text:
    Atlantic County Circuit Court.
    BENJAMIN FRIEDBERG, PLAINTIFF, v. SIRACUSA COMPANY, A CORPORATION, DEFENDANT.
    Decided July 24, 1946.
    For the plaintiff, Lloyd, Horn & Perskie (by Herbert Horn).

    For the defendant, W. Elmer Brown, Jr.

   Burling, C. C. J.

Plaintiff alleged in paragraph 4 as amended, in his complaint “that the defendant entered into a contract made for the benefit of the plaintiff with the D & F Corporation by the terms of which said D & F Corporation agreed to permit the defendant to write or place all of the insurance including fire insurance, as well as other types of insurance, to cover said D & F Corporation and/or Hotel Knickerbocker Operating Company and Knickerbocker Hotel and garage in the City of Atlantic City, and said D & F Corporation agreed that it would not cancel or cause to be canceled any insurance previously written covering said D & F Corporation and Hotel Knickerbocker Operating Company, providing, and as a consideration therefor, said defendant would agree to pay to plaintiff one half of the commission so written or placed and on any future business so written or placed covering said hotel or the owner or operator thereof.”

Defendant demands brokerage commissions in accordance with the contract.

Motion has been made by the defendant to strike the complaint upon the following grounds:

“1. The first count of said complaint is fictitious in that it fails to set forth a good and legal cause of action.

“2. The first count of said complaint is founded upon an illegal contract and the said contract is therefore unenforceable.

“3. The contract as set forth in the first count of said complaint, as amended, is illegal and unenforceable for the reason that it violates the provisions of R. S. 17:36—3; R. 8. 17:36-5.2 and 5.7; R. 8. 17:22-1 and 5; R. 8. 17:22-6.2 and 6.18; R. 8. 17:29-l and 2; and R. 8. 17:29A-15 [IV. J. 8. A.].

“4-, The second count of said complaint, as amended, is sham and untrue in fact.

“5. The second count of said complaint, as amended, is obscure and uncertain and fails to sufficiently and properly apprize the defendant of the facts on which plaintiff’s claim is based and, therefore, defendant is unable to make proper and intelligent answer thereto.

“6. The third count of said complaint, as amended, is sham and untrue in fact.

“7. The third count of said complaint, as amended, is obscure and uncertain and fails to sufficiently and properly apprize the defendant of the facts on which plaintiff’s claim is based and, therefore, defendant is unable to make proper and intelligent answer thereto.”

Count One.

The objection of the defendant that the plaintiff does not seek to recover for services rendered as a broker in the present form of the complaint is well grounded. To support the complaint the plaintiff must have a right to recover merely because he was a licensed broker without the rendition of service; that any third party insured may contract with the insurance company agent to inject and cause to be paid by the insurance company or its agent to such a licensed broker a percentage of the commission as an inducement and condition of the principal contract. This is an illegal act and invalidates the contract. B. S. 17:22-6.18; N. J. S. A. 17:22-6.18.

The legislature has declared the public policy in order to avoid the opportunity for rebates and discrimination. B. 8. 17:29-l and 2; N. J. 8. A. 17:29-l and 2. Such a contract is unenforceable. Gionti v. Crown Motor Freight Co. (Court of Errors and Appeals, 1942), 128 N. J. L. 407; 26 Atl. Rep. (2d) 282.

In such a case where the facts are exposed by the complaint, the objection to the prosecution of the action may be properly taken by demurrer. Auditorium Kennel Club v. Atlantic City (Supreme Court, 1938), 16 N. J. Mis. R. 354 (at p. 362); 199 Atl. Rep. 908.

The motion to strike count ■ one as failing to establish a legal cause of action and because it is founded upon an illegal contract and is unenforceable is granted.

The ultimate object of. pleading, is not to defeat, but to advance the ends of justice; not to destroy, but to protect the substantial rights of parties. Hale v. Lawrence (Supreme Court, 1849), 22 N. J. L. 72 (at p. 74); Lully v. National Surety Co. (Court of Errors and Appeals, 1929), 106 Id. 81 (at p. 83); 148 Atl. Rep. 762. Should the plaintiff desire, leave is granted to file an amended complaint within twenty days from the date of the rule hereinafter referred to, alleging a right to recover for commission or brokerage "for or because of service rendered or performed in this state in negotiating or effecting in this state a contract of insurance on any property, or insurable interests, or business activities located within or transacted within this state.” B. 8. 17:22-6.18; N. J. 8. A. 17 32-6.18.

Count Two.

Consent to the striking of count two is given by the plaintiff.

Count Three.

The plaintiff admitted that count three has been drafted upon a common law form of pleading for money had and received. The rules of pleading require the pleader to aver directly or set forth circumstances from which those facts by necessary intendment result. Taylor v. New Jersey Title, &c., Co. (Supreme Court, 1903), 70 N. J. L. 24; 56 Atl. Rep. 152. This common law statement has been reiterated in the prevailing rules of pleading, rule 31 a, N. J. 8. A. tit. 2, in the following language:

“(a) All pleadings must contain a plain and concise statement of the issuable facts on which the pleader relies (and no other), but not of the evidence by which they are to be proved.”

In Schwartz v. Evening News (Supreme Court, 1913), 84 N. J. L. 486; 87 Atl. Rep. 148, it was held the facts to put in issue constituted a plain, intelligible statement of the real point involved and to do away with the old blind method. To reach the desired objective provision is made by rule 31 (d) as follows:

“(d) If any pleadings be insufficient the court may order a fuller or more particular statement; and if the pleadings do not sufficiently define the issues, the court may order other issues prepared; and may settle, the issues if the parties differ.”

In Hartshome’s book on the Practice Act of 1912, published in that year, at page 34, the following statement is contained :

“The court may order a more particular statement in addition to the power to order a bill of particulars. There are certain conclusions of law which can be well pleaded only by stating the facts from which these conclusions are drawn.”

This count as presently drawn is obscure and. uncertain and fails to sufficiently and properly apprise the defendant of the facts upon which the claim is based.

Motion to strike count three upon that ground is granted.

In view of the leave afforded to amend count one, similar leave is not afforded in the disposition of this motion as to count three, unless the plaintiff so desires and can show special grounds therefor. If such an application is made, it shall be presented upon due notice to the defendant at the next motion day.

Appropriate rule may be presented.


source: Caselaw Access Project

author: Peeskie, J.

license: Public Domain

text:
    ALDO VISCHIA, PLAINTIFF-APPELLEE, v. BENJAMIN MOTOR EXPRESS, INC., AND HENRY EDWARD RAHN, DEFENDANTS-APPELLANTS.
    Submitted October term, 1945
    Decided December 10, 1945.
    Before Justices Case, Bodine and Pebskxb.
    For the appellants, Alan Kraut.

    For the appellee, Louis P. Bertoni (Morris Pashman, of counsel).
   The opinion of the court was delivered by

Peeskie, J.

This is a highway collision ease. The plaintiff sued the defendant Benjamin Motor Express, Inc., and the operator of its truck, Henry Edward Eahn, to recover the damages which the plaintiff sustained as the result of an accident in which his automobile and defendant’s truck collided. The plaintiff’s damages to his car, the depreciation of its value, the loss of its use and the costs of repairs thereof, were stipulated to total the sum of $175.

The case was tried before the trial judge, without a jury. The proofs were in sharp conflict. The plaintiff was the only witness in his behalf. He testified that on the clear day of May 22d, 1944, about 9:30 A. M., he was operating his automobile at the rate of ten. or fifteen miles an hour in a southerly direction on Biver Drive, in the Borough of North Arlington, New Jersey. When he approached within ten or fifteen feet from the intersection of Biver Drive with the Belleville Turnpike he saw the defendant’s truck coming down the hill, in a westerly direction on Belleville Turnpike, at about thirty or thirty-five miles an hour and that the speed thereof was not reduced as it reached the intersection of the two streets; that the signal “lights” regulating traffic along the highways were out; that as the plaintiff endeavored to cross the turnpike, and was past the center thereof, his automobile was struck by defendant’s truck and that the plaintiff’s automobile came to a complete stop at the point of impact. On cross-examination, however, his testimony was that he first saw the truck about seventy-five or one hundred feet from the intersection, when he was about ten or fifteen feet therefrom, and “figured [that he] could make the intersection, but he [driver of the truck] was going too fast;” and that he [plaintiff] did not come to a complete stop before he came to the intersection because, as he stated, “the light was not working.”

On the other hand, the defendant Bahn testified that he came down the hill on the turnpike in second gear; that the traffic “light” was ‘^blinking;” that he stopped the truck six or seven feet from the “blinker” light to observe traffic to his left and right and observing no traffic moving in either direction, he put the truck into second gear, moving at about six or seven miles an hour; that the motor was under its own power without acceleration; that he first saw the plaintiff about ten feet to the defendant’s right and traveling at an excessive rate of speed; that defendant immediately stopped the truck but that plaintiff’s automobile collided with it after the truck had traveled past the middle of the road; that plaintiff admitted that he was “in an awful hurry. I have got an appointment * * *.” Defendant’s testimony was corroborated in all details by the operator of a truck who was following the defendant’s truck. This witness testified that he caused his truck to come to a complete stop about three feet behind the defendant’s truck when it stopped before crossing the intersection; that the plaintiff’s automobile moved ten “paces” after it had collided with the truck and stopped “across the street,” and that the plaintiff told them he was in a “hurry.”

In this posture of the proofs, the trial judge denied defendants’ motions for a nonsuit and for the entry of a judgment in their favor and awarded judgment for the plaintiff, plus costs. Defendants appeal.

The issue is purely factual. It is fundamental that findings of fact hy the trial judge in the District Court on conflicting evidence, are conclusive on appeal. N. J. 8. A. 2:32-202. Sansone v. Selvaggi, 121 N. J. L. 274; 2 Atl. Rep. (2d) 355; Bacharach v. Mitnick, 121 N. J. L. 401; 3 Atl. Rep. (2d) 92. The Supreme Court will not weigh the evidence. If, as here, there is any legal evidence to support the judgment, it will not he reversed. Cf. DeBourbon v. Costanzo, 126 N. J. L. 425; 19 Atl. Rep. (2d) 824.

The judgment is affirmed, with costs.


author: Peeseie, J.

text:
    JAMES CARR, PLAINTIFF-APPELLEE, v. SABATO IORIO, DEFENDANT-APPELLANT.
    Submitted October term, 1945
    Decided December 10, 1945.
    Before Justices Case, Bobine and Pekskie.

      For the appellant, Samuel Ehranbmnz (Harry S. Neiwirth, of counsel).
   The opinion of the court was delivered by

Peeseie, J.

This case presents for review a judgment for rental overcharges. Emergency Price Control Act of 1942. U. S. G. A. Tit. 50 App., §§ 901, ei seq.; 56 Stat. 23. The plaintiff, tenant, sued the defendant, landlord, in the District Court of the City of Orange, charging that the defendant, in violation of section 205(e) of the Emergency Price Control Act of 1942 and in disregard of the Maximum Rent Regulation effective in the area, unlawfully demanded and received from the plaintiff rents in excess of.the amount fixed by the Administrator of the Office of Price Administration for the premises occupied by the plaintiff and owned by the defendant.

Defendant denied the overcharges and set up a counterclaim alleging that the plaintiff was indebted to the defendant in the sum of $108 for four months rent.

The case was tried before the trial judge, without a jury. The proofs on the part of the plaintiff were that he had overpaid $3 a month for the months of September, October, November and December, 1943, and $3 a month for the months of January, February, March, April, May, June, July, August, September and October, 1944, and that he was not indebted to the defendant for any rent. On the other hand, the proofs on the part of the defendant were that he made no overcharges and was not paid for any overcharges; that the $3 difference between the maximum permissible rental price of $27 and the $30 paid by plaintiff and accepted by defendant was paid on account of rental “arrearages for previous monthsand that plaintiff was indebted to defendant for the rent as set down in his counter-claim. In this posture of the conflicting proofs, the trial judge rendered a judgment of $400 and costs (covering, by consent, the limited statutory period of twelve months) in favor of the plaintiff and against the defendant, and found against the defendant on, his ■ counter-claim. Defendant appeals. No brief was filed for the plaintiff.

It is fundamental that findings of facts by the trial judge in the District Court on conflicting evidence are conclusive on appeal. N. J. S. A. 2:32-202. Cf. Lewis v. V. LaRosa & Sons, Inc., 128 N. J. L. 474; 26 Atl. Rep. (2d) 879; Pollack v. New Jersey Bell Telephone Co., 116 N. J. L. 28; 181 Atl. Rep. 318; Service Fuel Oil Co. v. Hoboken Bank for Savings, 118 N. J. L. 61; 191 Atl. Rep. 551. The Supreme Court will not weigh the evidence. If, as here, there is legal evidence to support the judgment, it will not be reversed. Cf. DeBourbon v. Costanzo, 126 N. J. L. 425; 19 Atl. Rep. (2d) 824.

The judgment is affirmed, with costs.


author: Justice Parker.

text:
    IN THE MATTER OF APPLICATION BY JAMES I. HARDMAN FOR WRIT OF HABEAS CORPUS.
    Decided July 16, 1945.
   Memorandum by

Justice Parker.

This is the second application by this prisoner, who was convicted in the Essex Sessions of robbery in October, 1941, and is serving a sentence in the state prison. On the former application á writ was allowed, and heard before the late Mr. Justice Porter, whose opinion is reported in 131 N. J. L. 257. At that time the applicant was represented by counsel: the present application is made by the prisoner himself, in writing by mail, and contains a number of statements which in my judgment are irrelevant and require no mention except perhaps one, Ho. 7, which reads as follows: “That James I. Hardman can show that he was prevented by force from sending writ of error, for a new trial, on trial errors in the stated time limit of one year, &c., in accordance with the statute governing such limit of time.” As to this, it seems sufficient to say that in my judgment it is altogether too indefinite, and comes too late, after one writ had been long since allowed and disposed of, to require the allowance of another writ. The other allegations of the present petition refer merely to alleged trial errors or alleged improper procedure at the trial, and under the settled rule are not cognizable on habeas corpus. Clifford v. Heller, 63 N. J. L,. 105.

Allocatur is therefore denied.


author: Pee Cueiam.

text:
    JOHN SBROLLA, RESPONDENT, v. MARIA HESS, APPELLANT.
    Argued October 2, 1945
    Decided October 3, 1945.
    Before Beogan, Chief Justice, and Justices Pabkee and Oliphant.
    For the appellant, Martín Bloom.

    For the respondent, David M. Pershie.

   Pee Cueiam.

The facts of the case are fully stated in the comprehensive- and well considered opinion of Judge Burling in the Atlantic Circuit Court. The determinative question is the constitutionality vel non of chapter 84 of Pamph. L. 1945, the operation whereof is expressly confined to (a) cities (b) bordering' on the ocean (c) in fifth class counties (d) having a population of less than 150,000 according to the last federal census.

Without expressly adopting in its entirety the somewhat lengthy opinion of the court below, we are entirely in accordance with the finding that the classification above stated is so-restricted and tenuous as to be illusory and unconstitutional» The judgment under review is therefore affirmed.


author: Justice Parees.

text:
    IN RE HAROLD G. HOFFMAN, A CANDIDATE FOR NOMINATION AS GOVERNOR.
    Decided April 2, 1946.
   Memorandum by

Justice Parees.

The application of Mr. Hoffman is that I should direct the county clerk, in arranging the names on the voting machines of Essex County for the approaching republican primaries, to arrange matters so that the name of Mr. Hoffman, likewise a candidate for the gubernatorial nomination, unaffiliated (to use the language of Chief Justice Case on a similar application) should be on the same line as the names of the republican and democratic nominees, instead of being on a lower line.

The point was adversely decided by the Chief Justice a day or two ago, in a memorandum which is before me, following the opinion of Mr. Justice Colie in Hawkes v. Gates, 129 N. J. L. 5. The decision by the Chief Justice is a precedent absolutely in point; and one which, according to the uniform practice of the courts, should' be followed. Independently of this, I may say that I agree with the ruling of the Chief Justice -in the matter that was before him.

The application must therefore be denied.


author: Parker, J.

text:
    PICCADILLY ICE CREAM CO., A CORPORATION, PROSECUTOR, v. BOARD OF COMMISSIONERS OF THE TOWN OF BELLEVILLE ET AL., RESPONDENTS.
    Decided April 17, 1946.
    Before Justice Parker.
    For the prosecutor, Julius P. Litwacle.

    For the respondents, Lawrence B. Keenan.

   Parker, J.

This is a zoning ease. One Pasqnale Tontarelli for some time past was the owner of premises in the westerly section of the Town of Belleville known as Nos. 31 and 33 Florence Avenue. Florence Avenue is a street one block long about the middle of a section previously zoned for business, as indicated by the map in evidence, and on this property Tentarelli has maintained and used on the rear half of his plot of land, 50 by 100 feet, a concrete and brick building one story in height and used, as stated in the brief and in the testimony, for the manufacturing of lemon ices, storage of ice cream trucks, signs and ice cream cabinets. The original building was built in 1924 and enlarged in 1935, the use being substantially unchanged. In September, 1945, Tentarelli agreed to sell, and the present prosecutor agreed to purchase, the premises iu question and hied plans and specifications for the erection of the proposed one-story building in front of the existing one-story structure, the new building to he used, as stated, “for the purpose of offices, dressing rooms and storage of office supplies.” A permit was refused on two grounds, one of which was that the zoning ordinance had been changed shortly after he had purchased the property, and the premises zoned as residential. The question, therefore, relates to the propriety of this latter ordinance.

This question, as I see it, is substantially one of fact; in substance, whether this change of the zoning situation at the time and under the circumstances in question is reasonable or otherwise. My conclusion, from an examination of the evidence submitted, is emphatically to the contrary. The whole district, as already noted, was zoned for manufacturing. The map in evidence has no indicated scale but, roughly speaking, I should say that the traet zoned for business would measure between nine and ten acres. The photographs show with illuminating accuracy the fact that the immediate neighborhood, including the premises in question, is largely vacant. It is plain that the prosecutor, having established a business already for the purposes above named, is immune to interference therewith by any zoning regulations; and it is also plain that the use to be made of the proposed additions is entirely innocuous as regards neighboring buildings, and from a practical point of view, would be a considerable improvement of the situation as regards the premises owned by the prosecutor.

The refusal of the permit will therefore be set aside, with costs.


author: Pee Curiam.

text:
    LAWRENCE D. MEYERS, PROSECUTOR, v. ANGELINE R. HOY, DEFENDANT.
    Argued October 3, 1945
    Decided April 25, 1946.
    Before Justices Donges, Hehee and Colie.

      For the prosecutor, Lynwood Lord.

    For the defendant, Gurry & Purnell (George Purnell, of counsel).
   Pee Curiam.

This is the return of a rule to show cause why a writ of certiorari should not be allowed to review a judgment of the Gloucester County Court of Common Pleas.

Angeline B. Hoy commenced dispossess proceedings against Lawrence D. Meyers in the Small Cause Court of Gloucester County for the possession of premises in Glassboro. The premises in question were leased to Meyers for a period of one year expiring July 1st, 1943. The lease was extended for a term of one year to July 1st, 1944, and thereafter Meyers continued in possession and rent was accepted by Mrs. Hoy. This created a tenancy from month to month under the provisions of B. S. 46:8-10. While the tenancy from month to month was in effect, Mrs. Hoy served upon the prosecutor notice to deliver up possession of the premises on December 1st, 1944. Prosecutor Meyers did not vacate the premises, whereupon dispossess proceedings were commenced and the matter came on before the Small Cause Court.

On the trial of the cause, Mrs. Hoy proved that the relationship of landlord and tenant existed between the parties and the tenant thereupon introduced correspondence and an executed but undelivered deed which, according to his contention, had the effect of destroying the relationship of landlord and tenant, and putting in question the title to real estate. We think the evidence tendered by the tenant fell far short of putting in question title to the lands. The rule to show cause is dismissed, with costs.


author: Per Curiam.

text:
    STATE OF NEW JERSEY, DEFENDANT IN ERROR, v. ROY WILLIAMS, PLAINTIFF IN ERROR.
    Argued May term, 1946
    Decided May 13, 1946.
    Before Justices Parker, Donges and Oliphant.
    For the plaintiff in error, Meyer W. Stein.

    For the state, Manfield (?. Amliche.

   Per Curiam.

This is a motion-to dismiss the writ of error for lack of due prosecution. A previous motion of the same character was argued but denied on, terms. However, the plaintiff in error, who should have brought the matter on for argument at the present term, seems to have failed to give any notice of argument and is obviously within the purview of the statute R. S. 2:195-12, in which it appears, among other things, that upon a failure to prosecute the writ of error at the term to which it is returnable, the writ shall be dismissed, unless the appellate court under certain circumstances mentioned in the statute shall continue the same. Ho satisfactory reason for such continuances appearing, the writ of error is dismissed, with costs.


text:
    IN THE MATTER OF THE APPLICATION OF JAY GOULD COTTON FOR A WRIT OF HABEAS CORPUS.
    Submitted May term, 1946
    Decided June 14, 1946.
    Before Justices Parker, Donges and Oliphant.
    For the applicant, Robert Queen.

      Contra, Walter D. Van Riper, Attorney-General.
   Per Curiam.

The petitioner seems to have been convicted of crime in the courts of Georgia. Thereafter ho was found in this state, and the authorities of the State of Georgia instituted extradition proceedings to the end that he be returned to that state to serve his sentence. He seems to have been arrested accordingly and obtained from Mr. Justice Perskie a writ of habeas corpus with a view of setting aside such arrest. On the hearing before the said justice it transpired that the proceedings for extradition were entirely regular, but it was claimed that there was legal irregularity in the trial and conviction of the applicant in the State of Georgia. Mr. Justice Perskie ruled that the only proper inquiry in this state was the regularity of the extradition proceedings and that the courts of this state would not rule on the question of the regularity of the proceedings resulting in the conviction. Application is now made for a writ of certiorari to review the decision of Mr. Justice Perskie.

A similar case, In re Powell, was decided less than two months ago by a justice of this court in an opinion filed hv him, which reads in part as follows: “The only question raised on this application is the property of prosecutor’s conviction and its affirmance in the courts of Georgia. If is asserted that prosecutor was denied a fair and impartial trial; and that his conviction was the result of bias and prejudice. It is clear that the asylum state of a person fleeing the state of his conviction for crime has no right to consider the merits of his trial, but only the question as to the obligation of the asylum state to surrender the person to the state from which he fled.” We concur fully in that ruling and may add that no question of the jurisdiction of the Georgia court is raised before us nor, so far as appears, was it raised before Mr. Justice Perskie.

Por the reasons stated in the memorandum in the Powell ease, the present application is denied.


text:
    ISAAC TAUB v. EVELYN FRANK.
    Decided May 16, 1946.
    Before Justices Parker, Donges and Oliphant.
    Por the motion, Samuel A. Lamer.

   Per Curiam.

The record of this cause exhibits a culpable and unexplained failure to bring on the cause for hearing in due course; and the present motion, though duly noticed, was argued without resistance. The writ of certiorari will be dismissed, and any existing restraint vacated, with costs.

Let a rule be Mitered accordingly.


text:
    IN THE MATTER OF JOHN J. BRACKEN, Jr.
    Submitted June 4, 1946
    Decided June 18, 1946.
    Before Justices Parker, Donees and Oxiphant.
    Por the applicant, John J. Bracken> Jr.t in propria persona.

   Per Curiam.

Petitioner makes application on his own behalf for relaxation of the rule requiring service for three years as an attorney to qualify one for examination for admission as eounsellorat-law.

Petitioner took the examination for attorneys in April, 1942, and passed it, hut was not sworn in as an attorney. He had not completed his clerkship when the examination was held. This was waived and he was permitted to take the examination upon condition that he complete the clerkship requirement before being sworn in. Prom June, 1942, to March, 1946, he was in the military service on detail in certain legal matters. On May 11th, 1945, he was sworn in as an attomey-at-law, being given credit for clerkship by his service in the army. He now desires to take the counsellor’s examination in April, 1947, less than two years after being sworn in as an attorney.

It does not appear that he was not in position to he sworn in as an attorney upon the termination of the time required to elapse to complete his clerkshin. The rule gives credit to an attorney for the “time spent in service in the armed forces.” But to qualify for a counsellor’s examination, three years must elapse between the time one becomes a qualified attorney and the counsellor’s examination. Following precedent, if petitioner were permitted to take the examination in April, 1947, and were successful, he could not be sworn in as a eounsellor-at-law until three years from the time he became an attorney-at-law, namely, May 11th, 1945. He would be entitled to credit for the time after May, 1945, he was in the military service. This is the practice followed in eases where the examination for attorney is permitted to be taken before completion of clerkship.

We conclude that no meritorious reason appears for departing from the settled practice established by the. rules of this court, and the application is accordingly denied.


author: Pee Cukiam.

text:
    GEZA BRAUN, APPELLANT, v. RICHARD FASSNACHT, RESPONDENT.
    Submitted May term, 1946
    Decided June 19, 1946.
    Before Justices Paekbe, Dongbs and Oliphabt.
    For the appellant, Joseph L. Kramer.

    ^Respondent in propria persona.

   Pee Cukiam.

The appeal is from a judgment of nonsnit in the District Court. The suit is based on a promissory note for $170 made by defendant-respondent to the order of plaintiff-appellant, dated September 21st, 1939, due November 21st, 1939. Suit was begun on October 26th, 1945, so that if the nonsnit stands, the statute has run and a new suit would be fruitless.

But we think that clearly the judgment of nonsnit shonld be reversed. The sole ground of nonsuit as urged was a variance between the copy of the note as annexed to the state of demand, and the note itself as produced at the hearing, and excluded from evidence. As to the former, it is enough to say that the state of demand counted on a note dated September 21st, 1939, payable November 21st, 1939, made by defendant and delivered to plaintiff. The annexed copy was therefore mere surplusage; and indeed fails to show a signature. But the specification of defenses, on this branch of the case, merely set np that more than six years had elapsed since the note “was made.” Of course this was no defense, as the statute did not begin to run until the note was due, and the suit was actually begun within six years after that time.

The judgment will he reversed and the cause remanded for retrial. We would be disposed to enter final judgment in this court, pursuant to section 2:32-214, hut for the fact that the record exhibits a defendant’s counter-claim for services, which he is entitled to press at the trial.


text:
    STATE OF NEW JERSEY, RESPONDENT, v. LOUIS ALFIN, PROSECUTOR.
    Argued January 15, 1946
    Decided January 16, 1946.
    Before Justices Donees, Heheb and Colie.
    Bor the prosecutor, George F. Losche.

    Bor the respondent, Walter G. Winne and Wallace S. DePuy.

   Pee Cueiam.

The applications for certiorari are denied, with costs.


text:
    STATE OF NEW JERSEY, RESPONDENT, v. FRED HAGER, DEFENDANT-PROSECUTOR.
    Argued January 15, 1946
    Decided January 16, 1946.
    Before Justices Donees, Heheb and Colie.
    Bor the prosecutor, Joseph H. Gaudielle and James A. Major.

    For the. respondent, Walter G. Wmne and Wallace S. DePuy.

   Pee Cueiam.

The application for ceHiorari is denied, with costs.


text:
    New Jersey Department of Labor, Workmen’s Compensation Bureau.
    HARRY N. LEVENGOOD, PETITIONER, v. NEW YORK SHIPBUILDING CORPORATION, RESPONDENT.
    Decided June 29, 1946.

      For the petitioner, William B. Strouse.

    For the respondent, Carroll & Taylor (A. Millard Taylor, appearing).
   • The petitioner, Harry H. Levengood, seeks compensation from the respondent, Hew York Shipbuilding Corporation, alleging that on March 27th, 1945, he sustained an accident arising out of and in the course of his employment with the respondent. The facts therein are not disputed. At the close of petitioner’s case, the respondent moved for a dismissal, contending that the petitioner had failed to establish that he sustained.an accident within the meaning of the Workmen’s Compensation Act {N. J. 8. A. 34:15-1, ei seq.).

It appears that the petitioner was employed with the Hew York Shipbuilding Corporation as a painter. The place of employment of the petitioner was in that portion of the shipyard located on the west side of Broadway. The time shed is also located there.

On March 27th, 1945, petitioner drove his own vehicle to work and parked it on the east side of Broadway in a parking lot provided by the respondent for that purpose. On that date the petitioner was working on the 4:00 P. ar. to 12:00 midnight, shift on the west side of Broadway and when he finished his work for the day he walked to the time shed, punched his card, and then .started for his car which was parked in the parking lot on the other side of Broadway. Petitioner testified that when he punched his card he had completed his work for the respondent for the day. He further testified that he had never returned to the yard after checking out.

The parking lot had previously been designated to him by the respondent as the one where he could park his car. When he reached his ear, he found that it had a flat tire. He did not have a jack but was able to borrow one from the shipyard. While petitioner was engaged in placing the jack under it, another car driven by another employee struck petitioner in the legs, causing the injury complained of.

In eases of this nature, we are faced with the ever-perplexing question of determining whether the relationship of employer and employee existed at the time of the injury, or whether such relationship had ceased and the employee was on his own.

“An accident arises ‘out of’ the employment when it is something the risk of which might have been contemplated by a reasonable person, when entering the employment, as incidental to it. * * * A risk is incidental to the employment when it belongs to or is connected with what a workman has to do in fulfilling his contract of service. * * * And a risk may be incidental to the employment when it is either an ordinary risk directly connected with the employment, or an extraordinary risk which is only indirectly connected with the employment owing to the special nature of the employment.” Bryant v. Fissell, 84 N. J. L. 72; 86 Atl. Rep. 458.

A long line of cases have held the Workmen’s Compensation Act to be remedial legislation and that the construction to be accorded it must be liberal in an attempt to meet its scope and purposes. However, we cannot ignore the plain language of the statute and make the employer an insurer for all injuries suffered by the employees. Belyus v. Wilkinson Gaddis & Co., 115 N. J. L. 43; 178 Atl. Rep. 181.

In Gullo v. American Lead Pencil Co., 119 N. J. L. 484; 196 Atl. Rep. 438, the petitioner was employed by the respondent and while proceeding to work one morning a few minutes before time to commence work, she slipped on ice cm the sidewalk in front of an entrance to the factory which she did not intend to use and was injured. The court denied recovery, holding that the injury did not arise out of or in the course of her employment and stated: “In seeking the proper construction of the statute, where is the boundary between employment and non-employment to be found if not in the facts of the present case. Is it when the employee is within a few feet of the place of employment, but still on the public highway in no way connected therewith, and not where the distance intervening is multiplied few or many times? Is it when one starts on the journey from home to factory? If not, at what point between does employment begin? There must come a time when the employee is on his own. At the time of the accident the respondent was not in employment. The time and place were her own; she could proceed or turn back. She was in no sense in the service of the employer at the moment.”

In Grady v. Nevins Church Press Co., 120 N. J. L. 351; 199 Atl. Rep. 578, the petitioner was about to enter her plaee of employment one-half hour before the commencement of her work. She walked up a slightly inclined driveway, slipped, fell and was injured. The court denied recovery on the ground that the accident, which resulted in the injury, was not incidental to her employment.

In Burton v. Board of Education of Verona, 21 N. J. Mis. R. 108; 31 Atl. Rep. (2d) 337, the petitioner was a school teacher who assisted voluntarily with gas rationing in the school building after school hours. When leaving the school building, after being so engaged, she fell and fractured her ankle. This was held to be non-compensable as not arising out of and in the course of her employment.

The fact that an employee is injured while within the premises of his employment is not dispositive of the question, as the mere happening of such an accident does not per se entitle him to the benefits of the act. There is still the question as to whether such accident arose out of and in the course e£ employment.

In Van Devander v. West Side M. E. Church, 10 N. J. Mis. R. 793; 160 Atl. Rep. 763, the petitioner was a minister who strained his back while removing a barrel of ashes from the cellar of the parsonage. It was held by the court that the accident did not arise out of and in the course of his employment; that carrying ashes was not incidental to the office of minister and that the petitioner was engaged in something for his own personal benefit.

In Jones v. Public Service Interstate Transportation Co., 5 N. J. Mis. R. 523, the petitioner was in the machine shop division of the garage working on an emery wheel which the foreman testified was no part of his employment. He was employed as an electrician and was working after his regular hours, grinding a lock which was his own property. The court held the accident did not arise out of and in the course of his employment.

In Colucci v. Edison Portland Cement Co., 94 N. J. L. 542; 111 Atl. Rep. 4, the employee left the work he was doing, went into another building of his employer and deliberately laid down to sleep and slept for several hours. His assistant foreman, finding him asleep, threw a brick on the tin roof intending to awaken him, but the brick went through the roof and hit the employee in the stomach inflicting injuries from which he died. The court held the employee had temporarily abandoned his employment and denied compensation.

The petitioner herein was employed as a painter, he “checked out” after his day’s work and went to the parking lot provided by his employer. Upon reaching his car he found a flat tire, and not having a jack went to a building of his employer and borrowed one. He then returned to his ear and while changing the tire, sustained the injuries for which compensation is sought. Was he, at the time of the accident, fulfilling the duties of his employment, or doing something reasonably incidental thereto?

It is quite apparent from the above cited cases that the determining factor in construing the statute is whether the relationship of employer and employee may reasonably be said to have existed at the time of an accident, regardless of whether the occurrence happened upon the premises of employer or during actual hours of employment, or in proximity thereto. Had such relationship terminated? I am unable to comprehend how or in what manner the condition of petitioner’s automobile may be construed to be related to his contract of service, or reasonably incidental thereto. If the condition of the automobile is not related to his employment, it is difficult to conceive how the making any repair thereto, which might change its condition, could be related. While it may be that the parking lot, provided and controlled by the employer, was for the mutual benefit of both employer and employee, it can hardly be denied that the benefit contemplated was a place for the parking of cars of such employees who chose to use the same, for their convenience in coming to and returning from employment, and not for the repairing of mechanical or other defects of automobiles parked therein. The petitioner, in seeking to change the tire, embarked on a personal venture for his sole benefit, and in so doing terminated the relationship of employer and employee and was on his own. Even though he may have been cloaked with the protective covering of the Workmen’s Compensation Act while en route to his car through the parking lot, if, at the time of the accident the necessary relationship did not exist, the benefits of the statute cannot be extended. I therefore find that the accident which the petitioner sustained did not arise out, during and in the course of his employment with the respondent.

I do not believe such conclusion conflicts with the ease of Dewar v. General Motors Corp., 19 N. J. Mis. R. 297; 19 Atl. Rep. (2d) 194, where the petitioner, in going to his car in a parking lot provided by the employer, tripped over a wooden marker in the parking lot and sustained the injuries for which compensation was awarded. He was en route to his parked car and had not engaged in an act disassociated with his employment.

Eor the reasons herein expressed, it is on this 29th day of June, 1946, ordered that the petition filed herein be and the same is hereby dismissed.

E. Wayne Keaet,

Deputy Commissioner.


author: Van Winkle, A. M.

text:
    In the matter of the application of Patsy Petagno for a writ of habeas corpus for the infant Donna Lee Piazza or Donna Lee Petagno.
    [Decided September 18th, 1946.]

      Mr. Samuel E. Barison (Mr. Philip Barbash, of counsel), for the prosecutor, Patsy Petagno.

      Mr. Archie Elkins, for the respondent, Emilia Piazza.
   Van Winkle, A. M.

(1) The writ of habeas corpus issued in this custody proceeding is not to result merely in either a termination or a continuance of the alleged restraint which, usually, is the function of such a writ. The writ brought the infant born out of wedlock on July 12th, 1944, to Helen Piazza, who was then nineteen years old, under the parens patria jurisdiction of this court and an issue of custody was thus raised. The writ may not he regarded as authorized by the provision respecting habeas corpus in the Minors Act (B. S. 9:2-7), for that relates to the bringing of “a child of the marriage” of “parents” before the court for an award of custody and orders relating to “access of either parent.”

It does not matter how an infant is brought before this court for an award of custody. A writ of habeas corpus which brings an infant before this court is merely ancillary to the jurisdiction of this court as parens patrice to determine the custody of the infant. See Ex parte Hoines, 112 Atl. Rep. 613 (not in state reports), which cites Baird v. Baird, 19 N. J. Eq. 481; Buckley v. Perrine, 54 N. J. Eq. 285, 293; 34 Atl. Rep. 1054 et seq.; Rossell v. Rossell, 64 N. J. Eq. 21; Hasselman v. Haas, 71 N. J. Eq. 689; Warnecke v. Lane, 75 Atl. Rep. 233 (not in state reports); Palmer v. Palmer, 84 N. J. Eq. 550; In re Anna Bell Malley (1942), 131 N. J. Eq. 404; 132 N. J. Eq. 439; Queen v. Nash (1883), 10 Q. B. D. 454; 54 L. J. Q. B. 442; 13 Eng. Ruling Cases (at p. 26).

(2) The parens patrice jurisdiction of this court comprises illegitimate infants and such jurisdiction has been exercised without question. Simpson on Infants (1875), 126-127. The leading ease on the subject seems to be Queen v. Nash, supra. The House of Lords confirmed the jurisdiction of custody over illegitimate infants in Barnado v. McHugh (1891), A. C. 388; 61 L. J., Q. B. 721, where Halsbury, L. C., noted and commented that “Sir George Jessell pointed out in Queen v. Nash that the court is now governed by equitable rules, and that in equity regard was always had to the mother, the putative father, and the relatives on the mother’s side. Hatural relationship was thus looked to with a view to the benefit of the child. There is in such a case a sort of blood relationship which, though not legal, gives to natural relatives a right to the custody of the child * *

Hew Jersey eases: In Hasselman v. Haas (1906), supra, upon jurisdiction being invoked respecting the custody of an illegitimate infant, jurisdiction was taken without question although Vice-Chancellor Garrison expressly referred as his authority to Rossell v. Rossell, supra, which, however, was not a case involving an illegitimate infant. In Baker v. Baker (1912), 81 N. J. Eq. 135, Vice-Chancellor Howell in dealing with a habeas corpus .proceeding for access to an illegitimate infant found the question to be one of new impression. But he noted that in the case of Queen v. Nash, supra, that Sir George Jessell had said that the question of custody of an illegitimate infant did not depend upon the mere legal rights ■upon habeas corpus but upon equitable doctrines. In re Malley, supra, the jurisdiction of this court to settle the custody of an illegitimate infant was taken without question.

(3) Patsy Petagno averred that he is the father of the infant, and entitled to custody as against the maternal grandmother, in whose physical custody the infant was left by Helen when she wont away in August, 1945; and the grandmother presently has physical custody. Helen has not been heard from since she left, and no witness on the hearing had heard from her or knew where she had gone or where she then was. So Helen was not available for the giving or compelling of direct testimony by her as to the paternity of the infant. However, Helen made declarations as to the paternity of the infant before and after its birth. The “Record of Birth” filed July 21st, 1944, with the Bureau of Yital Statistics of Hudson County, states that Helen Piazza, 19 years old, gave birth on July 12th, 1944, to a female child at the Margaret Hague Maternity Hospital, Jersey City, “Donna Lee Piazza—father’s full name 0. W.” (meaning out of wedlock). On July 15th, 1944, the Hospital delivered “a Social Case History” to the Bureau of Municipal Relief, Jersey City, which reported the birth and stated: “Problem, unmarried, putative father, Joseph Brantley, address, Merchant Marine.” The only source of the information contained in the birth certificate and the social ease history was Helen herself.

The day after the birth a woman investigator connected with the Jersey City Poormaster’s office talked to Helen at the hospital because the child had been officially reported as bom out of wedlock. It was this woman’s official duty, acting for the community, to ascertain the name of the father; and it was with that purpose that she went to the hospital to interview Helen. Helen then told the investigator that the father of the infant was “Joseph Brantley, a seaman, Merchant Marine, stationed somewhere in Hew York.” She added that she did not have his address; that she had had illicit relations “with Joe around October 12th, 1943, at a hotel at Forty-fourth Street, Hew York;” that about two months later she had met him and told him that she was pregnant, whereupon he offered her a hundred dollars for an abortion, which she refused. Helen did not mention Patsy Petagno at all to the investigator. This testimony of the investigator came in without objection.

One of Helen’s sisters, a respectable married woman, to whom Helen was “the baby of the family,” paid Helen’s rent and bought her food and cared for her during the time of her pregnancy while she was living in furnished rooms and very sick and this sister supported her after the birth. Patsy Petagno was never mentioned by Helen to the sister during this period that Helen was living away from home because of her actions and her condition, nor did he appear. Helen’s sister testified that she said to Helen, “Helen, you ought to look the father up,” whereupon Helen told her fhat “the father was Joe Brantley;” and the sister testified that Helen added that “Joe was a nice fellow, was wounded, ship was torpedoed, was in the water a few days” * * * that he went to see her in the furnished room. The sister testified further that Helen said that she “was sorry for the fellow, it just happened,” and that she said that she didn’t know where Joe lived, “all I know is he has got a mother and sister. He doesn’t want to get married, wait until war is over.” And further the sister testified that after the birth of the infant Helen told her that Joe had sent her $50; and further, that after the birth Helen kept on writing to Joe; but she never gave anyone the address she wrote to. The sister’s husband saw some of these letters of Helen to Joe. Apparently Helen was protecting Joe against prosecution. One of Helen’s sisters testified that Helen gave Joe a snapshot of the baby and that Joe said the baby “looked like him.” After Helen disappeared her sisters made inquiries in Hew York for Joe Brantley but because they did not have enough information about him nothing was learned.

If these declarations that have been received were in fact made by Helen as narrated by the investigator and by Helen’s sister, then apparently Joseph Brantley is the father of the infant. There is no reason whatever to doubt the testimony of the Pool-master’s investigator or that of Helen’s sister that 'Helen made the declarations. This hearsay testimony, to call it that, was given without any objection except once however, there was an objection made by the counsel for Patsy Petagno, which, while indefinite, should in fairness be viewed I think as an objection that the testimony was hearsay. This objection related to what Helen had said to her sister about Joe Brantley being the father of the infant as hereinbefore recited. Counsel for Patsy Petagno after so objecting said something about “reserving” his right to move to strike out testimony, and this “right” was reserved to the extent that it could be legally reserved, but no such motion was made. I regarded the objection at the time it was made as being legally ineffective, and this for more than one reason. Por one reason, Patsy Petagno, giving his testimony first in the order of proof, had himself given testimony of statements by Helen, which testimony had not been objected to. Moreover, in one view it is questionable I think whether Helen’s declarations on paternity should be regarded as hearsay. In this child-custody proceeding should Helen, the mother of the infant, not be viewed as a party to the proceeding although not expressly so named by Patsy Petagno ? It should be said here that without the testimony characterized as hearsay the hearing would have been but a skeleton. Despite my attitude toward the objection mentioned as I have indicated it I have not given the objected-to testimony any value in coming to my conclusions as to custody, so I need not discuss the objection that was made as stated.

(4) When hearsay evidence is admitted without objection it is to be considered and given its natural probative effect as if it were in law admissible. Diaz v. United States, 223 U. S. 442; 56 U. S. L. Ed. 500. Testimony received without objection, although hearsay, has the value of direct evidence if relevant to the issue. Demos Co. v. Service S. Co., 34 Atl. Rep. (2d) 828; 153 Pa. Sup. 623. Where evidence incompetent as hearsay is admitted without objection and is relevant and material to the issue the court may give it the value of direct evidence. Harrah v. Montour, 321 Pa. 526; 184 Atl. Rep. 666. A rule of evidence not invoked is waived. 1 Wigm., f 18. Inadmissible evidence * * * including hearsay evidence admitted without objection is not a nullity or void of probative force but is to be given its natural probatíve effect as if it was in law admissible * * *. This is true even in a criminal ease. Poluski v. Glen Alden Coal Co., 286 Pa. 473; 133 Atl. Rep. 819. The reasons which exclude hearsay testimony are legal barriers which have been erected by the law, and which, in the interest of justice, the parties may move aside. Ibid. As Professor Edmund M. Morgan has said, “The truth is that the exclusionary rules of evidence and particularly the hearsay rule, are the results of the adversary system; in almost all jurisdictions they are enforced at the behest of the adversary.”

It has been held almost universally that when hearsay testimony is admitted without objection it may properly be considered and given its natural probative effect as if it were in law admissible. The numerous out-of-state and substantiallynnanimous decisions to this effect have been collected in 104 A. L. R. 1130. If counsel does not make timely objection that is the end of any prohibitory rule of evidence that might have been invoked. 1 Wigm. and Suppl., 18. Objection or a motion, to strike needs to be made at the time the testimony comes in. Ibid. A party relying upon a rule of evidence is to invoke it. Mot only may a right to make an objection be expressly waived, but a waiver may be implied from failure to make the objection at the proper time. Ibid. Professor Wigmore states that, after all, “a motion to strike” is really only an “objection;” and in an endeavor to make this clear he used this language: “The term ‘motion to strike out evidence’ which ought to hme been objected to at the time is merely another term for an objection and is governed by the rules as of the-time of an objection.” Wigm. Suppl., f 18 note 17. (The emphasis is Professor Wigmore’s own.)

Mew Jersey cases: Where no objection is made hearsay evidence, like any other evidence, is to be considered and given the importance it deserves. Smith v. Delaware Co. (1902), 63 N. J. Eq. 93; affirmed, 64 N. J. Eq. 770. “There was however, no legal error because the objection to the first answer went merely to the ground of irrelevancy, but it certainly cannot be said that the testimony was irrelevant, although it may well have been incompetent as hearsay. This latter objection however, was not made.” State v. Krupin (1924), 101 N. J. Law 228. The settled rule is that after a question has been fully answered without objection from opposing counsel a motion to strike it out comes too late. O’Brien v. Stager (1925), 101 N. J. Law 526.

(5) Counsel for the grandmother of the infant contended that the declarations of Helen as to the paternity of the infant although hearsay should be admitted as “an exception to the hearsay rule” because she was “not presently available to testify;” and in support of his contention he cited Morgan v. Susino Construction Co. (Supreme Court, 1943), 130 N. J. Law 418; affirmed, 131 N. J. Law 329, the opinion in which case refers to 2 Wigm. Ev., § 1492. The cited Wigmore sentence, namely, “It seems never to have been doubted that the declarations of the parents themselves * * * as to the child’s legitimacy or illegitimacy are receivable,” apparently has for its authority two old English cases and a dozen old decisions of courts of states other than New Jersey which are named in the Wigmore footnote. However, an examination of the reports of such of these cases as are available shows, as was to be expected, that in each case the declarant was dead. The Third Edition of Wigm. Ev. (1940) on the same head is to the same effect as the First Edition, with a reference to several added cases in which eases the declarant was dead, in Morgan v. Susino the court stated “The four requisites to be met before a declaration may be received under the so called pedigree exception,” the first being, as stated by the court, “that the declaration must have been made by a person not presently available to testify.” However, in this Morgan V. Susino Case the declarant was dead.

Thus we see that counsel for the grandmother has relied upon the words of Professor Wigmore and the words of the court in the Morgan v. Susino Case in support of his contention that the testimony of declarants who are alive but who a,re “not presently available to testify” may be received.

Consider, however, rule 503 of the Model Code of Evidence promulgated'March 15th, 1942, by the American Law Institute, which would, if adopted by the courts, change the present common law as to the admissibility of hearsay declarations:

Evidence of a hearsay declaration is admissible, if the judge finds that the declarant

(a) is unavailable as a witness, or

(b) is present and subject to cross-examination.

Members of the bar know that this Model Code of Evidence came into existence because of the general dissatisfaction with much of the law of evidence and after extended discussions and the labors of many judges and practicing lawyers selected as well qualified by experience to declare rules of evidence that would make a proceeding in a court a really rational proceeding. The Code was promulgated with the purpose and in the hope that irrational rules of evidence would be liquidated by legislation or judicial decisions. Rule 503, sensibly, would permit evidence of a declarant who is unavailable to testify because she cannot be found, as in this proceeding.

• This proposed rule accepts as a ground of unavailability of the declarant any inability to secure his testimony not due to the fault or procurement of the proponent of the evidence. While we in blew Jersey still follow the old English hearsay rule we should note that in England the Act of 1938 (St. 1938 C. 28 Evidence) is more liberal in some respects, than this proposed rule 503 of the Model Code of Evidence.

In the April, 1946, number of the Harvard Law Review, Professor Edmund M. Morgan declares—in continuation of what he had said in 1942 in the foreword to the Model Code of Evidence—that “A proper appreciation of the history of the hearsay rule, a searching analysis of its supposed rationality, and an examination of its exceptions, might well lead to its practical abolition.”

I am constrained to state, after nearly fifty-six years of active experience in the courts, that the desirability of the adoption of rule 503 of the Model Code of Evidence in substitution for “the exception to the hearsay rule” to which it relates is not to be denied.

(6) When the infant was bom on July 12th, 1944, Patsy Petagno was a married man who had been living separately since 1934 from his wife to whom he had been married in bTovember, 1919. This wife divorced him for extreme cruelty, the final decree of divorce being entered on July 1st, 1944. The verified petition for divorce charged him with many acts, of violence toward the wife over a long period and acts which involved and were against the welfare of the young child of the marriage, a daughter who had become twenty-four years old at the time of the hearing of this habeas corpus proceeding. The poormaster was busy after the decree of divorce in compelling Patsy Petagno to pay the small weekly sum provided to be paid toward the support of the daughter. He denied much of the testimony given by the poormaster’s representative and also much of the testimony given by a probation officer. It is clear that this denial-testimony was not mistakenly or carelessly given, but that Patsy Petagno endeavored deliberately to falsify.

Helen was interested in a young sailor from Cincinnati, Ohio. He and she had their pictures taken together in February, 1943, by Helen’s brother-in-law who was home on a furlough. Apparently Helen corresponded with this sailor and his mother. She got a telegram from the sailor’s mother, and went out to his home in Ohio in May, 1943; and it seems clear that she was out of the state from May until the end of August, 1943. Her sisters so testified. Patsy Petagno however testified that he had intercourse with Helen “in July, 1943.” His testimony as to intercourse with Helen after that date is indefinite to say the least. He was married to Helen on July 15tli, 1945, by or in the presence of the recorder of Hoboken.

A few days after Helen had been married to Patsy Petagno he appeared at her home as her husband to the surprise of her people. While living at that home, for a short period Helen and Patsy Petagno did not sleep together. Helen told one of her sisters that she and Patsy Petagno “got married with an understanding that they were not supposed to sleep with each other; all he wanted her was to keep house for him, and she married so she could have home of her own, do as she pleased.”

Leaving the home of her parents Helen went to live with Patsy Petagno in furnished rooms in Hoboken, but that lasted only “about a week.” Apparently because she refused to sleep with him there Patsy gave her a terrible beating, whereupon she went back to her mother’s home at four o’clock in the morning with the baby, her “face beaten to a pulp, fractured nose, black ej^es, bruises all over.” At five o’clock that morning she was taken to the hospital in an ambulance. It was testified that Patsy Petagno beat her so hard that he “fractured his hand” and “had it in a sling for about three months ;” that he said “her head was so hard.” Patsy Petagno did not deny that he had beaten Helen in the way stated.

The evidence being what it is, a question naturally arises, namely, Why did Patsy Petagno bring this proceeding? It was somewhat suggested during the hearings that he, probably nearly as old as the infant’s grandmother, wanted to “show” his former wife that he is able to marry a young woman some thirty years his junior—several years younger than his daughter—and have a child. A surmise, and one suggested during the hearing—and a surmise that has persuasion when Patsy Petagno has been looked at, listened to and sized up—is that he thought that if he got custody of the infant that Helen, on learning of that, might be thus induced to come to him— for his physical enjoyment.

(7) I determine that the averment of Patsy Petagno that he is the father of the infant “Donna Lee Piazza” bom to Helen Piazza has not been proved in this custody proceeding. On this determination we see that this proceeding turns out to be one where on the proofs neither the prosecutor nor the respondent is a parent of the infant. However, in this situation, this court’s parens patrice jurisdiction enables it to settle the custody of the infant. See In re Williams (1910), 77 N. J. Eq. 478.

(8) An application for custody of an infant, no matter by whom instituted or against whom prosecuted, is not an inter partes suit in the usual sense. Ho matter what process is employed by parties to a proceeding involving the custody of an infant to bring the infant before this court, and. although parties claim rights to custody, they act but intermediately. They but serve to bring the infant before this court on an invocation of its parens patrice jurisdiction for the welfare of the infant.

(9) I will advise that the custody of the infant be committed to the maternal grandmother Emillia Piazza.

Conceivably, Helen may appear; and having in mind the possibilities of the future I have advised an order, for the benefit and protection of the infant, directing that a transcript of the testimony be filed with the clerk.


author: Fulop, D. C. J.

text:
    District Court of the Second Judicial District of the County of Union.
    BENJAMIN A. FIELD, PLAINTIFF, v. SAM SERPICO, INDIVIDUALLY AND TRADING AS RELIABLE BODY AND FENDER WORKS, AND FRANK AGOLIO, DEFENDANTS.
    Decided September 26, 1946.
    Dor the plaintiff, Budd, Lamer & ScheUino.

    Dor the defendants, Philip M. Lmibuder and George D. McLaughlin.

   Fulop, D. C. J.

This is a suit based on a bailment. The first count sounds on contract; the second in tort arising out of the contract of bailment. Both counts seek to recover for damages to plaintiff’s automobile.

Plaintiff entrusted his automobile to Charles Kemper, trading as the Commercial Garage. The car needed body work and lining up of the front end. Mr. Kemper was not able to do either job. At plaintiff’s request, and as a favor to plaintiff, Mr. Kemper sent the ear to a body shop for repairs. When that work was finished, Mr. Kemper sent his brother, Thomas, to get the car and remove it to the place of business of defendant Sam Serpico, trading as the Reliable Body & Fender Works.

The defendant Frank Agolio was employed in the shop of Reliable at Lidgerwood Avenue in Elizabeth. He was acquainted with the Kempers and lived over the Commercial Garage at Ho. 1 Wood Avenue, Roselle.

There is a dispute in the testimony, but I find that Charles Kemper asked Frank Agolio to drive the plaintiff’s car back to the Commercial Garage. Agolio would normally have been going from his place of work -to his home and it would have been, no inconvenience to drive there in plaintiff’s car. However, Agolio did not plan to go directly home on the evening in question and sought to avoid the responsibility of the car. Kemper told him to take the car with him from work to wherever he was going and take it home when going home.

Agolio left work at 5 :15 and went to a barber shop in Elizabeth. At about 6 :20 p. m. he was on his way to the Commercial Garage in plaintiff’s ear through Linden when a Tuscan Dairy truck struck the car. The Tuscan Dairy and the driver of the truck are not defendants in this suit, although the Dairy is located in Hnion and is subject to the court’s process. The accident happened on a direct route from the Reliable Shop to the Commercial Garage.

At the trial I found as a fact that Agolio was not authorized by his employer, Serpico, to deliver the car, and that he was not acting within the scope of his employment at the time of the accident. Plaintiff expressly adopts Kemper as his agent. In view of Kemper’s Tequest to Agolio, it was not a breach of duty for the Reliable Body & Fender Works to deliver the car to Agolio. Agolio was acting as plaintiff’s agent, or as Kemper’s agent, in driving the car. He was not Serpieo’s agent. A judgment was entered in favor of the employer defendant.

The question remaining open for decision is the degree of. Agolio’s responsibility to the plaintiff for the accident.

Plaintiff’s original premise was that Agolio was driving the car as agent for his employer as part of the repair service for which Agolio’s employer received payment. Defendant Agolio contends that he was merely doing a favor for plaintiff (at Kemper’s request); that he was an unpaid bailee and that, consequently, his duty was merely to exercise such “care which the most inattentive and thoughtless of men never fail to take of their own affairs.” In other words, that he owed only a slight degree of care and is responsible only for gross neglect or a violation of good faith. Dudley v. Camden and Philadelphia Perry Co., 42 N. J. L. 25; Weinstein v. Sheer (Court of Errors and Appeals, 1923), 98 Id. 511; 120 Atl. Rep. 679.

Plaintiff admits that this is the law as to gratuitous bailee. It appears to be well established “that a mere depositary, without any special undertaking, and without reward, is not answerable for the loss of goods deposited, but in case of gross negligence, which is equivalent to fraud, * * *” (Dudley v. Camden, supra).

However, plaintiff says that the bailment was for the benefit of both parties because Agolio used the car to drive to his barber for a haircut, and that he therefore owed the same duty as a compensated bailee, citing Kittay v. Cordasco, 103 N. J. L. 156; 134 Atl. Rep. 667; Corbett v. Smeraldo, 91 N. J. L. 29; 102 Atl. Rep. 889, and Rauber v. Zinner (1940), 125 N. J. L. 85; 13 Atl. Rep. (2d) 488.

I find as a fact that the use of the car by Agolio to drive to his barber was not for his benefit but was solely for the benefit of the plaintiff. It was no more than a condition of the gratuitous bailment. Agolio took the car on his personal errand at the request of plaintiff’s agent so that he might drive it to the Commercial Garage. He did not need nor seek to have the ear for his own purposes.

It is therefore unnecessary for me to decide whether or not Agolio was guilty of my negligence which contributed to cause the accident. The only question is whether he was guilty of such gross negligence or lack of good faith as would render a gratuitous bailee liable to his bailor.

The defendant Agolio was the only witness in the ease who testified to the manner in which the accident happened. He said that he drove slowly into an intersection; that he saw headlights at his left; that the Tuscan truck entered the intersection from his left after he had entered, and the front end of the truck struck the left side of the plaintiff’s automobile.

There is no evidence in the ease to support a finding of gross negligence on the part of Agolio and a judgment of no cause for action will be entered in his favor.


author: Delaney, C. P. J.

text:
    Passaic County Court of Common Pleas.
    JOHN B. PARETTI, PETITIONER-APPELLEE, v. SPOTLESS CLEANERS & DYERS, RESPONDENT-APPELLANT.
    Decided October 3, 1946.
    Por the petitioner-appellee, Auienrieth & WoriendyTce.

    Por the respondent-appellant, Brett, O'Brien & Brett.

   Delaney, C. P. J.

This matter was tried in the Workmen’s Compensation Bureau on October 19th and November 2d, 1945, and January 17th, 1946. The Deputy Commissioner by whom it was heard, in his determination of facts and rule for judgment, dated February 14th, 1946, found in favor of petitioner-appellee (hereinafter called petitioner) and against respondent-appellant (hereinafter referred to as respondent), and allowed petitioner 12-2/7ths weeks, at $20 a week, for temporary disability, and 50 weeks, at the like rate, for permanent disability. From the judgment, entered accordingly, respondent appealed.

It is uncontroverted here, as it became, at length, in the Bureau, that at about 9:15 o’clock on the morning of June 20th, 1944, petitioner suffered accidental injury arising out of and in the course of his employment by respondent, and that respondent had due notice or knowledge of it. “The contest here,” declares respondent’s brief, “is solely on the question of the nature and extent of permanent disability alleged to be due to the claimed accident,” and—somewhat more broadly—“It is the contention of the respondent that the alleged accident did not bring about any temporary or permanent disability in” petitioner.

Respondent conducts a cleaning and dyeing business, with a ladndry department, employing at the time of petitioner’s accident 260 or 270 persons. Petitioner, then in his fifty-fifth year, weighing about 250 pounds, and in apparent good health (he had been absent only two days during the twelve years of his employment by respondent, and in twenty-six years had lost no time through illness), worked, in his own words, “as a fancy washer and trouble searcher,” with from four to six men (and occasionally none, “according to how we can get help”) under his direction. The term “trouble searcher” seems to have covered much ground; he held, at any rate, a position of some importance and responsibility, and when at length it became necessary to replace him, the management was obliged to go outside of its plant to find his successor.

At the time of his accident, petitioner was pushing from the rear, while another employee, walking backwards, was guiding from the front, a steel truck, about five feet in length, thirty or forty inches wide, three feet high, with an eight-inch wheel base, then carrying between 700 and 1,000 pounds of wash, up a cement ramp, the surface of which was broken by hollows. Through a mishap a wheel of the truck slipped into a hollow; and the truck, tilting to petitioner’s left, toppled over upon him and pinned him down.

When, without forewarning, the burdened truck stopped short, petitioner “went into”—rammed or struck against, he appears to have meant—its steel railing, a circumstance mentioned by him in describing the accident, but of which he made nothing; and as he was borne down by the tipping truck and the sliding load upon it, the left side of his head “about the ear” struck against a steel cabinet standing nearby.

The capsized truck struck petitioner on his left inguinal region—the groin and lower abdomen—and on his left leg and knee.

Unable to stir, he made an outcry; two employees, whom he named, moved away the truck and wash, and upon extricating him walked with him out into the yard, where he sat for five or six hours. At about two o’clock in the afternoon he went back into the plant; beyond telling others what to do, he undertook no work; some one or more persons gave him sedatives and bathed his side; at the usual quitting hour the tailor, as seems to have been customary, conveyed him home by car. He went up, not without some difficulty, a short flight of steps leading into his house, had supper, and from the supper table went directly to bed, and stayed abed throughout the two following days.

On arriving at his home, his left side was swollen; a small hernia (a residt of an earlier accident, as was conceded, in the same plant; in 1936 he had been struck in the groin by the flying cover of a breaking extractor), scarcely noticeable before, had become plainly distended; the area of his left knee was swollen and red; and he complained of his head.

On the third day respondent’s laundry department fell into trouble; the assistant washer had not come in, his wife being very sick; respondent, having no substitute for him, was in a plight. It got word to petitioner of the emergency, and besought him to return to his department. At first he refused, spoke of a difficulty with his leg, and stated that he "could not make it.” Bespondent’s spokesman pressed him to come hack, and offered him transportation from the railway station to the plant. In the end petitioner yielded; the promise of transportation was faithfully kept; from that clay until the assistant washer reappeared—a period of almost a month—petitioner was met at the depot and was carried in the manager’s car to the plant.

Without expressly denying this special transportation service, the manager, who was called by petitioner as a witness, disclaimed, except for one instance on a rainy clay, all knowledge of it; but his testimony as a whole is quite unsatisfactory; like the employee under whose guidance a wheel o£ the truck dropped into a hole in the ramp, he knew much too little about everything concerning which he was asked.

In the unusual circumstances hereinbefore stated, petitioner went back, at the importunity of his employer, to his work, but not to the former scope of it. Thenceforth he oversaw and directed, without otherwise participating in, the physical work of the laundry. He limped about the plant with the aid of a cane, supervised and bought supplies (the latter apparently by telephone or mail); a forelady supplied salve for his leg; he took simple remedies at hand for continuous or daily headache. At least twice at the point of quitting, he perseveringly filled the breach until the assistant washer came back, and then immediately left.

In the intervening month his hernia became more and more formidable and troublesome; it progressively grew from the size of a coin to the proportions of a “grapefruit” or larger; and descending, lay in a kind of sac. On the following day after terminating his employment, he was taken to a Veterans’ Hospital in the Bronx, Hew York, for an operation; recited the history of his hernia to the girl in charge of the admission of patients, went back home for three or four days, and then entered the hospital (July, 1944). He was put to bed there, examined every day, given medicine for headache, as he supposed, after each meal, operated on for hernia on September 12th, and a hydrocele developing three or four days later— said by the doctors to be not uncommon after a hernia operation—was operated again for that, and was discharged on October 25th, with a caution against the resumption of work. On June 20th of the following summer (1945) he entered, at the instance of the Veterans’ Hospital in the Bronx (as we understand it), the Havy Hospital at St. Albans, Long Island, for leg and “head trouble,” and stayed there until July 25th.

Since July, 1944, he has performed no work, and at the times of his examination by the doctors who testified in the Bureau, was admittedly incapable of any.

In testifying in the Bureau (Hovember 2d, 1945), he complained of pain in his left side and in his head behind the left ear, in his back, in his leg and knee where the truck had struck him, of headache, of dizziness, of inability to stand long or to sleep on his left side, of impairment of sight and hearing—all symptoms appearing since his accident and, rightly or wrongly, attributed by him to it. There is no reason to question his statement that the outstanding thing which led to his withdrawal from his employment was the pronounced aggravation of a hernia, from which he had previously suffered no inconvenience, and the resulting interference with his getting about. He said that while in the Veterans’ Hospital in the Bronx he continually complained of his head and side, and that when he arose from his bed in the ward before the first surgery he walked about with a borrowed cane. Of these complaints in the hospital, of his use of a cane there, there is no contradiction.

The brief filed for respondent insistently assails petitioner’s testimony argumentatively; but the inescapable fact is that his story was unrefuted and unshaken and, except in a lonely instance, undenied. That instance is of no importance here, except as it might draw his trustworthiness as a witness in question. The manager testified that after petitioner went to the hospital, he first heard that “he claimed he got hurt on the job. How, what, and when, I don’t know.” Petitioner said, in the course of the first four weeks after his accident he talked with the manager “a dozen times” about it.

It strains credulity to suppose that the suddenly restricted range, continued through four successive weeks, of the work of an old-time employee, who was known to the manager during the whole course of a twelve-year employment—the head of an important and “one-man department, that special department,” as the manager styled it—completely escaped the manager’s notice, or that the employee’s limping entrance into the office “five or six times a day,” with the manager usually present, passed altogether unobserved; or for that matter that upon the manager’s belatedly hearing, after the post was vacant and its occupant in a hospital, that the latter should have been so singularly incurious as to have set afoot no inquiry about it.

At the end of the hearings in the Bureau, with the evidence in respect to the statutory notice or knowledge in this posture—petitioner affirming, the manager denying, it—counsel for respondent limited the issues to “the question of disability flowing” from the accident. 'We are obliged to reject the testimony of the manager.

Respondent argues that the conduct of petitioner is inconsistent with his testimony in that, while now ascribing the whole body of his infirmities to the accident, he asked the management for no medical attention during the four weeks in which he continued in its employ, and sought out no physician until his admission into the hospital. What he knew at the time of the rights of an employee, injured in his employment, does not appear; it may be assumed that his hospitalization in the Veterans’ and Navy hospitals cost him nothing (no bills were presented in the Bureau); and when discharged he applied for help in the first instance, not to respondent, but to a labor union into whose treasury he had paid dues for years. Nothing in the record suggesting the contrary, it may be assumed that he received the same wages after the accident as before it; and he could not have foreseen, during the last month of his employment, that he was not soon, or ever, to be restored to his former activity and usefulness. We find little force in the argument.

Respondent dwells also upon the fact—the readily admitted fact—that to the doctors in the Veterans’ Hospital petitioner said nothing about his accident. “When I went,” he said, “I told them I needed medical attention and needed an operation, and they .checked up on me. * * * They weren’t interested in what accidents I had. They didn’t ask me anything. I told them I had a hernia and needed an operation.” And again, “You can’t complain when you go in there. The doctor examines you and puts you where you belong.” With the staffs of veterans’ hospitals reputedly ovei-worked and undermanned, there may be insight and truth in these observations. At any rate, as already stated, he gave a history of his hernia to the young woman in the hospital office; and he told the “contact man * * * the government man who goes around to see that every soldier gets an order for anything he needs”—about his accident.

That he was hurt by it is so clear as to render needless further discussion about it; an unbroken sequence of incidents, all undenied (and many of them susceptible of refutation, if untrue) asserts it—his sitting out in the open air for hours right after the metal truck struck him down, the aggravation in his hernia and the physical evidences of injury disclosed at home at a later hour of the same day, his staying in bed during the next two days (increasing to four the number of working days lost in twelve years, unless June 21st and 22d were the two lost days to which he referred), his altered life in the plant henceforth (altogether undenied), his quitting work simultaneously with the coming in of the assistant washer, his appearance in a hospital on the very next day, Ms prompt entry into it, Ms operation and the nature of his complaints there, his admission into another hospital for leg and head “trouble” in the following summer and Ms whole after history.

The real question is not whether the accident resulted in injury, but to what extent, if any, Ms permanent disability is the consequence of it. "We turn to the testimony of the doctors for the answers.

Dr. Edward W. Markens and Dr. M. W. Bergman testified for petitioner. They examined Mm on January 3d, 1945, and March 19th, 1945,, respectively. The same number of physicians were sworn for respondent—Dr. William K. Harry-man and Dr. Morris Grossman, Dr. Harryman having made his examinations of petitioner on March 21st, 1945, and October 29th, 1945, and Dr. Grossman on October 19th, 1945.

Dr. Markens testified that petitioner complained to him of pain in the left side of Ms neck and head, in his left leg and in Ms back. The doctor found a pressure tenderness and a myositis over the left lumbar region and the lower dorsal, some swelling in the left knee, slight restriction of full extension of the left leg at the knee, and a restriction of about fifteen degrees of flexion of the leg toward the thigh, and attributed them all to the accident in question. He said that the myositis in the back is due to a spinal anesthesia received by petitioner at the time of his operation, and declared that it is not an uncommon condition after such an injection—a statement which, if not accepted by the other three experts, was unchallenged by any of them. He found 20% disability in the left leg, 7-%% in the back, and from 10% to 15% of total. His examination was not neurological, and he did not determine petitioner’s blood pressure—facts now noted for reasons presently to appear.

Dr. Bergman, a neurologist, said that petitioner complained to him of pain in his left leg, arm and shoulder, of headaches, of a tightening and trembling of the muscles on the left side of his body, of labor in walking, of insomnia, of nervousness and of impairment in sight. The physician found a hypertrophy of the heart, high blood pressure, a limp in his walk, a limitation of motion of the left lower thigh, tremulousness in the extended fingers, increased sensitivity in the traumatized area, tenderness in the suboccipital area of the skull, a traumatic myositis of the left upper side of the neck, tenderness in the anterior upper left chest, and found the man also to be anxious and hyperemotional. When asked whether in his judgment petitioner was suffering from any neurological disability resulting from the accident, he replied in the affirmative, and said that he attributed “?-%% of total, exclusive of the orthopedic, as related to the trauma he sustained.” He added that “physiologically” petitioner “has a large percentage of disability and one would expect that neuropsychiatrically he had much greater than f-%% of total. I have tried to reasonably estimate and evaluate that arising purely from ¡.he trauma.” He declared that the theory that petitioner’s high blood pressure was a “sequelli of the accident” is not untenable, but rejected it, and assumed that “some systemic condition” caused it. He declared that the neurosis “will intensify it periodically but not give it a permanent damage,” and excluded from his estimate of disability all disability flowing from hypertension; “The same is for his glandular condition and the orthopedic finding.” He testified that petitioner “states that ever since the accident he has been a changed man and he focuses, he crystalizes, it on to the accident. That is the greater part of the figure of 7-%% of total which is the neurosis related to trauma, although he conscientiously believes he has much more disability; but I, as a physician expei-ienced in estimating disabilities, allocate that which I feel is the greater measure of it.” He was questioned, on cross-examination, as to when “the fixation of these complaints associated with” the accident would first appear; and he replied that the time is variable; “In some people it might come any time. But I reasonabfy believe that it should come within a month or two or during the period of treatment. As fax as headaches axe concerned or dizziness or any symptom referable to concussion, they should come reasonably within a short time after.” As already stated, the headaches, at least, closely followed the accident.

Dr. Harrymaxi found petitioner to be a hundred per cent, disabled in so far as any “active work” is concerned; but attributed the whole of his disability to elevated blood pressure and chronic myocarditis. He said that petitioner complained to him of pain on the left side of his head and in his left shoulder and of tenderness about the left knee; and he found, in fact, “some slight local induration in” the latter area, but no functional loss. At the second examination, petitioner still complained of his left knee, but in a slightly different locality. Notwithstanding that the doctor said at one point in his testimony that he found the man’s disability to be due to his constitutional condition, and not at all to his accident, he declared at another point: “How much of his condition is due to the so-called accident is rather hard to estimate ;” and again at a third point: “If he hurt his left knee and he struck the left side of his head and shoulder, then it is possible that the symptoms arising from that may be attributable to the accident.” We conclude that his testimony was too theoretical and speculative and vacillating to be very helpful either to the one party or to the other. He found it hard to determine whether the hernia was due to the accid ent, although the hernia admittedly long preceded it; and assumed that petitioner entered the first hospital “primarily because he was short of breath”—an assumption which, so far as the record discloses, has not the most shadowy basis in fact.

Dr. Grossman found high blood pressure and heart murmurs and some hardening of the peripheral vessels of the body, and a tenderness to percussion of the left occipital region of the skull, and concluded that petitioner is suffering from “a neurosis and a hypertension,” and estimated his permanent disability from the neurosis to he 2%% of total. But he testified: “* * * it would be almost impossible to differentiate how much of his neurosis is due to his hypertension and how much is due to the possible injury he sustained/’ and lie thought petitioner’s high blood- pressure contributed to his neurosis. It is reasonably probable, he readily conceded, that the accident caused the neurosis; and testified that any accident, mental or physical, may be the underlying cause of neurosis, and that it frequently is.

The record exhibits a familiar variance of professional opinion, but establishes the fact that the accident sent this employee from a laundry room to a hospital bed. It may be assumed, although the evidence leaves the actual fact undetermined, that petitioner’s high blood pressure or his heart condition (whatever the latter may be), or both, antedated his accident; but the proof is that, before the accident, neither the one nor the other, nor the conjunction of both, ever occasioned an interruption in petitioner’s work, or diminished its volume or restricted its scope. The curtailment in the range of his work, its eventual total cessation, the rise of his neurosis all came in the train of the accident. We find that the weight of the medical testimony is in favor of -the petitioner.

The Deputy Commissioner determined that petitioner suffered permanent disability, as a consequence of the accident, in his leg and back, and attributed his neurosis altogether to the accident. Whether the neurosis is due solely to the accident, as well may be, or only in part, the award to the petitioner made in the Bureau we find to have been not only justified by the preponderance of the evidence, but safely conservative also.

The judgment appealed from will be affirmed.


author: Joshpti L. Smith, S. C. C.

text:
    WELCH HOLMES & CLARK CO., A CORPORATION, PLAINTIFF, v. ARTHUR J. CALE, TRADING AS EDGEWATER TEXTILE DYEING CO., DEFENDANT.
    Decided October 8, 1946.
    Pot the plaintiff, Milton B. Levin.

    Pot the defendant, Joseph A. Burns.

   Joshpti L. Smith, S. C. C.

This matter is before the court on a rule to show cause for dismissal of garnishment and execution against wages as a result of an order for execution against wages made by this court on the 17th day of May, 1946. The order for execution against wages is based on a judgment which was recovered in the District Court of the Pourth Judicial District of the County of Bergen and subsequently docketed in the Bergen County Court of Common Pleas and in the New Jersey Supreme Court.

The defendant herein is attempting to collaterally attack the judgment on the ground that he was never served with process. An examination of a photostatic copy of the constable’s return which is made a part of the record by stipulation, shows that it is regular on its face and that.service upon the defendant was personally made cm March 4th, 1929.

There is no evidence whatsoever showing any irregularity in the docketing of this judgment in the Bergen County Court of Common Pleas and in the Hew Jersey Supreme Court. The docketing of this judgment does not operate to transfer the judgment from the trial court to a higher court for the purpose of transferring the power over the judgment by the trial court to the superior court except in the matter of execution. In Lacombe v. Laval, 81 N. J. L. 68 (at p. 71); 79 Atl. Rep. 607, 608, Mr. Justice Peed said:

“While a judgment docketed in the Court of Common Pleas may be attacked in that court for an irregularity in such docketing ('Roller v. Roller, 17 Vr. 511’), yet where the docketing is regular, proceedings to set aside the judgment must be taken in the court in which the judgment was rendered, or taken by proceedings which are addressed to that court.”

An order vacating the order of garnishment and execution against wages would in effect amount to a collateral attack upon the judgment rendered in the District Court of the Pourth Judicial District of the County of Bergen under the facts in this ease. This court does not have this power. See Davis v. Osborne, 51 N. J. L. 101; 16 Atl. Rep. 156, and rule bTo. 94 of the rules of the Supreme Court, N. J. 8. A. lit. 2.

It is urged that the defendant in the garnishment proceeding is not the named defendant in the District Court summons. The burden is upon the defendant so to prove and I am not satisfied that he is not the same person but rather I am of the opinion he is one and the same man.

The rule to show cause will be vacated.