text:
    New Jersey Department of Labor, Workmen’s Compensation Bureau.
    CONSTANCE C. PAYNE, PETITIONER, v. HENION STORAGE WAREHOUSE, RESPONDENT.
    Decided November 30, 1939.
    Por the petitioner. William, B. McMichael and Harry Potter.

    Por the respondent, James J. STceffington.

   f{í íjí

I hereby find and determine the following facts: Petitioner’s decedent, Robert Elmo Payne, died as the result of heat prostration on May 39th, 1939, while working for the respondent as a mover of furniture. There is no question that respondent had knowledge of the injury, as it was he who procured medical attention for the deceased. Respondent does not deny that the deceased died as the result of heat prostration. The only question raised is whether or not the deceased was a casual employe of the respondent. Respondent testified that he is engaged in the moving and storage business; that it is the custom of his business that when certain moving jobs are to be performed requiring additional men arrangements are made in advance for the furnishing of these additional men in the number and according to the time required for. such services. Respondent further testified that he had a moving job arranged for May 39th, 1939. He further testified that the deceased was engaged as such extra man for this job on the day previous. He further testified that deceased reported for duty on the morning of May 29th, 1939, and was engaged by the respondent for this job at a wage based on fifty cents per hour for a nine-hour day.

There can be no question, but that the deceased was within an employment in connection with the respondent’s business. 'His employment was therefore within the first group designated and defined within the provisions of B. S. 34:15-36. The test therefore as to whether or not the deceased’s employment was casual is whether the occasion for his employment arose by chance or was purely accidental. From the evidence it cannot be said that the occasion for the employment of the deceased arose by chance or was it accidental. The deceased was hired as an extra man for this moving job in accordance with the plans of his employer and although the employment of the deceased for this particular job was not to exceed one day’s work, it was nevertheless a regular employment for that day. The test as to whether or not employment be regular, periodic or recurring may only be applied to the second group in the statute herein before referred to (if the employment is not in connection with the business of the employer).

After carefully considering all of the evidence I feel that the employment was not casual and the petitioner is entitled to compensation benefits under the provisions of the Workmen’s Compensation law. Mullen v. Walker, 105 N. J. L. 199; 143 Atl. Rep. 363; Price v. Price, 9 N. J. Mis. R. 435; 154 Atl. Rep. 323.

I further find from the evidence that petitioner was a part of the household of the deceased at the time of his death. I further find that there is insufficient evidence before me to satisfy me that the mother, Cora Payne, and father, Luther Payne, were in fact dependent upon the deceased. I will therefore find that the petitioner, Constance G-. Payne, the widow of the deceased, is entitled to her statutory compensation benefits. I further find that the petitioner incurred funeral expenses in excess of the statutory amount. I further find that any reasonable bill for medical or hospital services for the last illness of deceased shall be paid by the respondent.

. In view of the fact that thirty-five per cent, of the decedent’s salary of $27 per week is less than the minimum of $10 per week, the minimum of $10 per week will apply as provided by statute. Payments to be made subject to the further provisions of statute as to remarriage or death of petitioner.

It is, therefore, * * * ordered that judgment be entered in favor of the petitioner and against the respondent. * * *

* $ * # & $ *

John C. Wegner,

Deputy Commissioner.


source: Caselaw Access Project

license: Public Domain

text:
    New Jersey Department of Labor, Workmen’s Compensation Bureau.
    ABRAHAM DESSLER, PETITIONER, v. RELIABLE FURNITURE COMPANY, RESPONDENT.
    Decided December 6, 1939.
    For the petitioner, David BosTcein.

    For the respondent, Cox t& Walburg (by Arthur F. Mead).
   * * * * * * ■ *

The petitioner testified that he was the president of the respondent corporation which operated a furniture store on Market street in Newark. On March 1st, 1938, while he was at the store he was involved in an assault by a thief who entered the store and'struck him over the head with some object so that he fell down. He called to an assistant and told the thief to see this other man to get what he wanted. The thief struck him over the head again and then took him to a room in the store and threw him on a chair. He said he was dazed and when he could do so he went to a back window to call for help. Following this an ambulance arrived and took him to the City Hospital. He was in the hospital for two days and then went to his home where he was under the care of Dr. Wolf, his family doctor, and subsequently he was treated by Dr. Looser and Dr. Szerlip at the request of the insurance carrier for the respondent. He said that after a few days his left leg pained him so that he could not stand up and while he was being treated by Dr. Wolf he complained of his leg among other things so that an X-ray was taken and his left leg was then put in a cast by Dr. Wolf. He stated that all of this time he had a pain on the top of his head, headaches, and was dizzy and he felt there was a depression in his head where he was struck. About six or seven weeks after the accident he returned to the store but did not work steadily and did not take care of any customers and did not do other than see how the business was going. A few weeks after that he began waiting on customers and was more active in the business at the store but had never returned to his full activities which he did before the accident. He further complains that he can’t stand any strain and he has difficulty going up and down stairs and that he wears a knee bandage on his left knee, he has a habit of wrinkling his scalp and face and his nose is dry and he has other difficulties which he enumerated. He does, however, drive his automobile and is active in the management of the business and waits on customers.

sj: :fc íJí :Jc # H*

I find and determine that the petitioner sustained an accident arising out of and in the course of his employment with the respondent and that there was knowledge of said accident and that said accident caused temporary and permanent disability. I find that the temporary disability which has previously been paid was proper and adequate. The issue seems to be the extent of permanent disability.

It seems to be conceded by all parties that the petitioner sustained an accident arising out of and in the course of his employment, that he was assaulted at his place of business and that when he was assaulted he sustained a concussion. It further appears that the petitioner had for some period of time previously a condition of arteriosclerosis and hypertention with a possible cardiac condition. The petitioner, following the accident and at the present time, has certain complaints with reference to his condition, which complaints to some extent are referable to the condition which he had for a number of years and some complaints which are the aftermath of the concussion. I find that the petitioner as a result of the accident sustained a fracture involving the left leg and a condition of the left knee associated with the fracture. He also sustained a laceration of the scalp and other temporary conditions which cleared up and also a concussion which caused some permanent ill effects and disability. I find the extent of the disability for the aforementioned conditions resulting from the accident to be fifteen per cent, of total.

* Hs ❖ * ❖ * ❖

John C. Wegner,

Deputy Commissioner.


author: Del Mar, C. P. J.

text:
    Bergen County Court of Common Pleas.
    CATHERINE BOLLINGER, ADMINISTRATRIX OF THE ESTATE OF JOHN M. BOLLINGER, PETITIONER-APPELLEE, v. WAGARAW BUILDING SUPPLY CO., RESPONDENT-APPELLANT. CATHERINE BOLLINGER, ON BEHALF OF HERSELF AND THE NEXT OF KIN OF JOHN M. BOLLINGER, DECEASED, PETITIONER-APPELLEE, v. WAGARAW BUILDING SUPPLY CO., RESPONDENT-APPELLANT.
    Decided November 2, 1939.
    For the petitioner-appellee, Nathan Babinowitz.

    For the respondent-appellant, Kalisch Kalisch (by Isidor Kalisch).
   Del Mar, C. P. J.

The above entitled cases come before this court on appeal from two judgments of the Workmen’s Compensation Bureau, in favor of the petitioners-appellee, hereinafter called the petitioner or petitioners, and against the respondent-appellant, hereinafter called the appellant.

The proceeding first above entitled, was commenced by John Bollinger in his lifetime and carried on by his administratrix after his decease. The Court of Errors and Appeals of this state having decided, see report in 122 N. J. L. 512; 6 Atl. Rep. (2d) 396, that the administratrix was entitled to compensation, the case was duly remitted to the Workmen’s Compensation Bureau to fix the amount of the same. The second above entitled matter comes before this court on appeal for the first time. The cases were argued together. The point at issue being identical, both cases will be disposed of, in so far as this court is concerned, in accordance with the terms of this opinion.

The transcript of the record shows that John M. Bollinger was employed by the appellant as an operator of a machine for the manufacturing of cement blocks; also as a watchman and caretaker of the plant where he was so employed; that he was paid $22 per week as a sand block worker, and for his services as caretaker and watchman was paid an additional $4 per week. There was provided for him by the appellant for the use of himself and his family a five-room house on the premises, free of charge. The appellant also provided water, electricity and fuel for use in the house, at its expense.

The bureau estimated the value of the premises with the free services thus provided, at $9.23 per week. The decedent suffered temporary disability from August 23d, 1936, to January 19th, 1937, a period of twenty-one and two-sevenths weeks. During this period the petitioner or his family were paid $10 per week and were allowed the use of the aforesaid premises with the service therefor furnished by the appellant.

The referee found that the appellant was entitled to credits of $19.23 per week against temporary disability payments and allowed for the administratrix compensation at the rate of seventy-seven cents per week. The referee also found fifteen per cent, total disability and made allowances therefor, in accordance with the statute. The referee also made allowance for medical services, expert witnesses, attorneys’ fees and other items, with all of which no fault is found by the appellant.

In both cases, however, the referee computed the wages of John M. Bollinger on the basis of $35.23 per week, being the total of three items: (1) $22 per week wages for work done in manufacturing cement blocks, (2) $4 per week extra wages for caretaking and watching, (3) $9.23 per week, being the value of the house and services furnished by the appellant, who contend that, inasmuch as the accident resulted from his employment at the cement block machine and because the two employments commenced at different times, and under separate arrangements, compensation should be figured on the basis of $22 per week, with which the petitioner takes issue, and that is the only point that was argued in this court.

Counsel for neither side have cited for my consideration any case in this state, bearing directly upon the question here involved; neither have my own researches led me to discover any. The case seems to be one of first impression.

An examination of the law in other jurisdictions can be of little, if any, help, the statutory provisions in such jurisdictions being so various and so different from our own. The general scheme of our Workmen’s Compensation act was to provide for injured employes. Under article 1, such compensation is only paid in case the negligence of the employer was the natural and proximate cause of the injury sustained. Certain common law defenses were abolished. Under article 2, compensation was paid regardless of negligence, in accordance with the schedules provided in said article. The various paragraphs and sections referring to compensation in that article all refer to the wages of the employe, which are defined in R. S. 34:15-37, to mean, “The money rate at which the service rendered is recompensed under the contract of hiring in force at the time of the accident.”

I find nothing in the act to aid this court in determining the precise meaning of the term, “service rendered.” Neither do I find any elucidation of the term, “under the contract of hiring in force at the time of the accident.” In construing the act, its provisions should be considered in the light of the entire statute. Sexton v. Newark District Telegraph Co., 84 N. J. L. 85 (at p. 91). The act is remedial and should be liberally construed. Combination Rubber Manufacturing Co. v. Obser, 95 Id. 43; affirmed, 96 Id. 544; 115 Atl. Rep. 138.

The law recognized the right of the employer and employe to contract that the employment shall be either under article 1, or under article 2. In a suit under article 1, in case of the injury or death of an employe, the entire wages received by the employe would be an element of damage. No reason is apparent to me why this rule should not prevail under article 2. The whole scheme of elective compensation would break down if an employer should be permitted to classify the work of his employes under separate divisions and make a separate contract for each.

There is no evidence in this case that the petitioner would have been employed as a watchman, and as such, been permitted to have lived on the premises in the house furnished by his employer, except for his other employment by appellant during the daytime. The record further shows that some of the work for which he was paid at the rate of $4 per week and lodging, was performed during the hours when he was customarily employed at his work in making cement blocks. Both employments, in my opinion, are so connected and interrelated as to be but one within the contemplation of the act. The mere fact that Bollinger’s hiring as a watchman and caretaker commenced at a time subsequent to his other employment does not change the situation. The contract of employment as a watchman and caretaker was a modification of, or supplement to the original hiring. On the day of the accident, Bollinger was rendering service to his employer in both capacities, and the contract of hiring, using this term in a broad sense, covered all of the work being performed by Bollinger.

These views lead to the affirmance of the judgment of the Workmen’s Compensation Bureau in both cases.


author: Brown, C. C. J.

text:
    Hudson County Circuit Court.
    CONTEST OF THE ALLEGED ELECTION OF HARRY ERICKSON AS A MEMBER OF THE REPUBLICAN COUNTY COMMITTEE IN HUDSON COUNTY. JAMES W. McCARTHY, Jr., PETITIONER. CONTEST OF THE ALLEGED ELECTION OF ELSA GELBKE AS A MEMBER OF THE REPUBLICAN COUNTY COMMITTEE IN HUDSON COUNTY. ANITA McCARTHY, PETITIONER.
    Decided December 21, 1939.
    For the petitioners, August Ziegener and Julius Beiden.

    For the incumbents, Benjamin J. Bowden.

   Brown, C. C. J.

In the Republican primary election held in the fifty-fourth district of the seventh ward of Jersey City, Hudson county, Hew Jersey, on September 19th, 1939, Harry Erickson and James W. McCarthy, Jr., were the male candidates and Elsa Gelbke and Anita McCarthy were the female candidates for election as members of the Republican county committee. Under the law but one male and one female could be elected, neither Harry Erickson nor James W. McCarthy, Jr., were declared elected as they received a tie vote. Elsa Gelbke was declared the successful female candidate. The petitioners contest both of those elections. Under R. S. 19 :29-1, the nomination or election of any person to office or party position may be contested upon several grounds including “malconduct, fraud or corruption on the part of the members of any district board, or of any members of the board of county canvassers, sufficient to challenge the result;” and “when illegal votes have been received, or legal votes rejected at the polls sufficient to change the result.” At the hearing and in the briefs presented on behalf of the petitioners all grounds were abandoned except the one last mentioned “sufficient to change the result.” It is admitted by all the parties to the contest that the official returns as filed by the district election board, which conducted the election, that Elsa Gelbke received twenty votes; Harry Erickson twenty votes; Anita McCarthy nineteen votes and James W. McCarthy, Jr., twenty votes. A certificate of election was issued to Elsa Gelbke but no certificate was issued to either of the male candidates because of the tie vote. The petitioners contend that illegal votes were east sufficient to change the result of the election. The petitions contain among other charges that Walter Gunderson, Joseph Laible and William Erickson voted illegally in the election in that they were not qualified to vote in the primary election held for the district and in the ward above mentioned as those persons did not actually reside in that district as required by R. S. 19:4-1, which provides in part: “Except as provided in sections 19:4-2 and 19:4-3 of this title, every person possessing the qualifications required by article II, paragraph I, of the Constitution of the State of Hew Jersey, as modified by the nineteenth Amendment to the Constitution of the United States, and having none of the disqualifications mentioned in article II, paragraph I, of the Constitution of the State of New Jersey, and being duly registered as required by this title, shall be entitled to vote in the polling place assigned to the election district in which he actually resides, and not elsewhere.” By this last mentioned section of the Election law a voter is required to actually reside in the election district in which he wants to vote before his vote can be legally received. Joseph Laible, one of the voters, charged with having cast an illegal vote, testified that he lived for three years with his wife and child at 91 Eulton street, Jersey City; nevertheless, he voted in the primary election from 550 Garfield avenue, in the same city, for the candidates William Erickson and Elsa Gelbke. The address at 91 Eulton avenue, Jersey City, is not located within the election district the primary election of which is the subject of contest, while 550 Garfield avenue is located in that district. Laible’s testimony in this connection is in part as follows: “Q. You have lived with your family at 91 Fulton avenue how long? A. About three years. * * * Q. You have lived continuously with your family, there is no disagreement? A. No. * * * Q. On September 7th they came to you, did they not, and asked you to transfer giving your residence with Mr. and Mrs. Bich at 550 Garfield avenue? A. I transferred my vote to that address myself. Q. To 550 Garfield avenue. A. Yes, sir. Q. They remained [the witness’ family] at the Eulton avenue address, didn’t they? A. That is right. Q. Now when did you file that transfer? A. I believe it was along in August, I am not so sure. Q. You remember the primary 1939, don’t you, in September? A. That is right. Q. And that is the time that you were transferring in order to vote at that primary, weren’t you ? A. That is right. Q. And that transfer was filed by you, according to the official records of this county, on September 7th, 1939, twelve days before the election; you would not deny that? A. I was not so sure, to tell you the truth. Q. You would not deny it if it is in the record, that it is so? A. Most likely it is. * * * Q. Who was it that gave you, or how did you get hold of this transfer card? A. I don’t remember, I think I got a transfer the first time when I registered down at the board of registration. * * * Q. Did somebody come and give you a card, or did you go •with somebody to change your address from 91 Pulton avenue to 550 Garfield avenue? A. I don’t just remember, I just can’t remember. Q. You didn’t live at 550 Garfield avenue, did you? A. Ho. Q. Well, somebody must have asked you to vote from 550 Garfield avenue, didn’t they? A. Well, they didn’t- * * * Q. Why did you select that address? A. Because I knew a friend of mine that was running in the election and I voted for him once before. Q. Ho; why did you select that address if you didn’t live there? A. The man was living in that district. Q. You were never at that address, never in the house? A. I have been in the house occasionally, not many times. Q. What doing? A. My brother-in-law lives in that house. * * * Q. You were living home with your family? A. That is permanent, yes, sir. Q. How did you select this address, why didn’t you take some other number? A. Well, that is the only one I know lives down there in that neighborhood. Q. You never lived at that address? A. Ho, that is my brother-in-law’s address. Q. It isn’t that you didn’t live there, I was wondering why you selected that number. Did you ask, or did anybody tell you to use that number? A. Ho, I did not. Q. You just took that out of your head? A. Well, at the time I changed my address to 550 Garfield avenue. Q. That wasn’t your address, you didn’t get permission from anybody to use that address? A. I didn’t. * * * Q. You said you went in the district because you had a friend running, is that right? A. That is right. Q. And that was Harry Erickson, is that right? A. Yes, sir. Q. And the lady who was running with him was Mrs. Gelbke ? A. I don’t know the woman, to tell you the truth. <9. Did you vote for that woman? A. I believe I did. Q. And 3'-ou voted for Erickson? A. That is right. Q. You did not vote for the McOarthys? A. Ho, sir.”

Walter Gunderson, a voter charged with voting illegally, testified that he was twenty-six years of age; that he lived at 23 Danforth avenue, in Jersey City, for twenty-three years and was living at the last mentioned address on the date of the last primary election; nevertheless, he voted at that primarv giving his residence as 48 Van Nostrand avenue, although he did not live or reside at any time at that address. Number 23 Daniorth avenue is not located in the election district the primary election of which is the subject of contest, while 48 Van Nostrand avenue is located within that district. He testified he “just voted from that address” and further, “that is my voting address.” This witness also testified that his vote was cast in favor of the candidates William Erickson and Elsa Gelbke and against James and Anita McCarthy. William Erickson, a voter who was charged with having voted illegally, testified that he was unmarried and on the day of the primary election and for two years previous thereto lived with his mother at 118 Dwight street, Jersey City, and that he voted as residing at 11 Armstrong avenue, although he never resided at that address. Number 11 Armstrong avenue is in the fifty-seventh election district of the seventh ward and was the residence of the candidate Erickson, who was the brother of the witness William Erickson. Number 118 Dwight street is not within the same election district. This witness also testified that he voted in favor of the candidates Erickson and Gelbke and against James and Anita McCarthy. The word “resident” as a test for holding public office as well as voting has been the subject of extensive debate from the early days of our government. The framers of the Constitution of the United States engaged in a long and violent dispute in their endeavor to find a meaning for that word which would be certain and not open to misinterpretation. They freely admitted the impossibility of success in their undertaking and evidently compromised on the use of the word “inhabitant” as a test for holding public office. Article I, Constitution of the United States and article IV, Constitution of the State of New Jersey. The American Institute of Law, which was organized by and composed of the most learned law professors of America as well as some of its leading jurists, found great difficulty in arriving at a common definition of the words “domicile” and “residence” and after many years of discussion and research this difficult question still remains in the vast state of the unsettled. A reading of the topic “meaning of domicil” section 9, pages 17 to 65 of Restatement of the Law, American Law Institute, under title “Conflict of Laws,” clearly demonstrates the confusion that still exists in the meaning of those words. This authority contains the following about the use of the word “residence:” “The word 'residence’ is often but not always used in the sense of domicil, and its meaning in a legal phrase must be determined in each case. It is sometimes used as equivalent to 'domicil;’ sometimes it has a broader meaning; and sometimes it has a narrower meaning. It may mean something more than domicil; the domicil, namely, at which a person is resident. On the other hand, it may mean something less than domicil; a dwelling-place adopted for the time being, but not necessarily with such an intention of making a home there as to create a domicil. The phrase 'legal residence’ is sometimes used as equivalent of domicil. In statutes relating to taxation and voting, residence means domicil unless the contrary is indicated in the statute.” A reading of the decisions of the appellate courts of Eew Jersey in dealing with the meaning of the words “resident” and “domicile” shows that they have been usually construed in their ordinary and popular meaning. In the case of Cadwalader v. Howell, 18 N. J. L. 138, the court construed the Election law then in effect (1840) which provided among other things that a voter to be entitled to vote must have “resided in the county where he claims a vote, for at least one year immediately preceding the election.” It will be seen that the Election -law. at that time was not as exacting as the Election law in effect at the last primary election in that the word “actually” was not contained in the act of 1840. On the subject of a voter’s residence, in the Cadwalader case the court had the following to say: “When the statute required that the voter should have resided in the county, &c., it meant that he should have had his home there. In the seventh section, the right to vote was limited to that township in which he usually resided, &c. It did not mean, however, that he must have eaten and lodged there continuously for the space of a year, to entitle him to his vote. It did not mean that he was not to absent himself during the year, for special purposes of pleasure, or business, either with or without his family. It meant nothing more than that he should have his home, his residence, within the county, for such space of time. It is important therefore, that we understand what the law means by residence. The word residence (fixed residence I mean), is generally used as tantamount to, domicile; though I am not prepared to say whether they are or are not in all respects, convertible terms. Thus in Guier v. O’Daniel, 1 Binn. R. 352, n., it is said that a domicile may be defined to be a residence at a particular place, accompanied with positive or presumptive proof of continuing it an unlimited time. So Kent, in liis commentaries, volume 1, page 76, national domicile; and Vattel has defined it in substantially the same way. Judge Story says, that domicile in a legal sense, is where the person has his true, fixed and permanent home and principal establishment, and to which whenever he is absent, he has the intention of returning. Story, Conflict of Law 39. Such domicile once obtained, remains to the possessor thereof, notwithstanding occasional visits to foreign countries, and until other domicile is acquired. The Friendschaf v. Winn et al., Claimants, 3 Wheat. R. 14; The Nereide, Bennett, Master, 9 Cranch 388; Jennison v. Hapgood, 10 Pick. R. 77; Bruce v. Bruce, 2 Boss. & P. 228; Harvey v. Richards, 1 Mason C. C. R. 408; Richards v. Dutch, 8 Mass. R. 506; Dawes v. Boylston, 9 Mass. R. 337. This principle is applied to cases of national residence; and so in pauper cases, it is applied to questions of domestic settlement. The settlement or legal residence of a pauper, is prima facie at the place of his birth, and this settlement continues until a new one is gained; there can be no suspension of it. 3 Burns Just. 365, 488; St. John’s Wapping and St. Botolph’s Bishopgate, Burr. Sett. Gas. 367. I do not mean to say that the elective franchise of the citizen may not be suspended, for, pending the year’s residence required by our statute, the fact is so; but I mean to say, that a residence at law once obtained, continues without intermission until a new one is gained. In Harral v. Harral (Court of Errors and Appeals), 39 N. J. Eq. (at p. 285), in discussing the question of change of residence the court said: “There must be a voluntary change of residence; the residence at the place chosen for the domicile must be actual; to the factum, of residence there must be added the animus manendij and that place is the domicile of a person in which he has voluntarily fixed his habitation, not for a mere temporary or special purpose, but with a present intention of making it his home, unless or until something which is uncertain or unexpected shall happen to induce him to adopt some other permanent home.” In the case of Stout v. Leonard, 81 N. J. L. 492, the Court of Errors and Appeals, in its decision in that case, explained the difference between the words “residence” and “domicile” in the following statement: “Residence is not domicil, though domicil is the legal conception of residence. Domicil is residence combined with intention. It has been well defined to be a residence at a particular place, accompanied with positive or presumptive proof of an intention to remain there for an unlimited time. A man can have but one domicil for one and the same purpose at any one time, though he may have numerous places of residence. His place of residence may be, and most generally is, his place of domicil, but it obviously is not by any means necessarily so, for no length of residence without the intention of remaining will constitute domicil.” In the ease of Snyder v. Callahan, 8 N. J. Mis. R. 259, which involved the question of the legal residence of a voter and change of residence, the court adopted the following test: “The general rule in respect to the acquisition of a new domicile is, that after a person has abandoned his domicile of origin, or his acquired domicile, his domicile will be considered to be in that place in which he has voluntarily fixed a present intention of making it his home, unless, or until, something which is uncertain or unexpected should happen to induce him to adopt some other permanent home.” Bouvier’s Law Dictionary defines “domicile” as “that place where a man has his true, fixed and permanent home and principal establishment and to which whenever he is absent he has the intention of returning.” An “abode” by the same authority is stated to be “where a person dwells; it is the criterion determining the residence of a legal voter and must be with the present intention not to change it.” The words “actual residence” appears in the Election law o£ the State of New Jersey as early as the year 1898 (see Pamph. L. 1898, p. 272), and again in further amendments to the Election law as appears in Pamph. L. 1920, p. 629; Pamph. L. 1921, p. 517, and Pamph. L. 1930, p. 686. The use of these words in the present statute was evidently intended to safeguard the purity of elections. The word “actual” in Webster’s Dictionary means to exist in reality -and in fact and is opposed to potential, possible, speculative, hypothetical or theoretical. “Actually” means really, in truth. The words “actually residing” are neither obscure nor ambiguous; it deals with a matter of substance that goes to the very qualification of electors; it not only makes it illegal for any elector to vote elsewhere than in his own district but also makes his right to vote depend upon the exercise of that right within the election district wherein he actually resides. This is not a mere statutory warning or monition. It was held in Lane v. Otis, 68 N. J. L. 64; 52 Atl. Rep. 305, that this provision is mandatory in character and the effect of a vote illegally cast in disregard of it is that in legal effect no vote has been east. It was said in the case of Actor v. Merritt, 111 U. S. 213, that the word “actual” has a meaning “real” as opposed to “nominal.” See, also, to the same effect the eases of Baron v. Wisnowski, 102 N. J. L. 46; 130 Atl. Rep. 450; Ruhle v. Caffrey, 113 N. J. L. 240; 174 Atl. Rep. 204. In the case of the Y. M. C. A. v. Orange, 3 N. J. Mis. R. 404; 128 Atl. Rep. 580, there was involved the construction of the exemptions that were allowed by the tax laws of the State of New Jersey. An exemption was claimed from taxation because the building taxed was to be used for purposes which, under the statute, granted immunity from taxation. The building taxed was in the course of construction. The law provided that the exemption could be enjoyed on all buildings actually and exclusively used in the work of the association. The tax was sustained as the building was not actually in use. To the same effect is the case of the Institute of Holy Angels v. Fort Lee, 80 N. J. L. 545; 77 Atl. Rep. 1035; also State v. Carr, 117 N. J. L. 245 (at p. 251); 187 Atl. Rep. 350. It should be noticed that R. S. 19:4-1 of the Election law provides not only for the actual residence of the elector before he is entitled to vote but it also states that he cannot vote elsewhere. A term that is very often used by voters that results in confusion and the casting of illegal votes is the claim that a voter has a “voting residence.” The opinion prevails with not a small number of voters that all they have to do to qualify on the question of residence in order to vote legally is to declare that a certain address is their voting residence. It is not sufficient to comply with the statute on this qualification to merely designate an address as a voting residence, the law requires that the residence of the voter must be real, actual and positive. To be a “voting residence” there must be not only the intention of having the address for the purposes of voting but that intention must be accompanied by acts of living, dwelling, lodging or residing sufficient to reasonably establish that it is the real and actual residence of the voter. If the term “voting residence” fulfills those qualifications then it may be said to be a voting residence. If by voting residence is meant that a voter simply declares that a certain residence is his voting residence and there appears no outward act of living, dwelling, lodging or making the place his actual residence then such “voting residence” does not fulfill the requirements of the law and a person voting in an election district where such “voting residence” is situate cannot legally cast a vote in that district. The voter must not only have the intent of designating a place as his or her residence but such expression of intention must be accompanied by acts in furtherance of that intention and those acts should be actual. The best and most trustworthy evidence of a voter’s residence, as a general rule, are his acts rather than his declarations concerning his residence. It is difficult to set a hard and fast rule as to what constitutes actual residence and each case that arises may require individual consideration, but this much is certain that the voter must not only exercise an intention of having a place as his residence but that intention must be accompanied and fortified by actual and real acts of residing at the intended residence. A man may have more than one residence; he may live in one place during the summer and another in the winter but as far as voting qualifications required by the State of New Jersey are concerned he can vote only from the place where he actually resides in the State of New Jersey and not elsewhere. In the early days of our country it was not difficult to determine a person’s residence or domicile. Families were raised in a community and seldom moved therefrom even for short periods. A person’s residence in those days was clearly indicated and shown by his mode of life and well understood by his neighbor. The complexities of our modern way of life has effected changes in this respect, especially in our large cities with apartment houses and hotels where a person very often does not know his neighbor much less his residence or domoeile. In the early days of our country if a citizen of a community was wealthy enough to enjoy the luxury of travel and residences in different parts of the country or if he was elected to public office which public service required him to be away from his home for long periods of time his neighbor had no difficulty in understanding and knowing the domicile and residence of such a citizen, not only by his declared intention but by his conduct in maintaining his home with all the earmarks of readiness for occupancy and every indication that it would be occupied by him on his return. It is common knowledge in the State of New Jersey that we have had citizens who have been blessed with considerable wealth; have been honored by the citizens of the state in being elected to public office that required them to be in Washington for long periods of time. When their legislative duties were over some of them journeyed to shooting lodges in Scotland, summer homes in Maine, winter homes in Florida, but those men retained their actual residence in the State of New Jersey. The actuality of the residence was well known by their neighbors in the community in which they resided. The residence always bore the earmarks of occupation or readiness for occupation and the neighbors in the community as well as most of the citizens of the state knew that it was the actual residence of the public servant. Those men not only performed their duties as representatives of the State of Hew Jersey in Congress but also took a strong interest in their community affairs. They took on the burdens of the state and local municipal government. The test, therefore, of actual residence cannot be measured by the period of time that a person resides at a given address, the time may be short or it may be long but whether short or long there must be an intention to reside at the place and that intention must be supported by actual acts of living at the residence to such a degree that they reasonably show that the party intended the residence as ■his real and actual residence. An interesting illustration that demonstrates the accuracy of this statement as to the time of occupancy is that of George Washington. For a period of over sixteen years from the time he became commander-in-chief of the army of the United States, to the time that he retired from public life he was away from his home most of the time, notwithstanding this long absence from his residence most every citizen of the country knew that Washington’s residence and domicile was at Mount Vernon. This was apparent from his'often expressed intention and his conduct in owning and maintaining his home at that place ready at all times for occupancy by him. Then again the renting or ownership of a place is not in and of itself the deciding test of actual residence but it is a factor to be considered in arriving at a decision together with the other factors which are very numerous and include not only the usual activities of actually residing at an address but those civic responsibilities such as jury and military service. Temporary residence occasioned in the pursuit of recreation; in performing the duties of public office; in attending military camps; seats of learning, hospitals and the like are as a rule not actual residences as contemplated by the laws of our state. It is the duty of a citizen of our state to vote at an election, both primary as well as general. It should be his desire to have an honest election and also to bear the burdens that naturally fall upon a person who actually resides in a community including the payment of taxes, military and jury service, and an interest in local elections. The Election law of our state by requiring an actual residence contributes very much to the accomplishment of those desirable ends. It clearly appears in this case that the voter Joseph Laible in designating 550 Gar field avenue, Jersey City, as his residence and in voting as a resident of that address did so illegally, as it was not his actual residence' and his vote for the candidates Erickson and Gelbke was illegally east and counted for those candidates and this court so finds and determines. The voter Walter Gunderson in designating 45 Yon Nostrand avenue, Jersey City, as his place of residence and in voting as a resident of that address did so illegally, as it was not his actual residence and his vote for the candidates Erickson and Gelbke was illegally cast and counted for these candidates and this court so finds and determines. The voter William Erickson in designating 11 Armstrong avenue, Jersey City, as his place of residence and in voting as a resident of that address did so illegally, as it was not his actual residence and his vote for the candidates Harry Erickson and Elsa Gelbke was illegally cast and counted for those candidates and this court so finds and determines. It was agreed by the parties in this case, and so established as a fact, that the remaining votes east at the primary election and in the election district aforesaid were legally cast and counted and that these votes should remain as votes for the candidates as shown by the returns of the election officers of said election district. This court finds and determines sufficient illegal votes were received and counted in favor of the candidates Harry Erickson and Elsa Gelbke as to change the result of the election. The court further finds and determines at the primary election held in the fifty-fourth district of the seventh ward of Jersey City, Hudson county, New Jersey, on September 19th, 1939, wherein Harry Erickson and James W. McCarthy, Jr., were the male candidates and Elsa Gelbke and Anita McCarthy were the female candidates for election as members of the Republican county committee in and for Hudson county that Elsa Gelbke received seventeen votes; Harry Erickson seventeen votes; Anita McCarthy nineteen votes and James W. McCarthy, Jr., twenty votes, and that the last two persons mentioned are entitled to receive each a certificate of election. The judgment of this court is that Harry Erickson and Elsa Gelbke are not entitled to a certificate of election and that James W. McCarthy, Jr., and Anita McCarthy are each entitled to a certificate of election. The certificate of election granted to Elsa Gelbke is declared to be v.oid and of no effect and set aside and for nothing holden.


author: Morrison, D. C. J.

text:
    New Brunswick District Court.
    BRUNO LUBOWICKI, PLAINTIFF, v. TRAVELERS INSURANCE COMPANY, DEFENDANT.
    Decided October 30, 1939.
    For the plaintiff, Harold 8. Lewine.

    For the defendant, John C. Stochel.

    For General Motors Acceptance Corporation and General Exchange Insurance Corporation, Ghivian & Chiman.

   Morrison, D. C. J.

The novel questions presented in this matter, arose from the following facts:

The plaintiff, on June 17th, 1938, purchased a car for the sum of $227.36 under a conditional sales contract which was subsequently purchased by the General Motors Acceptance Corporation. The plaintiff made a down payment of $65 and one monthly payment of $13.53 according to the terms of the said contract, and owed a balance of $148.83 as of August 1st, 1938. The General Exchange Insurance Corporation issued a collision policy on the car for a period of one year from the date of sale.

On August 1st, 1938, plaintiff became involved in an accident with a ear owned by one Martin Griffin, and driven by one Herbert Griffin, which resulted in substantial damages to his car. Plaintiff retained counsel to represent him in the collection of damages against the Griffins. The defendant, The Travelers Insurance Company, carried, what is commonly known as, liability insurance on the Griffin car, and did appear for and furnish representation to the Griffins in all matters arising out of the said accident.

Suit was subsequently started by the plaintiff against the Griffins in the Second Judicial District Court of Monmouth county, in the sum of $500, to recover damages and depreciation to the car, towing and storage charges, and for deprivation of the use and enjoyment thereof. In the meantime while that suit was pending, the car was repossessed and resold by the General Motors Acceptance Corporation since plaintiff failed to make his required monthly payments after August 1st, 1938, the date of the accident. The car was sold for $10. At the same time, the General Motors Acceptance Corporation, acting independently of the plaintiff and without his knowledge or consent, made claim to the General Exchange Insurance Corporation under the collision policy, and settled its claim for $110. In consideration thereof, the General Motors Acceptance Corporation assigned all of its right, title and interest, in and to the conditional sales contract, to the extent of said payment, to the General Exchange Insurance Corporation. The General Motors Acceptance Corporation then credited plaintiff’s account with the amount realized from the resale, the payment received from the General Exchange Insurance Corporation, which, together with a rebate secured from canceling the collision polic}1', left a balance allegedly due of $45.35.

Both companies knew of the suit which plaintiff had instituted against the Griffins, but took no steps to protect their interests other than to send notices to the defendant of their claims against the plaintiff. The General Exchange Insurance Corporation claimed $110 by reason of the subrogation, while the General Motors Acceptance Corporation claimed $45.35 which is plaintiff’s balance after crediting his account with the said $110. It is asserted on behalf of these companies that immediately after the accident plaintiff and his attorney were placed on notice of their claims in this matter, but I do not find this to be the fact. I find that neither plaintiff, nor his attorney, had knowledge of the notices received by the defendant from the General Motors Acceptance Corporation, or the General Exchange Insurance Corporation, until after the settlement agreement hereinafter mentioned, was breached.

This, then, was the situation on November 30th, 1938, when the defendant and plaintiff compromised and settled the suit brought against the Griffins. I find the terms of the settlement to consist of the following: In consideration of the sum of $178.25, plaintiff would discontinue his suit against tiie Griffins, and upon receipt of' a certified copy of the discontinuance and a release to the Griffins, defendant would give plaintiff its draft in the sum mentioned, made payable to him and his attorney. It is significant that there was no mention by the defendant to the plaintiff of the claims of the General Motors Acceptance Corporation or the General Exchange Insurance Corporation, either at this time, or before the settlement had been agreed. I find no fraud or misrepresentation on the part of the plaintiff, nor any collusion between plaintiff and defendant, but on the contrary, the compromise and settlement agreement was bona fide and deliberately made.

Accordingly, plaintiff discontinued his suit and sent a certified copy of the discontinuance, together with his release, to the defendant, and received a draft made payable to him and his attorney and also the General Motors Acceptance Corporation. Plaintiff refused this draft and returned it to the defendant. Upon defendant’s refusal to make a new draft, plaintiff instituted this suit against the defendant, alleging the breach of the compromise and settlement agreement, and seeking recovery of the consideration thereof. Defendant contends: (1) that the notices sent by the General Motors Acceptance Corporation and the General Exchange Insurance Corporation created liens on the settlement money, and consequently, payment thereof properly included them. (2) That the General Motors Acceptance Corporation and the General Exchange Insurance Corporation have interests in the car which are superior and prior to the plaintiff’s, and therefore, the settlement must include them, or defendant is subject to a further suit and recovery for the car.

As to the first contention, I find no legal basis to support it. No lien can exist at law, unless authority for its existence can be found either in the common or maritime law, or by virtue of statutory enactment. 37 Corp. Jur. 306, ¶ 2. No such authority has been pointed out or could be found to aid this contention, hence the notices in question cannot be construed as creating liens.

As to the second contention, assuming the conclusion is correct, it would not relieve the defendant from the effect of the compromise and settlement agreement made with plaintiff. The compromise of a disputed claim made Iona fide, is a good consideration for a promise, whether the claim be in suit, or litigation has not been actually commenced, even though it should ultimately appear that the claim was wholly unfounded; the detriment to the party consenting to a compromise arising from the alteration in his position, forms the real consideration which gives validity to the promise. The court will not inquire into the adequacy or inadequacy of the consideration of a compromise fairly and deliberately made. Military College Co. v. Brooks, 107 N. J. L. 28; 147 Atl. Rep. 488; Grandin v. Grandin, 49 N. J. L. 508; 9 Atl. Rep. 756, 759; 60 Am. Rep. 642; Merkel v. Merkel, 87 N. J. Eq. 154; 99 Atl. Rep. 924; affirmed, 87 N. J. Eq. 653; 101 Atl. Rep. 1054.

The contention that defendant, as a result of its compromise and settlement agreement with plaintiff is subject to a further suit and recovery, goes to the adequacy of the consideration for the agreement and therefore, falls within the rule as above stated.

This contention might also be answered that the relationship between plaintiff and the General Motors Acceptance Corporation is similar to bailee-bailor (Commercial Credit Co. v. Satlerthwaite, 107 N. J. L. 17; 150 Atl. Rep. 235), and one dealing with a bailee concerning the bailed property does so at his peril. 8 Corp. Jur. Secundum, Bailments 313, § 39, and cases cited.

In the light of these principles, it is unnecessary to decide whether defendant is subject to a further suit and recovery as this conclusion has been hypothetically assumed and found to present no defense.

Since defendant’s points are unavailing, judgment should be accordingly entered, but the matter is further involved by an application by the General Motors Acceptance Corporation and the General Exchange Insurance Corporation made during the trial of the cause to be made parties-plaintiffs and for judgment to be entered in their favor against the defendant. The petition to intervene is brought under R. S. 1937, 2:27-24 and 31. The latter provision which concerns the non-joinder or mis-joinder of parties,' is not pertinent to the present inquiry. The salient portion of R. S. 1937, 2:27-24, is as follows: “Joinder as parties plaintiff. Except as otherwise herein provided and subject to rules, all persons claiming an interest in the subject-matter of the action and in obtaining the judgment demanded, either jointly, severally or in the alternative, may join as plaintiffs.”

It is not the mere claim of interest that will permit a joinder of other parties, since the statute is permissive rather than mandatory. A person applying to be joined as a party to an action, must not only claim, but prove such interest as falls within the provisions of the statute. It then is incumbent to examine the status of the petitioners in order to ascertain what interest, if any, they have in the within suit and in obtaining judgment therein.

All of the facts as alleged in the petition, which I deem to be material, are included in the above recited statement of facts. The petition concludes with the following averment: “In view of the prior rights of the petitioners, we respectfully petition your honor, that we be made a proper party-plaintiff to the above entitled matter, and in this way, make possible one and final determination of all the rights and existing claims, and your petitioner will ever pray, &c.”

It is apt to inquire “prior rights” in what?

Let us examine the legal positions of petitioners separately, first with respect to the defendant and then with respect to the plaintiff.

The petitioner, General Motors Acceptance Corporation, bases its claim to intervene under the principle as laid down by Commercial Credit Co. v. Satterthwaite, supra, holding that a conditional vendor or the assignee of the vendor’s interest in the conditional sales contract has a property interest in the chattel which entitles him to maintain, after default, an action against a third party for injury to the chattel from negligence.

The petitioner, General Exchange Insurance Corporation, bases its claim to intervene on the subrogation of the rights of the General Motors Acceptance Corporation and the plaintiff against the third party wrongdoer to the extent of its payment under its collision policy. Plaintiff does not concede that his rights are subrogated since he contends that he made no claim under the policy, and the claim made by the General Motors Acceptance Corporation and the settlement thereunder were made without his knowledge and consent. At this point, I am of the opinion that the ruling in Bater v. Cleaver, 114 N. J. L. 346; 116 Atl. Rep. 889, 892, applies. There our Court of Errors and Appeals held: ifWhile it is a doctrine of purely equitable origin and nature, it is now settled that, when the right of subrogation itself is practically conceded, and there remains to be enforced only the right of realizing the value of the subject-matter, such right may, on proper occasion, be within the cognizance of a court of law.” Since petitioner’s right to subrogation is not “practically conceded,” it follows that this court is not the proper forum to try this issue.

However, both claims to intervene because of petitioners’ “rights” against the defendant are based upon a common misconception of petitioners’ relationship with defendant. Assuming, but not deciding, that the petitioner, General Motors Acceptance Corporation, had the right of maintaining an action against the third party wrongdoers (the Griffins), the present action is not brought against the wrongdoers and they are not parties to it, nor have they an interest in it.

And assuming, but not deciding, that the petitioner, General Exchange Insurance Corporation, is subrogated to the extent of its payment, to the rights of the General Motors Acceptance Corporation and the plaintiff, the same infirmity exists. Eights which petitioners claim they have against the Griffins, are clearly distinguishable from their rights as against the defendant. Eecovery from the Griffins for damages to the car is one thing, but recovery from the Griffins’ insurer on an agreement of compromise and settlement made solely with the plaintiff, rests on an entirely different and unrelated basis.

Permitting petitioners to intervene would result in making a new and different agreement of compromise and settlement between plaintiff and defendant and this, a court will not do. Kupfersmith v. Delaware Insurance Co., 84 N. J. L. 271; 86 Atl. Rep. 399; Ann. Cas. 1914C 1172; 45 L. R. A. (N. S.) 847; 13 Corp. Jur. 525. I am not called upon to decide what rights the petitioners had, or have, against the Griffins, but suffice to say, they have no enforceable rights against the defendant in this action.

Now as between petitioners and plaintiff, petitioners allege “rights” as against him which they claim should permit them to intervene. These rights, it may be inferred, are believed to arise from, first, a trust relationship between plaintiff and petitioners, and second, plaintiff’s indebtedness to petitioners.

As to the petitioner General Motors Acceptance Corporation, there is authority to the effect that a conditional vendee when he obtains a recovery by suit or compromise, against a third person, holds the balance beyond his own interest in trust for the conditional vendor. Harris v. Seaboard Air Line Railroad Co., 190 N. C. 480; 130 S. E. Rep. 319; 49 A. L. R. 1452; Fletcher v. Perry, 104 Vt. 229; 158 Atl. Rep. 679; First National Bank v. Union Railway Co., 153 Tenn. 386; 284 S. W. Rep. 363; 8 Corp. Jur. Secundum, Bailments 371, 375, § 56; 3 R. C. L. 128, 49.

While, as to the petitioner General Exchange Insurance Corporation, the principle stated by Vice-Chancellor Backes in Camden Fire Insurance Association v. Prezioso, 93 N. J. Eq. 318; 116 Atl. Rep. 694, may apply, that is, “The insured can be called upon to account to the insurer-subrogee only if he has recovered more from the insurer and the wrongdoer than the total of his loss, and then only for the excess. The excess he holds in trust for the insurer.”

Plaintiff insists that his liability to petitioners is controlled by the Uniform Conditional Sales law (R. S. 1937, 46:32-28), which provides for the recovery by the seller of the deficiency upon resale from the buyer—that he is not indebted to them until they establish their claims by a deficiency action against him.

But these issues need not be decided now, since they arise in futuro. The application of the principles in the last cited cases are predicated upon the “recovery” (italics mine) by the conditional vendee or the insured (as the case may be) of the money in question. A trust cannot be created unless there is trust property, an expectation or hope of receiving property in the future cannot be held in trust. Restatement of the Law of Trusts, §§ 74, 86. When plaintiff actually recovers the settlement 'money, petitioners have adequate remedies to protect their alleged interests therein but the anticipated relationship of trustee and cestui, when and if plaintiff recovers the settlement money, affords no basis for the intervention of petitioners in plaintiff’s action to recover the settlement money.

The ruling in First National Bank v. Union Railway Co., supra, lends support to this view, at least in so far as it concerns the petition of the General Motors Acceptance Corporation. There the court held that “the vendee is not such a trustee as that he cannot settle by compromise without the sanction of the vendor.” If the vendee can settle by compromise without the sanction of the vendor, it would seem logically to follow that he can maintain an action to recover for a breach of the compromise and settlement without the intervention of the vendor.

Hor on the theory that plaintiff is indebted to petitioners to the amount of their respective claims, do petitioners disclose intervenable interests.

It is well settled that a mere creditor of one of the parties has no right to intervene, although he may have an indirect interest in the result of the action. Check v. Kaplan, 280 Mass. 170; 182 N. E. Rep. 305; Reard v. Freiden, 184 Iowa 823; 169 N. W. Rep. 245; Honegger v. Wettstein, 94 N. Y. 252; Britton v. Bohde, 85 Hun 449; 32 N. Y. S. 882; 20 R. C. L. 687; Tonkonogy v. Levin et al., 106 Pa. Super. 448; 162 Atl. Rep. 315; Massachusetts Loan and Trust Co. v. Broten, 17 R. I. 568; 23 Atl. Rep. 761; Rhoades v. Pennsylvania Co., C. C., 93 Fed. Rep. 533; McKemy v. Supreme Lodge A. O. U. W., 6 Cir., 180 Fed. Rep. 961; 104 C. C. A. 117; 47 C. J. 105 and cases cited.

It has been held that ordinarily a simple contract creditor is not the guardian of his debtor, and may not intervene because it may be urged for him that, if debtor prevails in the suit, the creditor might stand a better chance to collect. The mere fact that the party for or against whom the judgment may go, may become more or less able to satisfy some obligations, will not entitle his creditor to intervene. Reard v. Freiden, supra.

In Hew Jersey, it was held that the purposes of statutory provisions as to joinder of third party defendants, is to permit a complete determination of the original controversy which plaintiff has submitted to the court for decision, not to inject a new controversy, with which plaintiff is not concerned, into plaintiff’s cause of action. Raymond-Commerce Corp. v. Warner, 16 N. J. Mis. R. 548; 2 Atl. Rep. (2d) 878. I take it that this ruling is equally applicable to R. S. 1937, 2:27-24, providing for joinder as parties-plaintiff. The effect of permitting creditors to intervene in their debtor’s actions, is aptly described by the following excerpts from some of the cases heretofore cited:

“Appellants were at best ordinary creditors of Tonkonogy. To hold that appellants had the right to intervene would be equivalent to saying that any creditor of a plaintiff in a suit for money might intervene. It is stating the matter mildly to say that this would lead to confusion, complicate the case, and produce a “multifariousness of parties and causes of action.” Tonkonogy v. Levin et al., supra.

“He was a judgment creditor, but that fact alone gave him no lien or other superior claim to that which his debtor might recover in the present action. * * * He had acquired no other preferential right over other creditors of the plaintiff. * * * If he were permitted to intervene, there would be no reason why his creditor might not intervene to subject his own debt, when established against the debt due the plaintiff, to payment of that creditor’s claim and so on indefinitely; creditors of intervenors in turn might pile litigation upon litigation in one proceeding. There is no ground in law permitting Silverman on the allegation of his petition to inject himself into this action in which he has no legal interest.” Check v. Kaplan, supra.

And so here, petitioners, as alleged creditors of the plaintiff, have no such interest as would permit them to intervene. Their application, if granted, will inject new and different controversies into plaintiff’s cause of action, and will result in multifariousness of parties and causes of action contrary to the intendment of the statute. The orderly way in law is for each one to pursue his own rights in his own action, and if, in so doing, another seeks to circumvent him by fraud, the existing remedies are ample. Massachusetts Loan and Trust Co. v. Brown, supra.

Accordingly, the petition must be denied and judgment entered in favor of the plaintiff against the defendant in the sum demanded, with interest and costs.


author: Quinn, President.

text:
    State Board of Tax Appeals.
    COLLEGE OF PATERSON, PETITIONER, v. CITY OF PATERSON, RESPONDENT.
    Decided December 12, 1939.
    For the petitioner, Beggs é Grimshww (by Edward G. Weiss).
    For the respondent, Salvatore Viviano.

   Quinn, President.

Petitioner, incorporated as an association not for pecuniary profit for the purpose of conducting a junior college, operates an institution for higher learning in a building which it leases from Saher Corporation, owner, in the city of Paterson. The personal property of petitioner located in the building was assessed for taxation for the year 1938 by the respondent taxing district, and an appeal to the Passaic County Board of Taxation resulted in an affirmance of the assessment.

The present appeal prays for a cancellation of the assessment upon the alleged ground that the personalty assessed was located in a building actually used as a college, not for pecuniary profit, and was used for college and school purposes on the assessing date. The pertinent statute is Pamph. L. 1918, ch. 236, § 203 (R. S. 54:4-3.6), which, so far as is here material, is as follows: The numbers prefacing the clauses are added by us for readiness of identification.

“The following property shall be exempt from taxation under this chapter: (1) All buildings actually used for colleges, schools, academies or seminaries; * * * (2) the land whereon any of the buildings hereinbefore mentioned are erected, and which may be necessary for the fair enjoyment thereof, and which is devoted to the purposes above mentioned and to no other purpose and does not exceed five acres in extent, (3) the furniture and personal property in said buildings if used in and devoted to the purposes above mentioned; (4) provided, in case of all the foregoing, the buildings, or the lands on which they stand, or the associations, corporations or institutions using and occupying them as aforesaid, are not conducted for profit, except that the exemption of the buildings and lands used for charitable, benevolent or religious purposes shall extend to cases where the charitable, benevolent or religious work therein carried on is supported partly by fees and charges received from or on behalf of beneficiaries using or occupying the building; provided, the building is wholly controlled by and the entire income therefrom is used for said charitable, benevolent or religious purposes. (5) The foregoing exemptions shall apply only where the association, corporation or institution claiming the exemption owns the property in question and is incorporated or organized under the laws of this state and authorized to carry out the purposes on account of which the exemption is claimed.”

The first question presented for determination is whether the statute contemplates an exemption of personal property situated in a building not itself exempt, within the purview of the act. We think the fifth clause, supra> qualifies the first, not only by way of limitation of the buildings which are entitled to exemption, but also as a characterization of those buildings, location in which, under the third clause, makes personal property and fixtures eligible for exemption. It has been frequently iterated that under this act and its predecessors the primary object of exemption is the building used for the educational, religious, charitable, &c., purpose. In Township of Lawrence v. Lawrenceville School, State Board Tax Reports 1912-1934, p. 339, it was stated:

“The exemption of personal property from taxation under section 203, paragraph 4 of the General Tax act (Revision of 1918) is limited to the furniture and personal property in buildings of the exempt class and devoted to the same purposes as those for which the buildings are used.”

In Sisters of Charity of St. Elizabeth v. Cory (Court of Errors and Appeals, 1907), 73 N. J. L. 699; 65 Atl. Rep. 500, in considering the extent of exemption of land envisaged by the act, it was said:

“The primary object of the exemption is the building. Included with it in the exemption is a certain portion of the land.”

And see Childrens Seashore House v. Atlantic City (Court of Errors and Appeals, 1902), 68 N. J. L. 385 (at p. 390); 53 Atl. Rep. 399; Middlesex Council, Boy Scouts of America v. Township of Blairstown (State Board), filed August 14th, 1939.

Under all the circumstances, and having regard for the fundamental rule of strict construction of tax exemption legislation, we are unable to conclude that the legislature intended an exemption of personal property not found in a tax-exempt building. We do not regard Y. M. C. A. of Garfield v. State Board (Supreme Court, 1936), 14 N. J. Mis. R. 831; 186 Atl. Rep. 702, cited by petitioner, as authority to the contrary. The point presently under consideration does not appear to have been there specifically raised or argued, and is certainly not considered in the opinion of the court.

Entirely apart from the ground for denial of exemption thus far considered herein, that result must be reached nevertheless for another reason. The proviso which we have numbered 4, in the act, provides, “in case of all the foregoing,” (necessarily including an application for exemption on behalf of personal property) that the buildings, or the lands or the institutions using them are not conducted for profit. We construe this provision to provide clearly that personal property, though used for school purposes, is not tax exempt when located in a building operated for profit. The building here in question is conducted for profit in that it is a source of revenue to the landlord to whom petitioner pays rent. Cf. Dana College v. State Board of Tax Appeals (Supreme Court, 1936), 14 N. J. Mis. R. 308; 184 Atl. Rep. 412.

For the reasons aforementioned the judgment of the Passaic County Board is affirmed.


text:
    State Board of Tax Appeals.
    BLANCHARD LUMBER CO., PETITIONER, v. CITY OF NEWARK, RESPONDENT.
    Decided December 19, 1939.
    For the petitioner, Samuel S. Ferster.

    For the respondent, James F. X. O’Brien (by Raymond Schroeder).

   Quinn, President.

Petitioner was assessed for personal property taxes for the year 1936 in the sum of $40,000 by the respondent taxing district. The only property owned by it and there situate for the year in question was lumber stored on the premises of the Seaboard Terminal Warehouse, a firm engaged in the business of storing goods for hire. An application for exemption of the property from taxation, based upon Pamph. L. 1925, ch. 221 (R. S. 54:4-3.20), was denied by the Essex County Board of Taxation. The courts of this state have, however, held that such property is exempt from taxation under the act cited. Halligan and McLellan, Inc., v. State Board of Tax Appeals (Supreme Court, 1939), 122 N. J. L. 551; 6 Atl. Rep. (2d) 668.

But respondent resists the petitioner’s claim upon the ground that petitioner failed to file the statutory sworn claim for exemption requisite under Pamph. L. 1918, ch. 236, § 303 (R. S. 54:4-15). In this connection petitioner produced at the hearing as a witness Mr. Perry Kaplan, an attorney-at-law, who testified that he personally prepared the sworn claim and handed same to Mr. Fitzsimmons, clerk in charge of the Newark Board of Assessments and Taxation. While counsel for the city stated at the hearing that there was no record of such filing, no testimony was offered to controvert the evidence given on behalf of petitioner. In this posture of the proofs, we must give full weight and credence to the testimony of petitioner’s witness and find as a fact that the claim for exemption was made and filed in due course.

The judgment of the Essex County Board is reversed, and the assessment ordered canceled for the year in question.


text:
    State Board of Tax Appeals.
    FRANKLIN MORTGAGE AND TITLE GUARANTY CO., PETITIONER, v. CITY OF NEWARK, RESPONDENT.
    Decided December 19, 1939.
    For the petitioner, Elmer 0. Goodwin.

    For the respondent, James F. X. O’Brien (by Vincent J. Gasale).

   Quinn, President.

Petitioner, a stock insurance company engaged in the business of insuring titles to real estate in this state, was assessed by the city of Newark, where its principal office is located, in the sum of $124,000 for the year 1937, upon its capital stock paid in and accumulated surplus, under Pamph. L. 1918, ch. 236, § 307. Though since revised (Pamph. L. 1938, ch. 245), section 307 was controlling upon the assessing date for the year in question and provided as follows (R. S. 54:4-22) :

“Every fire insurance company and every stock insurance-company other than life insurance, shall be assessed in the taxing district where its office is situate, upon the full amount of its capital stock paid in and accumulated surplus. The real estate belonging to every such corporation shall be taxed in the taxing district where situated, and the amount of assessment upon the real estate shall be deducted from the amount of any assessment made upon the capital stock and accumulated surplus. No franchise tax shall be imposed upon any such fire insurance company or other stock insurance company included in this section.”

The Essex County Board of Taxation affirmed the assessment on appeal.

Under Fidelity Trust Co. v. Board of Equalization of Taxes of New Jersey (Supreme Court, 1908), 77 N. J. L. 128; 71 Atl. Rep. 61, this statute requires the additional deduction from capital and surplus of such of the company’s assets entering into the determination thereof, as consist of non-taxable or exempt securities or property, for the purpose of ascertaining the net balance taxable.

The financial statement of petitioner, as of October 1st, 1936, as shown by proof at the hearing, was as follows:

ASSETS
Mortgage loans owned............ $788,287.12
Cash in banks ................ 87,903.33
Cash in trust account ................ 31,538.85
Government and HOLC bonds............ 148,450.00
Beal estate, including home office ....... 465,113.04
Furniture and fixtures ............... 2,191.73
Accounts receivable . . . 10,013.82
Notes receivable ............... 14,786.95
Mortgage trust certificates............. 3,387.80
Advance on mortgage loans ............ 28,293.93
Mortgagors suspense accounts ............ 123,884.22
Advances on service accounts ............. 1,402.63
Prepaid insurance .................... 856.17
Interest due and accrued .............. 7,398.86
$1,713,508.45
LIABILITIES
Mortgage bonds outstanding . . . $876,600.00
Trust accounts ............... 12,728.06
Mortgage payable........... 20,000.00
Interest due and accrued ...... 65,064.70
Accounts payable ............. 1.500.00
Reserve for contingencies ........ 200,000.00
Reserve for title insurance losses . . . 6.500.00
Capital ............. .......... 300.000. 00
Surplus ................... 200.000. 00
Undivided profits ............. 31,115.69
$1,713,508.45

Under the Fidelity Trust Co. case, supra, capital and surplus (capital stock paid in and accumulated surplus) are determined by deducting liabilities from gross assets. But only fixed and certain obligations are deductible liabilities for this purpose. Trenton v. Standard Fire Insurance Co. (Court of Errors and Appeals, 1909), 77 N. J. L. 757; 73 Atl. Rep. 606. The liability items in the foregoing statement described as “reserve, &c.,” therefore, do not qualify as deductible. Deducting the other liabilities shown in the statement from the gross assets leaves a true figure for tax purposes of $737,615.69, as petitioner’s capital and surplus. Prom this amount petitioner claims the statutory deductions of $240,670, as the assessed value of real estate owned by the company, government and HOLC bonds in the amount of $148,450, and the total of non-taxable mortgages owned by the company in the amount of $788,287.12. The aggregate of these figures deducted from capital and surplus, obviously suffices to eliminate any taxable balance for taxation.

The city of Newark resists the claim for the deduction of the mortgages as in effect duplicating the allowance for bonds as deductible liabilities in computing petitioner’s capital and surplus. This contention, however, is without substance. The mortgages for which the company claims deduction are its own, legally and equitably, and unquestionably do enter into the determination of its capital and surplus. It is true that $599,545.66 worth of these mortgages were deposited in pledge with Franklin Washington Trust Company, in trust, to secure the bondholders. But in the absence of any default on the bonds, such pledge in no sense vitiates petitioner’s full title to the assets pledged. See Howell v. Bartlett (Court of Chancery, 1939), 124 N. J. Eq. 544; 3 Atl. Rep. (2d) 300, where the qualified interest of bondholders in such a situation is considered.

Petitioner was accordingly possessed of an absolute right to the deduction of the mortgages here in question, resulting in a cancellation of taxable balance for the year 1937.

The judgment of the Essex County Board is reversed, and the assessment ordered vacated.


text:
    State Board of Tax Appeals.
    THEODORE SCHETTY, PETITIONER, v. CITY OF JERSEY CITY, RESPONDENT.
    Decided January 9, 1940.
    For the petitioner, Carey '& Lane (by Herman Klausner).

    For the respondent, Erante P. McCarthy.

   Quinn, President.

The appeal herein affects two parcels of property in the city of Jersey City, assessed for the year 1938 at $1,800 for land and $2,000 for improvements, as to 135 Leonard street, and $1,800 for land and $9,000 for improvements, as to 133 Leonard street. Upon respondent’s case two experts were called as witnesses, one to testify as to the land and the other as to improvements. The land expert, in response to a question as to what a willing buyer would pay to a willing seller for the land, testified to a value of $2,000 for each of the lots in question. The testimony of the building expert was to the effect that the “sound value” of the buildings, arrived at by determining reconstruction cost upon a cubical content basis and subtracting depreciation, was $6,850 and $10,200, respectively.

Cross-examination of the land witness developed the fact that his determination was made upon a front foot basis, with no regard for the nature or rental income of the buildings. Cross-examination of the building expert revealed that no opinion had been formed by him as to what the building would bring at a fair and bona fide sale between a ready and willing buyer and seller as of the assessing date, nor as to what the rental income of the building was. In this state of the proofs, petitioner has moved to strike the testimony of the witnesses referred to, as failing to reflect the true value of the property, under the applicable statutes and judicial decisions.

Pamph. L. 1918, ch. 236, § 401 (1) (R. 8. 54:4-23) requires that the assessment of real property shall be at a value equal to the price at which the particular parcel would sell for at a fair and bona fide sale by private contract upon the assessing date. This legislative mandate to the local assessors has repeatedly been affirmed as the true criterion for the determination of true value in appeals from tax assessments before tax appeal boards and the courts. New Jersey Bell Telephone Co. v. Newark (Supreme Court, 1937), 118 N. J. L. 490; 193 Atl. Rep. 844; New Jersey Bell Telephone Co. v. Camden (Supreme Court, 1939), 122 N. J. L. 270; Turnley v. City of Elizabeth (Supreme Court, 1908), 76 Id. 42; 68 Atl. Rep. 1094. Testimony which is based exclusively upon reproduction cost, and disregards selling price, carries but little weight. Id. The testimony of respondent’s witness upon valuation of improvements is, for this reason, standing alone, of little probative force, not having been adduced in support or corroboration^ of the opinion of the witness as to the fair sale price of the property. See The Colonial Life Insurance Company of America v. City of Jersey City (State Board), opinion filed simultaneously herewith. The case of Koch v. City of Jersey City (Supreme Court, 1937), 118 N. J. L. 85; 191 Atl. Rep. 558, relied upon by respondent, is not to the contrary. That decision merely’ adjudicates the propriety of testimony directed to land value alone, or improvement value alone, despite the fact that the proceedings consist of an appeal upon both land and building. Nothing therein contained affects the continued soundness of the fundamental principle that such testimony is not persuasive unless directed to the operative factor of fair sale price, whether of land or building. The itemization of land and building values separately, is, of course, only intermediate to the final inquiry as to the taxable value of the property as a whole, and not as ultimate determinations.

The testimony of the land expert is not subject to the objection noted in the motion. The witness did testify to fair sale value. His disregard for the rental income of the entire premises does not render his testimony incompetent but may affect its weight. Rentals of land and building together are evidential, in any event, only where calculated to reflect true present value, and where the witness is testifying to the value of land and building in the entirety. Where the value of one or the other alone is in issue, gross rentals must be apportioned by the witness. See Gibbs v. State Board (Court of Errors and Appeals, 1925), 101 N. J. L. 371; 129 Atl. Rep. 189; City of Hoboken v. Hoboken Land and Improvement Co. (State Board), filed June 7th, 1938.

The motion before us must be denied in its entirety, however. The testimony of the expert on improvements, while of little probative force in and of itself, is not incompetent. New Jersey Bell Telephone Co. v. Camden (Supreme Court, 1939), 122 N. J. L. 270, 276; 4 Atl. Rep. (2d) 705. That of the land expert is certainly evidential. On the basis of all of the testimony and of an inspection of the premises made for the board, we determine the true value of the premises as of the assessing date to be: 135 Leonard street, $3,300, allocated as follows, land, $1,800, improvements, $1,500; 133 Leonard street, $7,300, allocated as follows, land, $1,800, improvements, $5,500.

Judgment accordingly.


text:
    State Board of Tax Appeals.
    CITY OF JERSEY CITY, PETITIONER, v. POLISH ARMY WAR VETERANS, POST 51, INC., RESPONDENT.
    Decided January 9, 1940.
    For the petitioner, James A. Hamill (by Frank P. McCarthy).

    For the respondent, Michael A. Szadkowski.

   Quinn, President.

Bespondent was adjudged by the Hudson County Board of Taxation entitled to exemption from taxation for the year 1938 on account of land and building owned by it, situate in the city of Jersey City. It devotes the property in question to use in providing food, clothing, lodging and medical attention, without charge, on behalf of Polish army war veterans in need thereof. Upon this appeal by the city from the county board determination, respondent bases its argument for exemption upon the provisions of Pamph. L. 1931, ch. 372, § 1 (R. S. 54:4-3.6).

The specific provision relied upon grants exemption to “buildings actually and exclusively used in the work of associations and corporations organized exclusively for the moral and mental improvement of men, women and children, or for religious, charitable or hospital purposes * * The language underlined by us has been repeatedly held to circumscribe the statutory exemption afforded by this section within the limited category of organizations whose certificates of incorporation express no purpose other than those set out in the act. Trustees of Odd Fellows Association v. Hackensack (Supreme Court, 1937), 118 N. J. L. 1; 190 Atl. Rep. 780; affirmed (Court of Errors and Appeals, 1937), 118 N. J. L. 562; 194 Atl. Rep. 184. Inclusion of patriotic purposes in the certificate is fatal to the claim of exemption. Washington Camp v. Board of Equalization of Taxes (Supreme Court, 1915), 87 N. J. L. 53; 93 Atl. Rep. 856; Perez Service Club v. City of Passaic (State Board), filed January 10th, 1939; Knights of Columbus Building Association of Newark, New Jersey v. City of Newark (State Board), filed August 14th, 1939.

Kespondent’s certificate of incorporation rules out its status for exemption, within the cases cited. Among the corporate purposes recited therein are:

“(f) To maintain harmonious and fraternal relations with the veterans of the United States armies.
“(g) To promote the principles of peace and patriotism.”

The general worthiness of respondent’s objects and activities cannot serve as a substitute for satisfaction of the strict requirements of the exemption statute. The judgment of the Hudson County Board is reversed and the assessment affirmed as made.


author: Jayne, C. C. J.

text:
    SALOME AMBROSE, PLAINTIFF, v. THE METROPOLITAN LIFE INSURANCE COMPANY, DEFENDANT.
    Decided December 11, 1939.
    For the plaintiff, Anthony J. Gafiero (Jonathan W. Acton).

    For the defendant, Oassman & Gottlieb.

   Jayne, C. C. J.

It is stipulated that the controversial issues of law and fact arising from the evidence introduced at the trial of this action are to be determined by the court without a jury.

This is an action founded upon a contract of insurance. The plaintiff as the designated beneficiary seeks to recover from the defendant the sum of $1,000 alleged to have become payable to her in consequence of the death of her husband. The policy was issued by the defendant to the W. J. McCahan Sugar Kefining and Molasses Company on November 30th, 1925, and it was thereafter continuously renewed. It is known as a “Group Policy” insuring the lives of the employes of the McCahan Company, essentially similar, presumably, to that scrutinized in Venditto v. Spratts Patent (America), Ltd., 113 N. J. L. 357. Individual certificates are issued pursuant to the terms and conditions of the policy to the designated employes.

A certificate bearing Serial Number 1135 was admittedly issued by the defendant to the employe, Adam J. Ambrose, on July 15th, 1935. This certificate evidences the undertaking of the defendant to pay to the plaintiff $1,000 if the death of Adam J. Ambrose should occur while he is in the employ of the McCahan Company and while the group policy is in force. The group policy itself was undoubtedly in force when Adam Ambrose died on January 11th, 1936.

The only factual element of the plaintiffs alleged cause of action that seems to have been drawn into dispute at the trial is whether or not Ambrose was in the employ of the McCahan Company, within the intent and meaning of the policy, at the time of his death. The determination of this question of fact controls the decision of the present case.

In the policy there are such phrases as: “termination of employment“ceased to be in its employ “left said employment:” and “while the employe is in the employ of the employer.” An examination of the policy evinces that these phrases refer to the existence of the relationship of employer and employe and to the status or position of the deceased in that regard at the time of his death. The word “employment” is intended to indicate the status of the holder of the certificate in relation to his employer. The phrase “termination of employment” assuredly does not mean the mere cessation of active service. This becomes at once apparent from the discovery in the policy of the following provision: “Lay-off or Leave of Absence, of two months or less, shall not be considered, * * * termination of employment within the meaning of this Policy unless notification to the contrary shall have been given by the Employer to the Company, &e.” The policy obviously did not contemplate steady and constant service by the employes. An employe might only work one or more days in a fortnight and still continue to be in the employ of the company. The phrases previously quoted must mean such a termination of the relationship of employer and employe as will make applicable and effective all parts of the insurance contract.

The decisive facts must, therefore, be gathered from the evidence. Concisely stated, the evidence reveals that on the night of January 6th, 1936, Ambrose was actually at work at the refinery of the McCahan Company in Philadelphia, where he had previously been regularly employed. At two o’clock on the morning of January 7th, 1936, a detective of the local police department, accompanied hy a member of the New Jersey state police, visited the refinery and asked a watchman stationed at the gate for permission to interview Adam Ambrose. These officers had no warrant or other process for the arrest of Ambrose.

It may be here observed that in the circumstances just related, it is not to be inferred that the detectives then informed anyone at the refinery that Ambrose was being apprehended for any capital or criminal offense. There is no proof that they divulged any such information at that time. The power of a foreman to discharge an employe was limited, it is said, to cases of disobedience or misconduct of an employe committed in his presence. The occurrences on the morning of January 7th, 1936, do not justify the inference that Ambrose was then discharged from his emplojcment by any authorized representative of the McCahan Company.

Additional evidence discloses that Ambrose met the detectives and accompanied them to the detective bureau in Philadelphia where he was presumably interrogated. Later that morning or on the following morning, Ambrose was transported to the county jail at Cape May Court House. At seven or seven-thirty o’clock on the morning of January 11th, 1936, the county physician was summoned to the jail and found Ambrose then dead. In his opinion Ambrose had then been dead six or seven hours.

It, therefore, seems credibly established that Ambrose died during the night of January 10th, 1936, or at a very early hour on January 11th, 1936. In the present case, no significance is sought to be ascribed to the circumstance that Ambrose probably committed suicide.

The evidence is barren of any suggestion that Ambrose had any knowledge or notice that his employer had terminated his employment. It is determined that he had no such knowledge or notice. On January 13th, 1936, however, his widow, the plaintiff, received a letter on the stationery of the McCahan Company and enclosed in an envelope post-marked Philadelphia, January 11th, 1936, one-thirty p. m. The letter is addressed to Salome Ambrose and is dated January 11th, 1936. The body of this letter is here reproduced: “Dear Madam: We regret that the unfortunate circumstances in connection with your husband to have to notify you that we have this day canceled all insurance on our Group Insurance plan in which you were beneficiary.

“If everything turns out satisfactorily the insurance company will, if we re-employ him, permit him again renew his insurance in their Group Insurance plan. We extend our sympathy to you in this your hour of trouble and hope that the case will be settled satisfactorily to all.” The sympathetic tone of this communication and the fact that it was addressed to Mrs. Ambrose and not to the employe, almost arouses the suspicion that the author already knew that Mr. Ambrose had died.

However, the evidence does not identify the person who caused this letter to be written and hence the authority of such individual to act for the McCahan Company in such a matter is not exhibited. Mr. Escandel, whose name appears to be subscribed to the letter asserted that he did not dictate or sign it. He acknowledged that he had no authority to discharge Ambrose. He had not received at that time any “slip” informing him that Ambrose had been dismissed from his employment. Amid all the surmises and conjectures, no one supposed the letter to have been written until after the opening of the executive offices of the company at nine o’clock on the morning of January 11th, 1936. Where, from the nature of the case, justice requires, the law will take into account fractions of a day. Harlwell Lumber Co. v. U. S. (C. C.), 128 Fed. Rep. 306; Id. (C. C. A.), 142 Id. 432; 26 R. C. L. 736 and cases cited.

The death of Ambrose fixes the time when his status is to be determined. Anything his employer may have thereafter done would be ineffectual in destroying any of the accrued rights of this plaintiff under the policy. What did the employer do? There is no evidence of any action taken before Ambrose’s death by any authorized official or employe of the McCahan Company to terminate the employment. The “register” of the defendant was not produced. Ho one testified for the defendant concerning any notice received by it from the McCahan Company and when such notice was received. It was said that the power to discharge such an employe reposed in the superintendent of the department in which the employe worked. The superintendent was not called as a witness.

In resisting the plaintiff’s claim, the defendant has chosen to rely upon the contention that the circumstances disclosed by the evidence definitely indicate that the employment of Ambrose was terminated when he ceased work on the morning of January 7th, 1936. The circumstances do not warrant such a conclusion. Rather do they indicate that Ambrose was at the time permitted to absent himself temporarily from his station and that as a result of information subsequently acquired, the McCahan Company on the forenoon of January 11th, 1936, resolved to revoke his leave of absence and discharge him. Meanwhile Ambrose had died. The notion that an employer can grant a temporary leave of absence to an insured employe and then as a result of subsequent events and on a later date resolve to discharge the employe as of the date on which he was given the leave of absence, is positively discordant with a fair and reasonable construction of the policy. Such action on the part of an employer would be merely an ineffectual attempt to change the true status of the employe as it actually existed during the stated interim. The present case bears a perceptible resemblance to the case of Ozanich v. Metropolitan Life Insurance Co. (Pa.), 180 Atl. Rep. 67.

Entertaining the conviction that in the present case no action was taken to discharge the insured employe prior to his death, it seems unnecessary to determine whether in view of all of the terms and provisions of the policy the discharge of an employe by his employer need be accompanied by notice thereof to the dismissed employe. The point has been discussed in the following cases: Emerick v. Connecticut General Life Insurance Co. (Conn.), 179 Atl. Rep. 335; Ozanich v. Metropolitan Life Insurance Co., supra; Perkins v. Eagle Lock Co., 118 Conn. 658; 174 Atl. Rep. 77; Beecey v. Travelers’ Insurance Co., 267 Mass. 135; 166 N. E. Rep. 571; Coller v. Travelers’ Insurance Co., 270 Mass. 424; 170 N. E. Rep. 407; Magee v. Equitable Life Assurance Society, 62 N. D. 614; 244 N. W. Rep. 518; 85 A. L. R. 1457; Thull v. Equitable Life Assurance Society, 40 Ohio App. 486; 178 N. E. Rep. 850. It is concluded as matters of fact that Ambrose was in the employ of the McCahan Company on January 7th, 1936, and was not thereafter discharged; that he never had notice or knowledge of the termination of his employment; that he was still in the employ of the McCahan Company within the intent and meaning of the policy at the time of his death.

A postea, in appropriate form and in conformity with the conclusions here expressed, will be signed.