author: Wm. Hues, Jr., Acting Recorder.

text:
    Recorder’s Court of the Town of Montclair.
    STATE OF NEW JERSEY, BY GEORGE C. NEILL, MOTOR VEHICLE INSPECTOR, PROSECUTOR, v. ALBERT WILLIAMS, DEFENDANT.
    Decided September 3, 1943.
    Por tho prosecutor, David T. Wilentz, Attorney-General (Louis M. Mallin, of counsel).
    Por the defendant, Thomas Brunetto.

   Wm. Hues, Jr., Acting Recorder.

Prom tho stipulated facts it appears that on June 15th, 1943, the defendant was charged in this court with having operated a motor vehicle on J une 14th, 1943, without having a driver’s license for the year 1943, in violation of R. 8. 39 :3-10; N. J 8. A. 39 :3-10. One June 15th, 1943, he pleaded guilty to said charge. Subsequently he was charged in this court with having operated a motor vehicle after his license had been revoked, in violation of R. 8. 39:3-40; N. J. 8. A. 39:3-40. Both offenses arose out of the same act of operating a motor vehicle. This latter charge is the one now under consideration.

The defendant appeared and entered a plea of autrefois convict, alleging that the present charge subjects him to double jeopardy in view of his prior conviction for an offense arising out of the same act, and that he cannot lawfully be convicted on the present charge. He therefore moves to dismiss said charge and it is agreed that the disposition of the motion shall likewise constitute a disposition of the case.

The plea ofx double jeopardy has .been generally held to apply only to criminal prosecutions. 16 C. J. 235, § 362; 22 O. J. Secundum, Criminal Law, §§ 238, 240, and cases there cited. ' It is of common law origin, but has received statutory recognition in the statutes of some states and by the Fifth Amendment to the Constitution of the United States.

The defendant cites People v. Aldrich, 191 N. Y. Supp. 899; People v. Krank, 110 N. Y. 488; 18 N. F. Rep. 242; People v. Fitzgerald, 101 Misc. 659; 168 N. Y. Supp. 930, in support of his contention. I have carefully examined these cases. They are of no value because, while they do sustain the plea of double jeopardy, they are all based on section 1938 of the New Yorh Penal Law, which reads as follows:

"An act or omission which is made criminal and punishable in different ways by different provisions of law, may be punished by any one of such provisions, but not under any more than one, the acquittal or conviction under one being a bar to the prosecution of the same act or omission under any other provision.”

There is.no similar statute in New Jersey. The only New Jersey cases cited by the defendant, save one, are criminal cases involving indictments. It has frequently been held that our Motor Yehicle Laws are not criminal laws (State v. Rodgers, 91 N. J. L. 212; 102 Atl. Rep. 433; Huff v. C. W. Goddard Coal Co., 106 N. J. L. 19; 148 Atl. Rep. 175), and, therefore, I do not think that the plea of double jeopardy will lie to a charge of violating such laws.

The only other New Jersey case cited by defendant is State v. Kincaid, 9 N. J. Mis. R. 1194; 157 Atl. Rep. 442. That case did involve the Motor Yehicle Law (N. J. S. A. 39 :4^50) and the court did sustain the plea of double jeopardy. The question of the applicability of the plea of double jeopardy in a motor vehicle case does not seem to have been raised, at any rate it is not discussed in the opinion. I would feel constrained to follow that case, but do not deem it applies. There the defendant was originally charged with having operated a motor vehicle while under the influence of intoxicating liquor on October 27th, 1930. The proof showed the offense was committed on October 26th, 1930. The charge was dismissed on defendant’s motion. Subsequently a new complaint was made, charging the offense to have been committed on October 26th, 1930. The court held that the defendant could not again be prosecuted “for the same offense.”

But in the ease at bar, the second charge is not for the same offense as the first. True, it arises out of the same act, but the legislature has seen fit to provide for several offenses based on the same act, and this it has the power to do. In this connection, it is worth while to consider some decisions of the United States Supreme Court.

In Gavieres v. United States, 220 U. S. 338; 31 S. Ct. 421; 55 L. Ed. 489, the court said:

“It is true that the acts and words of the accused set forth in both charges are the same; but in the second case it was charged, as was essential to conviction, that the misbehavior in deed and words was addressed to a public official. In this view we are of opinion that while the transaction charged is the same in each case, the offenses are different. This was the view taken in Morey v. Commission, 108 Mass. 433, in which the Supreme Court of Massachusetts, speaking by Judge Gray, held:

“ 'A conviction or acquittal upon one indictment is no bar to a subsequent conviction and sentence upon another, unless the evidence required to support a conviction upon one of them would have been sufficient to warrant a conviction upon the other. The test is not whether the defendant has already been tried for the same act, but whether he has been put in jeopardy for the same offense. A single act may he an offense against two statutes; and if each statute requires proof of an additional fact which the other does not, an acquittal or conviction under either statute does not exempt the defendant from prosecution and punishment under the other.’ ”

Morgan v. Devine, 237 U. S. 632; 35 S. Ct. 712; 59 L. Ed. 1153, involved one charge of stealing from a post office and another of breaking and entry with intent to steal, both based on the same event. The court, dismissing the plea of double jeopardy, said:

“It being within the competency of Congress to say what shall be offenses against the law, we think the purpose was manifest in these sections to create two offenses. Notwithstanding there is a difference in the adjudicated eases upon this subject, we think the better doctrine recognizes that, although the transaction may be in a sense continuous, the offenses are separate, and each complete in itself.”

In the case at bar, while there was only one act, there were two offenses under the statute. Under the first charge (violation of R. S. 39 :3-10; N. J. S. A. 39 :3—10) all the state had to prove was that the defendant drove the car and at the time had no license. Under the second (violation of R. S. 39 :3-40; N. J. S. A. 39: 3-40) it had to prove another fact, viz., that the defendant’s license had been revoked. The penalty for the first charge can be a fine of any amount up to $500, while the penalty for the second must be at least $100 and can be up to $500; clearly indicating that the legislature not only provided for two offenses, but deemed the offense of driving after a license had been revoked as the more serious.

I am, therefore, constrained to hold that even if the plea of double jeopardy would lie in a case under our Motor Yehiele Laws, which I do not think is so, there is no double jeopardy in this case. The legislature has the power to and did provide for two offenses which required different evidence to sustain them.

The motion to dismiss is denied and the defendant is found guilty of the charge of violating R. S. 39 :3—40; N. J. S. A. 39 :3-40, in that he did operate a motor vehicle on Willowdale Avenue, a public highway in the Town of Montclair, on June 14th, 1943, after his license to do so had been revoked. He is fined the sum of $100, in default of the payment of which he shall be imprisoned in the Essex County jail for a period of twenty days.


source: Caselaw Access Project

author: Rosecrans, C. P. J.

license: Public Domain

text:
    Warren County Orphans Court.
    IN RE NIXON'S ESTATE.
    Decided March 29, 1943.
    For the appellant William Nixon, Lewis S. Beers and William P. Tollman.

    For the executor and respondent, Francis L. Thompson, and for Jeanne Lommason, legatee, Byman IIerr and Wesley L. Lance.

    For Delilah Aagaard and Harriet Little, legatees, Wilbur M. Bush and W. Beading Gebhardl.

    For Carrie M. Nixon, guardian ad litem of Joseph Nixon, residuary legatee-co-appellant, Claude IL Cook.

      For Grace Nixon, legatee, and for Grace Nixon, administratrix of Donald L. Nixon’s estate, Thomas Kelly, Jr.

    For the surrogate as guardian ad litem of Donald Nixon, Grace Helen 'Nixon and Charles Nixon, minor children of Grace Nixon, and for William Nixon, in military service, Andrew Varga, Jr.

   Rosecrans, C. P. J.

This is an application for the settlement of the decree and'for the allowance of counsel fees and expenses in a will contest. On appeal from probate pursuant to N. J. S. A. 3 :2-52, and following the taking of proofs, an opinion was filed sustaining the allegation of the contestant that the will was the product of undue influence exercised by decedent’s attorney, Francis L. Thompson, the executor and a legatee, and that probate should be denied.

The statute governing the allowance of costs and expenses of such litigation is N. J. S. A. 3 :2—51. A number of counsel were concerned not only for the contestant and the executor-proponent but also for certain legatees and other interested parties. Application for fees is made by all counsel.

In a contest over probate, as is usual in a judicial proceeding, there are but two opposing parties litigant: Those contesting are on one side, and the others, “not having appealed, * * * can only be heard in support of the decree below.” Mary Hynes’ Will, 69 N. J. Eq. 485; 60 Atl. Rep. 951, 952; Id., 71 N. J. Eq. 306; 71 Atl. Rep. 1134. Cf. In re Cool’s Estate, 19 N. J. Mis. R. 236; 18 Atl. Rep. (2d) 714. These others include the necessary* parties cited, as well as proper parties interested as legatees or next of kin who may become concerned in the controversy by appearing and taking part. Bioren v. Nesler, 76 N. J. Eq. 576; 74 Atl. Rep. 791; In re Myers’ Estate, 69 N. J. Eq. 793; 64 Atl. Rep. 138. The costs statute, supra, refers only -to “the contestant” and “the proponent.” Therefore, counsel fees in a will contest should be aggregate allowances for each side regardless of the number of counsel involved. The fees may be divided among the counsel.

On the part of the proponent and other proper parties the total counsel fees requested amount to $3,500. The contestant as the successful party prays for an allowance of $2,800. No proofs have been offered particularizing the services rendered (except a generalized statement furnished on behalf of one counsel which is not informative as to the nature and extent of his services). In the absence of other evidence the only guide to the extent and value of the services is the record.

The general rule for the admeasurement of counsel fees is based upon: (1) The time and labor expended, depending upon the experience and ability of counsel; (2) the results accomplished in relation to their importance to the estate and the parties; (3) the magnitude of the interests involved and the consequent responsibility imposed; (4) any special circumstance affecting the service. Franklin, &c., Co. v. Anderson Co. 105 N. J. Eq. 542; 148 Atl. Rep. 792; In re Turnbull’s Estate, 1 N. J. Mis. R. 41; 5 Am. Jur., Attys. at Law, § 198; 9 A. L. R. 257, annotation. There was some preparation of the factual questions on both sides, but the applicable legal principles were fairly certain. No trial brief as directed by rule 48 of the Orphans Courts, N. J. S. A., tit. 2, was furnished by any counsel. The hearing required but one day. The assets of the estate total about $50,000. The successful contestant is of course entitled to counsel fees and expenses. The practice generally has been to make an allowance out of the estate to an executor-proponent and other proper parties joining, even though they be unsuccessful.

Consideration of all the circumstances and the pertinent rules leads to the conclusion that a reasonable counsel fee for each side is $750.

The allowance to the respondents will be divided as follows:

Messrs. Herr and Lance ....................... $500.00
Messrs. Bush and Gfebhardt each $75 ............. 150.00
Mr. Kelly ................................... 50.00
Mr. Varga................................... 50.00
Total $750.00

The allowance to the appellant shall be:

Messrs. Beers and Tallman..................... $700.00
Mr. Cook.................................... 50.00
Total .................................. $750.00

The expenses of the respective parties and the counsel fees so allowed should be taxed as part of the costs and be paid out of the assets of this estate.


author: McGrath, C. P. J.

text:
    Union County Court of Common Pleas.
    WHITE ET AL. v. PUBLIC SERVICE CO-ORDINATED TRANSPORT ET AL.
    Decided March 3, 1943.
    For the plaintiffs, Eugene A. Liotta.

    For the defendant Public Service Co-ordinated Transport, Henry H. Fryling.

   McGrath, C. P. J.

The jury returned a verdict as follows: “We find Max Kreisberg guilty.” Public Service Co-ordinated Transport argues that this is a complete verdict though informal in form. The court may mould a verdict when it is obvious that the jury intended a complete disposition of the issues, but in such cases the judge is merely carrying out the intention of the jury. The judge cannot perform any of the jury’s functions in order to perfect an incomplete or incongruous verdict. Here the jury may have meant to find the defendant Max Kreisberg guilty of negligence, or it may have gone further and considered the liability of both defendants and concluded that the negligence of Kreisberg was the sole cause of the collision, but this is only guesswork and the judge is not permitted to guess at what the jury may have meant.

The verdict is also incongruous since if the jury had intended to find Kreisberg guilty of negligenec which was the sole cause of the collision, they naturally would have gone further and fixed the damages against him. The fact that they did not fix damages is inconsistent with a finding that his negligence alone caused the collision, and indicates that the jury did not completely dispose of the issues. A mere finding of “guilty” disposes of nothing. It does not comprehend i the whole issue and is in disregard to the court’s instructions.

It is thereupon ordered that the verdict heretofore rendered in the above-entitled cause be and the same is set aside and for nothing holden, and that a new trial of the matters in issue in said cause be granted in accordance with the rules of the court.

It is further ordered that costs of this motion shall abide the event of this suit.


author: Bandall, D. C. J.

text:
    District Court of the First Judicial District of the County of Bergen.
    HOME OWNERS' LOAN CORPORATION, A BODY CORPORATE OF THE UNITED STATES, PLAINTIFF, v. ERNEST ARIANS AND MARGARET M. ARIANS, HIS WIFE, DEFENDANTS.

      For the plaintiff, Florence North-Allard.

    Defendants appearing per se.

   Bandall, D. C. J.

The plaintiff in the cause seeks possession of premises known as 86 West Central Avenue, Bergenfield, Bergen County, Dew Jersey, now occupied by the defendants as tenants from month to month. The defendants have always paid their rent and the sole reason for the plaintiff desiring possession of the premises is due to the fact the property has been sold. The plaintiff comes into court alleging these facts in the affidavit and in addition thereto that the usual thirty day notice has been given the defendants in accordance with 2:58-22, sub d. b, Bevised Statutes of Dew Jersey, 1937; N. J. S. A. 2:58-22, subd. b. The plaintiff admits it has not complied with the rules promulgated by the Office of Price Administration on June 1st, 1943, under the authority vested in it by the Emergency Price Control Act of 1942, 50 U. S. C. A. Appendix, §§ 901, et seq., and says these rules do not apply to the Home Owners’ Loan Corporation because of Public Law 90, chapter 145, laws of the 78th Congress, approved June 26th, 1943, 57 8tat. 169.

The plaintiff has not offered proof before this court of any regulation established by the Federal Home Loan Bank Commissioner providing for obtaining possession of the premises without complying with the Office of Price Administration regulations.

The act cited supra was purely a war measure designed to prevent inflation of rents in defense-rental areas due to the usual congestion in those areas by reason of the concentration of war industries. The pertinent part of the regulations in so far as the present case is concerned is as follows :

“Bemoval or eviction of a tenant of the vendor, for occupancy by a purchaser who has acquired his rights in the houseing accommodations on or after the effective date of regulation (or on or after October 20th, 1942, where the effective date of regulation is prior to that date, or on or after November 6th, 1942, for housing accommodations within the Hastings Defense-Rental- Area) is inconsistent with the purposes of the act and this regulation and would be likely to result in the circumvention or evasion thereof, unless (i) the payment or payments of principal made by the purchaser, excluding any payments made from funds borrowed for the purpose of making such principal payments, aggregate 33 1/3% (since by regulation reduced to 20%, parenthesis mine) or more of the purchase price, and (ii) a period of three months has elapsed after the issuance of a certificate by the Administrator as hereinafter provided. For the purposes of this paragraph (b) (2), the payments or principal may be made by the purchaser conditionally or in escrow to the end that they shall be returned to the purchaser in the event the Administrator denies a petition for a certificate. If the Administrator finds that the required payments of principal have been made, he shall, on petition of either the vendor or purchaser, issue a certificate authorizing the vendor or purchaser to pursue his remedies for removal or eviction of the tenant in accordance with the requirements of the local law at the expiration of three months after the date of issuance of such certificate.

“In no other case shall the Administrator issue a certificate for occupancy by a purchaser who has required his rights in the housing accommodations on or after the effective date of regulation (or on or after October 20th, 1942, where the effective date of regulation is prior to that date, or on or after November 6th, 1942, for housing accommodations within the Hastings Defense-Rental Area) unless he finds (i) that the vendor has or had a substantial necessity requiring the sale and that a reasonable sale or disposition of the accommodations could not be made without removal or eviction of the tenant, or (ii) that other special hardship would result, or (iii) that equivalent accommodations are available for rent, into which the tenant can move without substantial hardship or loss; under such circumstances the payment by the purchaser of 33 1/3% (now 20%, parenthesis mine) of the purchase price shall not be a condition to the issuance of a certificate, and the certificate may authorize the vendor or purchaser, either immediately or at the expiration of three months, to pursue his remedies for removal or eviction of the tenant in accordance with the requirements of the local law.”

It is at once apparent upon reading of the Act of Congress authorizing the formulating and enforcement of these rules that the same is a war measure and as such is a power vested in Congress under its enumerated powers. Article 1, section 8, United States Constitution, subsections 10 and 17, the latter section being a general power to make laws carrying into execution its other powers. Ex parte Ourtis, 106 U. S. 371; 1 S. Ct. 381.

The law under which the plaintiff contends exempts it from complying with the regulation established by the Office of Price Administration is a part of the “Independent Offices Appropriation Act 1944, chapter 145, Public Laws 90, approved June 26th, 1943, making certain appropriations to various federal agencies for the fiscal year 1944. In particular it makes an appropriation to the Federal Home Loan Bank Board, Federal Savings and Loan Insurance Corporation and Home Owners’ Loan Corporation. A reading of the bill discloses it is purely an appropriation for the operation of these agencies. The act has not even a taint of being a war emergency measure. In the bill is tacked the following proviso: “Provided further, that notwithstanding any order of regulation issued by the Office of Price Administration, the Home Owners’ Loan Corporation is authorized to dispose of any real property to which such corporation has title upon such terms and conditions as the Federal Home Loan Bank Commissioner determines will expedite the orderly liquidation of such real property.” 57 Stat. 186; 12 U. S. C. A., § 1463, note.

Unless the Act of Congress supra is a war measure or one to carry into execution a war measure, by what authority is this proceeding brought before this court exempting the plaintiff from compliance with the O. P. A. regulations in the same manner as any other corporation or citizen of the United States ?

Article 10, United States Constitution, provides as follows:

“The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or the people.” Under the Tenth Amendment to the Constitution every state of the Union or the people possess every power of civil government, the exercise of which, is not in conflict with the powers delegated to the United States or prohibited to the states. United States Fidelity and Guaranty Co. v. Bramwell, 108 Or. 261; 217 Pac. Rep. 332; 32 A. L. R. 829.

Due to the conditions which have arisen because of present war and its far reaching effects its citizenry must forego for the duration of this war many of the liberties, privileges and comforts so sacred to every free man. The surrender of the rights must even in these perilous times be based upon reason and must be justifiable. Lot us analyze the condition which exists by the United States Government applying two sets of rules to its citizens. The Home Owners’ Loan Corporation has a tenant in one of its houses. That same tenant must move upon thirty days’ notice. The tenant who was to be protected by a law passed because of national emergency actually finds himself with his family and his household goods deprived of shelter or compelled to store his goods. It will take him at east three months and perhaps four or even five months to gain possession of premises he desires to occupy.

I am firmly convinced it was neither the design nor intent of Congress in the passage of chapter 145, Public Laws 90 of the 78th Congress to grant any special privilege or immunity to the Home Owners’ Loan Corporation in the compliance with the provisions of the rent regulations in the dispossession of tenants as it would be contrary to the general purpose for which Congress established the Office of Price Administration, giving to that office very broad administrative powers.

There is no proof before this court the Federal Home Loan Bank Commissioner has established any rule providing for the dispossession of tenants occupying houses sold by the Home Owners’ Loan Corporation without the compliance with the O. P. A. regulations supra.

I am of the opinion the proviso contained in chapter 145, Public Laws 1943, authorizing the Federal Home Loan Bank Commissioner to dispose of real property upon such terms and conditions as the Federal Home Loan Bank Commissioner determines, does not exempt the Home Owners’ Loan Corporation from complying with the regulations as to the dispossessoin of tenants.

I am of the opinion that if Congress did intend to vest the Federal Home Loan Bank Commissioner with authority to establish regulations contrary to the provisions of section 6 of the O. P. A. regulations, in so far as the same applies to the dispossession of tenants is concerned, it is unconstitutional in that it vests the Federal Home Loan Bank Commissioner with powers which are not carrying out the prosecution of the war or a war emergency measure and therefore is an invasion of a private right which can only be regulated by the State.

Therefore, for the above reasons application of the plaintiff for possession of the demised premises will he denied.


author: Ltnsnsr, D. C. J.

text:
    Third Criminal Judicial District Court of Hudson County.
    STATE OF NEW JERSEY v. HUMBERT BETTI.
    Decided September 29, 1943.
    For the state, on behalf of complaining witness, Wilbur X. Boss.

    For the defendant, Nicholas 8. ScMoeder.

   Ltnsnsr, D. C. J.

Madio Biceelli, a resident of the Town of West New York, made a sworn complaint in this court, charging that on or about June 16th, 1943, Humbert Betti, the defendant herein “being then and there the tenant in possession of store premises known as No. 319-70th Street in the Town of Guttenberg, County of Hudson and State of New Jersey, did then and there have in his possession in said premises a device in the nature of a slot machine, which may be used for the playing of money or other valuable things, contrary to N. J. R. S. 2:135—2.” This statutory provision provides that “Any person who shall have or keep in his place of business, or other premises, any slot machine or device in the nature of a slot machine, which may be used for the playing of money or other valuable thing, shall be guilty of a misdemeanor.”

The defendant was arrested on a warrant in the store described in the complaint, and a device in his possession commonly known and described as a pin ball machine was seized. He was represented by counsel, pleaded not guilty, and elected to stand trial in this court, by waiving his right to indictment and trial by jury.

Because of the absence of the Prosecutor of the Pleas, or his representative, the court permitted the attorney for the complaining witness, as amicus curia, to prosecute on behalf of the state.

The complaining witness testified that on the day he made the complaint, he saw the defendant and the seized pin ball machine, in the store at 319 Seventieth Street, Guttenberg, and that later that day, he accompanied the sergeant-at-arms of this court to the store, where they found the defendant, who admitted that he occupied the store as a tenant and was the owner of the pin ball machine involved. On cross-examination, the witness stated he had not seen anyone actually playing the pin ball machine.

The sergeant-at-arms testified that the defendant had told him that “a couple of group's of people had been in the store to play the machine since he put it in,” in all other aspects his testimony corroborated that given by the complaining witness.

The small store in which the pin ball machine was found was open to the public, and appears to have contained nothing but the machine itself. It was located about a block and a half distant from a public school, in a neighborhood of stores and dwellings. There was no sign on it to indicate the name of its proprietor, or the nature of the business conducted therein.

The pin ball machine was received in evidence and was found to consist of a frame, rectangle cabinet with legs at the comers elevating it to a horizontal, waist-high position with one end slightly higher, so that an incline surface was provided. At the higher end and rising at right angles thereto, was a glass panel scoring board, containing two rows of figures arranged in arithmetical multiples of 1,000 and 10,000. The top of the cabinet was encased in a glass frame displaying a depressed playing surface on which was prominently depicted in a garish manner, patriotic subjects, such as the Lexington Minuteman and units of the United States fighting services and the slogans “Buy Defense Bonds and Stamps” and “Buy Bonds.” Arranged about the playing surface were transparent mushroom shaped contact points in various bright colors. The machine was placed in operation by the injection and deposit in the cabinet of a five cent piece which had been placed in a coin slot provided therefor at the front of the machine. This made available for play five metal balls which were propelled one at a time to the elevated end of the playing surface by the player drawing back and releasing a spring plunger. The balls motivated by gravity then rolled down the playing surface through spaces provided for their passage, striking some of the contact obstructions, thereby establishing electrical connections which caused a succession of lights to Hash on and off, bells and buzzers to sound and scores to light up on the score board, until the balls finally came to rest in a trough at the lower end of the board. If the balls struck all of the seven contact points arranged in the shape of a “V,” identified by the letters “Defense,” the score was doubled. The object of the game was to obtain a high score, and the point from which the balls start their meandering course was determined by the distance the plunger was withdrawn before being 'released.

Three patented keys, giving access to the interior of the cabinet where the machine’s mechanism and coin cache were located, were also received in evidence.

With the exception that the machine’s mechanism was not set to make available the playing of free games and no means were provided for the rendering of any other reward the machine was substantially of the same construction as those described in Hunter v. Teaneck, 128 N. J. L. 164; 24 Atl. Rep. (2d) 553, and in Stafford v. Garrett, 128 N. J. L. 623; 28 Atl. Rep. (2d) 289. Utilizing a patriotic decore as a decoy the machine for all practical purposes appeared to be nothing more than a glamorized version of the pin ball games with which the public is already well acquainted.

The defendant testified on his own behalf that the machine was sold to him by its manufacturer, the Genco Manufacturing Co., of 2621 Worth Ashland Avenue, Chicago, Illinois, as a purely amusement device, which was incapable of rendering any prizes, or being used for gambling, or its furtherance and fully complied with the anti-gambling laws of the different states. He demonstrated, by actual play, the operation of the machine. There was received in evidence on his behalf, without objection, a certified copy of an ordinance of the Town of Guttenberg licensing the ownership and operation of pin ball machines and a copy of a United States tax report made for the machine as a coin operated amusement and gaming device.

On cross-examination, the defendant played the machine blindfolded and attained no appreciable different scores than those he had received when not so handicapped.

The state offered in rebuttal, instructions furnished by the manufacturer of the machine to the defendant, which described several simple methods of making adjustments in the machine’s mechanism, so that when certain high scores were made the player would be rewarded with from one to three free games.

The fundamental question presented for decision is whether or not, the keeping of a pin ball machine for the use of the public in store premises, constitutes a violation of the statute, where there is no proof that the machine had been used or was intended for use for gambling purposes, and where it contained no device for the recording or paying of a reward, although capable of being readily converted to provide free replay privileges.

It was contended that the statute, enacted in 3898, does not contemplate this contemporaneous type of pin ball game. Modernized versions of the game of bagatelle have been held to be comprehended in like statutes, Territory v. Jones, 14 N. M. 579; 99 Pac. Rep. 338; 20 Ann. Cas. 131, and the legislature has forestalled attempts to circumvent its provision as in the case at bar by the use of the broad language “Any slot machine or device in the nature of a slot machine, or with any other instrument, engine, apparatus or device having one or more figure or figures, number or numbers thereon * * N. J. S. A. 2:135-1.

Hunter v. Teaneck, supra, the leading case in this state on the subject of pin ball games and the case of Stafford v. Garrett, supra, which follows it, while holding that pin ball games are games of chance, and, therefore, gaming devices within the meaning of the statute, do not dispose of the question presented, as in both of these cases, the pin ball games involved awarded free games, and it is contended that by the elimination of this feature, the machine is rendered an innocuous device of amusement and recreation.

We find it difficult to believe that the pin ball machine involved, kept in a store located near a public school, was intended for use merely as an innocent “pastime and pleasing game.”

The courts of this state are fully aware of the prevailing utilization of pin ball games for the vicious exploitation of the young, the idle, the improvident and the unwary, and this court cannot close its eyes to the repeated ingenious attempts to so modify the design or operation of pin ball games so as to take them out of the statutory prohibition and thereby make available to the unscrupulous the rich profits available from this illicit source. The courts look to the substance of the game, under whatever guise it is conducted, Smith v. State, 17 Tex. 191, and the law will reach beyond the outer form and take hold of the substance of the thing itself. “Ho dressing, however adroit can make legal that which is illegal,” State v. Berger, 126 N. J. L. 39, 43; 17 Atl. Rep. (2d) 167, 169, and the pin ball game involved can best be described in the forceful language used by Mr. Justice Perskie in the Teaneck case, “The pin ball machines involved are nothing but ingeniously designed and purposefuly constructed mechanical gaming devices to appeal to, induce, lure and encourage the gaming instinct in the public generally and children particularly.” The test of illegality is “does the machine encourage the gambling instinct?” State, ex rel. Dussault v. Kilburn (1941), 111 Mont. 400; 109 Pac. Rep. (2d) 1113.

The evidence has established that the pin ball machine involved is a device for the playing of a game of chance, as the results obtained from its play are determined by luck and not by “adroitness, practice, skill or judgment in play,” Neal’s Case, 22 Graft (7a.) 917, and chance rather than skill is the dominant element involved therein. People v. Lavin, 179 N. Y. 164; 71 N. E. Rep. 753; Commonwealth v. Plissner (1936), 295 Mass. 457; 4 N. E. Rep. (2d) 241.

It is further contended that the mere possibility of converting a pin ball machine into one which will afford free games does not bring it within the scope of the statute The public policy of our state against gambling in all forms is enunciated in article IY, section 7, paragraph 2 of our constitution, which outlaws games of chance in any form and all gambling devices. The statute is intended to adequately implement the constitutional mandate and “to strike at the evil in its inception by a measure that is primarily preventative in character,” State v. Murzda, 116 N. J. L. 219, 226; 183 Atl. Rep. 305, 309, it is the patent intention of the legislature to discourage and repress gambling by eliminating the machines manufactured or sold for gambling purposes, and the law is to be construed so as to accomplish the suppression of the mischief against which the statute is directed. People v. Gravenhorst, 32 N. Y. S. (2d) 760.

Until 1934, the law of Uew York State condemned slot machines as gambling devices only when- they contained means of emitting something of value. Our statute, on the other hand, has never contained any such limitation. “The life of the law has not been logic, it has been experience,” and our courts have given our statute a content sufficient to meet “the felt necessities of the time, the prevalent moral— theories, intuitions of public policy * * *” and have thereby obtained substantially the same result secured by the enactment of the amendment to section 982, paragraph 2 of the Penal Law of New York which declares a pin ball game to be illegal “* * * If it is one that is adapted or may readily be converted into one that is adapted, for use in such a way that as a result of the insertion of any piece of money or coin or other object such machine or device is caused to operate, or may be operated by reason of any element of chance, or of other outcome of such operation unpredictable by him, the user may receive or become entitled to receive any piece of money, credit, allowance or thing, of value, or any check, slug, token or memorandum, whether of value or otherwise, which may be exchanged for any money, credit, allowance or thing of value, or which may be given in trade, or the user may secure additional chances, or rights to use such machine, apparatus or device; irrespective of whether it may apart from any element of chance or unpredictable outcome of such operation, also sell, deliver or present some merchandise, indication of weight, entertainment ‘‘ or other thing of value.”

If a pin ball machine will render free games after simple changes are made in its mechanism it is a gambling device. Triangle Mint Corp. v. Mulrooney, 232 App. Div. 783; 248 N. Y. S. 880. What can be done with the machine to make it a gambling device is the criterion for determining its true character. People v. Fitzgibbons (1942), 33 N. Y. S. (2d) 377.

The licensing of the pin ball machine under the provisions of an ordinance of the Town of G-uttenberg and the imposition of a tax thereon as a coin operated amusement and gaming device under the Federal Revenue Act, 26 U. S. C. A. Int. Rev. Code, § 3267, does not legalize its possession. Hunter v. Teaneck, supra, 128 N. J. L. 169; 24 Atl. Rep. (2d) 553,

It was urged on behalf of the defendant that the mere playing of the machine did not constitute the playing of a “valuable thing.” Anything which affords the lure to indulge the gambling instinct, is a valuable thing within the meaning of the statute, Hunter v. Teaneck, supra, and “amusement” is a thing of value, People v. Gravenhorst, supra, and it has been held repeatedly that the chance of receiving the privilege of continuing amusement of this kind without charge is a valuable thing, State v. Baritler, 131 Me. 285; 161 Atl. Rep. 671; Myers v. Cincinnati, 128 Ohio St. 235; 190 N. E. Rep. 569; Colbert v. Superior Confection Co., 154 Okl. 28; 6 Pac. Rep. (2d) 791; Harvie v. Heise, 150 S. C. 277; 148 S. E. Rep. 66; Painter v. State, 163 Tenn. 627; 45 S. W. Rep. (2d) 46.

A pin ball machine, when adapted, as in the instant case, for conversion into a “free play” machine, violates the statute. People v. Bitter (1942), 32 N. Y. S. (2d) 176; People v. Boxer (1940), 24 N. Y. S. (2d) 628.

The defendant relies strongly on a ease decided January 28th, 1943, in the Superior Court of Pennsylvania, In re Wigton, 151 Pa. Super. 337; 30 Atl. Rep. (2d) 352, which holds that pin ball games are not gambling devices merely because they provide free play, which in its opinion is not a “valuable thing.” Even if it were not for the decisions in Hunter v. Teanech, supra, and Stafford v. Garrett, supra, we would be disinclined to follow this case, as the Pennsylvania Court seeks and finds a definition for gaming in its own Criminal Code, § 605, 18 P. S. Pa., § 4605, which excepts from its provisions “games of recreation * * * such as * * * bagatelle * * * where no betting is allowed” and holds therefore that its authority to destroy such machine exists only where it is “satisfied that such * * * machine was employed and used for the purpose of unlawful gaming * * *,” and the court therein frankly admits that the courts of other states may well reach another conclusion where the statute to be interpreted or the public policy to be enforced differs from theirs.

The defendant’s intention as to his contemplated use of the pin ball machine is immaterial, People v. Fitzgibbons, supra, and proof is not necessary that gambling has actually taken place, or that a wager has been made or a pay-off obtained. The statute makes the mere public possession of a pin hall machine illegal.

The pin ball machino involved is deserving of the severest condemnation, in addition to its other reprehensible features, it has the effrontery to utilize the patriotic appeal to “Buy Bonds” to divert money which might well be used for this laudable purpose into the coffers of the unscrupulous, who for their own selfish gain would debase and pervert every public and private virtue.

Therefore the defendant is found guilty of publicly possessing a device in the nature of a slot machine which may be used for the playing of valuable things, and he is sentenced to pay a fine of one hundred ($100) dollars or bo imprisoned for thirty days in the Hudson County penitentiary and the pin ball machine involved is ordered destroyed as directed by statute.


text:
    New Jersey Department of Labor, Workmen’s Compensation Bureau.
    WALKER v. IGOE BROS., INC.
    Decided March. 8, 1943.
    For the. petitioner, David Boslcein.

    For the respondent, George E. Meredith.

   A petition was filed and served in the above entitled matter praying for compensation under the provisions of R. 8. 34:15-7, et seq.; N. J. S. A. 34:15-17, et seq.j and an answer was duly filed by the respondent. The matter came on for hearing before me in Newark at which time the petitioner was represented by David Eoskein, Esq., and the respondent by George E. Meredith, Esq.

The case proceeded to trial and at the end of the respondent's case the petitioner asked leave to produce a further witness. Apparently some difficulty was encountered in locating this witness because the matter was carried along for a considerable length of time before I was advised that both sides had rested.

Because of this lapse of time I was reluctant to rely entirely on my own written notes in reaching my conclusions, and for that reason a complete transcript of the record was furnished me. I have carefully analyzed my notes in the ease, and I have read the transcript of testimony of the various witnesses before reaching the conclusions hereinafter stated.

The testimony indicates that the petitioner on January 16th, 1939, caught his right hand between the handle of a truck which he was pushing and a door which was opened by someone as he passed it.

Immediately following this occnrrence the petitioner went to the first aid room, unassisted, where he reported to the first aid man. This man looked at the petitioner’s hand, found nothing wrong with it, and although the petitioner claims that his arm was rubbed with some liquid, the first aid man testified that he did nothing at all for the petitioner because he observed no injury whatever.

After being in the first aid room for a few minutes the petitioner left and returned to his department. The petitioner testified that he rested behind a bundle of wire for about an hour after which he resumed his duties for the rest of the day, which was Monday, and continued at his work until regular quitting time on the succeeding days until Friday night.

The petitioner testified that lie did no more lifting after this accident, but this statement was sharply contradicted by his fellow workers including the petitioner’s son, who testified that Ms father had done his regular work as a floorman after the accident.

The petitioner received no medical treatment until about a week after this occurrence when Dr. Benjamin Fenichel was called to his home. At that time the doctor found the petitioner sitting up in a chair complaining of pain in the chest. It appears from other evidence in the case that the petitioner had pains in his chest and across his back and shoulders prior to the incident above described.

The only fact in the ease which does not seem to be in serious dispute is the diagnosis. The doctors and experts appearing for both sides testified that the petitioner suffers from an aneurysm of the aorta which pre-existed the accident, and which was caused by a chronic syphilitic condition of long standing.

On this state of facts the respondent by its attorney moved for a dismissal of the petition on the grounds:

1. That the respondent had no knowledge or notice of an accident or injury by accident witbin ninety days after its alleged occurrence.

2. That the petitioner failed to sustain the burden of proving the type of accident on which he relies, in view of his total failure to corroborate the essential parts of his claim.

3. By the clear weight and quality of the medical testimony that the petitioner’s condition was not shown to have been-caused or aggravated by trauma.

The petitioner, in presenting his ease, relied very strongly, if not entirely, on his own description of the type of accident that he suffered and the subjective complaints which he gave in his testimony. The petitioner’s testimony was to the effect that he caught his entire hand, arm and chest between the truck handle and the door, and that in an attempt to extricate himself from this position he was required to jerk his arm violently, and that as a result of this experience he found himself in a state of severe shock, was seared to death and was required to rest for at least an hour before being able to resume any type of employment. However, this testimony finds no substantial corroboration in the testimony of any of the other witnesses in the case. I, therefore, find as a fact that the only injury suffered by the petitioner was a blow to the hand which left no marks of any kind such as a swelling, bruise or laceration, and I further find from the more credible testimony that no other part of the petitioner’s body was involved in the accident. I find also from the more credible testimony in the case that the petitioner at the time of and following this occurrence was not in a state of shock.

The petitioner’s doctors in reaching their conclusions quite naturally relied upon the description given them in the hypothetical question which included all of the serious complaints alleged by the petitioner, such as a striking of .the chest and a straining of the arm and a condition of shock. Basing their opinions on this premise, which, as already indicated, I find to be false, the petitioner’s doctors took the position that a pre-existing aneurysm was aggravated by the accident so as to bring on the petitioner’s present condition of serious, if not total, disability.

The petitioner’s two medical experts, Dr. Otto Lowy and Dr. Irving L. Applebaum, freely admitted during the course of their cross-examination that if the petitioner merely bumped his hand, and if the symptoms of shock and intense pain in the arm and chest were eliminated, then they would have to conclude that the petitioner’s condition was not the result of this accident.

This latter view is expressed by Dr. Lowy in the following quotation from his testimony:

"The court: If the man had merely pain in his hand, then I am satisfied from the doctor’s testimony that that is not the type of pain that can be attributed to the condition.

"The witness: That is correct.

"The court: It is a tearing, sharp, intense pain in the entire length of the arm, the shoulder, and chest?

“The witness: That is correct, sir. If that is not true, then I have been misled and I will have to say that there is no causal relationship between this alleged accident and his present condition.”

In this connection Dr. Applebaum expressed himself as follows:

“Q. If we are able to show here that the man was not struck in the chest, merely had a bump on the hand, not severe enough to cause an abrasion or any break in the skin, that would not have any effect on the aneurysm in the absence of shock?

“A. I doubt that very much; I don’t think it would.”

The respondent’s physicians took the position that the petitioner was suffering from the natural end results of a preexisting aneurysm of the aorta caused by a chronic longstanding syphilitic condition. I was particularly impressed by the logic and the clearly stated reasons for reaching his conclusion as given by Dr. Arthur M. Masters, a cardiologist, who appeared for the respondent. This witness, who had the benefit of X-rays and electrocardiograms to assist him in reaching his conclusions, stated that the petitioner presented a “classic” picture of a long-standing syphilitic aneurysm. The doctor testified further that the accident did not aggravate the aneurysm, because the only effect that trauma could have on an aneurysm would be to create a tear or rupture, and if that occurred, the petitioner at the time would have been “sick unto death” and would have bled to death in a very short time.

On cross-examination this witness was asked if it were not possible for a very slight tear to have occurred so as to create a slow oozing of blood from the aneurysm. The witness, admitting this possibility, stated, however, that in that event the blood would naturally back up into the heart, because it would have no other place to go, and that would create an enlargement' of the heart which was not evident from the X-ray plates. The doctor stated that the heart was normal in size.

I have given this ease unusual thought and study because of its seriousness. After considering the various elements in dispute and having in mind the demeanor of the various witnesses who appeared, I am firmly of the opinion that any injury suffered by the petitioner while in the service of the respondent was of a minor and trivial character. I am satisfied from the clear weight and quality of the medical testimony adduced that the petitioner is now suffering from the end results of a pre-existing aneurysm of syphilitic origin, and that the trifling accident which he suffered while in the employ of the respondent did not contribute in any way to this pre-existing disease, nor did it aggravate it.

I, therefore, find as a fact that the petitioner met with a very minor accident involving his right hand on January 16th, 1939, that the accident caused no temporary disability, and resulted in no permanent disability.

In view of the foregoing, it becomes unnecessary for me to pass upon the other grounds for dismissal urged by the respondent.

My conclusions as above expressed find ample support in the very recent case of Jones v. Newark Terminal and Transportation Co., 128 N. J. L. 190; 24 Atl. Rep. (2d) 564, 566; affirmed, Jones v. Court of Common Pleas of Essex County, 129 N. J. L. 58; 28 Atl. Rep. (2d) 96. The facts in that case are strikingly similar. There the employee suffered an accident which caused a laceration of the scalp requiring sutures. He resumed work within an hour or two and continued thereafter for a period of about two weeks, and was found dead at his place of employment at the end of that period. It was established that death was the result of a spontaneous rupture of an aortic aneurysm.

In commenting upon the facts presented in the case of Jones v. Newark Terminal and Transportation Co., supra, Mr. Justice Heher stated in part: “Even if the evidence were in equipoise, prosecutrix could not prevail. To warrant a recovery, it is essential that the evidence preponderate in favor of the tendered hypothesis. That must be a rational inference, i. e., such as is based upon a preponderance of the probabilities according to the common experience of mankind. It is required to be a probable or more probable hypothesis with reference to the possibility of other hypotheses. This is the accepted standard of persuasion governing the triers of the facts. The law does not proceed to judgment on pure surmise. Jackson v. Delaware, Lackawanna and Western Railroad Co., 111 N. J. L. 487; 170 Atl. Rep. 22; Gilbert v. Gilbert Machine Works, Inc., 122 N. J. L. 533; 6 Atl. Rep. (2d) 213; Jaeger v. Elizabethtown Consolidated Gas Co., 124 N. J. L. 420; 11 Atl. Rep. (2d) 746; Auten v. Johnston, 115 N. J. L. 71; 178 Atl. Rep. 187. To hold on the evidence adduced that the industrial accident was the producing cause of death would be the merest conjecture.”

My thoughts and conclusions with respect to the evidence here adduced are aptly expressed in the opinion of the court in the ease of Wolf v. National Grocery Co., 13 N. J. Mis. R. 650; 182 Atl. Rep. 625, 626, in the following language: “Erom a study of all the evidence, it is manifest that the lifting of the carton of groceries and the pain of the initial attack of the disease were merely coincidental. The strain of lifting had no causal relation to the petitioner’s condition. The inflammation had matured. He would have been seized with the attack regardless of the activity in which he was engaged at the time. He suffered the affliction despite the lifting, not becasue of it.”

In view of the foregoing, it is on this 8th day of March, ordered that the petition be and the same is hereby dismissed without cost to cither party.

Habry S. Mebentets, Deputy Commissioner.


author: Eustkead, C. C. J.

text:
    IN THE MATTER OF THE CONTEST OF THE ALLEGED ELECTION OF JOSEPH L. DONAHAY, TO THE OFFICE OF SURROGATE OF MONMOUTH COUNTY, STATE OF NEW JERSEY.
    Decided August 2, 1943.

      For tlie contestant, J. Vidor Carton, John M. Pillslury and Charles Franlcel.

    For the incumbent, Ward Kremer and Joseph F. Mattice.

   Eustkead, C. C. J.

At the general election held in Monmouth County, New Jersey, on November 3d, 1942, Joseph L. Donahay was declared elected as surrogate of Monmouth County by a margin of 84 votes. His opponent, E. Donald Sterner, thereupon proceeded to recount 80 of the 153 election districts in Monmouth County. As a result of the partial recount, Donahay’s plurality was reduced to a total of 14 votes.

Sterner then initiated this proceeding in the Circuit Court, contesting Donahay’s election in accordance with the provisions of R. S. 19:29—2, et seq.; N. J. S. A. 19:29—2, et seq. In his petition, the contestant alleged that there had been malconduct, fraud or corruption on the part of the members of the district board of the third district of the third ward of the City of Long Branch, and contended that the entire vote east for the office of surrogate in said district should be rejected and eliminated.

Donahay filed an answer denying the- allegations of fraud set forth in the petition. He also filed a counter-claim in which he alleged that there had been gross malconduct, fraud and corruption upon the part of the members of the district boards in the first, second, third and fourth election districts of the Borough of Belmar; as a result of which, Donahay sought to have the votes cast for surrogate in those four districts set aside and rejected. The incumbent also alleged that the Monmouth County Board of Elections had made an error in counting, canvassing and declaring the vote of men in the armed forces of the Dnited States at said election, and that the Board of Elections did not determine, prior to counting and canvassing the said vote, whether the members of the armed forces were registered or not, as required by law.

. The same rule and principle of law applies with equal force to the Long Branch and Belmar phases of the instant case. Therefore, these two issues can be considered jointly. In the Long Branch phase, the tally by the district board at the close of the election gave Donahay 294 votes and Sterner 77. In the recount of the Long Branch district, Donahay’s total was reduced from 294 to 264, and Sterner’s total was increased from 77 votes to 85. The recount therefore uncovered the fact, that Sterner had been defrauded to the extent of 38 votes in the original tally.

In his contest in the Circuit Court, the contestant proved conclusively that 45 fraudulent votes had been received and counted by the board in the Long Branch district on election day. The contestant also proved that one of the election officers had taken some ballots on two different occasions, and after marking them, deposited them in the ballot box. The election officer so accused, while strenuously denying on the witness stand the charges of ballot box stuffing, frankly admitted that he had been working in the interests of the incumbent on election day, and that he was a Democratic county committeeman.

The contestant further established that the names of persons who had voted in this district had not been entered in the poll book up to 2 :30 p. mv and that, thereafter, names were written in the poll book by individuals who were not members of the election board. Several other irregularities were also proven, but the more serious violations have been heretofore set forth. At the close of the Long Branch testimony, the contestant had clearly proven the existence of fraud in the third district.

In the Belmar phase of the contest, the incumbent proved that in the third Belmar district, only one of the four election officers who had served on election day had been lawfully appointed by the Monmouth County Board of Elections; that one of the Democratic election officers who had served without legal authority had been a registered Republican in 1941; that the Republican member of the district board who had served without lawful appointment was an employee and also a tenant of the contestant. It was further established that this board had unlawfully received and counted the votes of 31 unregistered voters, and incumbent contended that the board had permitted one voter to vote who did not live in the district, and had accepted the vote of another person who did not even live in Belmar.

The incumbent contended that the irregular status of the election board in the third district was brought about by a desire on the part of Carl Schroeder, Democratic leader of Belmar, to further Sterner’s election, by substituting an election board on election day which would be amenable to the wishes of the Republican party leaders. Donahay contended that Schroeder was not interested in a Democratic victory on November 3d, 1942; that Schroeder whs interested only in furthering Sehroederis own election chances in the spring of 1943, when Schroeder was a candidate on a ticket in Belmar bracketed with Mayor Abbott, of Belmar, who is a political ally and supporter of the contestant; that Schroeder conspired with Mayor Abbott and with Sterner to aid Sterner on November 3d, 1942, in return for which Mayor Abbott and Sterner were to aid Schroeder in the Belmar election of May, 1943.

Donahay further proved that in the first, second and fourth Belmar districts, 55 unregistered voters had been permitted to vote, 10 in the first district, 7 in the second, and 38 in the fourth.

The action of the four Belmar district boards in permitting unregistered voters to vote was, of course, illegal, but the proof offered by the incumbent nevertheless failed to substantiate his allegations of fraud as to any of the four districts, furthermore, I find no merit in the charge that Carl Schroeder conspired with Mayor Abbott and the Belmar Republican leadership to aid Sterner.

The non-compliance with the provisions of the statute in the replacement of the three members of the district board in the third district is censurable and unfortunate. Schroeder was also careless in permitting a 1941 registered Republican to act as a Democratic member of the district board. Despite any dereliction on his part, however, Schroeder made a good impression on the court while on the witness stand. His testimony and that of Edward J. Ascher, vice-president of the Belmar Democratic Club, was quite convincing that while irregularities had taken place in Belmar, there was no reasonable ground to conclude that the Republicans and.Democrats there had conspired to assist Sterner at the expense of Dona-Ray. It is appropriate to note at this point that, even if the testimony offered by the incumbent had' constituted fraud in any or all of the Belmar districts, that incumbent even, under those circumstances, would not be entitled to have the entire vote cast for surrogate in any fraudulent district set aside and rejected.

In an election contest, the discovery of fraud in an election district does not ipso facto justify the rejection of the entire vote cast in that district. Where the result of the fraudulent conduct of the members of an election board can be ascertained and its effect exscinded, and the true will of the electorate determined, this should be done. The rejection of the entire vote of an election district is justifiable and permissible only, when the fraud perpetrated or permitted by a district board, is so extensive or of such a character that the correct and genuine result of the voting in that district cannot be determined with reasonable certainty. Burkett v. Francesconi, 127 N. J. L. 541; 23 Atl. Rep. (2d) 780.

Applying this rule to the Long Branch phase of the case sub judice, it is quite apparent that the entire vote of the third Long Branch district cannot be rejected. The attempt of the district board to increase Donahay’s total and to reduce Sternor’s total by a fraudulent tallying of the vote at the close of the election has been corrected and properly adjusted by the recount.

The net result of the other malconduct, on the part of the district board, as disclosed by the testimony, was the reception and counting of 45 fraudulent votes. It is not necessary to determine whether these 45 votes had been cast by means of ballot box stuffing on the part of one or more board members, or whether floaters were used. The extent to which fraud was perpetrated in the district is the important factor for the court to determine; the method used in the perpetration, so far as this contest is concerned, is of no consequence.

It was not possible, of course, for the contestant to prove that the 45 fraudulent votes had been cast and counted for Donahay, and because of that fact, the incumbent contended that the contestant’s petition must be dismissed because the Long Branch phase came squarely within the rulings of the Supreme Court in Lehlbach v. Haynes, 54 N. J. L. 77; 23 Atl. Rep. 422, and Lippincott v. Felton, 61 N. J. L. 291; 39 Atl. Rep. 646.

In Lehlbach v. Haynes, supra, 353 illegal ballots had been cast in 27 election districts in an election held in Essex County. Mr. Justice Dixon, speaking for the Supreme Court, held (at p. 80 of 54 N. J. L.; at p. 423 of 23 Atl. Rep.) : “The names of these persons and the districts in -which they voted are giten. But, there is nothing to indicate for whom they voted. Without this, the court cannot say that these illegal votes were ‘sufficient to change the result.’ * * * The presumption is with the incumbent, and we cannot assume, without evidence against that presumption, that the illegal ballots were for him rather than his opponents.”

In Lippincott v. Felton, supra, the contestant proved that votes had been east in the name of 18 registered voters in an election district; that 17 of such registered voters did not vote at all, and that the remaining voter came in, after his name had been voted on, and was permitted to vote. Chief Justice Magie, speaking for the court, held (at-£>. 295 of 61 N. J. L.; at p. 647 of 39 Atl. Rep.) : “It thus appeared that there were 18 illegal ballots received, but the evidence fell short of showing that they were cast by the persons named in the petition, or that they contained the name of respondent for the office for which he and contestant were candidates. The failure of contestant to prove that the illegal votes, which he claimed had been cast for incumbent, were cast by the p.ersons who were named in his petition, in my judgment, is fatal to his contest.”

The case sub judice must, however, be distinguished from Lehlbach v. Haynes, supra, and Lippincoit v. Felton, supra. A scrutiny of the facts set forth in each of those cases discloses that no testimony had been adduced in either case from which it might have been inferred with reasonable certainty, that the- incumbent had benefited by the fraudulent voting. But the evidence throughout the Long Branch phase conclusively demonstrated that any fraud perpetrated in the Long Branch district had been committed for the benefit of Donahay.

In an election contest, where fraudulent or illegal voting has been clearly established, it is the duty of the court, when the court can determine with reasonable certainty the number of the fraudulent or illegal votes cast, and the candidate for whom they have been cast, to strike from said candidate’s total the number of either or both types of votes, which the court firAs lies been included in said candidate’s total vote.

Since I can determine with reasonable certainty that Dona-hay was the beneficiary of the 45 fraudulent votes, I accordingly find and rule that Donahay’s total in the third Long Branch district shall be reduced from 264 votes to a total of 219 votes.

In the Belmar phase, it is merely necessary for the court to nullify the effect of the illegal actions of the four district boards there in permitting unregistered voters to cast their ballots, by eliminating from the respective totals of Donahay and Sterner, the number of illegal votes, which the court determines with reasonable certainty from the evidence were cast for the respective candidates.

In the first Belmar district, there were 10 illegal votes cast. Of this total, there were 8 Republican votes, 1 Democratic vote, and 1 vote undetermined. I therefore find and rule that Donahay’s total in this district shall be reduced from 150 votes to 149, and that Sterner’s total shall be reduced from 295 Votes to 287.

In the second Belmar district, 7 illegal votes were cast. Three of these were Republican votes, 2 were Democratic, and 2 were undetermined. Donahay’s total in this district is therefore reduced from 147 votes to 145, and Sterner’s total is reduced from 256 votes to 253.

In the third Belmar district, 31 illegal votes were east. Of this total, 26 votes were Republican, and 5 were Democratic votes. Therefore, Donahay’s total in this district is reduced from 90 votes to 85, and Sterner’s total is reduced from 235 votes to 209.

In the fourth Belmar district, 38 illegal votes were cast. Of this total, there were 28 Republican votes, 9 Democratic votes, and 1 undetermined. Therefore, Donahay’s total in this district is reduced from 147 votes to 138, and Sterner’s total is reduced from 256 votes to 228.

The sole remaining phase of the instant ease which must-be considered and determined is the contention of the incumbent, that the vote of the armed forces must be set aside and eliminated, because the Monmouth County Board of Elections failed to ascertain whether those members of the armed forces, who had voted at the election, had been registered.

The statute which conferred on absent members of our military forces the right to vote is chapter 18 of the laws of 1942, N. J. S. A. 19 :54-25, et seq. Paragraph 3 of that act, N. J. S. A. 19:54-27, is as follows:

“The purpose of this act is to afford every legally qualified voter of this State who is in active service in the military forces of this State or of the United States the opportunity to vote in any primary, general or special election held in this State or in any subdivision thereof, notwithstanding the fact that such person may be absent on said election day from the election district in which he resides, whether such person is within or without this State, or within or without the United States.”

Paragraph 4, N. J. S. A. 19:54—28, provides substantially that not later than forty days prior to any election, the Adjutant-General of ISTew Jersey shall furnish to the clerks of the various counties of this state the name and post office addresses of every qualified elector of this state, in active service in this state or of the United States.

Paragraph 5, N. J. S. A. 19 :54-29, provides that at least twenty-five days prior to the election, the county clerk shall mail a ballot to each person in active service.

The form of the ballot to be forwarded is set forth in paragraph 6, N. J. S. A. 19 :54-30. Paragraph 1, N. J. S. A. 19:54r-31, provides that with each ballot a printed copy of the law or printed directions for voting and transmitting of the ballot shall be forwarded to each of the military forces by the various county clerks.

Paragraph 9, N. J. S. A. 19:54-33, provides inter alia that, after the ballot has been filled in'by the voter, it shall be placed in an inner envelope and sealed. The sealed inner envelope shall then be placed in an outer envelope, and the voter shall then write upon the back of the outer envelope the name of the military organization to which he belongs, and the home address from which he is entitled to vote, and also a statement as follows:

"I certify that I am a duly qualified elector of the State of New Jersey, and that I reside at in the of

, in the County of , and that I am entitled to vote at the election held in the on the day of 19 .”

The voter shall sign his name below said certificate, and the certificate itself shall be witnessed by any commissioned officer.

Paragraph 11 of the act, N. J. S. A. 19:54-35, is as follows:

“The County Boards of Elections shall promptly, after receiving any ballot, make such investigation as may be necessary to ascertain whether or not the persons whose names appear on the outside of the outer envelope are legally qualified voters actually entitled to vote at such election ’’

The federal statute, 50 U. S. C. A., § 308, has abolished registration as a voting requisite for our military forces, but no such abolition is contained in the Kew Jersey statute. If this contest involved election to a federal office such as Congress or the United States Senate, then the federal statute would control. Any contest, however, involving as the present contest does, election to a county office is governed, of course, by the provisions of our state law.

A careful consideration of the act leads to the inevitable conclusion that, by the enactment of this statute, the legislative intent was to provide the means by which the members of our military forces, who were legally qualified New Jersey voters, could vote at any election in this state, despite their absence from their election district at the time of the election.

There can be no doubt that the act requires registration as a prerequisite to the right to vote in ISTew Jersey even for the members of our military forces. The terms “legally qualified voter” and “qualified elector” which are used repeatedly in the act, clearly indicate the requirement for registration. The provision in paragraph 11, directing county boards of election to investigate whether members of the military forces were legally qualified voters entitled to vote at such election, unquestionably required the county boards to ascertain whether such military voters were legally registered.

A substantial number of the 262 military voters, who cast ballots at the election, were not registered. The Monmouth County Board of Elections failed to take any steps in accordanee with the provisions of paragraph 11, to ascertain which of the ballots had been cast by “legally qualified voters actually entitled to vote at such election.” Instead, without making an investigation of any sort, the County Board proceeded to canvass and tabulate the entire military vote. Thus, there was no opportunity to separate the valid ballots from the invalid, nor was there any way of discovering for which candidate the invalid ballots had been cast.

Within the past jrear, Judge Walter D. Van Riper of the Essex County Court of Common Pleas made a ruling on the point involved in this phase of the instant case, and in a decision given from the bench, Judge Van Riper stated:

“I cannot help but reach the conclusion that Congress has abolished registration as far as federal offices are concerned and that they have no jurisdiction over state offices or county offices, and the state legislature has failed to abolish registration as far as state and county offices are concerned. Therefore, as to local offices the voter must be registered. As to the' federal offices, he does not have to be registered.

“It is my conclusion that where the state act refers to the right of a person to vote who is a legally qualified voter it means a person who has complied with all the requirements of the election law necessary to vote, including registration, in so fár as it refers to state or county or municipal, offices, but not federal offices.”

I am convinced that the Monmouth County Board of Elections erred because the members were under the impression that the election was controlled by the federal statute, and that therefore, there was no necessity to ascertain whether military voters were legally registered or not. But the board’s error, while committed in good faith, was nonetheless fatal, and it completely nullified the entire military vote cast at the election.

One hundred and sixty-two of the military votes had been cast for Sterner and 110 had been cast for Donahay. I accordingly rule that Sterner’s total vote shall be reduced by 162 votes, and that Donahay’s total shall be reduced by 110 votes.

As heretofore stated, Donahay led by 14 votes at the termination of the recount of 80 election districts. When the Long Branch phase of this contest was concluded, Sterner led by 31 votes. In Belmar, Donahay gained a net total of 48 votes, putting Donahay in the lead by 17 votes. By the nullification of the military vote, Sterner lost a net total of 52 votes. Thus, at the conclusion of all phases of this election contest, Dona-hay led Sterner by a total of 69 votes.

Therefore, in accordance with the provisions of the statute, I pronounce judgment in favor of the incumbent, Joseph L. Donahay, and I declare the said Joseph L. Donahay to have been elected to the office of surrogate of Monmouth County, Hew Jersey, at the general election hold in said county on Hovember 3d, 1942, by a plurality of 69 votes.


author: Waesche, President.

text:
    State Board of Tax Appeals.
    JERSEY CENTRAL POWER AND LIGHT CO. v. CITY OF ASBURY PARK.
    Decided May 17, 1943.
    Bor the petitioner, Autenrieth & Wortendylce (Joseph F. Autenrieth).
    Bor the respondent, Charles Franlcel.

   Waesche, President.

This is an appeal by Jersey Central Power and. Light Company, a New Jersey corporation, seeking to reverse the affirmance by the Monmouth County Board of Taxation of two assessments for the year 1941, levied by the taxing authorities of the City of Asbury Park. One is in the sum of $10,500,000 and purports to cover intangible personal property assessable at the head office of the corporation. The other is one of $5,000 against personal property and equipment (other than merchandise held for resale) at its head office. It is desired that these assessments be canceled.

The question raised in these appeals is whether or not chapter 5 of the laws of 1940, N. J. S. A. 54:31-45 to 54 :31-63, which imposes a gross receipts tax upon street railway, traction, gas and electric light, heat and power corporations, did not supersede all other methods of taxation, except those specifically mentioned therein and, therefore, renders these assessments illegal.

The statute in question states that its purpose is “to provide a complete scheme and method for the taxation of street railway, traction, gas and electric light, heat and power corporations using or occupying the public streets, highways, roads or other public places, to exempt from taxation other than imposed by this act the franchises, stock, and certain property of such corporations and for the taxation of the property of such corporations not so exempted from taxation * *

The petitioner is a gas and electric light, heat and power corporation. The act further goes on to say, Section 4: “All the real estate as herein defined, and the electric and gas appliances to be used for the consumption of gas or electricity and held for resale and not for the purpose of production, transmission or distribution oí gas or electric energy, and by-products of gas manufacture held for resalo and not for the purpose of production, transmission or distribution of gas or electric energy, owned or held by any taxpayer shall be assessed and taxed at local rates in the manner provided by law for the taxation of similar property owned by other corporations or individuals, * *

In other words, after setting up a complete general scheme of taxation, the act excepts two categories of property only; one, merchandise held for resale and, two, real estate. Undoubtedly the act was intended to provide a method of taxation which should supersede all existing methods, saving the two excepted classes, and hence the act was designed to do away with the taxation of both tangible and intangible personal property other than electric and gas appliances held for resale.

Not only is this the plain language of the statute, but both the Supreme Court and the Court of Errors in construing it have disposed of the issues herein raised favorably to the petitioner. Jersey Central Power and Light Co. v. Asbury Park (Supreme Court), 128 N. J. L. 141; 24 Atl. Rep. (2d) 526; affirmed by the Court of Errors and Appeals without opinion, Jersey Central Power and Light Co. v. Monmouth County Board of Taxation, 129 N. J. L. 253; 29 Atl. Rep. (2d) 139. The assessments appealed from are, therefore, canceled.

Judgment accordingly.


author: Krbamer, M. B.

text:
    State Board of Tax Appeals.
    CITY OF EAST ORANGE, PETITIONER, v. CHURCH OF OUR LADY OF THE MOST BLESSED SACRAMENT, RESPONDENT.
    Decided October 19, 1943.
    Eor the petitioner, Walter G. Bilis.

    Eor the respondent, Blmer F. Holtz.

   Krbamer, M. B.

This is an appeal by the City' of East Orange from the judgment of the Essex County Board of Taxation cancelling the assessment on the building of the Church of Our Lady of the Most Blessed Sacrament, at 113 Elmwood Avenue, East Orange, ETew Jersey, for the year 1942. The city had originally assessed this building in the sum of $17,000 and had deducted therefrom the statutory exemption of $5,000 provided for by R. S. 54:43.6; N. J. S. A. 54:4^3.6, respecting a building actually occupied as a parsonage , by the officiating clergymen of any religious corporation of this state. This resulted in a net assessment of $12,000. The Essex County Board of Taxation canceled the assessment in ioto. The property consists of a three-story brick building adjoining the Church of Our Lady of the Most Blessed Sacrament, a church of the Boman Catholic faith. The building is connected with the church proper by means of a passageway.

There is no dispute as to the value of the improvements, so that if the city’s contention is proper the assessment should be restored. If not, the judgment of the Essex County Board of Taxation should be affirmed.

It is unquestioned from the testimony that the present rector of the church has lived in the building since its construction, as have the assistants who are from time to time necessary for the conduct of the religious work of the parish. The building contains a kitchen, dining room, eight bed rooms, three studies, lavatory and several bathrooms. The testimony given in behalf of the respondent showed that the pastor of the church was also in charge of the parish school and that there was in the building an office where the business of the parish and of the parish school was conducted, that the marriage records of the church were kept in the building in question, that the pastor used the building to perform some marriage ceremonies, that some church meetings in the work of the parish were conducted in one of the rooms, that in the basement church supplies necessary for the operation of the church next door were stored, that vestments were stored in the building and that the building had various other uses connected with the church. It was also stated that a housekeeper and maid were employed in connection with the use of the building as living quarters and six of the bedrooms and four baths were actually in use.

One portion of R. S. 54:4-3.6; N. J. S. A. 54:4-3.6, exempts "all buildings actually and exclusively used for * * * religious worship * * another portion of that section exempts "all 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, or for one or more of such purposes” and still another portion of that section exempts “the building actually occupied as a parsonage by the officiating clergymen of any religious corporation of this state, to an amount not exceeding $5,000.” In each instance the land whereon such buildings are erected is also exempt from taxation.

The petitioner takes the position that the respondent is entitled to have the premises affected by this appeal exempted from taxation to the extent set forth in the third portion of R. S. 54:4-3.6; N. J. S. A. 54:4^3.6, supra, maintaining that the proofs disclose occupancy of the building “as a parsonage.” The respondent takes the position that it is entitled to have these premises exempted from taxation to the extent set forth in either the first or second portion of R. S. 54:4^3.6; N. J. S. A. 54:4^-3.6, supra, maintaining that the proofs disclose that the building is actually and exclusively used for “religious worship” or for “moral and mental improvement of men, women and children, or for religious, charitable or hospital purposes, or for one or more of such purposes.”

The Board holds that the respondent is entitled to exemption to the extent granted by law by reason of the use of the building as a parsonage, it being the Board’s interpretation of the testimony that exclusive user of the building for religious worship or for religious purposes has been disproved. It is difficult to disassociate a clergyman’s home from his calling. Unquestionably in every parsonage there is a certain amount of church business conducted and this is especially true of the Boman Catholic faith. Parishioners and people having business with the church wishing to see the priest must go to his residence and by reason of the frequency of calls of this nature a portion of the premises must be devoted to their convenience as well as to his. Parish records often are kept there and materials necessary for religious worship are likewise placed there for the convenience of the clergyman. Undoubtedly in every rectory such as this a portion of the church business must necessarily be conducted.

The Board feels that this ease is to be distinguished from Jersey City v. Bethel Baptist Church, N. J. Tax Reports, 1940, p. 43; 18 N. J. Mis. R. 208; 12 Atl. Rep. (2d) 152, in that in the latter case the house of worship itself, as well as the parsonage, was in the one building, a fact which obviously does not exist here.

Accordingly, the judgment of the Essex County Board of Taxation is reversed, and the assessment as originally made by the city is restored.

Judgment accordingly.


author: BubI/Ing, C. C. J.

text:
    ANTON WALLENSTEIN, PLAINTIFF, v. HARTFORD ACCIDENT AND INDEMNITY COMPANY, A CORPORATION OF THE STATE OF CONNECTICUT, DEFENDANT.
    Decided October 18, 1943.

      For the plaintiff, Louis M. Mallin.

    For the defendant, Dole & Dole.

   BubI/Ing, C. C. J.

This is an action at law, east in contract. It has been submitted to and tried before me, sitting without a jury, at the Atlantic County Circuit and submitted to the court on a stipulation to that effect and a stipulation of facts.

The plaintiff, Anton Wallenstein (a resident of the County of Atlantic in the State of Hew Jersey) was on, and prior to March 29th, 1938, an employee of Tides Operating Co., Inc., a corporation, being employed by said company at its place of business known as the “Tides Hotel” at Miami Beach, in the State of Florida.

The defendant, Hartford Accident and Indemnity Company, at said time, was an insurance company duly authorized to do business as such under the laws of the State of Florida.

Prior to the aforesaid date, the defendant, for a consideration issued its policy of insurance covering the plaintiff’s employer for workmen’s compensation risks in the State of Florida, which policy was in force at the time of the injury to the plaintiff hereinafter referred to.

On or about the 29th day of March, 1938, the plaintiff was injured while in the employ of the Tides Operating Co., Ine., said injury being received by the plaintiff in such a way as to bring him within the provisions of the Workmen’s Compensation Act of the State of Florida.

Pursuant to the terms of its policy the defendant insurance company entered into an agreement, a copy of which is annexed to the original complaint filed herein. Said agreement was filed with the Florida Industrial Commission, that being the administrative board of the State of Florida established under the Florida Workmen’s Compensation Law.

The agreement contained the following provision for compensation for partial permanent disability, temporary disability having been previously paid without order: “that the said Anton Wallenstein shall receive compensation at the rate of $18 per week based upon an average weekly wage of $65 and that said compensation shall be payable for a period of one hundred (100) weeks beginning February 3d, 1939, from and including the * * * day of * * * month 19 * * * until terminated in accordance with the provisions of the Workmen’s Compensation Law of the State of * * The word “of” may be disposed of as surplusage, probably resulting from the use of a printed form.

The defendant under the terms of said agreement, paid to the plaintiff 45 weeks compensation at the rate of $18 per week, making a total of $810, and then ceased payments alleging that disability had terminated.

Suit has been brought in a court of common law jurisdiction for alleged arrears of payments under said agreement between the plaintiff and the defendant.

Two propositions have been posed:

1— By the plaintiff: The agreement is binding until otherwise changed by action of the commission.

2— By the defendant (defendant’s brief, page 3) : (a) The defendant had the right to suspend, (b) It did in fact suspend the agreement.

If the defendant’s contention is sound that the employer had the right to terminate payments at will, the agreement would be of little value. The employee had better submit his case to the commission immediately and obtain an award. Such a construction would be inconsistent with the purpose oí the act as declared in its title. One of the chief objectives is to require industries in the first instance to care for the casualties occurring therein.

The agreement provides that it is binding by its terms until terminated in accordance with the provisions of the Workmen’s Compensation Law of the state. Agreements between employer and employee have been upheld and in fact suits have been instituted in this state upon such agreements. Holzapfel v. Hoboken Manufacturers Railroad Co. (Court of Errors and Appeals, 1918), 92 N. J. L. 193; 104 Atl. Rep. 209.

The entire act and particularly the administrative and procedural plan has been studied and reviewed in an endeavor to reach the legislative intent. The court has pondered over the framework of the act to ascertain the procedural method of reaching a change in condition where no award has been made.

The Florida Workmen’s Compensation Act (1935), F. S. A., §§ 440.01, et seq., provides in its title the following recitation of purpose:

“An act to provide for and adopt a comprehensive Workmen’s Compensation Law for the State of Florida; to provide compensation thereunder for disability or death resulting from an injury arising out of and in the course of employment; limiting, regulating and prohibiting resort to certain common law causes of action and/or defenses in cases falling within the purview of this act; imposing certain duties and exactions upon employers and/or employees falling within the scope of this law; defining the employments subject hereto and delimiting the application of this act as applied to other employments and setting up an agency of the state for the administration hereof.”

Having been of comparatively recent enactment, Florida judicial pronouncement of manner of its construction is scant, but the principles relating to such statutes are very generally accepted and there are apparently no decisions cl the State of Florida construing the Workmen’s Compensation Act with regard to the matters raised in this issue to guide the court.

In the construction of workmen’s compensation acts courts have held that they are to be interpreted in the light of, or so as to promote, their purposes and objects. 71 Corp. Jur. 341.

For instance in New Jersey: Workmen’s Compensation Statute is a remedial law of prime import. It should be liberally and broadly construed. O’Mara v. Kirch (Court of Errors and Appeals, 1929), 106 N. J. L. 151; 147 Atl. Rep. 511.

The legislative policy is obviously grounded in social and economic considerations. Bronstein v. Hoffman (Court of Errors and Appeals, 1936), 117 N. J. L. 500; 189 Atl. Rep. 121; Miciele v. Erie Railroad Co. (Supreme Court, 1943), 130 N. J. L. 448 (at p. 456); 33 Atl. Rep. (2d) 586.

The act under consideration contains no provision for approval of a written agreement between employer and employee as is contained in the New Jersey Workmen’s Compensation Act, R. S. 34:15-50; N. J. S. A. 34:15-50. Merely the reporting to the Commission of the fact of making first payment- and suspension of payment, section 20 (c); F. S. A., § 440.20 (3). Some states hold that where a statute requires the approval of an agreement by. the Commission, it must be so approved to have the solemnity and effect of an award. Upon such approval, however, commission action is required to abrogate. Silva v. Industrial Accident Commission of California et al. (1924), 68 Cal. App. 510; 229 Pac. Rep. 870, 872; Carpenter v. Globe Indemnity Co. (1940), 65 R. I. 194; 14 Atl. Rep. (2d) 235 (at p. 239); Gobeille v. Ray’s, Inc. (1940), 65 R. I. 207; 14 Atl. Rep. (2d) 241; London Guarantee and Accident Co. v. Sauer (1933), 92 Colo. 565; 22 Pac. Rep. (2d) 624.

A survey of the mode of cessation of payments is discussed in Dodd on Administration of Workmen’s Compensation (1936). '

The act contemplates and encourages prompt payment by immediate action of employer, unless right to compensation is controverted as evidenced by penalty provisions for delay. Section 20 (e); F. 8. A., § 440.20 (5).

The act in section 28, Acts 1935, chapter 17481, refers to a change of condition, however, only where a compensation order has been made. The application thereunder could be made for modification of an award at any time within two years from the injury. This section was amended in 1941, of which more is hereinafter stated.

No other section specifically refers to a change of condition and especially where no award was made.

Where an employer initially controverts a claim, he is obliged to give notice of that fact. Section 20 (d). And then employee proceeds under section 25 (a) and files a claim under paragraph (a) thereof, and under paragraph (c) thereof, the Commission proceeds to a hearing, and then rejects the claim or makes an award, paragraph (e). F. 8. A., § 440.25 (1, 3).

Provision in section 20 (d) relates and is limited to initial right to controvert by the employer (must be made before twenty-one days after knowledge of injury).

Provisions of section 20 (c) and (h), F. 8. A.} § 440.20 (3, 8), contemplate suspension of payment.

Where the employer suspends payments, he is obliged to notify the Commission under section 20 (c). The provisions of section 20 (h) in respect to the duties of the Commission to investigate and hold hearings are thereby invoked.

Webster’s Dictionary defines “suspend” as follows: To cease temporarily from operation or activity—to stop payment or fail to meet obligations or engagements.

“Suspend as defined by Webster, among other things, means to cause to cease for a time, from operation or effect; as to suspend the Habeas Corpus Act; to suspend the' rules.” Vaughan v. City of Searcy (1940), 199 Ark. 585; 135 S. W. Rep. (2d) 319, 321.

To give effect to the word “suspend” may be the key to the solution of the problem herein. The sections (c) and (h) contemplate such action by the employer for any cause. If the employer believes a change of condition has occurred when no order has been made and if the employer in the interim before the Commission acts, believes he requires protection, he may, as he did in this case, suspend payments. The agreement stands until the cause of suspension is determined.

This construction seems to be borne out by the amendment of 1941 of section 28, which reads as follows:

“440.28 Modification of Awards—Upon their own initiative or upon the application of any party in interest, on the ground of a change in condition or because of a mistake in a determination of fact the Commission may at any time prior to one year after the date of the last payment of compensation, whether or not a compensation order has been issued, or at any time prior to one year after the rejection of a claim, review a compensation ease in accordance with the procedure prescribed in respect of claims in section 440.25, and in accordance with such section, issue a new compensation order which may terminate, continue, reinstate, increase, or decrease such compensation, or award compensation. Such new order shall not affect any compensation previously paid, except that an award increasing the compensation rate may be made effective from the date of the injury, and if any part of the compensation due or to become due is unpaid, and award decreasing the compensation' rate may be made effective from the date of the injury, and any payment made prior thereto in excess of such decreased rate shall be deducted from any unpaid compensation, in such manner and by such method as may be determined by the Commission. Am., § 9, ch. 20672, 1941; F. S. A., § 440.28.”

The amendment implies the acknowledgment of the existing (at'time of its adoption) effectiveness of an agreement to -pay by the words “upon the application of any party in interest upon the grounds of a change in condition * * * whether or not a compensation order has leen issued.”

The court has resorted to this amendment in its effort to aid' its construction of the provisions of the act presently under review. An amendment to an act may be resorted to for the discovery of the legislative intention in the enactment amended. 25 B. G. L. 1064.

Pursuant to the provisions of paragraph 10 of the stipulation, I proceed to rule upon the admissibility of the matters therein referred to.

1—Letter of the Florida Industrial Commission to the defendant, dated April 3d, 1941, is admitted. It contains a declaration of the rules of the Commission as to the form of notice to be given by the employer to the Commission of the suspension of payment contemplated by section 20 (e) as a basis for the Commission’s action under section 20 (b).

2— Letter of W. D. Ullrich, addressed to the plaintiff, dated December 7th, 1939, is admitted. It contains a notice of suspension of payments and its cause therefor.

3— Letter of defendant by T. J. Chirgwin, to Florida Industrial Commission, dated January 3d, 1940, is not admitted. It is not relevant to the issue in this cause. Procedural provisions of the Compensation Act for notice by the employer for the cessation of payments is provided in section 20 (c) for the apparent purpose of bringing into play provisions of section 20 (h) to determine the factual question of disability.

4— Letter of defendant by T. J. Chirgwin, to the Florida Industrial Commission dated January 26th, 1940, is not admitted. It is irrelevant. It relates to the alleged proof of cause of cessation.

5— Letter of Commission to defendant, addressed to T. J. Chirgwin, dated January 31st, 1940, is not admitted. It is irrelevant. At the most it relates to marshalling information in relation to its duty under section 20 (h).

6— Letter of Dr. Harry Subin, addressed to Mr. Walter D. Ullrich, dated February 16th, 1940, is not admitted. It is irrelevant to this issue.

7— Letter of defendant by T. J. Chirgwin to Florida Industrial Commission, dated February 20th, 1940, is irrelevant and immaterial to this issue.

I find the facts to be as stated in the stipulation.

From a study of the agreement and the entire act, I am of the opinion and I so find that the agreement is binding until otherwise terminated by the Commission or the mutual action of the parties.

After consideration of the facts and law applicable thereto and arguments of counsel, the court finds in favor of the plaintiff in the stipulated amount (paragraph 13) of $990 plus Interest and costs.

Postea may he prepared in accordance with the practice outlined in Drench, Receiver, v. Higgins (Supreme Court, 1901), 66 N. J. L. 128; 48 Atl. Rep. 1007, and Supreme Court rule 113, N. J. S. A. tit. 2, and to contain the rulings upon letters referred to in paragraph 10 of the stipulation, with appropriate exceptions noted.


author: Per Curiam.

text:
    MAX FISCHBEIN, PETITIONER-DEFENDANT, v. REAL ESTATE MANAGEMENT, INC., AND COMMERCIAL CASUALTY INSURANCE CO., RESPONDENTS-PROSECUTORS.
    Argued October 6, 1943
    Decided November 12, 1943.
    Before Justices Case, Donges and Porter.
    For the petitioner-defendant, David Roslcein (Harry Cohn, of counsel).
    Por the respondents-prosecutors, Henry M. Grossman (Isidor Ealisch, of counsel).
   Per Curiam.

This is an application by the employer in a compensation case for a writ of certiorari to review the judgment of the Essex County Court of Common Pleas in affirming a judgment and award of the "Workmen’s Compensation Bureau.

An examination of the moving papers leads us to the conclusion that a debatable legal question has been presented and that a writ of certiorari should be allowed. Both parties have leave to take depositions on five days’ notice to be used on the return of the writ.