who first brings an action against the master for the negligent act of the servant and fails on the merits, may bring a second action against the servant for the same negligent act.

The doctrine of estoppel by judgment, or res adjudicaia,, as a practical matter, proceeds upon the principle that one person shall not a second time litigate, with the same person or with another so identified in interest with such person that he represents the same legal right, precisely the same question, particular controversy, or issue which has been necessarily tried and finally determined, upon its merits by a court of competent jurisdiction, in a judgment in personam in the former suit. United States v. California Bridge Co., 245 U. S. 337. (Italics mine.)

In the Newark eases in order to recover, the plaintiffs had to establish negligence on the part of Kesse, the servant of the Public Service. If such negligence had been established, the Public Service would have been liable under the doctrine of respondeat superior. The trial judge in the Newark cases found that the Public Service was not liable; therefore of necessity found that Kesse was not guilty of negligence.

The same legal right and the same question which is now before us, namely, negligence on the part of Kesse, were necessarily tried and determined on the merits in the Newark cases. Since the court found no negligence on the part of Kesse in causing the alleged accident, it would follow that the doctrine of estoppel by judgment applied to the instant case. See Fightmaster v. Tauber, 183 N. E. Rep. 115.

The plaintiffs contend that res adjudicata cannot be applied because Kesse was not a party to the Newark cases. While conceding that the relationship of master and servant existed, they contend that there is no privity to foreclose the present action.

In the case of Wolf v. Kenyon, 273 N. Y. Supp. 170, a case^ identical in facts to the one at bar, the court said:

“The prior judgment is a bar to subsequent litigation of the same matters between the same parties or their privies. What is a privity? As used when dealing with the estoppel of a judgment, privity denotes mutual or successive relationship to the same right of property (Bigelow v. Old Dominion Copper Mining and Smelting Co., 225 U. S. 111). Strictly speaking, master and servant are not in privity, but, where the relationship is undisputed and the action is purely derivative and dependent entirely upon the doctrine of respondeat superior, it constitutes an exception to the general .rule. Nor does the lack of mutuality affect the exception.
“It- is a principle of general elementary law that the estoppel of a judgment must be mutual. * * *
“An apparent exception to this rule of mutuality has been held to exist where the liability of the defendant is altogether dependent upon the culpability of one exonerated in a prior suit, upon the same facts, when sued by the same plaintiff. * * * The unilateral character of the estoppel of an adjudication in such cases is justified by the injustice which would result in allowing a recovery against a defendant for conduct of another, when that other has been exonerated in a direct suit.
“We hold that the judgment in the previous action is a bar here. The plaintiff has but one cause of action, if any. This lies against the servant for his own acts and against the master because he must respond ■ for the negligent acts of his servant. The plaintiff may proceed against either one or both. He may recover from only one. By whichever path he elects to travel, the issues which he must meet are the same. They are the negligence of the servant and the plaintiff’s own freedom from contributory negligence. If the servant was not negligent, then the plaintiff cannot recover from the master. If the servant was negligent, then the liability of the' master has origin in such negligence of the servant. As was stated bjr the Court of Appeals in Pangburn v. Buick Motor Co., 211 N. Y. 228, ‘the appellant’s (master’s) liability was purely of a derivative or secondary character on the theory of respondeat superior. * * *’ ”

To rentier a prior judgment res adjudicata, the record must show that the issue was taken on the same allegations which are the foundation of the second action. The test is whether the proof which would fully support the one case would have the same effect in tending to maintain the other. Smith v. Fischer Baking Co., 105 N. J. L. 567; 147 Atl. Rep. 455. In the matters now before us, the issue in the Newark cases and the present cases are the same, namely, the alleged negligence of the defendant, Kesse, in the operation of the motor vehicle. The same proof would be required to establish both prior and present actions.

The plaintiffs further argue that the rules of evidence would be different in an action against the servant in that the servant might be called for cross-examination and his admissions would be admissible as against him, while against the master such evidence would not be admissible. These are rules of procedure only and are not of substantive nature. Such evidence may or may not be beneficial to the plaintiff. However-that may be, it does not affect the proposition that the question of the servant’s negligence has been determined in the Newark cases.

In the opinion of this court the defense of res adjudicata raised by the defendant herein is a valid and existing defense to these actions. For the reasons hereinbefore set forth, it is therefore the decision of this court that the motion for judgment of “no cause for action” in favor of the defendant should be entered in each case. An order accordingly may lie presented.