author: William J. Brennan, Jr., J. A. D.

text:
    JOHN SHOEMAKER, PLAINTIFF-RESPONDENT, v. GEORGE SHOEMAKER, DEFENDANT-APPELLANT, AND MART SHOEMAKER, DEFENDANT.
    Superior Court of New jersey Appellate Division
    Argued January 15, 1951-
    Decided January 30, 1951.

      Before Judges McGeehan, Jayne and Wm. J. Brennan, Jr.

      Mr. Morris Spritzer argued the cause for plaintiff-respondent (Mr. Charles Schwartzman, attorney).

      Mr. Horace E. Bunker argued the cause for defendant-appellant (Messrs. Bunker & Elliott, attorneys).
   The opinion of the court was delivered by

William J. Brennan, Jr., J. A. D.

The defendant, George Shoemaker, on June 6, 1949, swore to a complaint before the Magistrate of Raritan Township charging that plaintiff on June 3, 1949, “did make threats and was abusive” in violation of the Disorderly Persons Act and a township ordinance.

A warrant issued upon which plaintiff was arrested and jailed for four dajrs. The hearing on June 30 before the magistrate resulted in the dismissal of the complaint for insufficient evidence. The plaintiff thereupon instituted this action in Middlesex County Court and obtained a jury verdict upon a count for malicious prosecution. Defendant appeals from the consequent judgment.

The parties and the trial court dealt with the criminal charge as growing out of an incident which occurred, not on June 3, 1949, as stated in the criminal complaint, but on Sunday, June 5, 1949. The defendant’s evidence was that he swore out the complaint after visiting the magistrate with his seven-year-old son and having the child tell the magistrate something not disclosed in the record. The plaintiff’s evidence below was that the child on that Sunday beat plaintiff’s pet pigeons with a stick and plaintiff told him to go away. Plaintiff expressly denied he had threatened or abused the child. The defendant and the child were the only witnesses at the magistrate’s hearing. There is, however, no transcript of their testimony in this record. It further appears the magistrate had the benefit of a psychiatrist’s report concerning plaintiff, which was also put in evidence below and which was prepared after an examination of plaintiff requested by plaintiff’s attorney.

The fundamental grounds upon which this action for malicious prosecution was based were that the plaintiff was accused without reasonable or probable cause, that the defendant was actuated by a malicious motive i;n making the charge, and that the proceeding has terminated in plaintiff’s favor. Unless the evidence in the case sufficiently establishes the existence of all three of these grounds, the plaintiff’s suit must fail. Evans v. Jersey Central Power & Light Company, 119 N. J. L. 88 (E. & A. 1937); Little v. Little, 4 N. J. Super. 352 (App. Div. 1949).

The principal ground of appeal is that the trial court should have granted the defendant’s motion for judgment made at the close of the testimony because, defendant contends, plaintiff’s proofs did not sustain the burden upon him to show want of probable cause and, alternatively, that defendant’s uncontroverted proofs demonstrated that the defendant had reasonable cause for the charge.

Where the question whether or not defendant had reasonable or probable cause for initiating the proceeding against the plaintiff depends, in part, at least, upon the facts the existence of which are in dispute, it is the function of the jury to settle those facts and upon doing so, to determine on the whole case whether or not reasonable or probable cause has been shown, such determination being based upon proper instructions from the court. Dallon v. Godfrey, 97 N. J. L. 455 (E. & A. 1922). But where the facts are not controverted, the question of reasonable or probable cause is one of law to be determined by the court and its submission to the jury is error. Vladar v. Klopman, 89 N. J. L. 575 (E. & A. 1916).

Whether in an action for malicious prosecution the evidence presents a jury question on this issue or a question for determination by the trial judge is an essential consideration upon trial. The action is not favored in the law, since public policy encourages the exposure of crime, which a recovery against one initiating the proceeding obviously tends to discourage. Chief Justice Gfummere said in the Vladar case (at pp. 579-580) :

“* * * It is true that, ordinarily, where a fact is proved which raises a presumption of liability on the part of the defendant, and other facts are put in evidence which tend to overthrow that presumption, a question is presented for the determination of the jury rather than of the court. But actions for malicious prosecution have always been differentiated by the courts, so far as this special feature of litigation is concerned. The rule which makes ike existence or non-existence of probable cause, when the facts are not in dispute, a matter to be determined by the court, is probably the outgrowth of of a public policy, the purpose of which was to encourage Criminal prosecutions at the instance of private citizens, by making them certain that they might safely intervene to put in motion the machinery of the criminal law against apparent violators of its provisions, without being liable to be mulcted in damages, in case the prosecution should fail through lack of sufficient evidence or, perhaps, through the vagaries of the trial juries of earlier days. But, whatever may be its foundation, and whether it be logical or not, it has been too long in existence, and too universally followed, to be now subject to-question.”

The substantial question argued is whether the defendant at the time he initiated the criminal proceeding honestly-believed in plaintiff’s guilt upon facts which were such that reasonable men could regard them as proof that plaintiff was guilty of the charge. Plaintiff contends that the proof of the dismissal was evidence not alone of the termination of the proceeding in plaintiff’s favor but also of the lack of reasonable and probable cause for its institution. It would seem on principle that if at its inception the proceeding was honestly brought on reasonable grounds the manner in which its termination was brought about should not be a material consideration on the issue of want of probable cause. The case does not involve the question of liability of a person initiating criminal proceedings against another upon probable cause and for a proper purpose and thereafter taking an active part in pressing the proceedings after discovering there is no probable cause therefor. See Restatement on Torts, vol. III (1938), § 655.

A difference of view has arisen, however, over the effect of the disposition of the criminal proceeding itself as evidence of the absence of probable cause. Prosser on Torts (1941), p. 876. The Restatement declares that a termination by discharge of the plaintiff by a committing magistrate upon a preliminary hearing for failure to prove a prima facie case (§ 663) or because of an unexplained refusal of the grand jury to indict (§ 664) is conclusive of the lack of probable cause and that the voluntary abandonment by the defendant of the proceeding, or his failure to press the prosecution, is evidence of lack of such cause (§ 665(1)). On the other hand, the Restatement declares that a termination upon plaintiff’s acquittal after trial (§ 667), or upon the abandonment of the proceeding by the public prosecutor on his own initiative (§ 666(2)) is not evidence that the accuser acted without probable cause.

We doubt that this distinction has a sound foundation. Where it is urged, as here, that defendant when he made the complaint did not have an honest belief on reasonable grounds that plaintiff was guilty of the charge made, the determinative evidence, it seems to us, should bo such as bears upon the conduct of the defendant at the time of the charge and whether there was then such state of facts as to lead men of ordinary caution and prudence to entertain an honest belief that plaintiff was guilty.

Even if this defendant had voluntarily abandoned the proceeding at a later date, that fact, standing alone, does not necessarily mean that there was a want of reasonable and probable cause for initiating it. Ordinary experience in the administration of criminal law teaches that honestly made and reasonably justified complaints are often not pressed for reasons which develop after the fact and are unrelated to the merits of the charge when made. We may regret the reluctance of the citizen to follow through once he has initiated a charge, or deplore an abandonment based, for example, upon sympathy for the accused’s family, or we might wish to penalize the complainant who drops a criminal proceeding once it has served his purpose to effect redress of a private wrong. We think the view in this State is, however, that the fact the accuser abandons the charge does not of itself prove lack of reasonable and probable cause, but, rather, the criterion is whether the accuser honestly believed on reasonable grounds the truth of the charge at the time he made the charge.

And where the grand jury refuses to indict or the committing magistrate discharges the plaintiff for failure to make out a prima facie case, there is another consideration, because the termination results in the first case from the failure of a public body to act and in the second from the decision of a judicial officer, and in both, as in the case of a termination by action of the public prosecutor in moving a nolle pros, the accuser has no control over the termination and should not be prejudiced by 'it.

The principle of public policy to encourage criminal prosecutions at the instance of private citizens is better served, we think, in a case such as that before us, by a rule requiring plaintiff to adduce affirmative proof, in addition to the proof of termination of the proceeding in his favor, tending to show the falsity of or the want of probable cause for the charge laid against him, or that defendant did not honestly believe in his guilt. This is the law in New Jersey. An inference that defendant lacked reasonable and probable cause for the proceeding does not arise by proof that the termination resulted from the refusal of a grand jury to indict the plaintiff, Apgar v. Woolston, 43 N. J. L. 57 (Sup. Ct. 1881); Magowan v. Rickey, 64 N. J. L. 403 (Sup. Ct. 1900); or from the voluntary abandonment of the proceeding by the defendant, Dalton v. Godfrey, supra; or from plaintiff’s exoneration of the charge, Stein v. Schmitz, 137 N. J. L. 725 (E. & A. 1948).

We have not overlooked Mik v. Kospriski, 5 N. J. Misc. 139 (Sup. Ct. 1927) and Hanimann v. Schellhorn, 7 N. J. Misc. 489 (Sup. Ct. 1929), which hold that the termination of a proceeding by the entry of a nolle pros on motion of the prosecutor of the pleas is some evidence of want of probable-cause. We do not think these cases are to be followed in light of the different principle laid down in the former Court of Errors and Appeals in Dalton v. Godfrey, supra. They are contrary to the great weight of authority. Annotations, 24 A. L. R. 262, 94 A. L. R. 744. Moreover, the decision in the Mile case seems to rely upon an erroneous headnote to the-opinion in the Dalton case reading: “In an action for malicious prosecution, the dismissal or abandonment of the prosecution is some evidence of want of probable cause.” The-actual holding in that case, however, as appears at page 460, was, “If the plaintiff had merely introduced the complaint and showed its abandonment and her discharge by the committing magistrate and rested, the defendant would doubtless-have been entitled to a judgment of nonsuit; but this record was admissible not only to show the termination o£ the criminal prosecution, but also it was some evidence, coupled with Hie other evidence for the plaintiff, tending to show want of probable cause and malice.” (Italics supplied.)

The magistrate’s dismissal of the charge in this case, standing alone, was therefore insufficient evidence to sustain plaintiff’s burden of proof to show lack of probable cause, whether the dismissal is viewed as tantamount to an acquittal or as based upon a finding that defendant had not proved a prima facie case requiring plaintiff to put in his defense.

The record of dismissal, however, was not plaintiff’s only evidence. There was also plaintiff’s testimony that when the child molested his pigeons he told the child to take his bicycle and go home, arid his express denial that he had threatened or struck the child. His brother, Pay, substantially corroborated this testimony, except that Pay said the plaintiff had led the child by the arm to the sidewalk. These proofs tended to show the falsity of the charge that plaintiff threatened and abused the child and, when coupled with the proof showing the dismissal, were sufficient to require defendant to come forward with evidence to meet the inference of want of probable cause raised by them.

Defendant’s proofs were wholly insufficient to overcome the inference thus raised and were clearly inadequate to justify a finding of the court as a matter of law that his action was honestly taken with reasonable cause. He said he had made the complaint on “information my wife and boy gave me” and which, lie said, the boy repeated to the magistrate at the time defendant executed the complaint. The obvious deficiency in this testimony is that it does not reveal what the information was upon which defendant acted and there was no other evidence upon which to evaluate the honesty and reasonableness of his belief of plaintiff’s guilt. Neither his wife nor his boy took the stand, and, while a policeman testified that before the charge was filed defendant’s wife had reported to the policeman, “John is acting like a crazy man and had grabbed her boy by the arm and threw him off the property,” that testimony hardly supplies substantive proof that his wife and son gave this information to defendant and that defendant relied upon it in making the charge. Cf. Prostick v. Vroom, 128 N. J. L. 383 (Sup. Ct. 1942); affirmed, 129 N. J. L. 465 (E. & A. 1943).

The police officer also related the alleged facts of several incidents told him by defendant’s wife as to threats allegedly made by plaintiff to kill her and the defendant, and his own father, and that plaintiff had twice set fire to his father’s home. There were in addition some proofs that plaintiff had a record of convictions for disorderly conduct. The report of the psychiatrist was that plaintiff is “a medium grade moron” who has not intellectual^ “reached the age of a ten-year-old by the usual standards of testing.” But the charge did not relate to any alleged transgressions of the plaintiff except his alleged conduct on the occasion of the incident of June 5, 1949. At the close of plaintiff’s evidence the proofs as to that incident made out a prima facie case • which presented a jury question in the absence of proofs on behalf of the defendant sufficient to enable the trial judge as a matter of law to determine the question. Ho mere suspicion nor even a strong belief arising from the character of the plaintiff, his habits or record of other transgressions would constitute of itself justification for the making of the complaint which was filed. Accordingly, defendant cannot complain of the submission to the jury of the issue of want of probable cause, and there was no error in the denial of defendant’s motion for judgment. Cf. Little v. Little, supra.

Defendant argues also that the verdict was against the weight of the evidence, but our examination of the record satisfies us this contention has no merit.

Affirmed.


source: Caselaw Access Project

license: Public Domain

text:
    MICHAEL GELSMINE, PLAINTIFF-APPELLANT, v. NICHOLAS VIGNALE, DEFENDANT-RESPONDENT.
    Superior Court of New Jersey Appellate Division
    Argued January 22, 1951 —
    Decided January 31, 1951.

      Before Judges McGeehan, Jayne and Wm. J. Brennan, Jr.

      Mr. William K. Miller argued the cause for plaintiff-appellant (Messrs. Berman, Neiss & Miller, attorneys).

      Mr. Frederick C. Vonhof argued the cause for defendant-respondent (Mr. William P. Braun, attorney. Mr. Vonhof on the brief).
   The opinion of the court was delivered by

William J. Brennan, Jr., J. A. D.

Plaintiff sued for injuries suffered when defendant Yignale’s car, in which plaintiff was a passenger, collided with the rear of the Swanson car, behind which defendant’s car was proceeding, and then hit the Bullock car a short interval after the Swanson and Bullock cars had collided head on and had come to rest. The mishap occurred on November 19, 1947, on East Main Street just west oí Mendham, New Jersey. Plaintiff’s complaint sued Bullock, Swanson and the defendant Yignale severally for his injuries in separate counts and all three jointly in a fourth count. Before the pretrial conference plaintiff discontinued the action as to Bullock, to whom he gave a covenant not to sue upon receiving from her the sum of $3,000. The suit was also discontinued as to Swanson, although no consideration was paid by him.

The trial proceeded only as to defendant Yignale in the Superior Court, Law Division, Essex County. Over plaintiff’s objection evidence of the $3,000 payment received by plaintiff from Bullock was admitted in mitigation of plaintiff’s damages. The court charged the jury: * * if you should find for the plaintiff in this case you would deduct from such amount as you might find the sum he has already received of $3,000 and render a verdict for the difference between the amount you determine and fix his compensation at and the $3,000 he has already received. * * * If you determine that the plaintiff is entitled to a verdict less than the sum of $3,000, I want you to render a special verdict if less than $3,000, stating the amount as you might fix that he is entitled to receive. If you find a verdict in the plaintiff’s favor of less than $3,000, you would name that amount, but if you found a verdict for over $3,000 you would deduct the $3,000. * * *” The jury returned a verdict in plaintiff’s favor for $2,000, the foreman stating it was the jury’s determination that, “He has received $3,000 where he should have received only $2,000 in our opinion.” The trial court thereupon molded the verdict and directed the entry of judgment in plaintiff’s favor and against defendant Vignale “in the nominal sum of six cents.” Plaintiff’s subsequent motion for a new trial as to damages only for inadequacy thereof was denied.

Plaintiff’s appeal presents the two questions whether the evidence of the Bullock payment was admissible in mitigation of plaintiff’s damages, and whether the verdict should be set aside for inadequacy of damages.

The discontinuance of the action as to Bullock was filed September 28, 1949. The pretrial conference was held four months later on January 24, 1950. Plaintiff’s counsel contended at the conference that the Bullock payment was an immaterial consideration in the suit against defendant because “There were two accidents, first accident was over with and accident the plaintiff was in was the second accident.” The ground of the objection to the admissibility of the evidence stated by plaintiff’s counsel at the trial was, “That this $3,000 I asked from the Utica Mutual was a gift,” “The plaintiff was willing to stipulate he received $3,000 from the defendant Bullock, but we claim it was a gratuity.”

We gather from his brief that plaintiff’s counsel argues the payment was not evidential in diminution of the damage sought from defendant Vignale either because the payment is to be deemed a “gift” or “gratuity” and a payment by a person not interested as a wrongdoer and liable to answer for the wrongful act, but rather is to be considered a payment growing out of a relationship with plaintiff not connected with such act (Jacowicz v. D., L. & W. R. R. Co., 87 N. J. L. 273 (E. & A. 1915); Rush v. Jeffries, 110 N. J. L. 307 (E. & A. 1933); Weber v. Morris and Essex R. R. Co., 36 N. J. L. 213 (Sup. Ct. 1873); Goldenburg v. Reggio, 112 N. J. L. 440 (Sup. Ct. 1934)), or is to be deemed a payment made by a person in the position of an independent tort-feasor not having the relation to defendant of a joint tort-feasor, counsel insisting that Brandstein v. Ironbound Transportation Co., 112 N. J. L. 585 (E. & A. 1934), and Lombardo v. Creamer, 113 N. J. L. 117 (E. & A. 1934), lay down a rule that a payment is evidential in diminution of damages only when the defendant has the relation of a joint tort-feasor to the one paying the money.

The first proposition, that the payment was a “gift” or “gratuity” is patently specious. Bullock obviously bought her peace because plaintiff had made her a defendant in the suit charging her with joint and several liability for his injuries. The discontinuance died as to Bullock expressly recites, “The claim, of the plaintiff against the defendant, Martha Bullock, having been amicably adjusted by a Covenant Not to Sue * * By plain principles of estoppel plaintiff will not now be heard to assert the contrary. Cf. Lindeman-Chevrolet, Inc., v. Reliable Woodworking Co., 4 N. J. Misc. 52 (Sup. Ct. 1926) ; affirmed, 103 N. J. L. 198 (E. & A. 1926) : see Brown v. City of Cambridge, 3 Allen 474 (Mass. 1862); Aljian v. Ben Schlossberg, Inc., 8 N. J. Super. 461 (Law Div. 1950).

The second proposition likewise is without merit. First of all the evidence pointed strongly to acts of negligence by both Bullock and Vignale which, if independent of each other in point of time, nonetheless united in causing plaintiff’s total injuries and constituted them joint tort-feasors. Cf. Young v. Dille, 127 Wash. 398, 220 P. 782 (Wash. Sup. Ct. 1923). The immediate cause of the occurrence was the negligence of Bullock in driving her car while intoxicated and veering across the center line of the road into the path of the oncoming Swanson ear. Vignale was driving his car behind Swanson’s and within a few seconds his negligent operation of his car, as the jury found, caused it to strike the Swanson car and then the Bullock car as those cars stood on the highway following their collision. The impact with the Swanson car caused plaintiff, who was sitting beside Yignale, to be thrown forward and to hit the windshield, and then, when the Bullock car was struck, again to be thrown forward against the windshield and simultaneously to be hit on the head by a bowling ball which became dislodged from its resting place on the back ledge of Yignale’s car. The positions of the Swanson and Bullock cars in the road were clearly the consequence of Bullock’s negligence which, within seconds as to time, concurred with Yignale’s directly related negligent operation of his car to produce plaintiff’s injuries. It is to be noted that plaintiff neither alleged nor attempted to prove any segregation of his injuries attributed in part to Yignale’s negligence and in part to the negligence of Bullock. Cf. Vadurro v. Yellow Cab Co. of Camden, 8 N. J. Super. 208 (App. Div. 1950); affirmed, 6 N. J. 102 (1950).

Secondly, however, even if we assume, as the trial court held, that the relation of joint tort-feasors did not obtain between Bullock and the defendant, nothing said in the Brand-stein and Lombardo cases limits the principle laid down therein and the Bullock payment was evidential in diminution of plaintiff’s damages. The holdings in those cases rest on the fundamental doctrine, founded on sound principles of justice and good sense, that there can be but a single satisfaction for the same injury. Plaintiff’s suit did not seek recovery from Bullock for injuries different from those which he alleged defendant and Swanson had caused, but sought recovery for the same injuries from all three defendants. Cf. Newman v. Fowler, 37 N. J. L. 89 (Sup. Ct. 1874). The consideration received from Bullock for the claim against her therefore operated to reduce pro tanto the amount of any damages plaintiff was entitled to recover against defendant, and this is true whether Bullock and defendant be joint or independent tort-feasors. Annotation, 104 A. L. R. 931 at 932, and cases cited; Young v. Anderson, 33 Idaho 522, 196 P. 193 (Idaho Sup. Ct. 1921); Annotation, 50 A. L. R. 1057; and see Westerhoff v. Citizens Trust Company, 15 N. J. Misc. 202 (Sup. Ct. 1936); affirmed, 117 N. J. L. 453 (E. & A. 1937); United States Fidelity, etc., Co. v. Goetze, 108 N. J. Eq. 210 (Ch. 1931); Aljian v. Ben Schlossberg, Inc., supra; Rogers v. Cox, 66 N. J. L. 432 (Sup. Ct. 1901).

As to damages, our examination of the record satisfies us the verdict should not be set aside for inadequacy. A verdict for damages is not set aside for inadequacy merely because the award of a greater sum can be supported by the evidence, but only if it clearly and convincingly appears that the verdict was the result of mistake, partiality, prejudice or passion. Killen v. North Jersey Street Ry. Co., 74 N. J. L. 286 (Sup. Ct. 1907); McHugh v. Soffer, 24 N. J. Misc. 111 (Burling, J. C. C., 1946).

From our independent review of the record (see Rule 3:59-5, as amended), made, of course, with due regard to the denial by the trial judge of plaintiffs motion and to the opportunity of the trial court and the jury to pass upon the credibility of the witnesses, it does not clearly and convincingly appear that the verdict of $2,000 returned by the jury was the result of mistake, partiality, prejudice or passion. Cf. Huddleson v. Lerman, 8 N. J. Super. 144 (App. Div. 1950).

Affirmed.


author: Jacobs, S. J. A. D.

text:
    STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT, v. CARL WEITERSHAUSEN, DEFENDANT-APPELLANT.
    Superior Court of New Jersey Appellate Division
    Argued January 35, 3.951 —
    Decided February 2, 1951.

      Before Judges Jacobs, Eastwood and Bigelow.

      Mr. Anthony A. Calandra for the appellant.

      Mr. Maurice J. McKeown for the respondent (Mr. Richard J. Congleton, Essex County Prosecutor, attorney; Mr. C. William Caruso, Legal Assistant Prosecutor, on the brief).
   The opinion of the court was delivered by

Jacobs, S. J. A. D.

The defendant appeals from his conviction for the possession and sale of obscene pictures.

The defendant conducts a book store at 279 Market Street, Newark. On October 15, 1949, a young man named Bossi was in the store selecting pictures from a black double index book which contained numerous photographs of women, mostly nude. At that time officers of the Newark Police Department entered and searched the premises, confiscated twenty or thirty thousand pictures and arrested the defendant. On January 26, 1950, McGovern went to the store, asked the defendant for the “nude photographs that he had” and purchased several sets. These were taken by officers of the Newark Police Department who again searched the premises and confiscated “thousands of photographs and a few magazines.”

Thereafter the defendant was indicted and brought to trial for having possessed and sold obscene pictures contrary to B. S. 2.140-2. The prosecutor in his opening outlined the pertinent circumstances, advanced the State’s contention that the pictures which were to be introduced in evidence were obscene, and asserted that a verdict of guilty would be expected if the jury so found. The defendant sought but was denied amplification of the opening. The State then introduced testimony by the police officers and Rossi and McGovern and placed into evidence, without objection, all of the confiscated pictures. The defendant did not testify and no other oral testimony on his behalf was presented; the lower court rejected his offer in evidence of the September 11, 1950, issue of Life magazine which contained reproductions of famous paintings including, among others, Rembrandt’s The Painter’s Study, and Goya’s The Maja Nude. The defendant’s motion for judgment of acquittal was denied.

In its charge the trial court submitted to the jury for its factual determination the issue of whether, in the light of all of the evidence in the cause, the pictures which were possessed and sold by the defendant were obscene and indecent. In defining these terms the court pointed out they were words of common usage, “suggestive of lustfulness, lasciviousness, and sensuality.” It further pointed out that the test for obscenity was “whether the pictures would tend to deprave the morals of those into whose hands they might fall by suggesting lewd thoughts and exciting sensual desires.” It cautioned the jury that pictures or paintings of nude women are not of themselves obscene or indecent and that the ultimate determination “may well depend on the character of the pictures, the pose portrayed, the expression shown, the number and sequence of a group of such pictures, or the sensually suggestive character of the pictures.” Finally, it expressed the view that a proper test of the obscenity of the pictures would be “whether their motive as portrayed by them is morally pure or impure, whether they are naturally calculated to excito in a spectator morally impure imaginations and whether the other incidents and qualities however attractive are merely secondary to this as iheir primary or main representation.” The defendant did not object to any portion of the charge as rendered but did object to the court’s refusal to grant several of his requests to charge. The jury returned a verdict of guilty and the defendant was duly sentenced.

Much has been written as to when and by whom matter may properly be found obscene and indecent with appropriate consequences prescribed by law. See Roth v. Goldman, 172 F. 2d 788, 790 (2d Cir. 1949); cert. denied, 337 U. S. 938, 93 L. Ed. 1743 (1949); State v. Lerner, 81 N. E. 2d 282 (Ohio C. P. 1948); Lerner, “Judicial Censorship of Obscene Literature,” 52 Harv. L. Rev. 40 (1938). Many of the recent eases have dealt with apparently sincere though outspoken novels (Commonwealth v. Isenstadt, 318 Mass. 543, 62 N. E. 2d 840 (1945)), while others have dealt with purportedly serious presentations of nudism in art and as a cult. Parmelee v. United States, 113 F. 2d 729 (D. C. Cir. 1940) ; State v. Lerner, supra. The important issues concerning proper freedom of expression which were presented in the cited cases do not appear to trouble us here; the evidence in the instant matter clearly indicates that the pictures which consisted of actual photographs of women in progressive stages of undress, in suggestive postures and in the nude, were not being distributed for any socially defensible purpose.

Although the words obscene and indecent are commonly used and understood they are probably not susceptible of precise legal definition. Cf. Commomuealth v. New, 142 Pa. Super. 358, 16 A. 2d 437 (1940); United States v. Levine, 83 F. 2d 156 (2d Cir. 1936). In the Isensladt case, supra, Justice Qua recently expressed principles which may be accepted as controlling. He stated that material may be deemed obscene and indecent within a statutory prohibition if it has a substantial tendency to deprave or corrupt its readers or viewers by “inciting lascivious thoughts or arousing lustful desire;” the material is to be judged in the light of the customs and habits of thought of the time and place and where reasonable men may differ the question is one of fact to be determined by the jury as representative of a cross-section of the community; and he declined to upset a verdict of guilt because he was unable, to conclude that, even in “this post-Yictorian era,” the jury could not properly upon the evidence presented reach the conclusion that the material was obscene and indecent. But cf. 59 Harv. L. Rev. 813, 814 (1946). Applying similar views we have little hesitancy in finding that the defendant’s conviction in the case before us must stand.

The opening by the State properly outlined the nature of its case and the proof to be submitted and the lower court did not err in declining to direct that it be supplemented. The State’s position that the pictures were obscene and indecent was entirely clear to persons of understanding and no purpose would have been served by attempting to detail the particular elements of obscenity and indecency. Similarly, we find no error in the refusal to direct a judgment of acquittal. The lower court examined the pictures and concluded that reasonable men could find as a fact that they were obscene and indecent; nothing has been presented to cause us to differ with its conclusion.

The defendant contends that the lower court’s exclusion of the September 11, 1950, issue of Life magazine was prejudicial error. The authorities seems to support its ruling. See Commonwealth v. Isenstadt, supra, and Commonwealth v. Donaducy, 76 A. 2d 440 (Pa. Super. 1950), where Judge Eoss states that the “test for obscenity is not a comparison with other publications which may or may not be obscene.” In any event, the reproductions of the paintings in their settings were in no wise comparable to the pictures being sold at the defendant’s store, and the exclusion of the magazine was not prejudicial.

The defendant’s final contention is that the lower court erred in denying its requests to charge numbered 18 to 20 inclusive. Humber 18 stated that the test of obscenity was not indecency in a picture because of its “capacity” of suggesting impure thoughts. See People v. Muller, 96 N. Y. 408, 411 (1884). The trial court had not intimated that it was and in view of its affirmative definition of obscenity, to which no objection was made, there was no occasion for the additional instruction or prejudice in its omission. Number 19 to the effect that the criterion of decency is fixed by “time, place, geography and all the elements that make for a constantly changing world” (People, on Complaint of Sumner v. Miller, 155 Misc. 446, 279 N. Y. S. 583 (City Ct. 1935)), might perhaps have been charged but here again there was no occasion for it and its omission was not prejudicial. Number 20 which defined obscenity as “something filthy, foul, loathsome, disgusting” was incomplete and its rejection in the form submitted was proper. State v. Simmons, 120 N. J. L. 85, 91 (E. & A. 1938). The defendant was fairly tried and convicted on adequate evidence and we find no error which may be said to have caused him any manifest wrong or injury within Rule 1:2-19. Accordingly, the judgment of conviction is Affirmed.


author: Freund, S. J. A. D.

text:
    WESTON ELECTRICAL INSTRUMENT CORPORATION, PLAINTIFF-APPELLANT, v. CITY OF NEWARK AND DIVISION OF TAX APPEALS IN THE STATE DEPARTMENT OF THE TREASURY, DEFENDANT-RESPONDENT.
    Superior Court of New Jersey Appellate Division
    Argued January 2, 1951 —
    Decided February 5, 1951.

      Before Judges Freund, Proctor and Rogers.

      Mr. William, H. Osborne, Jr., argued the cause for the plaintiff-appellant (Messrs. Pitney, Hardin & Ward, attorneys) .

      Mr. Vincent J. Casale argued the cause for the defendant-respondent (Mr. Charles Handler, attorney).
   The opinion of the court was delivered by

Freund, S. J. A. D.

The taxpayer, Weston Electrical Instrument Corporation, appeals from a judgment of the Division of Tax Appeals of the Department of Taxation and Finance, affirming the assessment of $1,500,000 on its tangible personal property levied by the City of Newark for the year 1948. arguing that it should be reduced to $1,247,000.

The settled rule is that there is a presumption that an assessment made by the proper authorities is correct, and the burden is upon the taxpayer to show otherwise. Estell v. Hawkins, 50 N. J. L. 122 (Sup. Ct. 1887); General Motors Corp. v. State Board of Tax Appeals, 124 N. J. L. 212 (Sup. Ct. 1940); affirmed, 125 N. J. L. 574 (E. & A. 1940); L. Bamberger & Co. v. Division of Taxation, 1 N. J. 151 (1948).

The taxpayer appealed from the city’s assessment to the Essex County. Board of Taxation, which dismissed the appeal. Thereafter, an appeal to the Division of Tax Appeals was, after a hearing, likewise dismissed. “We do not disturb the judgment of the state board, on questions of fact, unless the evidence is persuasive that the board erred in its determination.” Lawrence Township v. State Board of Tax Appeals, 124 N. J. L. 465 (Sup. Ct. 1940). The conclusions of the State Board fixing valuations should not be set aside except for palpable error. United N. J. R. R. & Canal Co. v. State Board, &c., 103 N. J. L. 33 (Sup. Ct. 1926); In re New York State Realty & Terminal Co., 5 N. J. Super. 156 (App. Div. 1949).

At the hearing below, Richard H. Glander, an expert appraiser, and F. Gerald Hawthorne, the appellant’s controller and assistant secretary, were witnesses for the appellant. Mr. Hawthorne testified merely that the physical in- ' ventory was kept under his supervision and that he had made the books and records available to Mr. Glander, as well as to Walter Julian, an accountant, who was a witness on behalf of the City of Newark. Mr. Julian testified to the valuations of the personalty as shown by the books and records of the appellant, while Mr. Glander gave his opinion as to their fair market value. The point argued by the appellant is that proof of boob value of personal property has no real probative value when not related to tine value. It urges that the assessment be reduced to the valuation testified to by its expert witness, because no witness produced by the city contradicted that valuation. The effect of appellant’s contention is that the respondent was obliged to accept the appraisal of appellant’s expert witness, although greatly below the valuations shown by the appellant on its own books. With this contention we cannot agree. Expert testimony is for the purpose of assisting the tribunal to arrive at a determination of true value and, if credible and convincing, may be considered in conjunction with the books and records of the taxpayer. The book value shown by the taxpayer, while not necessarily proof of true value, is nevertheless some evidence which the board may consider in its inquiry. We reject the proposition urged, namely, that the appellant’s book value should be wholly disregarded and the assessment reduced to the expert’s appraised value.

The book value of the personalty was more than two and one-half times the assessment. In round figures, the book value was in excess of $4,000,000; the assessment, $1,500,000. The following is an analysis and a comparison of the appraisal and book values:

Glander’s Appraisal
Book Values
Machinery, equipment and dies: $1,529,168.48 Less depreciation 771,013.26
$302,000 Office Furniture 758,155.22 153,860.50 Less depreciation 69,035.49
25,000 Inventory (average) 84,825.01 3,449,191.00 Less reserve for obsolescence 238,472.68
860.000 3,210,718.32
Total valuation $1,247,000 $4,053,698.55

The appellant manufactures electrical instruments; its inventory consisted of 32,000 items. Admittedly, its expert did not make a physical inspection of all the inventory, basing his appraisal largely on the inventory records shown him by Hawthorne. The book value of the inventory was based on cost. At cost, Glander valued the finished instruments at $611,300; raw materials at $362,471. He testified: “work in process and semi-finished parts * * * of $2,200,000. It is that merchandise principally that unless it finds its way into the actual outlet and is completed into an article to a willing buyer as of October 1st would not be worth more than * * * $150,000 and no more could be obtained for it in my opinion.”

The cost of an article is ordinarily some evidence of its value. However, other circumstances may, as of the assessment date, affect true value. Central R. R. Co. v. State Board of Assessors, 49 N. J. L. 1, 6 (Sup. Ct. 1886); General Motors Corp. v. State Board of Tax Appeals, supra. Even if we concede, arguendo only, that the true value of the inventory was less than either cost or book value, the valuation of appellant’s personal property as shown by its books is far in excess of the assessment. Accordingly, the appellant has failed to meet the burden of showing the assessment to be erroneous. The judgment will be affirmed, with costs.


author: Proctor, J. A. D.

text:
    IN THE MATTER OF THE APPLICATION OF THE BOROUGH OF PEAPACK-GLADSTONE FOR EMERGENCY DIVERSION FROM TIGER BROOK, EXTENSION IN TIME (W. S. APPLICATION NO. 572).
    Superior Court of New Jersey Appellate Division
    Argued January 8, 1951 —
    Decided February 1, 1951.

      Before Judges Freund, Proctor and Rogers.

      Mr. Ronald A. Gulick, attorney for and of counsel with appellants, Harrison P. Lindabury, Sara E. Lindabury, Elizabeth Cutting Booker, Neville J. Booker and Samuel MacGregor, argued the cause.

      Mr. Robert Peacock argued the cause for the defendant-respondent, Division of Water Policy and Supply of the Department of Conservation and Economic Development (Mr. Theodore D. Parsons, Attorney General of New Jersey).

      Mr. Bradford C. Seaman, attorney for and of counsel with defendant-respondent, Borough of Peapaek-Gladstone, argued the cause.
   The opinion of the court was delivered by

Proctor, J. A. D.

Appellants, property owners having riparian rights affected by the diversion of water from Tiger Brook in Morris County, challenge the validity of a resolution adopted on June 19, 1950, by the Water Policy and Supply Council, in the State Department of Conservation and Economic Development. The respondents are the Council and the Borough of Peapack-Gladstone of Somerset County.

The resolution authorized the borough to divert water from Tiger Brook for a period ending on September 81,1951. The resolution recites that it is predicated upon an application of the borough, No. 573, which was made August 7, 1943, and granted September 31, 1943. The resolution further recites the receipt of a letter from the borough, dated May 11, 1950, which requested a “two year extension in time for diversion of Tiger Brook” under the above apjdication. The attorney for appellants, by a letter dated May 17, 1950, requested information of the Council as to whether Tegal notice” would be given to property owners affected, if the borough should make application to the Council for permission to divert water from Tiger Brook. The Council, by its secretary, in reply thereto advised the attorney that such an application had been received and that “notice of hearing will be given.” No notice was given, in any form, of the hearing of June 19, 1950.

It appears that the resolution of September 31, 1943, gave approval for the diversion for a period of three years. Extensions were granted, the last of which expired on September 31, 1949. On June 16, 1949, the borough filed with the Council an application, No. 689, for permission to divert water from Tiger Brook, which application on January 16, 1950, after notice and hearing, was denied without prejudice.

The validity of the action of September 31, 1943, and of the intervening extensions is not challenged. The only question, which requires our determination, is whether the failure to give notice of the hearing of June 19, 1950, invalidates the resolution of that date.

' The original application, No. 573, was made in accordance with R. S. 58:1-18. After public notice, as required by R. 8. 58:1-19, and hearing, pursuant to B. 8. 58 :l-20, the decision was rendered on September 21, 1942. A diversion of water for a period of three years by the borough was authorized. This decision, by resolution of the State Water Policy Commission, respondent Council’s predecessor, was complete except that the Commission reserved the right to revoke the approval of the borough’s application for any violation of the conditions imposed in the decision. The applicant was not given the right to apply for extension of time beyond the three-year period.

Assuming the power in the Council to extend the time originally fixed is implicit in B. 8. 58 :1-18 et seq., where, as here, the time fixed has expired, it is clear that procedural due process requires notice and an opportunity to be heard bo given to the parties whose substantial rights would be affected by such an extension. There cannot be a substantial change in the rights of the parties without a hearing on notice. Handlon v. Town of Belleville, 4 N. J. 99, 107 (1950).

In the present ease, not only was no such notice given, but the application for the extension was made after the expiration of the last prior extension, and after a new but similar application had been denied. Moreover, though appellants had been promised an opportunity to be heard, they were not given any notice of the hearing of June 19, 1950.

The failure to give notice of the hearing of June 19, 1950, is fatal to the validity of the resolution of that date. This determination makes it unnecessary to pass upon the-other points mentioned in the briefs.

The resolution of June 19, 1950, is set aside. No costs will bo allowed.


author: Per Curiam.

text:
    ELIZABETH B. WADSWORTH, PLAINTIFF-APPELLANT, v. THE BOARD OF ADJUSTMENT OF THE TOWNSHIP OF BEDMINSTER, IN THE COUNTY OF SOMERSET, STATE OF NEW JERSEY, AND LESLIE M. APGAR, BUILDING INSPECTOR OF THE TOWNSHIP OF BEDMINSTER, DEFENDANTS-RESPONDENTS.
    Superior Court of New Jersey Appellate Division
    Argued January 29, 1951 —
    Decided February 5, 1951.

      Before Judges Freund, Proctor and Rogees.

      Mr. Robert R. Daly argued the cause for the plaintiff-appellant (Messrs. Daly, Hillis, Hall & McCormick, attorneys).

      Mr. Leon Gerofsky argued the cause for the respondents (Mr. William T. Stewart, Jr., of counsel).
   Per Curiam.

The judgment is affirmed for the' reasons expressed in the opinion of Judge Brennan in the court below.


author: Jayne, J. A. D.

text:
    MICHAEL SIENA, PLAINTIFF-RESPONDENT, v. GRAND LODGE OF THE STATE OF NEW JERSEY, ORDER SONS OF ITALY IN AMERICA, A CORPORATION, AND JOSEPH GIZZI, LOUIS J. LIGUORI AND GERARDO E. IERVOLINO, DEPENDANTS, GRAND LODGE OF THE STATE OF NEW JERSEY, ORDER SONS OF ITALY IN AMERICA, A CORPORATION, DEFENDANT-APPELLANT.
    Superior Court of New Jersey Appellate Division
    Argued January 22, 1951 —
    Decided February 6, 1951.

      Before Judges McGeehan, Jayne and Wm. J. Brennan, Jr.

      Mr. Merritt Lane, Jr., argued the cause for the appellant (Messrs. McCarter, English & Studer, attorneys; Mr. Augustus C. Studer, Jr., of counsel).

      Mr. Joseph H. Lerner argued the cause for the respondent.
   The opinion of the court was delivered by

Jayne, J. A. D.

The plaintiff instituted this action by filing a complaint in lieu of mandamus demanding a judgment directing the defendant to permit the plaintiff to examine and cause the audit of the financial records and books of account of the defendant embracing a period of years in the past, including those accounts pertaining to the administration of the Mortuary Benefit Fund and to the conduct and operation of the Orphans’ Home.

The Supreme Lodge, Order Sons of Italy in America, is the national organization, which may be said to have predominant supervision over all subordinate associations such as the defendant Grand Lodge of the State of New Jersey, Order Sons of Italy in America, a corporation instituted primarily for objects of fraternity and not for the acquisition of pecuniary profit. Beneath the Grand Lodge of each state are the district lodges, which are the community units in which the individual obtains membership. The governmental structure of the confederacy, although representative in character, rests fundamentally upon the will of the members of the local and district lodges. For example, the Grand Lodge of the state is composed of officers and delegates chosen by the members of the local lodges.

The Grand Lodge of New Jersey, pursuant to the authority of its certificate of incorporation, established a Mortuary Benefit Fund for the benefit of the members of the affiliated lodges, and also maintains an Orphans’ Home. Both of those enterprises are functions of the Grand Lodge. The Mortuary Benefit Fund consists of the premiums currently received from members of the order who join the fund, and is administered in accordance with a collection of pertinent by-laws which, inter alia, state: “It is a trust fund and governed by the laws and rules of the Grand Lodge of the State of Mew Jersey.”

The maintenance of the Orphans’ Home derives its financial support by means of a per capita assessment levied upon the membership of the local and district lodges.

The plaintiff is a member of a local lodge and an eligible beneficiary of the Mortuary Benefit Fund. He has been a delegate to the Grand Lodge, a Grand Trustee, and Grand Becording Secretary.

The plaintiff asserts that the information he obtained of the administration of the financial affairs of the Grand Lodge while serving in some or all of those capacities inspired him to address a communication to the members of the Arbitration Committee of the Grand Lodge on September 24, 1948, requesting the opportunity to inspect and audit the specified records and books of account. The request was not immediately granted and on October 28, 1948, he dispatched a similar overture to the Supreme Lodge.

In those communications he set forth the following reasons for his application:

“1. There has been no periodic accounting of the affairs of the Grand Lodge made available to me and other individual members.
“2. Funds have been disbursed by officers of the Grand Lodge without authority.
“3. Illegal death benefits have been paid.
“4. An illegal mortgage investment of funds of the Lodge was made.
“5. Monies of the Lodge Mortuary Fund were illegally diverted from the same.
“6. No itemized accounting has been made of receipts of monies for the maintenance of persons who were not orphans in the Orphans Home maintained by the Lodge.
“7. Illegal personal loans were made to employees of the Lodge.
“8. Printing bills for bulletins were illegally incurred and paid.”

The trial resulted in a judgment directing the defendant, Grand Lodge, to produce the stated records, reports, books of account, bank statements, and checks ‘^having to do with the accounts of the Grand Council, Order Sons of Italy in America, and having to do with the Mortuary Benefit Fund and the Orphans Home * * * during the period from July 1, 1944, through June 30, 1949,” for examination and audit by Harry Kalb & Company, certified public accountants, with the plaintiff (at his expense) and, if desired, in the presence of the defendant’s accountants. 8 N. J. Super. 579 (Law Div. 1950).

The judgment constitutes the subject matter of the present appeal.

Initially, the appellant calls in question the status of the plaintiff lawfully to prosecute this action. In Emma v. Loggia Fasci Italici No. 16, Sons of Italy, 7 N. J. Misc. 387 (Sup. Ct. 1929), it was determined: “In the present case, participation in a mortuary fund is involved, and that is a property right.” See, Id., 5 N. J. Misc. 1073 (Sup. Ct. 1927); Freda v. Societa Di Mulero, &c., Jersey City, 106 N. J. L. 17 (Sup. Ct. 1930). Vide, 1 Bacon, Life and Accident Insurance (4fh ed.), § 49 et seq.

Where the right to examine the books and records of the corporation exists, an action in lieu of mandamus is appropriately maintainable. Slettauer v. N. Y. & Scranton Const. Co., 42 N. J. Eq. 46 (Ch. 1886) ; Trimble v. American, Sugar Refining Co., 61 N. J. Eq. 340 (Ch. 1901) ; Fuller v. Alexander Hollander & Co., 61 N. J. Eq. 648 (Ch. 1900); Bruning v. Hoboken Printing & Pub. Co., 67 N. J. L. 119 (Sup. Ct. 1902); Feick v. Hill Bread Co., 91 N. J. L. 486 (Sup. Ct. 1918); affirmed, 92 N. J. L. 513 (E. & A. 1918) ; Wyckoff v. Hardware Supply Co., 134 N. J. L. 172 (Sup. Ct. 1946).

The right of the member or stockholder possessing a proprietary interest in the corporation to inspect the books and records, unlike that of a director of the corporation, is a qualified rather than an absolute right in that it is only judicially accorded where the application is made in good faith and is for a purpose germane to the applicant’s status or proprietary interest as a member or stockholder. Bruning v. Hoboken Printing & Pub. Co., supra: Feick v. Hill Bread Co., supra; McMahon v. Dispatch Printing Co., 101 N. J. L. 470 (Sup. Ct. 1925); Schroeck v. J. M. Quinby & Co., 102 N. J. L. 564 (Sup. Ct. 1926); Drake v. Newton Amusement Corp., 123 N. J. L. 560 (Sup. Ct. 1939) ; Kemp v. Sloss Sheffield Steel & Iron Co., 128 N. J. L. 322 (Sup. Ct. 1942); Morris v. United Piece Dye Works, 137 N. J. L. 262 (Sup. Ct. 1948).

In our review of the present ease there are two features of it that particularly engage our attention. The first relates to the incentive of the plaintiff in the prosecution of the action, and the other concerns his contractual obligation, if any, first to exhaust his available relief within the remedial privileges of the society before resorting to the courts for redress.

We shall briefly discuss the evidence pertaining to those subjects.

The plaintiff was admitted to membership in the district lodge in 1913. He asserts that he was “persecuted” in 1919 by “all the grand officers and Supreme officers.” The “Orator,” the officer who prosecuted the charge against him, testified that the plaintiff’s membership was at the conclusion of the proceedings suspended for a term of six months. The plaintiff, however, was subsequently elected by the membership of his lodge to serve as a delegate to the Grand Lodge conventions from 1923 to 1946. He attended the conventions in his capacity as a delegate and upon his return each year he reported at a session of his lodge that “everything was 100%” with respect to the affairs of the Grand Lodge.

The plaintiff occupied the position of Recording Secretary of the Grand Lodge from September, 1936, until September, 1946, during which period he currently received with knowledge of its source a portion of his salary from the Mortuary Benefit Fund, and upon request was granted a personal loan from the funds of the association.

Prior to the convention of 1946 the plaintiff requested the Grand Venerable of the Order to recommend an increase in the salary of the Recording Secretary, which he refused to do, whereupon the plaintiff declined the nomination to continue in that position. A member of the clergy who attended that convention testified that on that occasion the plaintiff in a conversation with him complained that Tie was not treated well by the Council of the Grand Lodge.” He there after characterized the annual sessions as “one man conventions” and no longer attended them as a delegate. The plaintiff denies that the failure to increase his salary inspired any antagonistic sentiment against the officers of the Grand Lodge or motivated the cessation of his active participation in its administrative affairs. Thorean once said, “What is called resignation is confirmed desperation.”

Time elapsed, during a portion of which intervening period the plaintiff was ill, until the plaintiff dispatched his demands in September and October, 1948. The Supreme Financial Secretary testified that in discussing the demand with the plaintiff, the latter remarked, “Well, you know, I want revenge,” and “If they give me some satisfaction I will drop the report.” At a subsequent interview the plaintiff expostulated “I don’t give a damn for the organization. I want to take my revenge against the people (Grand Council) in the State of New Jersey.”

Under date of September 6, 1948, the plaintiff addressed the following letter to his friend and successor, Grand Kecording Secretary:

“My dear Friend Gizzi:
“I regret that I cannot return you the General Laws, for the reason that I need them from a legal point, however I am enclosing yon herewith the cost so that you can replace them from Supreme Council.
“It makes no impression on me tohether I remain in the. order because they have already brought it into bankruptcy.
“The ease for the investigation will have reaction and repercussion nationally.
“The American Press will make comments on the results of the investigation from the reports made by the accountants.
“The destinies of the order are in my hands. I shall he admired hy the entire colony for having be (sic) able to expose the mysteries of the order, and for having exposed the rightfully destructures of the order, who knows how they will end legally.
“Regards and many thanks
“Avv. Michael Sjejva.”

It has been said that the highest form of vanity is love of fame. We have italicized the expressions in the letter to reflect their hold and trenchant significance.

The concluding paragraphs of the plaintiff’s communication to the Supreme Council dated March 2, 1949, display the plaintiff’s dejection and chagrin. We quote:

“The Supreme Council has permitted the nomination of lots of Supreme Delegates devoid of the rudiments of an elementary education and many others ignorant and common laborers. Why? All know, the answer.
“All of you know the outcome of the sorrowful future of the entire Order, and that within your own hearts feel that the ailment being too chronic there is no antitoxin how available for its cúre.”

True, the burden, of proof of bad faith devolved upon the defendant. Morris v. United Piece Dye Works, supra. True also, unless the demand to examine the accounts is made in good faith, the application -will be denied. McMahon v. Dispatch Printing Co., supra; Vernam v. Scott, 12 N. J. Misc. 177 (Sup. Ct. 1934).

We recall the familiar statement of Justice Swayze in In re De Vengoechea, 86 N. J. L. 35 (Sup. Ct. 1914), that “the power to order an inspection of books is so great, its exercise may affect unfavorably so many innocent stockholders, and may cause such inconvenience or perhaps such ruinous results to a corporation * * * that the court ought to exercise the power with the greatest care and only when a case is presented which indicates not only a Iona fide desire to safeguard the interests of all stockholders but a probability that the interests of all will be served by the proposed investigation.”

We note incidentally that although there were at the time of the trial of this action more than 4,000 members of the Mortuary Benefit Fund, none united with the plaintiff in his endeavor.

We proceed to consider as 'well the evidence pertaining to the second phase of the case to which previous reference was made. The plaintiff subscribed to an application for membership to the Grand Lodge which contained the following declarations :

“V. That I have a precise knowledge of the Laws of the Order and of the Internal Rules of this Lodge and find them to be to my complete satisfaction.
VIII. That I will obey and comply with the laws of the Order, the Decrees of its competent Authorities, the Internal Rules of this Lodge, as they are today or as they may be modified in the future.
X. That this application constitutes a formal contract between me, the Lodge, and the Order Sons of Italy in America.”

As a member oí a committee of five lie proposed successfully for adoption by the membership of his district lodge the following article of its existing internal laws:

“Article 47. No brother is permitted, under pain of expulsion to go to the civil courts of law before he shall have appeared before the various grades of jurisdiction established by the Order. The present by-laws can not be annuled until ten years after the date of approval. Amendments may be proposed for specified reasons but in order to be approved they must be adopted by a two-thirds majority of those voting.

These by-laws have been compiled by a committee consisting of the following members.

1. Giuseppe Venezie
2. Avv. Michele Siena
3. S. Giuliano
4. G. Picone
5. G. Manfredi”

It suffices to state that there were and are tribunals, with rules and regulations governing the courses of procedure within the organic law of the association to which the plaintiff could have resorted in quest of the relief he sought. See, Exhibit, General Laws, Order Sons of Italy. It may be confidently inferred that the plaintiff was aware of the remedies available to him under the constitution and general laws of the association. He is an attorney at law, and we have noticed that in his letter of September 6, 1948, he informed the Grand Kecording Secretary: “I regret that I cannot return you the General Laws, for the reason that I need them from a legal point * * Cf. Chew v. Manhattan Laundries, 134 N. J. Eq. 566 (E. & A. 1944).

It is observed that the plaintiff addressed his demand to the Grand Lodge on September 20, 1948, to the Supreme Lodge on October 28, 1948, and instituted the present action on December 9, 1948. The trial of the action began on May 18, 1950. Meanwhile there was an exchange of correspondence between the plaintiff, his attorney, and representatives of the Order. The communications distinctly reflect the attitude of the plaintiff.

It seems reasonable to suppose that the privilege sought by the plaintiff could only be afforded by the Supreme Council of the Grand Lodge. The plaintiff knew that the meetings of the Council were not frequent. The secretary informed him that “a plenary meeting of the Supreme Council will be held on Saturday and Sunday, March 5th-6th, 1949, at the Bellevue Stratford Hotel, Broad and Walnut Streets, Philadelphia, Pa., at 10 o’clock a. m.” The plaintiff did not attend. It is incidentally noticeable that this opportunity to be heard by the Council preceded the trial of the action at law by more than a year.

In his acknowledgment of the receipt of the notice of the meeting of the Supreme Council, the plaintiff, inter alia, wrote:

“Regarding my appearance before tbe Supreme Council, it is not proper and fitting, at this time, as I am already in the Court of Law.
Therefore, the Supreme Session will have no problem to solve on the matter. * * *
They have allowed each state Lodge to establish its own Mortuary Fund Insurance, and they have allowed them to conduct it independently, at their will and pleasure, thus creating a rich milky cow where any one have had access to milk it and to live in opulence, all of his life. Finally the cow has become too sterile and no longer productive. It is now useless to illustrate all the deplorable consequences derived through such a system.
If the Supreme Council had to adopt his (Lawyer Mezzatesta, 1917) system throughout the Order and to assess each of the then 1,000,000 members in the sum of $10.00 each, today the Order would have been just as prosperous and financially strong as the Metropolitan, Prudential etc. What is the Order financially today? NIL!”

In a communication addressed to the secretary of the Supreme Lodge, dated June 3, 1949, the plaintiff stated:

“I now call upon you as the spokesman for the National Supreme Lodge to make available to me the books for examination by me or my accountants, and if this is not done I will apply to a Federal Court for the same kind of relief I am asking in New Jersey.”

The Supreme Secretary replied:

. “You will recall that you were invited to attend a meeting of the Supreme Council in Philadelphia. Pa., on March 6, 1949, to present your complaint. You failed to appear but wrote a very abusive letter instead.
In view of what you state the invitation for you to attend and present your case is hereby renewed, and you are advised that the next meeting of the Supreme Council will be held on September 28, 1949 at the Hotel Chelsea, Atlantic City, N. J., at noon.”

The plaintiff testified at the trial: “I wrote the Supreme Lodge. I couldn’t appear before them and prejudice my case.”

It is a well-settled principle of the law of this State that even where property rights are involved, still if the laws and rules of the organization provide a remedy within that body and such rights are cognizable by the tribunals established within the order and the members have agreed to exhaust that remedy before resorting to the courts of law, the latter will not interfere until that available remedy has been exhausted. Ocean Castle v. Smith, 58 N. J. L. 545 (Sup. Ct. Ct. 1896); affirmed, sub nom. Smith v. Ocean Castle, 59 N. J. L. 198 (E. & A. 1896); Roxbury Lodge v. Hocking, 60 N. J. L. 439 (E. & A. 1897); Walsche v. Sherlock, 110 N. J. Eq. 223 (Ct. 1932) ; Dragwa v. Federal Labor Union, 136 N. J. Eq. 172 (Ch. 1945).

It is interesting to behold that the principle has been recognized and applied by our former Court of Errors and Appeals in a previous action implicating the Grand Lodge of the State of New Jersey, Order Sons of Italy in America. Purcaro v. Grand Lodge, &c., Sons of Italy, 107 N. J. L. 82 (E. & A. 1930).

It is realized that an immunity from the rule or principle arises where property rights are implicated and it is manifest that a resort to the remedies afforded by the association would be futile, illusory, or vain. Walsche v. Sherlock, supra.

We have made profuse references to the evidence in this case because our review implicates fundamentally the substantiality of the findings of fact of the trial judge to which the principles of law are to be applied.

Our review of those material issues of fact to which we have particularly referred, made with due regard to the opportunity of the trial court to judge the credibility of the witnesses, and upon consideration of the weight of all of the relevant evidence, conducts us to the conclusion that the plaintiff did not make his application in good faith and did not first exhaust his available remedies, as he had agreed to do, in conformity with the organic laws of the Order. Nor is it made evident that a pursuit of his opportunities within the association would have been futile. Bules 1:2~20; 4:2-6.

The learned trial judge conceived that “the accounting and examination sought cannot hurt or harm the defendant.” However, unless the application is clearly justified, the mandatory judgment does violence to the settled and well-established principles of law governing all such cases.

Our conclusions of fact necessitate a reversal of the judgment of the Law Division. In the circumstances of the present case the record is returned with directions to enter a judgment for the defendant. No costs.


text:
    IN THE MATTER OF THE ESTATE OF MARY McFEELY, DECEASED.
    Superior Court of New Jersey Appellate Division
    Argued January 29, 1951 —
    Decided February 6, 1951.

      Before Judges Freund, Proctor and Rogers.

      Mr. Abraham, J. Slurzberg argued the cause for the appellant (Mr. Joseph B. McFeely, executor of the last will and testament of Bernard M. McFeely, and attorney pro se).

      Mr. Victor S. Kilkenny argued the cause for the plaintiff-respondent (Messrs. Otis & Kilkenny, attorneys).
   Per Curiam.

The judgment is affirmed for the reasons expressed in the opinion of Judge Stanton in the court below.


author: Rogers, J. A. D.

text:
    HARRY GLIDEAR, PETITIONER-APPELLANT, v. HAROLD A. CHARLES AND HELEN G. CHARLES, RESPONDENTS-APPELLEES.
    Superior Court of New Jersey Appellate Division
    Argued December 18, 1950 —
    Decided February 8, 1951.

      Before Judges Freund, Proctor and Rogers.

      Mr. Benjamin H. Priest, attorney for appellant, argued the cause.

      Mr. Raymond L. Cunneen, attorney for appellees, argued the cause.
   The opinion of the court was delivered by

Rogers, J. A. D.

This is a workmen’s compensation case. Petitioner was injured while working as a carpenter upon the construction of respondents’ new residence. The respondents let contracts for the excavation, plumbing and electrical work, but they hired artisans for the carpentry and masonry. The respondent, Mrs. Charles, hired petitioner as a carpenter to work on the house until it was completed. He had been a carpenter for 50 years. He was paid weekly at a daily rate of $10. Mrs. Charles supervised the work daily, and petitioner worked each day, except for holidays and storms, from the middle of September, 1948, until he was injured at work on November 24, 1948, a substantial time before the building was completed. Respondents were not engaged in the construction business and it was conceded that the employment was not in connection with any such vocation.

At the hearing before the Division of Workmen’s Compensation respondents abandoned the defenses that (1) the petitioner was an independent contractor, and that (2) the accident did not arise out of and in the course of his emplojunent. By amendment the defense of casual employment in other than respondents’ business was interposed. The Workmen’s Compensation Division dismissed petitioner’s claim for lack of jurisdiction in that petitioner’s employment was not within the protection of the workmen’s compensation statute because it was casual, and not regular, periodic or recurring; and the County Court affirmed the dismissal upon the same grounds. Petitioner now appeals from the judgment entered upon the latter appeal.

The section of ihe statute implicated in this appeal, B. S. 34:15-36 as amended P. L. 1945, c. 74, is as follows:

“* * * ‘employee’ is synonymous with servant, and includes all natural persons who perform service for another for financial consideration, exclusive of casual employments, which shall be defined, if in connection with the employer’s business, as employment the occasion for which arises by chance or is purely accidental; or if not in connection with any business of the employer, as employment not regular, periodic or recurring; * * *”

The only question presented upon this appeal is whether, within the intendment of this statute, the substantially undisputed facts show that petitioner’s employment was either regular, periodic or recurring in other than respondents’ business.

The Deputy Director and the County Judge relied upon Larson v. Hergert, 5 N. J. Super. 367 (App. Div. 1949), to sustain their conclusions that petitioner’s employment was casual and not regular. We think the Larson case does not apply. There the dismissal was affirmed upon the ground that the proof did not show, as alleged, that the employment was in connection with the employer’s business. Furthermore, it was admitted that the employment was not regular, periodic or recurring. The claim before us arises from employment not in the employer’s business, and whether it was regular, periodic or recurring is the pivotal issue.

Forrester r. Eckerson, 107 N. J. L. 156 (E. & A. 1930); Clausen v. Dinnebeil, 125 N. J. L. 223 (Sup. Ct. 1940), and Gray v. Greenwood, 129 N. J. L. 596 (Sup. Ct. 1943); affirmed, 130 N. J. L. 558 (E. & A. 1943), were also relied upon by the County Judge, and, in our opinion, are not controlling, because the character, circumstances and term of the employments involved in those cases differ essentially from the employment elements before us.

In the Forrester case, the employment was for such chores at the employer's home as might be assigned from day to day for a brief period, and which were not exclusively in the employee's trade; the work was neither regular, periodic nor recurring, and when completed the employee returned to his regular work.

The Clausen case held that a brief job helping an owner ■ put a new roof upon his house was casual and not compensable employment.

In the Gray ease, the employment for one day at the employer's home of a dressmaker who had been so employed upon a few occasions irregularly over a period of years was held not to constitute regular, periodic or recurring employment under the statute.

In Forrester v. Eckerson, supra, in construing the statute before us, Mr. Justices Donges for the Court of Errors and Appeals said:

“The question is, then, was plaintiff-respondent’s work for the defendants-appellants regular, periodic or recurring?
The words, as used in this act, connote that employment is regular when it is steady and permanent for more than a single piece of work; recurring, when the work is to be performed at some future time by the same party, without further engagement; and periodic, when the work is to he performed at stated intervals, without further engagement.”

The varying circumstances of employment outside the scope of employer’s business are myriad when employment is tested for the statutory non-casual requirements, — “regular, periodic or recurring." No precise and practical definitions of compensable or casual employments under this provision of our statute suitable for all cases have been cited; and it is apparent that none can be composed. Each ease must stand or fall upon its own facts tested by the fair meaning of the statutory standards of employment — “regular, periodic or recurring.”

Our cases indicate that steady employment in the employee’s usual line or trade and for more than a single piece of work constitutes “regular” employment within the statute. These factors, as stated above, were found wanting in Forrester v. Eckerson, supra, and the compensation claim was denied. In Jasnig v. Winter, 115 N. J. L. 320 (Sup. Ct. 1935) ; affirmed, 116 N. J. L. 181 (E. & A. 1936), a dressmaker employed by the day for several days to sew as directed was held to be in “regular” employment within the statute. And so it was held in Cantwell v. Delaney, 10 N. J. Misc. 783 (Sup. Ct. 1932); affirmed, 110 N. J. L. 554 (E. & A. 1933), with the hiring of a practical nurse for three weeks and such further time as might be required. Of similar tenor is Stillman v. Judges of the Court of Common Fleas of Essex County, 6 N. J. Misc. 6 (Sup. Ct. 1927).

We now turn to appraisal of the facts before us under the applicable principles cited above. It seems clear that in the case sub judice petitioner was not employed for a single piece of work, nor for a single job, in any sense indicative of casual employment. He was hired for a substantial residence construction project of unestimated duration except its completion. The work was in his regular trade and inferably required his carpentry skill in the broad area of framing, exterior, interior, rough and finished work. He was paid weekly on a daily rate, and he had worked steadily for ten w'eeks before he was injured. Even then his employment was not ended because the house was not yet complete. What elements of “regular” employment in the usual or statutory sense of a “steady, permanent” nature are lacking here ? We perceive none. The term of petitioner’s employment was the completion of the construction, and we surmise in his work as a carpenter this indicated as steady and as permanent an employment as is found usually in the trade. The evidence, in our opinion, shows that petitioner established a compensable claim under the Workmen’s Compensation Act. The court below erred in affirming the dismissal of petitioner’s claim by the Division of Workmen’s Compensation.

The judgment of the County Court is reversed and the cause is remanded for further proceedings consistent herewith.


text:
    JESSIE BRANDT, PLAINTIFF-APPELLANT, v. THE GREAT ATLANTIC AND PACIFIC TEA COMPANY, A CORPORATION, DEFENDANT-RESPONDENT.
    Superior Court of New Jersey Appellate Division
    Argued January 2, 1951 —
    Decided February 8, 1951.

      Before Judges Freund, Proctor and Rogers.

      Mr. Joseph Tomaselli argued the cause for the plaintiff-appellant (Mr. Edwin Segal, attorney; Mr. Joseph P. De Luca, of counsel).

      Mr. William G. Bischoff argued the cause for the defendant-respondent (Messrs. Carroll, Taylor & Bischoff, attorneys).
   The opinion of the court was delivered by

Rogers, J. A. D.

Plaintiff sought damages for injuries sustained in a fall allegedly the result of defendant’s negligent maintenance of an automobile parking area adjacent to its store. At the close of the testimony the trial court held that the evidence presented no issues for the jury to determine and granted defendant’s motion for judgment from which this appeal is taken.

In passing upon a motion for judgment, heretofore a motion for nonsuit or directed verdict, our courts have repeatedly ruled that the evidence will not be weighed but “all the proofs which support the claim of the party against whom the motions are made must be accepted as true and he is entitled to the benefit of all legitimate inferences which may be drawn therefrom. Where fair-minded men might honestly differ as to the conclusions to be drawn from the proofs, the questions at issue should be submitted to the jury.” Andre v. Mertens, 88 N. J. L. 626 (E. & A. 1916); Scarano v. Lindale, 121 N. J. L. 549 (E. & A. 1939) : Schwartz v. Rothman, 1 N. J. 206 (1948) ; Fischetto Paper Mill Supply, Inc., v. Quigley Co., Inc., 3 N. J. 149 (1949). The trial judge considered the proofs before him and concluded that plaintiff had failed to show any evidence of defendant’s negligence. Plaintiff argues that this conclusion was erroneous} that the motion should have been denied and the case submitted to the jury.

We are convinced from our examination of the evidence that defendant’s motion for judgment was properly granted. The proofs showed that plaintiff was injured by a fall in the public street adjoining the side of defendant’s building and not in the parking area defendant maintained in the rear. The fact that some of defendant’s customers may have used that street for parking while shopping, and even to its knowledge, did not impose any duty upon defendant to maintain that area of the street in reasonably safe condition, nor did it create with such persons the relationship of invitees. Maintenance of the street was a municipal responsibility. Lawful parking upon any public street while shopping in defendant’s store was the right of any member of the public without any concomitant rights or duties flowing to or from such person and defendant. Whether plaintiff knew that the area where she fell was a public street, or whether she believed it to be defendant’s parking lot, is immaterial so far as concerns any duty owed to her by defendant. The test is the fact, not plaintiff’s knowledge or belief.

There is no merit in the argument that several pictures in evidence were considered by the court instead of being submitted to the jury in order to determine the nature and purport of three signs defendant had painted upon the southerly wall of the store building bounding the north side of the public street. These signs read “free parking” with hands pointing to the rear of the building where defendant did maintain a parking lot. There were no conclusions to be drawn from these signs in this case about which fair-minded men might honestly differ. Their significance was clearly that such a parking area was in the rear, and no inference could be legitimately drawn that they indicated defendant’s invitation to its customers to park below the signs in the public street alongside the building.

Whether defendant’s emplees carried packages from the store for customers with cars parked in the public street on the south side of the store was immaterial to any issue in the case and questioning thereon was properly overruled when submitted to show that defendant knew of and encouraged such parking. It is finally argued that the court’s exclusion of a question' seeking a statement by defendant’s store manager to plaintiff’s witness the day after the accident constituted substantial and reversible error. The ruling was correct because the identity of this person was not established, nor that he made the statement in the performance of his duties for defendant. Thompson v. Giant Tiger Corporation of Camden, New Jersey, 118 N. J. L. 10 (E. & A. 1937); Barcello v. Biel, 137 N. J. L. 606 (E. & A. 1948). Furthermore, any error the court may have made in excluding this question may not be reviewed on appeal inasmuch as plaintiff accepted it without objection at the trial. Menth v. Breeze Corporation, Inc., 4 N. J. 428 (1950).

The judgment is affirmed.


author: Eastwood, J. A. D.

text:
    ANNA DICK, PLAINTIFF-APPELLANT, v. LEO M. DICK, DEFENDANT-RESPONDENT.
    Superior Court of New Jersey Appellate Division
    Argued January 22, 1951 —
    Decided February 7, 1951.

      Before Judges Jacobs, Eastwood and Bigelow.

      Mr. Charles Handler argued the cause for the plaintiff-appellant (Messrs. Samuel H. Berlin and Martin Wm. Wallace, on the brief).

      Mr. Julius Stein argued the cause for the defendant-respondent (Messrs. Stein Feinseth, attorneys).
   The opinion of the court was delivered by

Eastwood, J. A. D.

Plaintiff appeals from the judgment of the Chancery Division, dismissing her complaint seeking separate maintenance and payment of defendant's promissory note in the sum of $6,000, representing the agreed value of personal property unlawfully converted by defendant to his own use.

Eor the purpose of this determination, we think a condensed version of the proofs will suffice. The parties were married at Orange, New Jersey, on November 30, 1945. They went to Miami Beach, Elorida, for their honeymoon. On February 3, 1946, during their honeymoon, the defendant surreptitiously left his wife taking her furs and jewelry. By appointment, he met his wife on the street the following day, when he returned some of the articles. While in Elorida the defendant instituted and abandoned an annulment action. On February 22, 1946, the plaintiff returned alone to an apartment at 32 South Munn Avenue, East Orange, to which the defendant returned two or three days later. Subsequently, while the plaintiff was in New York City, where the defendant had induced her to go on the pretext that he would return her jewelry, he returned to East Orange, removed all of the furnishings from their apartment, and having previously effected a cancellation of the lease subletting her apartment at 67 Munn Avenue, East Orange, caused all her belongings to be placed therein. Thereafter, she proceeded to make a criminal complaint against the defendant for abandonment, an indictment being returned therefor by the Essex County Grand Jury. While searching for the defendant, he contacted his wife, asking her to meet him in Nevada, to which proposal she agreed upon receipt of $400 for her expenses. A temporary reconciliation was effected and they lived together for ten days at Los Angeles, California, when the plaintiff returned alone to East Orange. The parties remained separated until September, 1946, when the plaintiff was served with notice of divorce proceedings instituted by defendant in Navada. When she went there to contest the action, the parties again became reconciled. The divorce suit was thereupon abandoned and on September 26, 1946, a written agreement was entered into reciting the reconciliation of the parties, providing for the withdrawal of the indictment and defendant agreed to return the stolen jewelry, giving his promissory note in the sum of $6,000 as security therefor. The parties thereupon returned to New York City, lived together there for three weeks, after which the plaintiff returned to her apartment in East Orange, the defendant going to his apartment in the Park Hotel in Plainfield, Now Jersey. During their entire married life, the plaintiff maintained her apartment at 67 Munn Avenue, except for the brief period when she sublet it. Subsequent to the first separation of the parties as well as following the institution of her action, the parties resumed marital relations on numerous occasions. Subsequent to the delivery of the promissory note to plaintiff, the defendant instituted bankruptcy proceedings, wherein the plaintiff filed a claim reciting defendant’s larceny of her jewelry and the execution of the note as security for the return thereof.

Plaintiff contends that (1) the facts establish that the defendant abandoned or separated himself from his wife or neglected or failed to maintain and provide for her, and that he has not sincerely effected a reconciliation or met his marital obligations; (2) that the defendant’s discharge in bankruptcy did not operate to release him from his liability to the plaintiff for the value of the personal property unlawfully converted by the defendant; and (3) that the evidence requires new or amended findings of fact.

At common law the husband was liable for the support of his wife while they lived apart with his consent. Buttlar v. Buttlar, 57 N. J. Eq. 645, 656 (E. & A. 1899). The husband’s legal duty to support his wife does not cease by reason of her absence from his home at his instance or with his consent. Tt is only when he desires her presence in his home that her presence in that home can be made a condition precedent to his obligation of support. Until it is made to appear that the wife’s absence from her husband’s home is without his cooperation or consent or is against his will, the issue as to whether the husband has by his conduct sacrificed his right to her presence in his home is not a live issue. When a wife resides away from her husband with his consent his obligation to support her continues. Barefoot v. Barefoot, 83 N. J. Eq. 685 (E. & A. 1914). The offense described in our separate maintenance statute consists essentially in the husband’s failure or refusal to maintain and provide for his wife as long as he is under the common law duty to do so. Weigand v. Weigand, 41 N. J. Eq. 202 (Ch. 1886); affirmed, 42 N. J. Eq. 699 (E. & A. 1887). The law favors the continued cohabitation of the parties, and the husband’s consent to separation is not to be deemed justifiable cause for such separation nor does the wife’s consent thereto absolve the husband from his • common law duty to maintain her. Richman v. Richman, 129 N. J. Eq. 114 (E. & A. 1941), affirmed on Advisory Master Herr’s opinion. The parties in the instant case being undivorced, were living separate and apart from each other. The plaintiff contends that at all times she was willing to live with her husband as man and wife and as proof thereof points to the numerous occasions when she promptly responded to her husband’s invitation to live with him. But, she asserts, each time he terminated the relationship without justifiable cause and left her. On the contrary, the defendant contends that his wife is the deserter; that she refuses to live with him until he convinces her of his “stability, integrity, sincerity and honesty” and either returns the jewelry he had unlawfully taken or pays the note for $6,000. We think that the conduct of the defendant towards his wife is indefensible; that he purposely resumed marital relationship with his wife for comparatively short periods of time to avoid action by her against him for either maintenance or criminal prosecution for the jewelry he had stolen from her. On the other hand, while the plaintiff appears to have responded to his several invitations to resume marital relationships with him, we are inclined to the view that permanent 'establishment thereof was predicated upon her husband’s compliance with her demand that he first return the jewelry or pay for it. We have a conviction that there is a lack of sincerity on the part of both parties towards effecting a reconciliation leading to any permanency. It appears from the evidence, and the Advisory Master so found, “that the defendant has been making pay'ments of money to the plaintiff with fair regularity in sums of $100 or more, and there is no proof in the ease that such payments were inadequate or what the real needs of the plaintiff were.” Our examination of the proofs impels us to concur in this finding of the trial court. We are satisfied, as was the Advisory Master, that “the plaintiff has failed to make out a case of unjustifiable abandonment and failure and refusal to adequately maintain and provide under the statute.”

We think the trial court erred in its dismissal of the count of the complaint seeking payment for the value of the jewelry unlawfully taken and converted by the defendant. The defendant contends that his discharge in bankruptcy operated as a bar to any subsequent action on the promissory note in question, asserting that the plaintiff waived her right of action on the tort claim when she accepted the note for the value thereof and filed her claim in the bankruptcy proceedings. Section 35 of the Eederal Bankruptcy Act, Title 11, as amended, June 22, 1938, c. 515, § 1, 52 Slat. 851, provides: “a. A discharge in bankruptcy shall release a bankrupt from all of his provable debts, whether allowable in full or in part, except such as * * *; (2) are liabilities for obtaining money or property by false pretenses or false representations, or for willful and malicious injuries to the person or property of another. * * *” The right of a bankrupt to a discharge and the effect thereof are distinct matters and whether a discharge when granted will be a bar to enforcement of a claim which comes within fhe purview of 11 U. S. C. A. 35, is to be decided at the time and in the proceeding in which that claim is sought to be enforced and is not the concern of the bankruptcy court. In re Scandiffio, 63 F. Supp. 264 (D. C. N. Y. 1945). A debt that is not dischargeable in bankruptcy is not a bar to subsequent action thereon, even though it may be provable and share in the distribution of the bankrupt’s estate. Hartford Accident & Indemnity Co. v. Flanagan, 28 F. Supp. 415 (D. C. Ohio 1939) ; Wilson v. Walters, 19 Cal. 2d 111, 119 P. 2d 340 (1941), and Rosenthal v. Levin, 21 N. J. Misc. 301 (Cir. Ct. 1943). The law is settled that the mere acceptance of a promissory note in payment, or as evidence of an indebtedness which otherwise would have been excepted from the operation of a discharge in bankruptcy, does not operate to change the nature of the indebtedness, so as to take it out of such exception. In other words, the acceptance of the note does not render the claim dischargeable. American Surety Co. v. McKiearnan, 304 Mich. 322, 8 N. W. 2d 82 (Sup. Ct., en banc, 1943), and collated cases in 145 A. L. R., pp. 1239-1244; Railroad Employees’ Personal Loan Co. v. Dillon, 123 N. J. L. 31 (Sup. Ct. 1939); Rosenthal v. Levin, supra. But, defendant contends that when the plaintiff accepted the note for the value of the jewelry, the character of the debt was changed; that any tort action which the plaintiff theretofore had was extinguished and the filing of her claim in the bankruptcy court evidenced her acceptance of the note in payment of the jewelry and constituted a waiver of her right of action on the ground of the defendant’s alleged fraud in the creation of the obligation. In support of his contention, the defendant cites the case of Maryland Casualty Co. v. Cushing, 171 F. 2d 257 (C. C. A. 7th, 1948). We find, however, upon an examination of the Maryland Casualty Co. case, that it is not factually analogous. In that case the note sued upon was concededly given and accepted as a waiver of the antecedent right of action in tort. Where there is a waiver of the tort action, the debt is removed from the pertinent exception in 11 U. S. C. A. 35 and may be fully discharged by the bankruptcy proceedings; thereafter, if so discharged, it cannot be sued upon as a non-dischargeable indebtedness or obligation. In the present case, we find absolutely no factual analogy to the Maryland Casualty Co. case. The record is clear that there is no basis for the defendant’s contention that the acceptance of the promissory note by the plaintiff and the proving of her claim in the bankruptcy court, constituted a waiver of her right of action for his tortious conduct. An examination of the agreement entered into between the parties on February 26, 1946, substantiates this conclusion. Paragraphs four and five clearly establish defendant’s fraudulent conduct and that the promissory note in the sum of $6,000 was given by defendant to plaintiff “as security for the full performance” of defendant’s agreement to return all the jewelry in question on or before September 30, 1948. The plaintiff’s right of action under the circumstances here is established by the case of Maryland Casualty Co. v. Cushing, supra, wherein the court held:

“The general rule is that a promissory note is but the evidence of indebtedness and does not discharge the debt for which it was given. And, of course, where a note is accepted only as evidence of a preexisting debt and not as a satisfaction or waiver of a tort action, acceptance of such a note will not of itself waive the original cause of action. Blumberg v. Louis Henne Co., Tex. Civ. App. 5 S. W. 2d 1015; Gehlen v. Patterson, 83 N. H. 328, 141 A. 914; and Mathewson v. Naylor, 18 Cal. App. 2d 741, 64 P. 2d 979.”

We find from the evidence that the note sued on was given and received merely as security for the debt growing out of defendant’s fraudulent action with respect to his wife’s jewelry and her action for recovery of the amount due thereon was not barred by defendant’s subsequent discharge in bankruptcy. Raia v. Goldberg, 33 Ala. App. 435, 34 So. 2d 620 (1948); certiorari denied, 250 Ala. 398, 34 So. 2d 625; Fidelity & Casualty Co. of N. Y. v. Golombosky, 133 Conn. 317, 50 A. 2d 817 (1946). The plaintiff is entitled to a judgment for the amount of the note, together with interest thereon from the date thereof at the rate of 6% per annum.

We find no merit in defendant’s contention that plaintiff cannot legally enforce her claim in equity against the defendant. The rule of law is settled to the contrary in numerous decisions of our courts. See Fike v. Fike, 3 N. J. Misc. 485 (Ch. 1925) ; affirmed, per curiam, 99 N. J. Eq. 424 (E. & A. 1926).

The judgment of the Chancery Division dismissing the count in the plaintiff’s complaint seeking separate maintenance is affirmed. The dismissal of the count in the complaint seeking recovery on the promissory note for $6,000 is reversed. The cause is remanded for the entry of judgment in conformity with the foregoing determination. The plaintiff is allowed costs.