author: Brown, S. C. C.

text:
    ROBERT M. BOYD, WILLIAM BOYD, ROSE C. MEADE, GERTRUDE MAIN AND REUBEN MAIN, PLAINTIFFS, v. CHARLES LEMMERMAN AND EUGENE C. WILLIAMS, DEFENDANTS.
    Decided August 8, 1933.
    For the plaintiffs, Pesin & Pesin (Meyer Pesin, of counsel).

      Amicus curice, Gox £ Walburg (by Victor Hansen, on the brief).
   Brown, S. C. C.

The attorneys for the defendants applied to a judge of the Hudson Circuit of the Supreme Court for permission to appear specially to set aside the summons of which service was attempted in the above cause. The motion is directed against the service attempted to be made upon the defendant Charles Lemmerman, a non-resident. The attorneys did not appear by permission of Lemmerman as the latter departed this life before suit was brought and as far as the record discloses there has been no one appointed to represent his estate nor to defend the action. The attorneys appearing for the motion claim that notwithstanding the want of authority to appear on behalf of the defendant Lemmerman, or his estate, that those attorneys have received permission of the court to make this motion and that the nature of their appearance is that of amicus -curice.

The suit arises out of an automobile accident which occurred in this state wherein the plaintiffs sustained injuries. The defendant Charles Lemmerman was the owner of the automobile that is alleged to have caused the injuries and the defendant Williams was acting as chauffeur. The collision occurred on the 5th day of February, 1933. Suit was brought by the plaintiffs against the defendants on the 6th day of April, 1933. The commissioner of motor vehicles of the State of New Jersey,was served with a summons and complaint under the authority of chapter 69, Pamph. L. 1930, p. 295. This statute provides that:

“Service of such process shall be made by leaving the original and a copy of the summons and complaint, with a fee of two dollars, in the hands of the commissioner of motor vehicles of the State of New Jersey, or someone designated by him in his office, and such service shall be sufficient service upon the said non-resident chauffeur, operator or owner; provided, that notice of such service and the copy of the summons and complaint are forthwith sent by registered mail to the defendant by the commissioner of motor vehicles or such person acting for him in his said office, and the defendant’s return receipt and the affidavit of the commissioner of motor vehicles or such person in his office acting for him, of the compliance herewith are appended to the said summons and complaint and filed in the office of the clerk of the court wherein the said action may be pending; provided, also, that the date of the said mailing and the date of the receipt of the return card aforesaid are properly endorsed on the said summons and complaint and signed by the said commissioner of motor vehicles or someone acting for him.”

By the above statutory direction the commissioner of motor vehicles is designated as the agency through which and upon whom process may be served upon a non-resident owner or operator of an automobile. In order for the service to be effective it must appear that the summons and complaint are forthwith sent by registered mail to the defendant and that the defendant’s return receipt and the affidavit of the commissioner of motor vehicles or the commissioner’s agent of the compliance with the act are appended to the summons and complaint and filed in the office of the clerk of the court wherein the action is pending. The statute also requires that the date of the mailing and the date of the receipt of the return card shall be properly endorsed on the summons and complaint.

It appears from the depositions taken on the motion now being considered that the defendant Lemmerman died on the 27th day of March, 1933; that notwithstanding his death suit was brought against him in his name and the commissioner of motor vehicles of the State of New Jersey attempted to comply with the statutory direction of mailing the summons and complaint in the cause to the defendant Lemmerman. A return registered receipt of the summons and complaint was signed by Elizabeth Lemmerman, individually, as the widow of Charles Lemmerman.

Two questions are raised on the motion for decision. One by the plaintiffs that the attorneys making the motion have no authority to do so, and the other that the service of the summons and complaint upon the defendant Lemmerman is defective and should not be set aside. An appearance by a third party without authority has no effect in a case. A presumption very often exists in the practice of the law, that the appearance of an attorney in a case on a motion, whether it is specially or general, will be presumed to be with authority until the presumption is rebutted. It appears in this case that the attorneys making the motion are without authority from the defendant Lemmerman or his legal representative to make the motion. It is contended that notwithstanding this lack of authority that permission of the court was obtained to make this motion and that the appearance being made by the attorneys is in the role of amicus curice. The record of the cause as presented warrants the role thus asserted by the attorneys making the motion. One may, as amicus curias, suggest the action of the court in any matter in which the court may proceed of its own motion. So an amicus curias may move to quash an unauthorized attachment, or to set aside a summons and to dismiss an action where it appears that the summons had been issued before the complaint was filed, or that the summons was not served upon the proper person, or to set aside a verdict taken after the death of a party, where the death of one of the parties abates the action. 2 C. J. 1324. It is determined in this matter that the attorneys appearing as amicus curim had authority to make the motion to set aside the service of the summons in this case.

As to the legality of the service of the summons the service does not comply with the test laid down by the United States Supreme Court in Wuchter v. Pizzutti, 276 U. S. 13 (72 L. Ed. 447), in which case Chief Justice Taft, writing the opinion for the court concerning a statute of the State of New Jersey relating to service of process, had this to say:

“The question made in the present case is whether a statute, making the secretary of state the person to receive the process, must, in order to be valid, contain a provision making it reasonably probable that notice of the service on the secretary will be communicated to the non-resident defendant who is sued. Section 232 of the laws of 1924 makes no such requirement and we have not been shown any provision in any applicable law of the State of New Jersey requiring such communication.”

It was not reasonably probable in the instant case that the notice of the service was communicated to the defendant Lemmerman. This was impossible- because of his death. The service did not comply with the law in obtaining a registered receipt showing service upon the defendant nor did the commissioner, or a person in his office, comply with the statute in endorsing on the summons and complaint the date of the receipt of the return card required to be obtained under the statute. For the foregoing reasons service of the summons and complaint in this cause intended for the defendant Lemmerman will be set aside.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    LOUISE MARTENS, PLAINTIFF-RESPONDENT, v. HERMAN MARTENS, DEFENDANT-APPELLANT.
    Submitted January 27, 1933
    Decided June 29, 1933.
    Before Justices Bodine and Donges.
    For the defendant-appellant, Hvrschberg <& Nashel.

    For the plaintiff-respondent, Francis A. Castellano, Jr.

   Per Curiam.

This is an appeal from a judgment of the Bergen County Court of Common Pleas entered upon the verdict of a jury after a trial before Judge Del Mar.

The suit was by a daughter against her father to recover for personal injuries received while a passenger in an automobile owned and driven by the father. At the time of the accident and institution of suit, the girl was a minor and sued by her next friend, but before trial she reached twenty-one and the complaint was amended to make her plaintiff individually.

The grounds of appeal raise the propriety of the refusal to nonsuit or direct a verdict.

The nonsuit and directed verdict were sought on two grounds. One was that the plaintiff was an unemancipated minor and not entitled to recover against her father. In view of the testimony that the plaintiff had worked for three years, paying board and keeping the balance of her earnings; and that at the time of the accident and for a few weeks prior thereto, she was working as a waitress in her father’s restaurant, receiving her board and money wages, the action of the trial judge in'submitted the question of emancipation to the jury as one of fact was justified.

The other ground of the motions was the lack of proof of negligence. All the testimony of the happening of the accident comes from the plaintiff and defendant, and they agree in the particulars. Defendant was driving on Bergen Pike at a rate of about thirty miles an hour. It is testified that this is a built-up street where the speed limit would be twenty miles per hour. Thirty-ninth street intersects from the right, and at or near this point Paterson Plank road leads off to the left. As he approached this intersection, a car came out of Thirty-ninth street at a good speed directly in front of him when he was fifteen feet away. Defendant turned sharply to the left in an effort to avoid the collision by entering the Plank road. He did not quite make it and struck a pole at the intersection of that road with Bergen Pike. The only allegation of negligence in the complaint is excessive speed and that is principally relied upon now. Violation of the statute is not of itself conclusive evidence of negligence. Thirty-ninth street was a stop street and defendant was entitled to rely upon cars coming out of that street making a complete stop at the intersection. There is no testimony that the collision could have been avoided in any other way. Defendant said that after turning he became confused and pushed the clutch out but did not succeed in getting his brakes on before hitting the pole.

Prom the uncontradicted testimony, the defendant was suddenly confronted by a situation of peril, so far as the proofs show, not due to any negligent act of his, and, in the situation, he did what a person of reasonable prudence would do, turn to the left to avoid the oncoming car. He avoided the car, but struck a pole. It is not alleged that there was any negligence on the part of defendant except immoderate speed, but that does not appear to have been the proximate cause of the accident.

The judgment is reversed, with costs.


text:
    JULES GLASER, PLAINTIFF-APPELLEE, v. COLUMBIA LABORATORIES, INCORPORATED, DEFENDANT-APPELLANT.
    Submitted January 30, 1933
    Decided June 30, 1933.
    Before Brogan, Chief Justice, and Justices Trenchard and Case.
    For the appellant, Robert E. Pollan.

    Por the appellee, Ranzenhofer & Ranzenhofer (Frederick 8. Ranzenhofer, of counsel).
   Per Curiam.

The essential facts in this case were stipulated and submitted in the Second District Court of the city of Paterson and the judge of that court rendered judgment in favor of the plaintiff for the sum of $70, and the defendant appeals. The situation was this:

On July 15th, 1932, the plaintiff below sold and delivered certain goods to Joseph Eosenteur at an agreed price of $67 and the purchaser signed a promissory note for the amount thereof in installments of $2 each on Saturday of each week, with a provision that upon default all payments become due. At the same time, and apparently on the foot of the note, the maker executed a so-called security agreement in which he appointed George Jacobson his “agent to assign to the holder hereof” all his personal earnings due or to become due on pay days, until the first pay day on which the sum due him shall exceed the amount owed on the note. On July 29th, 1932, such agent assigned all Rósentenos wages due and to become due from the defendant until such time as the total wages shall equal or exceed the sum of $67 to the plaintiff. At the date of the assignment Rosenteur was employed by the defendant and was earning $35 a week and was paid weekly; and on the day of the assignment (July 29th, 1932) notice of the assignment was given to thé defendant who promptly notified the plaintiff that it would not honor such assignment. Neither the promissory note nor the so-called security agreement mentioned any particular employer.

The assignment, not being honored, the plaintiff on October 14th, 1932, began this suit thereon which, as we have said, resulted in a judgment for the plaintiff for $70 and costs.

The defendant-appellant contends that the assignment was a partial assignment and if enforceable at all was enforceable in a court of equity and not in a court of law. It cites, among other cases, Cogan v. Conover Manufacturing Co., 69 N. J. Eq. 809; 64 Atl. Rep. 973, and Sternberg & Co. v. Lehigh Valley Railroad Co., 78 N. J. L. 277; 73 Atl. Rep. 39; affirmed, 80 N. J. L. 468; 78 Atl. Rep. 1135. We think the position of the appellant is well taken.

It is admitted that the actual amount of the assignment is $67. It is admitted that the purchaser was employed by the defendant at a regular salary of $35 a week, payable each week. Therefore, at no regular pay day would there be an amount due from the defendant to the purchaser equal to the amount of the assignment. There is no certain and definite amount assigned, but simply weekly wages. We believe that such an assignment has been held to be in effect a partial assignment. In the case of Sternberg & Co. v. Lehigh Valley Railroad Co., 78 N. J. L. 277; 73 Atl. Rep. 39; affirmed, 80 N. J. L. 468; 78 Atl. Rep. 1135, there were three separate suits for assignment of wages considered. The second suit resembled the instant case. In that case the sum of $17.48 was due from the employe to the seller. The employe was making $55 a month payable monthly. The assignment was for the months of January, February and March. The court disregarded the attempt of the plaintiff to cover up a partial assignment, saying: “The assignment became inoperative as soon as the sum of money designated as its consideration had been paid. No particular sum of money corresponding in amount with payments to be made by the defendant to its employe was assigned. In each ease compliance with the assignment would result in a. splitting up of wages by the payment to the plaintiff of the part assigned to it, and the payment of the remainder to the assignor.” There, as here, the plaintiff claimed to be entitled to recover at law under the authority of the nineteenth section of the Practice act (Revision of 1903), and in that case the court said: “The statute in question has been considered by this court in Otis v. Adams, 56 N. J. L. 38; 27 Atl. Rep. 1092, as not extending to a case where a part of the chose in action is admitted to be assigned.”

It seems clear that the judgment in the present case must be reversed and it is so ordered, and since the facts were stipulated the reversal will be with costs. No opinion is intended to be expressed as to whether or not plaintiff has a remedy in equity in this particular case.


author: Lyon, C. C. J.

text:
    LUCINDA K. SPEAR AND HELENE SPEAR, PLAINTIFFS, v. ISAAC HUMMER AND RAYMOND T. HUMMER, DEFENDANTS.
    Decided August 11, 1933.
   Lyon, C. C. J.

This is on a rule to show cause why a new trial should not be granted. Yerdict for the injured plaintiff was $10,000, and $200 for the owner of the car.

The case of the plaintiff is based largely on the theory that the. defendant was driving at an extraordinary rate of speed. Mrs. Spear testified that the defendant was going sixty-five or seventy miles an hour. If the jury should find that that was true then it is not clear that the plaintiff was guilty of contributory negligence. Mrs. Spear testified that she looked both ways when she entered upon this road and waited until she had a very good opening and then started across. She said when she got on the concrete road she noticed a car coming at a terrific speed down the center lane. If the jury should find that to be true and that the defendant’s car was coming at such a terrific speed then it was probably so far away when Mrs. Spear started to cross that she would not be obliged to anticipate danger from it. It was not necessary that her observation should extend beyond a distance within which the car moving at a lawful rate of speed would endanger her. Rockford v. Stankewicz, 108 N. J. L. 265; 158 Atl. Rep. 386.

The evidence is susceptible of that inference and, of course, is a question for the jury. I do not think the evidence of the contributory negligence of the plaintiff is great enough to Say that it is sustained by overwhelming weight and strong enough to warrant the granting of a new trial on that ground.

On the question of the amount of the verdict I do not think it is so great that it should be disturbed. The plaintiff was very seriously injured. This is shown by the length of time that she was confined to the hospital, the expenses amounting to about $2,700, and the fact that she is still suffering. I have carefully examined comparable cases and cannot find any where the Supreme Court has cut down a similar verdict.

The rule to show cause will be discharged.


text:
    HARRY KLUGER, PLAINTIFF-RESPONDENT, v. JACOB MENDELSON AND SAMUEL MENDELSON, CO-PARTNERS, TRADING AS MENDELSON BROTHERS & SIFF, AND MENDELSON BROTHERS FACTORS, INCORPORATED, A FOREIGN CORPORATION, DEFENDANTS-APPELLANTS.
    Submitted January 27, 1933
    Decided August 16, 1933.
    Before Justices Bodine and Donges.
    Por the defendants-appellants, Paul Rittenberg.

    Por the plaintiff-respondent, Oole & Morrill (David L. Cole).

   Per Curiam.

This is an appeal from a judgment in favor of the plaintiff in the sum of $610.34. The case was tried in the Passaic Circuit without a jury. Plaintiff originally sued in the Second District Court of Paterson. The case was removed by the defendants to the Circuit Court, a recoupment having been filed. Plaintiff then amended the pleadings demanding damages in the sum of $653.40. The action was upon a contract. Defendant alleged non-performance and sought to recover an advance payment. The contract in suit is signed Mendelson Bros. & Siff by S. Mendelson. The judgment record shows that the defendants in the District Court action were Jacob Mendelson and Samuel Mendelson, co-partners, trading as Mendelson Bros. & Siff and Mendel-son Bros. Factors, Incorporated. At all events, Samuel Mendelson swore that he was a member of the firm and an officer of Mendelson Bros. Factors, Incorporated, the defendants in the District Court action, and sought to have the matter removed from the District Court for the reason that the recoupment sought was in excess of the jurisdiction of that court.

The suggestion that there was no evidence to support the judgment against Mendelson Bros. .Factors, Incorporation, a New York corporation, is without merit.

It is argued that there was no evidence adduced at the trial to support the judgment. We think there was.

There seems to be no merit in the point that the trial court in arriving at its judgment considered evidence in violation of the parol evidence rule. We have examined the questions and answers objected to. We cannot say from our scrutiny of the record that the questions were objectionable, or that the evidence adduced violated the parol evidence rule. We can arrive at but one conclusion from the record, that it was conceded by counsel for both parties that the decision of the case rested in the sound discretion of the trial judge.

The judgment is affirmed, with costs.


text:
    THE STATE OF NEW JERSEY, DEFENDANT IN ERROR, v. NICHOLAS V. C. MONNETT AND JOHN PLANZ, PLAINTIFF IN ERROR.
    Argued January 18, 1933
    Decided August 16, 1933.
    Before Justices Bodine and Donges.
    For the plaintiffs in error, Minium .& Weinberger; Ghandless, Weller & Selser (Harry II. Weinberger).

    For the defendant in error, George F. Losche.

   Per Curiam.

The indictment charges that the defendants, Monnett and Planz, being members of the township committee of the township of Lodi, did aid in obtaining for the Sette Excavation and Construction Company from the township of Lodi the sum of $1,000 not lawfully and justly due.

Although the record contains two hundred and seventy-three pages, the actual testimony appears in approximately fifty-four pages. Lengthy arguments addressed to questions asked witnesses cover eighty-seven printed pages. There are no less than sixty-seven assignments of error and the brief for the plaintiffs in error contain eighty-one pages. We have made a careful examination of the entire record, and every point argued on this appeal in order to determine whether there is any merit suggested. We have come, after careful consideration, to the conclusion that there is no merit in the appeal.

Nicholas Y. C. Monnett and John Planz were township committeemen of Lodi township and attended a meeting held June 25th, 1929. Monnett was chairman. Charles Nove was township collector and Joseph Frederick Bratt, township attorney. At this meeting Monnett stated that he was entitled to $1,000 for all the work he had done in floating township bonds. He was told by the township attorney that he could not get this money in his own name; that he would have to put it in someone else’s name. A resolution was then offered and passed, whereby it was resolved that a bill of the Sette Company for $1,000 be paid by check Ho. 651, Committeeman Planz voting affirmatively. The warrant for this payment bears date June 25th, 1929, and was signed by Monnett as president of the.committee and attested by Township Clerk Wolf. On the margin appears the words “Accepted Payable at Little Perry National Bank, Little Perry, H. J., Charles Hove, Collector of Taxes.” It bears also the endorsement of the Sette Company and was paid at the bank of Bogota. The warrant on the night of the meeting was given to Mr. Girsafe of the Sette Company. At the same meeting an account of the Sette Company in the sum of $16,622.10 was also paid. Prior to the issuance of this warrant for $1,000, no voucher had been presented for payment. On August 19th, a bill of the Sette Company for $577.50 was received and Wolf subscribed to the jurat as of the 25th day of June, 1929. At the same time another voucher for $500 was presented and handled in precisely the same way. The bookkeeper for the Sette Company testified that he never recived the $1,000 warrant. He, however, made out the bills for the $500 and $577.50. The date was not in his handwriting. The bookkeeper did not know where the data for these bills came from. The bills had nothing to do with the usual work of the company. A check of the Sette Company drawn to the order of “cash,” dated June 28th, 1929, was made out and given to Girsafe, but no entries were set up in the company’s books. The township warrant for $1,000 was deposited in the bank to the credit of the Sette Company. The check of the corporation for $1,000 was cashed by Girsafe. The township attorney wrote to the collector on July 11th, 1929, calling his attention to the necessity of having detailed bills signed and sworn to by persons claiming moneys before making disbursements. Later the Sette Company’s bills were presented and the false jurat was signed. The defendant Monnett said at a council meeting that he had received $700.

There is no dispute that Monnett and Planz were officers of the township of Lodi. The issue submitted to the jury was whether these men, who were members of the township committee, voted money to the Sette Company which they knew was not lawfully due and owing to that concern. The judge charged the jury that it was necessary for the state to show that Monnett and Planz participated as members of the township committee in an unlawful payment, and that the Sette Company received the money not lawfully due.

Prom the foregoing, it is apparent that the only proof before the court demonstrated that the state had made out a case within the four corners of the indictment. The only inference that a reasonable person could draw from the testimony is that this $1,000 was not due to the Sette Company and was not claimed by them as due. It was not only not handled in the regular course of business but no bills were presented until long after the payment had been made. The bills were presented because of a letter from the township’s attorney and were made up without any reference to the books of the company. Purther, no entries were ever made respecting the transaction upon the Sette Company’s books .

We have carefully examined the charge of the court and do not regard it as faulty or prejudicial. It is long but presents a very clear analyses of the questions to be considered by the jury. They were properly charged as to the rights of the defendants and their duty as jurymen to find the facts in accordance with the law and their oaths.

We do not regard the indictment as insufficient, and we do not believe that the question of its invalidity is before this court, but if it is we see no merit in it. There was absolutely no evidence received of testimony given by either defendant in the Supreme Court investigation of the Lodi township matters. They were not compelled to give testimony against themselves in any sense of the word, nor was any such testimony, if given, used against them.

Having examined the whole case with great care, we can only conclude that there is no merit whatever in any of the assignments of error, and the convictions are, therefore, affirmed.


text:
    CENTRAL SURETY AND INSURANCE CORPORATION, PROSECUTOR, v. PAUL GEIRSKY ET AL., RESPONDENTS.
    Argued January 18, 1933
    Decided August 19, 1933.
    Before Justices Parker, Lloyd and Heher.
    For the prosecutor, Frank G. Turner.

    For the respondents, Brody •& Weisberg (Joseph Kraemer, of counsel).
   Per Curiam.

The certiorari in No. 209 is to review a judgment of the Common Pleas Court of Essex county in a workmen’s compensation case and in No. 232 we have a motion to dismiss the writ.

The motion to dismiss is denied and we proceed to consider the reasons urged for reversal of the judgment. The first and third of these are that the court below was without jurisdiction to award judgment against the insurance company because its policy did not cover the loss sustained by the respondents.

The policy was issued to respondents’ employer and covered employes in “chicken coop assembling and carpentry shop only including lumber yard and storage” and in connection therewith drivers and their helpers, chauffeurs and their helpers.”

The claimant was a farm hand working on the farm of the insured and while leading a farm horse which the employer had bought for farm purposes he was hit by an automobile and injured.

Our examination of the policy convinces us that it did not cover the loss. The policy is evidently intended to insure a mechanical business employment only.

Item three of the coverage refers to all factories, shops, yards, buildings, premises or other work places, 95 Bragaw avenue, Newark., Included in this are all business operations conducted at this place; (1) all industrial operations on the premises; (2) all office forces; (3) operations not on the premises.

Item four declares that this enumeration and description of employes includes all persons employed in the service of the employer in connection with the business operation above described, meaning, of course, the chicken coop assembling. There is no proof in the case that the farm or its operation had anything to do with the business of building or assembling chicken coops or the buildings connected therewith.

There are other reasons urged on reversal, among them that the right of trial by jury was denied to the appellant. There is much to be said in support of this reason. The question in this case is not whether the claimant was entitled to recover against his employer by a finding on which under the statute providing for bringing the answer in by rule, &c., the insurer would be bound, but whether the appellant’s policy had insured against the loss which had occurred. As, however, we think the policy by its terms did not cover the farm employes of the insured, it is not necessary to decide this reason for reversal.

The judgment is reversed.


text:
    JENNIE MANCHEST, PLAINTIFF-RESPONDENT, v. LONG ISLAND FINANCE CORPORATION, DEFENDANT-APPELLANT.
    Submitted January 27, 1933
    Decided August 16, 1933.
    Before Justices Bodine and Donges.
    For the defendant-appellant, Nathaniel A. Jacoby (Emil Stremlau).

    For the plaintiff-respondent, Leo 8. Lowenlcopf.

   Per Curiam.

This was an action in replevin. The jury returned a verdict of $700 in favor of the plaintiff. Plaintiff’s title was predicated upon a purchase at a foreclosure sale. The car was sold to the plaintiff’s husband under a conditional bill of sale. The chattel mortgage under which she purchased was subsequent thereto. The conditional sales agreement was recorded on April 19th, 1928, at eleven-twenty a. m., and the chattel mortgage went on at two twenty-five p. m. the same day. The car was sold March 31st, 1928, so that the recordation occurred nineteen days after the sale.

Section 5 of the Uniform Conditional Sales act is as follows: “Every provision in a conditional sale reserving property in the seller, shall be void as to any purchaser from or creditor of the buyer, who, without notice of such provision, purchases the goods or acquires by attachment or levy a lien upon them, before the contract or a copy thereof shall be filed as hereinafter provided, unless such contract or copy is so filed within ten days after the making of the conditional sale.” 2 Cum. Supp. Comp. Stat., p. 3130.

The trial court took the view that this section voided the conditional sales agreement as against a purchaser under the chattel mortgage. Not so. The chattel mortgagee neither purchased the car nor acquired by attachment or levy a lien lien thereon before the conditional sales agreement went on record. The conditional sales agreement was, therefore, not void as against the chattel mortgagee, and a purchaser at a foreclosure sale under that mortgage could acquire no greater rights than the chattel mortgagee had. The prior filing of the conditional sales agreement was notice. Morey & Co. v. Schaad et al., 98 N. J. L. 799; 121 Atl. Rep. 622.

The proceeding in the United States District Court, in which it was found that the making of the chattel mortgage upon a conditionally sold car was a fraud which would bar a discharge, was not an adjudication which would debar the defendant from asserting its right to the car in suit under its duly recorded conditional sales agreement. The issues were obviously different.

The judgment is reversed.


author: Siegler, J.

text:
    DOROTHY COOPER, COMPLAINANT, v. JOHN COOPER, DEFENDANT.
    Decided August 14, 1933.
    Before Judge Joseph Siegler.
    For the complainant, Paula Laddey.

    For the defendant, O. Wallace Vail.

   Siegler, J.

This is an action brought by Dorothy Cooper, charging that John Cooper, her husband, has, since February, 1933, failed to support her and their minor child, three and a half years of age, and praying that she be made an allowance for their support, pursuant to the provisions of “An act concerning the Juvenile and Domestic Relations Court,” Pamph. L. 1929, ch. 157. The defendant replies and says that there is no marriage; that their relations were meretricious; and that there was no intention to regard their relationship as marital. The complainant answers that by saying that they had agreed between them to be husband and wife and thereby have established a common-law marriage.

These parties met some time early in August, 1929, and immediately thereafter started to cohabit with each other, resulting in the birth of a child in July, 1930. Shortly after the commencement of the marital relations between these parties, both of them moved to Jersey City, where they lived on West Side avenue in a furnished apartment and became known there as Mr. and Mrs. Cooper. Mrs. Peterson, the mother of the complainant, visited this couple at their Jersey City abode during the month of May, 1930, during which visit the defendant made admissions and declarations to her that he was married to her daughter and that the marriage had taken place in September, 1929. Mrs. Peterson on several occasions asked for the marriage certificate of the complainant, which neither of those parties was able to furnish, but they succeeded each time in explaining away non-production.

Just before the birth of the first child, because of a quarrel between these parties, the defendant went to live with his parents in Trenton, New Jersey; the complainant, with her mother, Mrs. Peterson. The defendant communicated with the complainant by a letter during this time, represented by Exhibit O-Jf. This letter was admitted by the defendant to be in his writing, and was dated June 4th, 1930. In it he addresses the complainant as “dearest darling wife.” It goes on further to say: “I really hope you will forgive me for the things I said to you I was so mad that I must be out of my mind I love you more than life itself.” He closes this letter: “Your husband and all his love, Jack.”

Their child was born on the 5th of July, 1930. On the birth certificate, marked in evidence as Exhibit 0-1, appears the name of the child, “John William Cooper” (the same name as the defendant’s). Immediately after the birth of this child, the parties herein resumed living with each other, this time at 309 Bloomfield avenue, Montclair, New Jersey. The defendant was employed at that time with Mr. Kripple (by the way, he was not produced as a witness in this case, nor was his non-production explained), and it is said, and not denied, that they were known to him as husband and wife. In August, 1930, the defendant left his wife again, and went to live at Claremont avenue, Verona. At this point, the complainant introduced in evidence, without objection by the defendant, Exhibit 0-2, which purports to be a public notice, published in the newspapers, in which he says:

“I hereby give notice that I will not be responsible for any bills or debts incurred by my wife, Mrs. J. Cooper, with whom I am no longer living.

Jack Coopek,

135 Claremont Ave.”

The parties make up their differences again, and are apparently living in peace and happiness, on September 13th, 1930, on Claremont avenue, Yerona, and continue to live there together as husband and wife until November 7th, 1930, when their child died. After this sad occurrence, the defendant leaves the complainant, shifting for himself, and leaving the complainant to get along as best she could; and this separation continues until December, 1931. Again, at this point, Exhibit OS is introduced in evidence by the complainant, without any objection by the defendant. This exhibit purports to be an envelope in the handwriting of the defendant, postmarked “Trenton Nov 27 10 PM 1931,” and addressed:

“Mrs. Dorethy Cooper

142 Elmwood Road

Yerona

N. J.

% Mrs. McCoy.”

The letter which came in the envelope was not produced. However, this latter correspondence resulted in a meeting between the parties at an appointed place and time, when they again decided to take up living together, and located at Lincoln and Williams Streets, East Orange, in a furnished room. The complainant says that she lived there with him as husband and wife and that she was introduced to Mrs. Harrison and to Theresa Wright as his wife. The introduction and holding out as husband and wife was denied by the defendant. I heard the testimony of Mrs. Harrison and Mrs. Wright. I was satisfied that the testimony of Mrs. Wright that they lived there as husband and wife and that the defendant did introduce the complainant to her as his wife and “my better half,” is creditable evidence and the truth of this happening. Even without this admission and the statement of Mrs. Harrison, it stands undenied that complainant and defendant occupied and enjoyed a furnished room together in these premises. They were together until some time in December, 1932, and separated then for the last time. Another child was born on February 5th, 1933, for which support is asked in these proceedings.

Mrs. Peterson, the mother of complainant, in substance corroborates the daughter in places where they lived and times when they separated and what happened at the time of the birth of the chi]dren. At all the places where she visited, she found them living together as husband and wife. She says that the defendant’s father came to visit them at their house and was present when the defendant introduced Dorothy (this complainant) to his father: “I want you to meet my wife, Dorothy.” She saw Jack and Dorothy come out together from Mrs. Wright’s house in the months of July and August, 1932.

Chief of Police Howland, of Yerona, says he knew these parties, having come in contact with them in the discharge of his public duties. He says that they were known to him and in the community as Mr. and Mrs. Cooper.

Mrs. Jennie Hermann says that the defendant told her about his wife three years ago. The defendant then worked in the meat market where she was a customer; that he (the defendant) also told her at one tíme: “I am going to save up and get a divorce.”

Mrs. Harrison, a defense witness, admits that they lived together at her furnished rooming house, and that when she (the complainant) first came to her door and asked of Mrs. Harrison whether Jack Cooper was there, the complainant told the witness that Jack Cooper was her husband.

The defendant himself claims that he just permitted the complainant to live with him without any responsibility to either one; that he never introduced her to his friends nor regarded her as his wife. He does admit, further, that complainant’s mother always thought that they were married and that he did not tell complainant’s mother that they were not married; that he told his own mother that he intended to marry the complainant. He admits that he complained before Chief of Police Howland, of Yerona, about his wife. The defendant also admits, on his recross-examination, that Mr. Kripple, one of his former employers, thought “Dorothy and I were married.”

There was some testimony that complainant admitted being married to one Kenneth Harris. This was denied. There being no evidence, either documentary or otherwise, to support this statement, I have given little credence to the truth of this statement. In any event,- the purpose of this testimony was not to establish the truth of the statement made, but to attack the veracity of the complaining witness’s testimony.

We come now to the question on which the decision of the case must turn; namely, is the defendant the husband of the complainant? Or, stated in another form, has the marriage on which the complainant’s action rests been satisfactorily proved? The burden is on the complainant. Unless the case contains sufficient evidence to produce a clear conviction in the mind of the court that the parties entered into a contract of marriage some time in September, 1929, no relief can be awarded to the complainant. The complainant, therefore, must stand or fall upon this agreement. Collins v. Voorhees, 47 N. J. Eq. 315; 20 Atl. Rep. 676; Pearson v. Howey, 11 N. J. L. 12; Blackburn v. Crawford’s Lessee, 3 Wall 175; 18 L. Ed. 186; Bey v. Bey, 83 N. J. Eq. 239; 90 Atl. Rep. 684 (at p. 692). The subsequent cohabitation, with matrimonial habit and repute, is nothing more than testimony in proof of the marriage. Collins v. Voorhees, supra.

In construing the contract, regard must be had to the intent of the parties as well as the manner in which the parties lived together during the period from 1929 until 1932. The testimony of the complainant strongly indicates that the agreement constituted a contract of marriage per verba de prcesenti. The fact that a man and woman have openly cohabited as husband and wife for a considerable length of time, holding each other out and recognizing and treating each other as such by declarations, admissions, or conduct, and are accordingly generally reputed to be such among their relatives and acquaintances and those who come in contact with them, may give rise to a presumption that they had previously entered into an actual marriage, although there is no documentary evidence thereof, or direct testimony to that effect; and, in the absence of evidence in rebuttal, the presumption may be conclusive of the fac.t of marriage. But the cohabitation must have been apparently matrimonial and continuing and regular, such as is usual between persons lawfully married, and the parties must have recognized and treated each other as husband and wife, holding each other out as such, so as to create the reputation that they are married. But reputation alone will not give rise to the presumption of marriage, and, where it is sought to raise the presumption of marriage from reputation coupled with cohabitation, the reputation must be general and not divided, and contemporaneous with the cohabitation, not subsequent to its termination.

The contract upon which the complainant rests her right to relief was made in the State of New Jersey. Its validity must, consequently, be determined by the law of this state. How, there can be no doubt that if the parties made promises to each other, in the manner and of the kind sworn to by the complainant, according to the laws of this state, they became, by force of such promises, eo instante, husband and wife; and this would be the legal effect of such promises, whether they were exchanged in the presence of a witness possessing neither civil nor ecclesiastical authority, or in the absence of any witness whatever. The case of Clark v. Clark, 52 N. J. Eq. 650; 30 Atl. Rep. 81 (at p. 83), by Vice-Chancellor Van Fleet, adopts the language of Judge Folgor in Brinkley v. Brinkley, 50 N. Y. 184, 197, where he said:

“The law is well settled that a man and woman, without the presence of a witness, without the intervention of minister or magistrate, by words of present contract between them, may take upon themselves the relation of husband and wife, and be bound to themselves and to society as such/-’

Vice-Chancellor Van Fleet further adopts the language from the opinion in Clayton v. Wardell, 4 N. Y. 230, 232, where Judge Harris, speaking for the majority of the court, said in substance that:

“Since the Beformation, marriage is no longer regarded as a sacrament, but as a civil contract. And like every other contract, all that is necessary for its validity is the deliberate consent of competent parties entering into a present agreement to take each for husband and wife. * * * And the existence of a marriage contract is a fact which may be proved, like any other fact, either by positive evidence, or by evidence from which it may be inferred.”

Further examination of the authorities in this state reveals that, in the case of Jackson v. Jackson, 94 N. J. Eq. 233 (at p. 236); 113 Atl. Rep. 495 (at p. 496), Vice-Chancellor Fielder, dealing with the question of what constitutes a common law marriage and the nature of proof required, says:

“Where there is no ceremonial marriage there must be an agreement entered into between the man and the woman, in words of the present tense, to live together as husband and wife. There are probably but few instances of mutual consent, by which each party in precise or unambiguous terms takes the other as spouse, but no particular words are necessary to declare an intention to enter into a contract of marriage. If from what was said by the parties, aided by the circumstances surrounding their entering upon their relationship, it can be gathered that they proposed to enter into a contract henceforth to live as husband and wife, it will be sufficient. Stevens v. Stevens, 56 N. J. Eq. 488; 38 Atl. Rep. 460; Bey v. Bey, 83 N. J. Eq. 239; 90 Atl. Rep. 684; Schaffer v. Krestnovikow, 88 N. J. Eq. 192; 102 Atl. Rep. 246; affirmed, 89 N. J. Eq. 549; 105 Atl. Rep. 239. And, where it appears that such relationship is matrimonial, rather than illicit, cohabitation and reputation will justify the presumption that the parties came together under a mutual promise to live as husband and wife. Voorhees v. Voorhees, supra; Wallace’s Case, 49 N. J. Eq. 530; 25 Atl. Rep. 260; Mullaney v. Mullaney, 65 N. J. Eq. 384; 54 Atl. Rep. 1086.”

We find, all through the decisions considering this type of problem, pronouncements of this well settled principle. The following cases seem to bear out this established doctrine: Schaffer v. Krestnovikow, 88 N. J. Eq. 523; 103 Atl. Rep. 240 (Court of Errors and Appeals), among other things, holds:

“The petitioner declared to the defendant that she was his wife, and thereafter the two, by habit, conduct, and declarations, held themselves out as husband and wife. We agree with the court below that these facts establish a lawful common law marriage, and it follows that the petitioner was not entitled to the relief which she sought.”

In the case of Maxwell v. Maxwell, 98 N. J. Eq. 493 (at p. 500); 131 Atl. Rep. 215, Vice-Chancellor Griffin holds: “In Commonwealth v. Stump, 52 Pa. St. 132 (at p. 136), Chief Justice Woodward said: ‘Reputation and cohabitation, at best, are only presumptive proofs, and whore either of these grounds fails, the court should not allow the presumption of marriage to be built upon the other.’

“In order to establish a presumption of a common law marriage by habit and repute, there must, not only be shown cohabitation, but reputation as husband and wife. Neither reputation without cohabitation, nor cohabitation without reputation, raises his presumption.

“In re Yardley’s Estate, 75 Pa. St. 211, Chief Justice Agnew said: ‘Neither cohabitation, nor reputation of marriage, nor both, is marriage. When conjoined, they are evidence from which a presumption of marriage arises.’ He says, further: ‘The Scotch expression conveys the true idea, perhaps, better than our own, “the habit and repute” of marriage. Thus, when we see a man and woman constantly living together, where one is dwelling there the other constantly dwells with him, we obtain the first idea or first step in the presumption of marriage, and when we add to this that the parties are constantly living together, are reputed to be man and wife, and so taken and received by all who know them both, we take the second thought or second step in the presumption of the fact of marriage. Marriage is the cause — these follow as the effect.’ ”

In the case of Sturm v. Sturm, 111 N. J. Eq. 579 (at p. 585; 163 Atl. Rep. 5 (Court of Chancery), Advisory Master Herr says:

“This presumption in favor o£ the legality of a marriage is one of the strongest known to the law, and its strength increases with the lapse of time, by the attitude of the friends, relatives and acquaintances of the parties, and by the birth of a child. To overcome it the evidence must be strong, distinct, satisfactory and conclusive (per Lord Lyndhurst in Morris v. Davies, 5 Cl. & F. 163; 7 Eng. Reprint 365); so strong and persuasive as to leave no room for reasonable doubt.

“ ‘The law presumes morality and not immorality, marriage and not concubinage, legitimacy and not bastardy.’ Teter v. Teter, 101 Ind. 129.”

Further on in the same case, on page 588:

“In New Jersey no formal ceremony is essential to a valid marriage, and an agreement between the parties' per verba de prcesenti to be husband and wife constitutes a valid marriage; so that statutory provisions as to the formal solemnizing of marriages and the preliminaries thereto, and subjecting the official performing the ceremony to criminal punishment for omission of specified ceremonial requirements, are held to be directory merely, and not to affect the validity of marriages so performed. Pearson v. Howey, 11 N. J. L. 12; Atlantic City Railroad Co. v. Goodin, 62 N. J. L. 394; 42 Atl. Rep. 333; State v. Thompson, 76 N. J. L. 197; 68 Atl. Rep. 1068; Applegate v. Applegate, 45 N. J. Eq. 116; 17 Atl. Rep. 293; Stevens v. Stevens, 56 N. J. Eq. 488; 38 Atl. Rep. 460; Mullaney v. Mullaney, 65 N. J. Eq. 384; 54 Atl. Rep. 1086; Bey v. Bey, 83 N. J. Eq. 239; 90 Atl. Rep. 684; Schaffer v. Kresnovikow, supra."

In the case of Keller v. Linsenmyer (Court of Chancery), 101 N. J. Eq. 664 (at p. 674); 139 Atl. Rep. 33:

“ ‘The dissolution of the marriage relation is a proceeding which the law does not favor.’ Pinkinson v. Pinkinson, 92 N. J. Eq. 669; 113 Atl. Rep. 143.”

On page 678, Vice-Chancellor Fallon speaking:

“To establish a valid marriage it must appear that the parties are legally competent to contract with each other. In many cases it may be fairly found as an inference of fact that there was competency to contract marriage from evidence showing a marriage ceremony, legal in form, followed by cohabitation, birth of children, and a failure to question, on the part of anyone, the validity of the marriage thus entered into.”

The court can look to the intent of the parties in construing the agreement. Bey v. Bey, 83 N. J. Eq. 239; 90 Atl. Rep. 684. Even though the relations between these parties started meretriciously in- August, 1929, these parties in September, 1929, were pledged to each other in holy matrimony. That the parties had sexual intercourse before the date of the alleged marriage is conceded. It was had, however, under circumstances that in no manner indicated a pretense before the world of an existing marriage relation. But, in September, 1929, an agreement was entered into, after which there was a complete change in their relations before the world. Thereafter their intercourse was connubial in its character, and continued unbroken and unquestioned for over three years, until the defendant deserted. This change in their mode of living, at least, when coupled with the agreement as testified to, overcomes any presumption that might arise against the validity of the marriage by reason of the meretricious beginning of their relations. In any event, the presumption against the marriage is not very strong, because they did not cohabit meretriciously. Bey v. Bey, 83 N. J. Eq. 239; 90 Atl. Rep. 684.

Let us examine the evidence and judge these parties by what they did and said. When they first went to live together at Jersey City, they assured complainant’s mother that they were married in September, 1929; and, again, when the first child was born, defendant, by his conduct, indicated that it was his child, the result of his matrimonial relations with the complainant. The birth certificate fortifies the truth of that fact. At least, he never denied or repudiated the child or the circumstances from which these inferences are drawn. He declared to his own parents, on various occasions, by way of introduction of the complainant to them as his wife. He says that Mr. Kripple, his former employer, understood that he was living with the complainant as husband and wife, or that the complainant was his wife; in his letter to his wife referred to above, there appears to be no question at all as to whether or not the complainant was his wife; he refers to her in very endearing terms; in writing to her, he addressed her as “Mrs. Cooper.” His declarations to Mrs. Hermann, his introduction of the complainant to Mrs. Wright, as his wife, his dealing with her as husbands usually deal with their wives, the birth of children and the recognition that they were their children or the fruit of their marriage — all is evidence which corroborates the fact that there was an agreement of marriage between these parties and that, in that agreement, they solemnly pledged each other that they would be husband and wife unto each other. The explanation by the defendant that he never intended his relations with the complainant to be regarded as a marriage, in the face of the facts presented here, is ridiculous, and certainly falls far short of overcoming the strong presumptions that arise in favor of the complainant, and hardly comes anywhere near meeting the presumption. Where a man assumes the responsibilities that a married man usually does, to provide support and a place of abode, furnishes the money for the support and maintenance of his children, cares for them, declares to persons through introductions, that the woman is his wife, addresses her as such, deals with her as such, tells relatives, acquaintances, and others to do likewise, he cannot be permitted to come in, after he becomes tired, discouraged, or disappointed with his bargain, to repudiate it because there appears to be no ceremonial marriage between them. This would make a mockery out of the solemn and sacred status of marriage.

The presumption in favor of the legality of marriage increases with the lapse of time, by the attitude of friends, relatives and acquaintances of the parties, and by the birth of children. All of these things the defendant indulged in and permitted to continue. He heralded the complainant to the world as his wife and the children that she bore and delivered into the world as their children, the result of their matrimony. Having allowed these things to proceed in their natural course and to become known to all those with whom he and the complainant came in contact and relied upon, only evidence so strong and persuasive as to leave no room for reasonable doubt is capable of overcoming the presumptions that flow from such a state of facts.

From all the facts in this case, I am satisfied that the complainant has conclusively proved that the complainant and the defendant became husband and wife in September, 1929, and that complainant is, therefore, entitled to an allowance for maintenance and support of herself and her child. I order $8 a week.


text:
    WILLIAM J. WEISMAN, PROSECUTOR, v. EDWARD J. SPOERER, SUPERINTENDENT OF BUILDINGS OF THE CITY OF JERSEY CITY ET AL., DEFENDANTS.
    Submitted May 12, 1933
    Decided August 29, 1933.
    Before Justices Case, Bodine and Donges.
    Bor the prosecutor, Perkins, Drewen & Nugent.

    Bor the defendants, James A. Hamill.

   Per Curiam.

Prosecutor purchased, a number of years ago, property on West Side avenue and Montgomery street in Jersey City. The premises were leased at the time to tenants who used them in the automobile business. Bor the five years previous to May 31st, 1932, there had been on the premises six five hundred and fifty-gallon gasoline tanks and six gasoline pumps, a greasing rack and a greasing lift. Bour of the tanks and pumps were on the Montgomery street side and two of the tanks and pumps were on the West Side avenue side. Prosecutor purchased the premises as a site to conduct his automobile business. Shortly before the expiration of the lease, the tenants caused the tanks and pumps to be removed. Prosecutor applied to the superintendent of buildings of Jersey City for a permit to restore the premises to the condition existing before the adoption of the zoning ordinance and was refused. On appeal to the board of adjustment, it approved the action of the superintendent of buildings.

According to the Jersey City zoning map, the part of the premises fronting on Montgomery street is in a district designated “Second Besidential” and the West Side avenne portion in a district designated “Business District.”

The pertinent provisions of the zoning ordinance are as follows: “Par. 1. In a second residential zone or district as designated on the ‘Use District Map’ no lot of land shall hereafter be used and no building or structure shall hereafter be erected, altered or used for * * * business of any kind. * * * Section IY, Par. 1. In a business zone or district, as designated on the HTse District Map,’ no premises, building or structure shall hereafter be erected, altered or used for * * * A public garage or gasoline filling station. * * *”

The parties stipulated: “That immediately adjoining the lands and premises in question on the Montgomery street side is a large ‘Buick’ garage for the storage and service of automobiles. On the opposite side of the street from the said lands and premises is a stoneyard. Adjoining the said lands and premises on West Side avenue is also a stoneyard. That there has been no change in the character of the neighborhood and vicinity of the said lands and premises for at least five years last past. That the granting of the permit for which application was made by said William G-. Weisman to the superintendent of buildings of Jersey City would permit said Weisman to do no more than restore the property to the said condition in which it was at the time said Weisman took title thereto, and in which condition it had been continuous^ used throughout the period of occupation by the tenants beginning June 1st, 1927, and ending May 31st, 1932.”

“The 1928 Zoning law (Pamph. L., p. 696) preserves the right to continue, as against subsequent zoning interference, a non-conforming use that was lawful when instituted and that has been actively and constantly maintained.” Durkin Lumber Co. v. Fitzsimmons, 106 N. J. L. 184; 47 Atl. Rep. 555.

Had the tanks, pumps and apparatus been removed by the landowner, we could better understand the refusal of the permit and the action of the board of adjustment. The removal of the tanks, pumps and apparatus was in spite of anything the landowner could do, although as soon as he learned of the action to be taken he sought an injunction. The question for us to settle is whether section 11 of the Zoning law (Pamph. L. 1928, p. 703) preserves to the prosecutor any rights. The statute is as follows: “Any nonconforming use or structure existing at the time of the passage of an ordinance may be continued upon the lot or in the building so occupied, and any such structure may be restored or repaired in the event of partial destruction thereof.”

The record does not disclose any abandonment of the nonconforming use which was lawful when the zoning ordinance of Jersey City was legally adopted. The right to make restoration or repair of the tanks, pumps and apparatus was vested in the landowner by act of the legislature. Had they been destroyed by fire or wind they could have been replaced. The act of a stranger could not deprive prosecutor of his vested rights in the maintenance of his property. Inasmuch as the action of the board of adjustment contravenes a valid legislative enactment the same should be set aside.

The action of the board of adjustment will be reversed.


text:
    GEORGE ROICH, RELATOR, v. THE BOARD OF COMMISSIONERS OF THE CITY OF UNION CITY AND THE BOARD OF HEALTH OF THE CITY OF UNION CITY, RESPONDENTS.
    Submitted May 12, 1933
    Decided August 29, 1933.

      Before Justices Oase, Bodine and Donges.
    For the relator, Nicholas McLaughlin, Jr.

    For the respondents, James C. Agnew.

   Per Curiam.

Relator seeks mandamus to compel the issuance of a license and permit to operate a live poultry market in premises owned by him in Union City.

The health ordinance vests the health officer with discretion in granting a permit. Section 9, ordinance of July 30th, 1928. Without such permit no license can be granted.

Live poultry markets are not favorably' regarded by the health officer of Union City because of the stench and vermin incident thereto. Uo licenses, save renewals, have been granted since the adoption some years ago of commission government.

There is nothing in the record to indicate that the license and permit were in effect granted. In fact, everything of record indicates that the authorities continuously refused like applications. A short time before another application for the property was denied. We are not confronted with the situation existing in Garber v. Board of Health of Paterson, 4 N. J. Mis. R. 83; 131 Atl. Rep. 638, but rather the situation in Doben v. Board of Health of Paterson, 3 N. J. Mis. R. 38; 127 Atl. Rep. 38, where the writ was denied because the board of health was vested with a discretion.

It seems that the board of commissioners may very well refuse to issue new permits for what they believe to be an unnecessary and an unsanitary business. Because there are some poultry markets which have been conducted for a long time, is no reason for the allowance of others, even though the effect of the action may be that fewer persons may engage in the business.

As before indicated, the granting of the permit and license rests in the sound discretion of the health officer and the board of commissioners and there is nothing in the record to indicate that they have abused that discretion.

The rule will be discharged.


text:
    BOARD OF EDUCATION OF THE CITY OF BAYONNE, PROSECUTOR, v. ALBERT BIDGOOD AND STATE BOARD OF EDUCATION, DEFENDANTS.
    Submitted May 12, 1933
    Decided August 29, 1933.
    Before Justices Case, Bodine and Donges.
    For the prosecutor, Alfred Brenner.

    For Albert Bidgood, Charles Rubenstein.

   Per Curiam.

The writ brings up a decision of the state board of education determining that Albert Bidgood held the position of chauffeur for the board of education of Bayonne and was protected from removal by the Veterans’ act. The decision of the board so well stated the facts, argument of counsel and law that we adopt the following portions thereof:

“The board of education of the city of Bayonne, on December 20th, 1928, by a resolution, appointed Albert Bid-good, 'as chauffeur, to drive the new automobile truck purchased for the repair department, at the rate of $175 per month, said appointment to take effect December 24th, 1928.’

“On January 21st, 1932, at a meeting of the board of education, a resolution was offered by one of its members that certain persons in the employ of the board, including Bidgood, be appointed for a term of three years. This resolution failed of adoption. The following day, the superintendent of buildings, grounds and repair, conceiving that the refusal of the board to adopt the last mentioned resolution, operated as a dismissal of the persons named therein from their respective employments, notified Bidgood his services were discontinued.

“On February 4th, 1932, the superintendent reported this action to the board. * * *

“Upon receipt of the report the board adopted a resolution that the action of the superintendent in that behalf be approved.

“Bidgood appealed to the commissioner of education from the action of the appellant board setting forth that he was removed from his position without any charges having been made against him and without a hearing and that his removal was unlawful. Furthermore, that he was a veteran of the world war and protected in his position by the provisions of chapter 29 of the laws of 1929.

“The appellant admits that Bidgood is a veteran of the world war and that he was dismissed without charges having been preferred against him and without a hearing, but contends that such action was lawful in that Bidgood was not the holder of a ‘position’ as contemplated by the "Veterans’ Tenure act above mentioned. It was conceded by appellant that if Bidgood was the holder of a ‘position’ as distinguished from a mere employment, the action of the board in dismissing him is without legal justification.

“The commissioner of education held that Bidgood was the holder of a ‘position’ and ordered that he be reinstated and his salary paid to him from the date of his dismissal.

“The board of education appeals from that decision to this board. Pamph. L. 1929, ch. 29, provides that no persons holding a position or office under the government of this state or of any municipality, including any persons employed by a school board or board of education, whose term of office is not fixed by law, and who receives a salary from such state, municipality or school board, who has served as a soldier, sailor or marine, in any war of the United States, &c., and has been honorably discharged prior to or during such employment in or occupancy of such position or office, shall be removed from such position or office except for good cause after a fair and impartial hearing, &c.

“A position has been defined to be ‘analogous to an office in that the duties that pertain to it are permanent and certain, but it differs from an office in that its duties may be non-governmental and not assigned to it by any public law of the state.’ Frederick v. Board of Health,, 82 N. J. L. 200; 82 Atl. Rep. 528.

“Appellant argues that Bidgood held an employment only, as distinguished from a ‘position’ and is therefore not within the protection of the Tenure act hereinbefore quoted. In the case last cited an ‘employment’ is differentiated from both an office and a position in that its duties which are non-governmental are neither certain nor permanent. Appellant cites as authority for his contention the cases McLaughlin v. Jersey City, 51 N. J. L. 240; Fvans v. Freeholders of Hudson, 53 Id. 585; 22 Atl. Rep. 56; Kreigh v. Freeholders of Hudson, 62 N. J. L. 178; 40 Atl. Rep. 625, and Foster v. Asbury Park, 79 N. J. L. 58; 74 Atl. Rep. 266.

“We have examined these cases and are of opinion they do not support appellant’s contention. In the McLaughlin case he was not employed by an official act of the employing board. He was put to work by the chairman of the board and the only evidence of his employment was the appearance of his name on the payroll. In the Evans ease he was appointed as machinist and relieving engineer at a daily rate of pay. The board abolished the employment and its action was sustained by the Supreme Court. The court, however, expressed its view regarding the character of the employment and held that the services lacked that fixed and continuous quality which the act (Veterans’ act) contemplated in order to be classed as a position. The duties were only occasional and temporary and he was paid for the actual service rendered, at the daily rate at the end of the month. In the Kreigh case the employment was temporary in character. Bidgood was appointed by formal action of the appellant-board. His compensation was upon a monthly basis. His duties were those of a chauffeur and were continuous and permanent. It appears by the stipulation of facts that he reported for duty daily at eight o’clock A. it., and was engaged until five o’clock p. m., on all days except Saturdays when his work began at eight A. m. and continued until twelve.

“In our opinion Bidgood was the holder of a position and by virtue of the Veterans’ Tenure act above quoted was protected against dismissal except upon charges made against him and after a hearing. We agree with the commissioner of education that his dismissal was unlawful.”

A bridgetender, appointed by resolution, holds a position. Lewis v. Jersey City, 51 N. J. L. 240; 17 Atl. Rep. 112; also a janitor of a court house duly elected by the board of freeholders. Daily v. Essex, 58 N. J. L. 319; 33 Atl. Rep. 739, a reservoir keeper seems to have been so regarded, but he did not hold his position for another reason. Hardy v. Orange, 61 N. J. L. 620; 42 Atl. Rep. 581. The janitor of a city police station holds a position. Dolan v. Orange 70 N. J. L. 106; 56 Atl. Rep. 130.

Bidgood was appointed by resolution. His services were given regularly, and he appears to have occupied a position.

The writ will be dismissed.


author: Carney, J.

text:
    Second Judicial Dist. Court, Hudson County.
    JOSEPH SPIOTTA v. NATIONAL GROCERY COMPANY.
    Decided May 9, 1933.
    Dor the plaintiff, Benjamin Wasserman.

    Dor the defendant, Stickel & Btickel.

   Carney, J.

The plaintiff in this action (the landlord) seeks to recover from the defendant (tenant) the sum of $170 as rent, under a lease, for the months of September and October, 1932.

The defendant interposed as a defense, the fact that possession of the mortgaged premises had been acquired by a mortgagee whose mortgage was then in default; that a notice had been served upon the tenant, advising it of the default and demanding that the rent be paid to the mortgagee. The method used by the mortgagee to obtain possession was by notifying the tenants in writing, that the mortgagor had defaulted; that possession had been taken by the mortgagee and that the rent thereafter be paid to the said mortgagee.

There is some question as to whether or not the tenant had actually attorned, because the evidence disclosed that the tenant had paid the rent in escrow. I am therefore not called upon to decide the question of attornment, because it is clear that some doubt was evidenced by the tenant in making an absolute payment to the mortgagee. Nevertheless, the situation thus presented calls for a determination as to what constitutes obtaining possession by a mortgagee whose mortgage is in default. In this case, the determination must be made to rest upon the notice given by the mortgagee to the tenant.

In the case of Shields v. Lozear, 34 N. J. L. 496, we find that:

“By the common law, a mortgage in fee created an immediate estate in fee-simple in the mortgagee, subject to be defeated by the payment of the mortgage company on the day named in the condition; and the mortgagee might enter immediately on the mortgaged premises and hold the estate until the condition was performed. * * * The right to enter was postponed, and the possession was in the mortgagor until the condition was broken by default in the payment of the mortgage moneys. Sanderson v. Den, ex dem. Price, 1 Zab. 646, note. With this modification of the rights of the mortgagee as to the postponement of the ability to obtain possession of the mortgaged premises, the nature of the mortgage as a conveyance remains as it was at common law.”

The rule laid down by the Court of Errors and Appeals in the above case is still the law to-day, in full force and has not been modified. It will be seen that the mortgagee has title and the right to enter as stated above, thus giving the effect to the theory so often expressed that a morgage is a conveyance upon condition, the condition being that the mortgagee will be divested of his title upon the performance of the condition.

In Bermes v. Kelley, 108 N. J. Eq. 289 (at p. 290); 154 Atl. Rep. 860, Vice-Chancellor Learning pointed out that:

“At default, a mortgagee becomes entitled to possession of the mortgaged premises and that possession, if exercised, entitled him to receive the rents. Possession may be taken either personally or through a receiver appointed by the court.”

The law in this case has been settled by the rule laid down in the case of Stewart v. Fairchild, 91 N. J. Eq. 86; 108 Atl. Rep. 301, and the cases therein cited, holding that a mortgagee has no right to the rents of the mortgaged premises unless they are expressly pledged or until he obtains possession after default.

The right thus afforded to the mortgagee is clear and unequivocal, and where, as here, the owner is not in actual, but constructive possession of the mortgaged premises, nothing more than the service of a notice, or demand made by the mortgagee upon the tenant, setting forth that he is exercising his rights of possession, could be required. Certainly, the mortgagee is not required to remove the tenants and thus actually and physically place himself in possession. It is sufficient if his possession be a constructive one. Of course, it can be seen that an exception to this rule would be where the owner himself is in actual possession.

On the question of what constitutes possession, the late Mr. Justice Swayze, in the case of Schwinn v. Perhins, 79 N. J. L. 515; 78 Atl. Rep. 19, points out that:

“Occupancy was sometimes confounded with possession. There may be possession without occupancy, as where a servant is in the actual occupancy of the property, holding possession for the master; or where a man has temporarily gone out of the house, leaving no one in charge, but still having legal possession; and there may be a case of occupancy without possession, as where in a man’s absence, a mere stranger or trespasser takes possession without claim of right. If two are in possession of a house and the one enters by one right and the other by another, he that hath right shall be supposed to be in possession.”

It is to be observed that the mortgagor, not the mortgagee, is asserting his right to the rents; but it is clear from the cases cited above, that he has no such right. This right clearly passes upon default, to the mortgagee. A suggestion has been made in this case, in the brief of counsel for plaintiff, to the effect that a tenant is estopped from denying title or right of possession of his landlord. The law does not carry the fealty of the tenant to his landlord to such an extent. There are well defined exceptions to this general rule, which illustrate the non-existence of any such obligation; as, where the tenant shows that the title of the landlord has expired, or that it has been changed by act of law, as by a sheriff’s sale, or that he has mortgaged it to a third person.

From all of the above, it is clear that the landlord, who is the plaintiff in this action, no longer can lay any claim to the rents; in view of which judgment will be entered ip favor of the defendant.


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    SERAFINO J. FEDERICI, RELATOR, v. WILLIAM P. CHRISTIANSEN, CITY CLERK OF THE CITY OF ORANGE, AND FRANK J. MURRAY, MAYOR OF THE CITY OF ORANGE, RESPONDENTS.
    Submitted May 12, 1933
    Decided September 7, 1933.
    Before Justices Case, Bodine and Donges.
    For the relator, Merritt Lane.

    For the respondents, Edward R. McGlynn.

   Per Curiam.

This is the return of a rule to show cause why a peremptory or alternative writ of mandamus should not issue directing the city clerk and the mayor of the city of Orange to sign a warrant drawn on the treasurer of the city of Orange, payable to the order of Serafino J. Federici, in the sum of $90 for salary alleged to be due him as third assistant to the comptroller, performing duties of clerk, stenographer and typist.

It appears from the record that Walter B. Savage, director of revenue and finance of the city of Orange, appointed the relator to the position of “third assistant to the comptroller * * * to fulfill the duties of clerk, stenographer and typist at a salary of $2,400 per year, payable in equal semi-monthly installments, the term of such appointment to become effective September 15th, 1932.” Federici began work September ■15th, 1932. A warrant, drawn as of October 4th, 1932, directing the treasurer of the city of Orange to pay to Federici the sum of $90 for his salary under such appointment from September 15th, 1932, to October 1st, 1932, was signed by the comptroller of the city and submitted to the mayor and the city clerk for signature and counter signature. The last named officials refused to sign.

Notwithstanding the inclusion within the printed state of case, we may not take cognizance of the matters contained within the ex parte affidavits used upon the application for the rule. The efficacy of these proofs is lost upon the allowance of the rule. Peer v. Bloxham, 82 N. J. L. 288; 81 Atl. Rep. 659.

Federici endeavored to obtain payment of his salary by method contrary to the practice prevailing with the employes of the city of Orange and for the purpose apparently of creating a status of which the court might take cognizance on application for a writ of mandamus. Orange city salary payments are made on the basis of a payroll list on which checks or warrants are drawn twice each month without further action by the city commission. Federici, however, by some means, procured a blank check or warrant from the city clerk’s office and, filling in certain forms thereon, presented it, and a sworn voucher, to the mayor and clerk with the demand that these officers affix their signatures thereto. That demand was not complied with. It is denied that Federici, either on the fact or the law, is entitled to compensation. Federici claims that he was de facto and de jure third assistant to the comptroller and that he performed the duties of his position. The pertinent provisions of the ordinance creating that position are as follows: “The comptroller shall have throe assistants, as follows: * * * a

third assistant who shall be a stenographer and typewriter.” It is denied that Federici either served as stenographer and typist or was qualified to serve as such. It is clear that he did not perform any such duties, and the evidence presents serious doubt as to whether he has colorable qualifications to perform them. We think that the case comes within the rule stated in Butler v. Plainfield, 5 N. J. Mis. R. 170; 135 Atl. Rep. 669. Relator should first establish his status by an ordinary suit at law for his salary.

The rule to show cause will be discharged, with costs.


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    LEON W. HAZELTON, CUSTODIAN OF SCHOOL MONEYS FOR THE SCHOOL DISTRICT OF STAFFORD TOWNSHIP, RELATOR, v. THEODORE CRANMER, COLLECTOR OF THE COUNTY OF OCEAN, RESPONDENT.
    Submitted May 12, 1933
    Decided September 7, 1933.
    Before Justices Case, Bodine and Donges.
    For the relator, Charles A. Malloy.

    For the respondent, W. Durward McCloskey.

      Amicus curice, William A. Stevens, attorney-general.
   Per Curiam.

The custodian of the school moneys for the school district of Stafford township, in the county of Ocean, seeks a writ of mandamus to compel the collector of the county of Ocean to pay over all the school moneys in the custody of the respondent apportioned to the board of education of the township for the year beginning July 1st, 1930, and for the year beginning July 1st, 1931.' The sums involved appear to be $5,748.02 and $4,983.83, respectively. The case was not orally argued, and the only brief that has come to our hands is that in behalf of the relator.

The funds were retained by the collector of the county of Ocean in compliance with an order of the state commissioner of education dated November 26th, 1930. That order grew out of a situation which need not be gone into at greater length than to say that the board of education of Stafford township, having no high school of its own and having theretofore maintained its high school pupils at the Barnegat High School, transferred these pupils, contrary to an order of the commissioner of education denying an application so to do, from the Barnegat High School to the Tuekerton High School, whereupon the state commissioner directed the county collector to withhold from Stafford township all funds received from the state. The action of the commissioner was based directly upon the provisions of chapter 281 of Pamph. L. 1929, amending section 119 of the Public School act of 1903, chapter 1 of the second special session for 1903, printed at page 1 of the 1904 pamphlet laws.

The issue is whether or not the 1929 act is constitutional, and our conclusion is that it is not. The act provides in part that “any child who shall be a resident of a district which does not furnish a full high school course of study * * * may be admitted to a school in another district. The high schools throughout the state to which other districts shall send their pupils or a part thereof shall be deemed to be those high schools which at the time of the passage of this act are already designated by boards of education of districts lacking high school facilities as aforesaid as schools for their pupils or a portion of their pupils to attend. Such existing designation of a high school * * * shall continue until the board of education thereof shall for good and sufficient reasons desire a change in such existing designation and shall secure the approval of the commissioner of education therefor; * *

It is said, and we think truly, that the act is limited in its purview to school districts that did not at the time of passage furnish a full high school course of study and that it does not apply to any school district which in the future may lack or discontinue high school facilities or which at the time of the passage of the act had no high school facilities and were not sending high school pupils to another district; that the statutes include only those districts which at the time of the passage of the act (a) lacked high school facilities and (b) were sending pupils to a designated district. Legislation of this character is unconstitutional upon the reasoning that controlled the decision in Riccio v. Hoboken, 69 N. J. L. 649; 55 Atl. Rep. 1109. The limited application of the law was upon a distinction that did not, in the nature of things, in any reasonable degree, account for or justify the restriction. Richards v. Hammer, 42 N. J. L. 435. As was said by Vice-Chancellor Reed in Burlington v. Pennsylvania Railroad Co., 56 N. J. Eq. 259; affirmed by the Court of Errors and Appeals, 58 Id. 547; 43 Atl. Rep. 700: “The legislature cannot confine the force of its enactment to the condition of affairs existing at the date of the act if similar conditions are likely to arise thereafter. It is upon this ground that statutes which apply' to cities having at the time of the approval of the act a certain population have been adjudged 'special’ in failing to include cities which may grow into the class. Pavonia Horse Railroad Co. v. Jersey City, 45 N. J. L. 298; Coutiere v. City of New Brunswick, 44 Id. 58. The legislature could, with as much propriety, have fixed any other date, either before or after the approval of the act, and provided that the provisions of the statute should apply to those cities in which routes were filed before, and not apply to those cities in which routes were filed or will be filed after the said date.”

We assume from the absence of opposing briefs that the unconstitutionality of the statute is conceded. Inasmuch as the order to withhold the funds was based upon an order by the commissioner of education which in turn was grounded in this unconstitutional statute, there appears to be no reason why the fund should be longer withheld.

A writ of mandamus will issue in accordance with the terms of the rule, but without costs.


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    PHILIP J. BOPP, PROSECUTOR, v. FRANCIS M. MURPHY, RESPONDENT.
    Submitted May 12, 1933
    Decided September 7, 1933.
    Before Justices Case, Bodine and Donges.
    For the prosecutor, William E. Speer.

    For the respondent, David F. Barhman.

   Per Curiam.

The writ brings up for review certain proceedings had before Francis M. Murphy, recorder of the township of Passaic, culminating in an alleged conviction of the prosecutor, Bopp. The record discloses a number of fatal defects, of which one only need be noted.

The proceedings appear to be grounded in an alleged violation of paragraph 2 of chapter 144 of the laws of 1926. The conviction reads:

“* * * Philip J. Bopp * * * was by me, Francis M. Murphy, recorder of the township of Passaic, county and state aforesaid, convicted of violating the provisions of paragraph 2, section , chapter 144, of an act entitled:

“Laws of 1926—

“‘An act defining motor vehicles and providing for the registration of the same and the licensing of the drivers thereof; fixing rules regulating the use and speed of motor vehicles; fixing the amount of license and registration fees; prescribing and regulating process and service thereof, and the proceedings for the violation of the provisions of the act and penalties for said violations.’

“Approved April 8th, 1921, commonly known as 'the Motor Vehicles act’ and being chapter 208 of the laws of 1921, and all amendments thereto and supplements thereof, in a summary proceeding at the suit of the State of Mew Jersey.”

This is the extent of the finding of a violation against the defendant. The conviction proceeds:

“And further, the witnesses in the said proceeding who testified for the prosecutor were

Chief Thos. Bhein.

“And the witnesses who testified for the defendant were

Philip J. Bopp

Charles Fields

Thomas J. Hannon.”

The conviction concludes with an imposition of penalty and the attestation by the recorder.

The complaint charges that Bopp “did operate an omnibus on the Valley road, in the township of Passaic, county of Morris and State of Mew Jersey, in violation of chapter 144, paragraph 2, as follows *. * *.” Without designating the volume of laws in which chapter 144 is to be found, the complaint proceeds to set out matter that is in fact an excerpt from section 3 of chapter 144 of the Pamphlet Laws of 1926. The last mentioned statute bears the title: “An act to amend the title and body of an act entitled 'An act concerning auto buses, commonly called jitneys, and their operation in cities/ approved March seventeenth, one thousand nine hundred and sixteen.”

Passing over several obvious defects, including the omission in the complaint of any specification of the yearly pamphlet laws to which reference is made by “chapter 144” and the completely mistaken title imputed in the conviction to chapter 144 of Pamph. L. 1926, we are nevertheless brought to the conclusion that the recorder, in entertaining the complaint and framing the conviction, had regard to section 2 of the act entitled “An act concerning auto buses, commonly called jitneys, and their operation in cities,” approved March 17th, 1916. Pamph. L. 1916, ch. 136, as amended by Pamph. L. 1926, ch. 144, § 3. It was provided by section 5 of the original act and also by the same section as amended in Pamph. L. 1926, ch. 144, that “any person operating an auto bus in any of the streets of any city in this state at any time, after sixty days from the time when this act shall take effect, without complying with the provisions of this act, shall be deemed guilty of a misdemeanor and subject to the penalties therefor provided by law;” and the same provision is found in section 5 of the amending act, Pamph. L. 1926, ch. 144, except that the word “municipality” is substituted for the word “city.” The point is that the violation, if it be considered that a violation is sufficiently charged, is, by the statute, a misdemeanor, not specially set up and given an individual procedure and penalty within the statute under consideration, but as one of the class of misdemeanors as elsewhere generally defined and penalized.

The recorder of the township of Passaic derives his office and powers from appointment by the township committee under 2 Cum. Supp. Comp. Stat. 1911-1924, p. 3677, §§ 216-19a. By sections 216-19a his jurisdictions is defined as follows:

“Such recorder shall have the same jurisdiction, power and authority in criminal matters, cases of bastardy, disorderly persons, relief, removal and settlement of the poor, breaches of the peace, vagrancy and disorderly conduct and violation of township and board of health ordinances as is by law conferred upon justices of the peace of such township.”

In the absence of other definition, we must assume that the misdemeanor created by the auto bus legislation, supra, falls within that class of misdemeanors which, by section 218 of the Crimes act (2 Comp. Stat., p. 1812) is made punishable as follows:

“Any person found guilty of any crime which by this, or any other statute, is declared to be a misdemeanor, shall be punished by a fine of not exceeding one thousand dollars, or by imprisonment, with or without hard labor, as the court may direct, for any term not exceeding three years, or both.”

The authority of a justice of the peace is limited. Historically, Ms authority, by virtue of his office, was wholly miMsterial to prevent breaches of the peace and bring criminals to justice. Schroder v. Ehlers, 31 N. J. L. 44. And so it remains except as amplified by statute. We are referred to no authority by which the recorder, under powers peculiarly his or under the related authority of the justice of the peace, may try the offense which the recorder obviously did, in this instance, undertake to try and find a conviction upon; and we know of none. The case was not argued orally, and the respondent has filed no brief.

The conviction was wholly outside the jurisdiction of the court. The proceedings were defective from the start and will be set aside, with costs.


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    THE BOARD OF EDUCATION OF THE TOWN OF KEARNY, NEW JERSEY, PROSECUTOR, v. VINCENT P. HORAN, AUGUSTA GRAW, EVELYN M. ROSA AND BESSIE BOTHWELL LANDSCHOOF, AND STATE BOARD OF EDUCATION, DEFENDANTS.
    THE BOARD OF EDUCATION OF THE TOWN OF KEARNY, NEW JERSEY, PROSECUTOR, v. VIOLA L. COOKE ET AL. AND STATE BOARD OF EDUCATION, DEFENDANTS.
    Argued May 2, 1933
    Decided September 7, 1933.
    Before Justices Case, Bodine and Donges.
    For the prosecutor, Charles M. Myers.

    For the defendants, Merritt Lane.

   Per Curiam.

The board of education of the town of Kearny challenges the legality of an order of the commissioner of education, made March 13th, 1933, directing the prosecutor to reinstate as many of the defendant teachers as there were positions in its school system on the reorganization of August 3d, 1932, which had been filled by teachers who were not on that date protected by the Tenure of Office act, if the defendant teachers were at that time or had previously been employed in such type of work, and assigning the defendant teachers as nearly as might be to positions of similar rank to those which they held during the school year 1931-1932, and directing the payment of their salaries in the amount to which they would he entitled under the salary schedule for such position. The prosecutor further challenges the legality of an order of the state board of education, made on April 1st, 1933, affirming the order of the commissioner.

In the town of Kearny, on June 30th, 1932, there were ten elementary schools with an enrollment of five thousand four hundred and twenty-eight. pupils. There were seven vacant rooms and one thousand and fifty-nine additional vacant seats distributed in the various buildings. At that time there were in the employ of the prosecutor ten principals and one hundred and eighty-two elementary teachers. Because of economic conditions the prosecutor deemed it advisable to reorganize the school system and provide a standard class size of thirty-five pupils. In order to accomplish this, pupils from a number of smaller classes were distributed among other classes so as to equalize the pupil load. The result of the transfers showed that the pupils could be as efficiently taught with approximately thirty-six less teachers. The precéding portion of this paragraph is stated in the prosecutor’s brief as a correct summary of the proofs, and we accept it as such. In the reorganization thirty-six teachers were eliminated. Of that number fourteen were non-tenure teachers and twenty-two were tenure teachers. After the abolition of the positions of thirty-six teachers there remained in the school one hundred and forty-six teachers, of whom sixteen had served less than three years and one hundred and thirty of whom had served more than three years. Stated otherwise, fourteen non-tenure teachers were retained at the same time that twenty-two tenure teachers were discharged, and the question is whether-that status was lawfully created.

It is conceded that the decrease in the number of pupils in the Kearny school district was not sufficient to justify the abolition of the positions of thirty-six teachers; but it is claimed that section 3 of the Tenure of Office act (Pamph. L. 1909, ch. 243; 4 Comp. Stat., p. 4764), in providing that “nothing herein contained shall be held to limit the right of any school board to reduce the number of principals or teachers employed in any school district when such reduction shall be due to a natural diminution of the number of pupils in said school district” contained the authority for the action taken by the Kearny board of education, for the reason, as it is said, that the facts above set forth create a “natural diminution” of the number of pupils and therefore justified the action. The opinion rendered by this court in Seidel v. Board of Education of Ventnor City, 110 N. J. L. 31; 164 Atl. Rep. 901, seems dispositive of the question. It was there held, as summarized in the syllabus, that a teacher in a public school, employed by general contract as such, who, by service for three years or more, has come under the protection of the statute providing for an indefinite period thereafter may not be dismissed for reasons of economy while other teachers not so protected, whose assignments such teacher is competent to fill, are retained under employment. It may be granted that the abolition of thirty-six classes and thirty-six teachers was in the interest of economy, but the Seidel case is authority for the proposition that that movement for economy is not to be accomplished by dismissing teachers who are under the protection of the statute providing for indefinite tenure while other teachers not so protected are retained. The competency of the defendant teachers is not challenged. Prosecutor’s brief contains the suggestion that “a tenure teacher may not be competent to teach the class or the subject of a non-tenure teacher,” but the argument of incompetencv, to be effective, must be based upon proof and not upon mere possibility.

It is also argued that the compensation paid the non-tenure teachers who were retained is less than the compensation paid, up to the time of dismissal, the tenure teachers who were dismissed. This suggestion carries little weight because the right of the prosecutor to reduce the salaries of the tenure teachers to a level commensurate with the grade taught is not at issue. As was said in the Seidel case:

“Granting that apart from the statute, a school board may in the interest of economy reduce the number of teachers, the protection afforded by the statute would be little more than a gesture if such board were held entitled to make that reduction by selecting for discharge teachers exempt by law therefrom and retaining the non-exempt. If such reduction is to be made at all, and a place remains which the exempt teacher is qualified to fill, such teacher is entitled to that place as against the retention of a teacher not protected by the statute.” The writ will be dismissed, with costs.