text:
    HERMAN BARDACK, PLAINTIFF-RESPONDENT, v. MORRIS EXTRACT AND INTERNATIONAL LADIES GARMENT WORKERS UNION, JOINTLY, SEVERALLY OR IN THE ALTERNATIVE, DEFENDANTS-APPELLANTS.
    Superior Court of New Jersey Appellate Division
    Argued April 16, 1951
    Decided May 2, 1951.

      Before Judges Eastwood, Bigelow and Ereund.

      Mr. Alexander Secloio argued the cause for the plaintiff - respondent (Messrs. Townsend & Doyle, attorneys; Mr. Thomas F. Doyle, of counsel).

      Mr. Abraham J. Slur zb erg argued the cause for the defendants-appellants (Mr. George P. Moser, attorney).
   The opinion of the court was delivered by

Eastwood, J. A. D.

The plaintiff-respondent, Herman Bardack, a pedestrian, was awarded damages in the sum of $25,000 against the defendants-appellants, Morris Extract and International Ladies Garment Workers Union (hereinafter referred to as the “union”), for injuries suffered when struck by the car of the union operated by its employee, Morris Extract, at the intersection of Hudson Boulevard and Montgomery Street, in Jersey City. A motion for a new trial was denied.

In support of their appeal, the defendants allege that the court erred in admitting incompetent evidence to establish loss of profits suffered by plaintiff, “which evidence is speculative and remote and inconsistent and contradictory to the trial court’s ruling”; that the verdict was contrary to the weight of the evidence; and that the verdict of $25,000 is excessive.

Eor the purpose of our determination, a condensed version of the evidence will suffice. The accident occurred at approximately 10:30 P. M. on January 12, 1948. The weather at the time was rainy and sleety. According to the plaintiff, when he reached the southeast corner of Montgomery Street and the boulevard, and before starting across the boulevard, he saw that the traffic lights were in his favor; that to his left two ears were parked abreast and diagonally west on the opposite corner were three other cars, one of which was the defendant’s; that due to a previous storm, there were snow piles in both gutters of the boulevard and it was narrower than usual; that he proceeded on the crosswalk directly to the other side of the boulevard; that when he had reached a point approximately four feet from the westerly curb, he was struck by the union’s car which was proceeding soulherly down the boulevard after crossing Montgomery Street; that he was dragged ten or twelve feet; and that the light was still green when he was hit. On the contrary, the substance of defendants’ testimony was that when Morris Extract reached the intersection he stopped for a red light, with a car alongside him proceeding south on the boulevard; that when the light changed he crossed Montgomery Street with the other car on his left preceding him; that he struck the plaintiff at a point 50 feet in from'the far or southerly crosswalk of Montgomery Street; that at no time before the impact did he see the plaintiff, although he made an observation when the light changed to green and before he started up. The defendants introduced other testimony that the plaintiff had come from the corner over a snow bank, having cut diagonally across the boulevard; that at the time of the accident the lights were against Bardack and green for the defendant; that the plaintiff was found on the ground 50 feet from the corner. From the foregoing abbreviated recital of the proofs, it is obvious the factual issue was in sharp dispute and the resolution of the issues of negligence and contributory negligence were properly entrusted to the jury. “* * * the verdict of a jury will not be set aside upon the ground that it is against the weight of the evidence, unless the verdict clearly evinces that it is the result of mistake, partiality, prejudice or passion.” Bowen v. Healy’s Inc., 16 N. J. Misc. 113, 116 (Sup. Ct. 1938). The existence of negligence and contributory negligence are preeminently questions of fact for the jury. Shappell v. Apex Express, 131 N. J. L. 583 (E. & A. 1944); Nusser v. United Parcel Service of N. Y., Inc., 3 N. J. Super. 64 (App. Div. 1949). But the defendants argue that “An analysis of the testimony will demonstrate that .the plaintiff should be adjudged guilty of contributory negligence as a matter of law.” To yield to this contention, we would have to accept the testimony of defendants’ witnesses as the conclusive and accurate recital of the facts and circumstances surrounding the accident and repudiate the plaintiff’s testimony and legitimate inferences. To pursue that course we would necessarily usurp the prerogative of the jury and violate a settled rule of law that has been consistently followed by our courts for many years. Where, as here, fair-minded men might honestly differ as to the conclusions to be drawn from the facts, the question at issue should be submitted to the jury. Schwartz v. Rothman, 1 N. J. 206 (1948); Fischetto Paper Mill Supply v. Quigley Co., 3 N. J. 149 (1949); Antonio v. Edwards, 5 N. J. 48 (1950). “It is well established that a case should be submitted to a jury unless there are no disputed facts or disputed inference's to be drawn from undisputed facts.” Bachman Choc. Mfg. Co. v. Lehigh Wrhse. & Tr. Co., 1 N. J. 239, 243 (1949); Township of Parsippany-Troy Hills v. Bowman, 3 N. J. 97, 103 (1949).

The verdict of a jury will not be set aside upon the ground that it is against the weight of the evidence, unless it clearly evinces that it is the result of mistake, partiality, prejudice, or passion. “The mere fact that the award of damages is immoderate and excessive does not conclusively indicate that the verdict was the product of sympathy, passion or prejudice.” Bowen v. Healy’s, Inc., supra, at p. 116. Our consideration of all the evidence clearly indicates circumstances from which legitimate inferences may reasonably be drawn that there was negligence on the part of the defendants that proximately caused the injuries suffered by the plaintiff and his consequential damages. See Morsey v. Erle, 4 N. J. 276, 280 (1950).

We are not in accord with the defendants’ contention that the verdict for $25,000 is excessive. There was testimony that the plaintiff was seriously injured; that he suffered a group of fractures of the pelvic bone at the hip joint; that the continuity and shape of the socket were destroyed; that there was an impairment of the function of the hip and atrophy of the right thigh, causing permanent injury to the leg; that there is a shortening of approximately 5/8 inch to the leg and he walks with a marked limp; that these conditions are permanent and the shortening will be increased; that the injury to the bone and cartilage have caused traumatic arthritis, which is painful and progresive; that he was confined to a hospital for six weeks; that on leaving the hospital he used crutches and was confined to his home for four weeks thereafter; that after discarding his crutches, he used a cane for eight or nine rveeks more; that in addition to his pain and suffering, out-of-pocket expenses, and the loss of earnings, the permanent condition from which he suffers interferes with the full performance of his duties in the real estate brokerage business, thereby affecting his earning powers. The defendants argue that “there is no reported case that sustains such an award.” In the recent case of Dandrea v. Centofante, 13 N. J. Super. 445 (App. Div. 1951), the applicable rule was aptly stated, to wit: “The admeasurement of compensatory damages in actions for the injurious consequences of personal torts is not gauged by any established graduated scale. In our procedure the appraisal is entrusted to the sound discretion of the jury. Thus it has long been the practice of our courts to refrain from interfering with a verdict on the mere ground of excessive damages unless the award is manifestly unsupported by the evidence and obviously unjust. Vreeland v. Berry, 21 N. J. L. 183, 187 (Sup. Ct. 1847); Salvato v. N. J. Asphalt & Paving Co., 135 N. J. L. 185, 189 (E. & A. 1947).” In addition, the jury in calculating the amount of damages that would reasonably and properly compensate the plaintiff were warranted in giving consideration to existing economic conditions, to wit: the high cost of living and the decrease in the purchasing power of the dollar. Nusser v. United Parcel Service of N. Y., Inc., supra.

The defendants further contend that there were certain inconsistent and contradictory statements in the court’s charge with respect to the measure of damages to which the plaintiff was entitled because of loss of profit from his business—inconsistent and contradictory to the trial court’s previous ruling made in the presence of the jury. The defendants failed to make timety and appropriate objections, in conformity with Buie 3 :51. In fact, at the conclusion of the charge, the court posed this question to counsel: “Are there any objections?” Trial counsel for the respective parties answered in the negative. “The defendants, moreover, failed ‘either before or at the close of the evidence * * * to file written requests that the court instruct the jury on the law as set forth in the requests,’ in line with the opening sentence of Buie 3 :51 This provision of the rale incorporates the long established practice in this State, Levenson v. Erxleben, 135 N. J. L. 127 [E. & A. 1946). Nor did the defendants comply with the further provisions of this rule that £No party may urge as error any portion of the charge or omission therefrom unless he objects thereto before the jury retires to consider its verdict, stating distinctly the matter to which he objects and the grounds of his objection/ ” J. B. Wolfe, Inc., v. Salkind, 3 N. J. 312 (1949), at p. 316.

We find no merit in the other grounds of appeal urged by defendants.

Affirmed, with costs.


source: Caselaw Access Project

author: Jayne, J. A. D.

license: Public Domain

text:
    CYRIL STANDIFORD PLAINTIFF-APPELLANT, v. MEYER BERNHARDT AND SAMUEL BERNHARDT t/a HAWTHORNE SUPER SERVICE STATION, DEFENDANTS-RESPONDENTS.
    Superior Court, of Now Jersey Appellate Division
    Argued April 30, 1951
    Decided May 8, 1951.

      Before Judges McGebiian, Jayne and ¥if. J. Bkennan, Jb.

      Mr. William, R. Morris argued the cause for appellant.

      Mr. Gerald T. Foley argued the cause for respondents.
   The opinion of the court was delivered by

Jayne, J. A. D.

The factual aspects of this case are all displayed by the testimony introduced on behalf of the plaintiff because at the completion of the presentation of that evidence the court, in pursuance of the motion of the defendants, determined that upon the facts and the law the plaintiff had not shown a right to relief. Rule 3 :4-l-2.

On Sunday, November 10, 1946, the plaintiff having had “a little argument around the house” and “wanted to get out” inaugurated the day’s adventures with a visit to Ben’s Tavern where at about noon, as so often occurs in such surroundings, he met a friend whom he had not seen for several years. They indulged in “the feast of reason and the flow of soul.” Tt may be inferred that at some stage of their conversation the plaintiff divulged that his automobile was in need of some mechanical repair, whereupon his friend George assured him that he was a motor vehicle mechanic and expressed his desire to show the plaintiff the automobile service station and repair shop of the defendants at which he was occasionally employed. There is some intimation that en route to the service station plaintiff’s vehicle collided with another vehicle, but we entirely ignore it.

The plaintiff and his companion arrived at the service station at about 3 :30 in the afternoon. It was closed on Sundays. They observed no one at or around the premises. Plaintiff parked his vehicle on the driveway beneath the canopy of the station and noticed that automobiles were standing on top of each of the two nearby grease pits. George then departed. The plaintiff understood that his friend’s mission was to change his clothes. George ascribes it to the need of more money.

Thus circumstanced, the plaintiff was overtaken by an attack of irresistible drowsiness and fell asleep on the driver’s seat of his car, where Morpheus held him captive until George returned at 6:00 P. M.

After an interlude of about SO minutes in duration at a neighborhood restaurant, the plaintiff and his friend George discovered another tavern conveniently located, which they entered.

The plaintiff stated that there he began to play shuffleboard. He explained that it is “customary to drink at the end of each game” and that “some go faster than others.”

At about 9 :30 P. M. the plaintiff noticed that George had disappeared. The plaintiff experienced some anxiety:

“Q. Was there any particular reason why you wanted to see him at that time?
A. Tes, he wanders around when he gets tanked up, and I didn't want to see him get hurt.”

In search of George the plaintiff visited the service station and discovering that his automobile was not there, he returned to the tavern to resume the game and presumably its customary accompaniments. He elucidates his state of mind at that time: “I thought some children might have taken it.” He did, however, communicate the information to the police department that his car was missing. It was later revealed that George had only wandered across the street to acquaint himself with the accommodations of another tavern.

At 11 o’clock at night the plaintiff again returned to the service station. His car was not in the driveway where he had originally parked it, so lie began to explore the premises. It was so dark that he could not see the surface over which he was walking. Nevertheless he walked forward in the darkness without looking downward, tripped over the surrounding coping and fell into one of the grease pits. The photographs disclose that the pits are on private property and within the area beneath the roof of the building.

It could not be logically inferred from any of the evidence that the plaintiff: was either expressly or impliedly invited to enter upon that part of the defendants’ premises at 11 o’clock on a Sunday night during which the station was closed.

At the trial some three years after the occurrence of the mishap, counsel for the plaintiff, apparently in recognition of the inadequacy of the evidence to support a cause of action upon that theory of liability, sought to amend the complaint and the issue theretofore framed at the pretrial conference to allege that the plaintiff was a licensee and that the existence of the grease pit in its unguarded location on the premises constituted a trap.

The motion to amend was denied. While leave to amend “shall be freely given when justice so requires” (Buie 3 :15-1, 2), yet we do not perceive that in the present case the denial of the motion injuriously affected the substantial rights of the plaintiff. Rules 1:2-20; 4:2-6. Assuming that the plaintiff occupied the status of a licensee, we quote: “The general rule with regard to the duty which a landowner owes to persons coming upon his premises is that where the entry is made by his invitation, either express or implied, he is required to use reasonable oaTe to have his premises in a safe condition; but that where the entry is made merely by his permission (and, a fortiori, where it is an actual trespass) the landowner is under no obligation to keep his premises in a non-hazardous state; his only duty to a licensee or a trespasser is to abstain from acts wilfully injurious.” D., L. & W. R. R. Co. v. Reich, 61 N. J. L. 635, 643 (E. & A. 1898).

And also: “Granting that it appears that a plaintiff’s entry upon premises was by the invitation of the owner, a question may also arise, whether, at the time the injury was received, the plaintiff was in that part of the premises into which he was invited to enter. The owner’s liability for the condition of the premises is only co-extensive with his invitation. A person on private grounds by invitation of the owner, going of his own volition into other parts of the premises, exceeds the bounds of his invitation, and if he does not thereby become a trespasser, goes out of the way to create a risk for himself.” Phillips v. Library Co., 55 N. J. L. 307, 315 (E. & A. 1893). See, also, Fitzpatrick v. Glass Mfg. Co., 61 N. J. L. 378 (Sup. Ct. 1898); Taylor v. Haddonfield & Camden Turnpike Co., 65 N. J. L. 102 (Sup. Ct. 1900); Byerson v. Bathgate, 67 N. J. L. 337 (E. & A. 1902); Carey v. Gray, 98 N. J. L. 217 (E. & A. 1922); Sohn v. Katz, 112 N. J. L. 106 (E. & A. 1934).

A case having a conspicuous resemblance to the one sub judice is Porchey v. Kelling, 185 S. W. 2d 820 (Sup. Ct. Mo. 1945), in which the court declared that a possessor of an automobile service station is not liable for injury to a licensee who falls into a grease pit which was maintained in the furtherance of the possessor’s business, where the alleged negligence, if any, is passive.

This case rests upon its own particular circumstances, in view of which we conclude that the action of the trial judge was entirely justified.

The judgment is affirmed.


author: Pee Cueiam.

text:
    JOHN A. BADO, PLAINTIFF-APPELLANT, v. WILLIAM H. GILFERT, COUNTY CLERK, DEFENDANT-RESPONDENT.
    Superior Court of New Jersey Appellate Division
    Argued March 19, 1951
    Decided April 25, 1951.
    Before Judges Jacobs, Eastwood and Bigelow.

      Mr. Mortimer Neuman argued the cause for the appellant.

      Mr. Harold Erieger argued for Joseph E. S. Eitzpatrick, intervening on behalf of the appellant.

      Mr. Frank G. Schlosser, Assistant County Counsel, argued the cause for the respondent.

      Mr. Julius JD. Canter argued for Edmund Stevenson, intervening on behalf of the respondent.
   Pee Cueiam.

The facts may be stated shortly. There will be a primary election in Hudson County on April 17 for nomination for members of the Legislature and for county offices. Voting machines will be used. On Thursday, March 15, the county clerk announced that he would not draw lots for the positions of parties or candidates on the ballot and stated that he was advised that he had authority to decide himself on the positions. He informed the appellant and others how the ballot would be arranged for the election. The following day, the appellant filed a complaint in the Law Division and obtained an order to show cause, returnable Saturday, why judgment should not be rendered commanding the county clerk to hold a drawing pursuant to the statute. After argument, Judge Proctor dismissed the complaint on the ground that the clerk’s position was sound. On Monday, March 19, the petition of appeal was presented and the same day the matter was argued before us. Extreme haste was necessary throughout the proceeding because, as counsel informed us, the printing of the ballots ought to start by March 21 or within a day or so thereafter, in order that sample ballots may be distributed within the time required by law. On March 21 we sent the following message to counsel:

“We have considered carefully Bado v. County Clerk and affirm the judgment entered by Judge Proctor without costs. We are filing the papers. We expect to write you a letter stating briefly the grounds of our decision. We are following Justice Colie’s and Chief Justice Case’s decisions that were cited to us.”

The appellant relies principally on R. S. 19:23-24, as amended by L. 1942, c. 50, § 12, while the respondent counts on R. S. 19:49-3, as amended by L. 1941, c. 163.

We note that R. 8. 19 :49-2 has been further amended several times, most recently by L. 1948, c. 240, p. 1081, so that it now applies to all counties. It seems to have been the intention of the Legislature in enacting R. 8. 19 :23-24 that there should be a separate drawing for each office. See also R. 8. 19 :23-18. So the candidate for nomination to be Governor, of the X faction, might draw a position on line one; the same faction’s candidate for sheriff, draw line two; their candidates for the Assembly (drawn as a unit), make the third line, and so on. The Legislature sought to remedy this situation by the 1941 amendment to R. 8. 19:49-2. All county candidates, even for several different offices, who might join in a petition to the county clerk, would be drawn for position as a unit and would bo put on the same line. But difficulties appeared when it came to putting the plan into effect. Commonly there is at least one group of bracketed candidates for all the offices, and also a scattering of independent candidates. If there is a drawing between the bracketed group as a unit and the independent candidate for sheriff, it fixes the position not only of the group candidate for sheriff but also the position of the group candidates for all other offices, and there can be no drawing in which the independent candidates for these other offices take part. Or if there is a drawing between the group and the independent candidate for county clerk, then the independent candidate for sheriff cannot participate in a drawing.

In 19-42, the clerk of Essex County drew for position as between two rival candidates for nomination to the Assembly. He then placed their respective running mates on the same lines with them, including an affiliated candidate for the United States Senate. Other candidates for the Senate were given positions on the ballot by the county clerk, without any drawing. A complaint by one of them was overruled by Justice Colie, who held that the decision rested with the discretion of the county clerk. Hawkes v. Gates, 129 N. J. L. 5 (Sup. Ct. 1942). To the same effect is In re Hoffman, 134 N. J. L. 155 (Case, C. J., Sup. Ct. 1946), where there was no drawing at all, and objection was made by an unaffiliated candidate for the gubernatorial nomination.

Due to the necessity for speed, the case before us was not briefed, at all. We considered it proper to follow the two cases cited, and so resolved that the judgment be affirmed without costs.


author: Geimshaw, J. S. C.

text:
    MARY COLES, ADMINISTRATRIX AD PROSEQUENDUM OF WILLIAM J. COLES, PLAINTIFF, v. OSCAR OSBACK, MINNIE L. OSBACK AND EDWIN ERIC OSBACK, DEFENDANTS.
    Superior Court of New Jersey Chancery Division
    Decided April 20, 1951.

      Mr. Thomas F. Carlin, attorney for plaintiff.

      Mr. Walter H. Jones, attorney for defendants.
   Geimshaw, J. S. C.

On December 18, 1947, the plaintiff, Mary Coles, and her husband, since deceased, became involved in an automobile collision with a fire truck, owned by the Township of Lyndhurst in Bergen County, and driven by the defendant Oscar W. Osback, a volunteer fireman. As a result oi the litigation which arose out of the action, the plaintiffs, on December 28, 1919, obtained a judgment against the defendant Osback, in the sum of $10,675.

In this suit the plaintiff seeks to have set aside a conveyance dated February 16, 1948, made by Oscar W. Osback and wife, to his son Edwin Eric Osback, of property known as 441 Post Avenue, Lyndhurst. Plaintiff charges that the conveyance was without consideration and in fraud of the rights of the plaintiff as a creditor of Oscar W. Osback. In his answer the defendant Oscar W. Osback says that he held the property as trustee for his son Theodore Osback and that the questioned conveyance was made in execution of that trust.

Prom the testimony the following facts appear:

On August 2, 1940, Theodore Osback purchased the property which is the subject of this litigation. At the time of the purchase, Theodore was 20 years old. According to Theodore’s story the bank which was to finance the transaction was unwilling to lend money to the elder Osback, and, as a result, title was taken in the name of Theodore Osback. The purchase price was $3,000. Of this sum Theodore paid $300 in cash and executed a purchase money mortgage in the sum of $2,700.

After the purchase the Oshacks lived together in the house on the property. The family consisted of Mr. and Mrs. Os-back, Theodore, and his brother Edwin. In May of 1941 Theodore married and brought his wife to live in the home.

In November, 1942, Theodore enlisted in the Navy and served throughout the war in the Pacific theatre. As was so common, Theodore had a rough time. The ship on which he was serving was sunk, but he survived. In May of 1945 he came home on furlough. His experiences having made him doubtful of the future, Theodore talked with his father and expressed a desire to put his affairs in order, in case anything should happen to him. His assets consisted of the house and an insurance policy of $10,000. Theodore had arranged that the policy should go to his wife but felt that his father and mother should have the bouse. Accordingly, he conveyed the Post Avenue property to his father and mother as tenants by the entirety without consideration, but upon the understanding that if he returned safely the property would be reconveyed to him.

In November 1945, Theodore was discharged from the service and returned to the family home. There he remained until August 1947, when a prospective increase in his family caused him and his wife to decide that they needed more room than the Post Avenue house afforded. Theodore, in a discussion with his family, pointed out that he needed a house of his own and said that Oscar W. Osback should convey the. family home to Edwin. In that way both sons could take advantage of their veteran’s exemptions and would each have a home. And, in addition, they would be complying with the wishes of their mother, who wanted one of the sons to hold title to the Post Avenue house.

Oscar Osback conveyed the property to Edwin in February, 1948, about a month and a half after the accident. Oscar Osback had not paid anything to Theodore for the conveyance to him, nor did he receive any consideration from Edwin. Oscar had paid the taxes, insurance and mortgage interest while he held the property, 'but, on the other hand, he paid no rent.

After he took title, Edwin took care of the mortgage and tax payments. With the exception of a short period, Edwin and his wife have lived in the home with his father. Minnie Osback died September 6, 1950. ■

Plaintiff says that the conveyance from Oscar Osback to his son, Edwin, was a voluntary conveyance and was, therefore, void as against the plaintiff. Defendants, on the other hand, say that Oscar W. Osback had no beneficial interest in the property and was only a trustee for Theodore. They insist that the conveyance from Oscar to Edwin was not a voluntary conveyance but was a tranfer in execution of the parol trust agreement with Theodore.

The deed from Theodore to his father, Oscar, on its face was an absolute conveyance. And it is claimed that parol evidence is not admissible to establish the fact the conveyance vas upon a trust. That, however, is not the law. If the defendants were seeking to establish the trust, then the contention would be well founded. Neither Theodore nor anyone claiming under him under the statute of frauds could prove that the absolute conveyance was, in fact, a conveyance in trust. Nor could Oscar Osbaek make an effective parol declaration of trust of the lands conveyed to him 'by such a deed. It was entirely competent, however, for Oscar, as long as he held the title to the property, to have made a bona fide declaration of trust in writing, and if so made, the same would have been valid against his heirs and his creditors. If he had not made the deed but had executed a bona fide declaration of trust, it would have been good against those creditors oven if made after the judgment had been obtained. Silvers v. Potter, 48 N. J. Eq. 539 (Ch. 1891).

The statute of frauds covering this point is a rule of evidence. It provides that the trust must be manifested or proved by a sufficient writing, but a trust can still be created by parol. It cannot be enforced in a court while it rests in parol alone, because the statute intervenes and says that it must be manifested or proved by writing. There is, however, nothing that requires that the writing should be executed at the time that the trust was created. In fact, it may continue to rest in parol and not be declared until the trustee dies and then may be so declared by his will. Or the statute will be set aside if the trust can bo manifested and proved by any subsequent acknowledgment by the trustee, as for instance, as here, by a deed. And the trust, however late the proof, operates retrospectively from the time of its creation. Iauch v. de Socarras, 56 N. J. Eq. 538 (Ch. 1898).

Oscar Osbaek made no declaration of trust in writing. He' said, however, that he had executed the trust and that so far as he is concerned he holds the title no longer and his trust has been discharged.

The effort of the defendants is not to enforce the trust. They say the trust is at an end. The question is the same as that which would have been presented had Oscar made a declaration of trust in writing. It must be answered by parol testimony. When rights of third parties intervene and the question is raised whether a trust by parol has, in fact, been created, recourse must necessarily be had to parol testimony to prove what actually took place. Iauch v. de Socarras, supra.

It may very well be that the deed to Edwin was hurried along by the existence of plaintiff’s claim. And it may also be that Oscar was seeking to avoid his own creditors. But neither of these arguments presents a reason for voiding the deed if the trust was sufficiently established. There is no inequity in permitting the trustee of an express trust to make evidence upon which the courts can recognize and effectuate it in order that the expectations of his creditors who attempt to enforce their remedies against the trust estate may be disappointed. Jamison v. Miller, 27 N. J. Eq. 586 (E. & A. 1876).

In order to set aside the deed it would be necessary to brand Theodore and his brother as perjurers. That I am unwilling to do. The reason Theodore gave for the conveyance to his father was reasonable and understandable. It stands without contradiction.

Plaintiff says that the conveyance is a fraud upon her. As was said by Judge Learned Hand, “Perhaps this ought to be the law, but in fact it is not. While as against the grantee the cestui que trust has no rights which he can enforce, still if the grantee chooses to recognize his ‘moral’ obligation, as it is called, his creditors may not complain.” Bryant v. Klatt, 2 F. 2d 167 (S. D. N. Y. 1924); U. S. Fidelity & Guaranty Co. v. Mills, 146 F. 2d 694 (C. C. A. 4, 1944).

I hold, therefore, that the conveyance by Osback to his son, in recognition of the fiduciary origin of his estate, was not a fraud upon plaintiff even though the trust rested in parol and could not have been enforced by Theodore or Edwin.

Complaint dismissed.


author: McLean, J. S. C.

text:
    THERESA J. CABIBO, PLAINTIFF, v. LAWRENCE J. CABIBO, DEFENDANT.
    Superior Court of New Jersey Chancery Division

      Miss Florence F. Forgotson, attorney for plaintiff.

      Mr. Alfred M. Gozzi, attorney for defendant.
   McLean, J. S. C.

This is a motion for change of venue. The action was brought in Monmouth County. The motion is for removal to Hudson. The action is for absolute divorce on the ground of extreme cruelty. The parties were married January 27, 1946, and resided in West New York, Hudson Countjq until their separation in January or February of 1950, when plaintiff went to live in Monmouth County. Defendant has continued to reside in West New York. It ■would appear that if the plaintiff has a cause of action based on extreme cruelty it must have arisen prior to the separation and while she resided with her husband in Hudson County. The pleadings fail to show anything to the contrary.

Rule 3:83 provides: “In matrimonial actions, unless the court otherwise orders, the venue shall be laid in the county where plaintiff was domiciled when the cause of action arose.” The rules have been carefully designed. Their purpose is to render the civil practice just and simple and to prevent unjustifiable expense and delay. Comment to remind the experienced practitioner how these purposes may be defeated by evils attendant upon a system which would permit a litigant to choose his own forum is unnecessary, and it must be conceded that the purpose of the rules will be best served by adhering to expressed provisions and not departing therefrom except for considerations of the utmost importance.

In the instant case, plaintiff justifies bringing the action in Monmouth and resists removal to Hudson on the ground that witnesses residing in Monmouth would be inconvenienced if required to go to Hudson and that she is without funds for additional expense and would have to ask the court to direct the defendant to pay such costs if she is obliged to go to Hudson County. These matters are not of sufficient importance to justify the prosecution of this cause elsewhere than in the county where the cause of action arose, which, as indicated above, appears to be Hudson County. The inconvenience of witnesses is not considered under Rule 3:83; such matters may be overcome by the rules providing for depositions. And the practice of providing an injured wife with sufficient means to prosecute her cause is available pendente lite.

The motion will be granted and an order entered changing the venue to Hudson County.


author: Stein, J. S. 0.

text:
    DOROTHY J. ACKER, ADMINISTRATRIX OF THE ESTATE OF ROBERT E. ACKER, DECEASED, PLAINTIFF, v. JOSEPH SKROTSKY, TRADING AS METRO PRINTING SERVICE, DEFENDANT.
    Superior Court of New Jersey Chancery Division
    Decided April 30, 1951.

      Mr. Henry F. Schenk, attorney for plaintiff.

      Messrs. Biker, Emery & Danzig {Mr. Charles W. Eappes, Jr., appearing), attorneys for defendant.
   Stein, J. S. 0.

I consider Dorothy J. Acker individually, in view of her testimony which I have read and examined, taken before Alexander T. Schenk, Esq, master of this court, as a necessary party in the accounting proceedings and the exceptions thereto now pending before the court.

According to her testimony Miss Acker now takes the position that she and Skrotsky as partners took over from the terminated partnership in such way that she has an individual interest therein and her presence in her individual capacity becomes necessary in order to avoid multiplicity of suits. Schlicher v. Vogel, 59 N. J. Eq. 351 (Ch. 1900).

Under Buie 3:21 parties may be dropped or added by order of the court on motion of any party or of 'its own initiative at any stage of the action and on such terms as are just. Maddox v. Horne, 7 N. J. Super. 15 (App. Div. 1950).

Additionally, Dorothy J. Acker is a resident of the State of Yew York and not amenable to the process of this court. Since it only recently became apparent that Dorothy J. Acker is a necessary party in order that there may be a full and complete determination of all issues before the court, the motion of the defendant will be granted and an order will be entered staying the further proceedings until such time as Dorothy J. Acker will appear in the proceedings in her individual capacity.

The motion to amend the answer setting forth an additional defense alleging that on October 10, 1947, the assets of the partnership were transferred to a newly created partnership consisting of Dorothy J. Acker and the defendant, and that either no accounting is due plaintiff as the transfer was made with the consent of all parties in interest, or that such accounting as may be required is due from Dorothy J. Acker individually and the defendant as members of such new partnership, and to take such other steps in this matter as the defendant may be advised, will be allowed.


author: Gkimshaw, J. S. C.

text:
    RALPH J. LECHER, PLAINTIFF, v. JOHN CURTIN, MARY ANNA CURTIN, PATRICIA CURTIN, KATHLEEN CURTIN AND JOAN CURTIN, DEPENDANTS.
    Superior Court of New Jersey Chancery Division
    Decided April 30, 1951.

      Mr. Mario B. La Barbera, attorney for plaintiff.

      Mr. Maurice E. Gold, attorney for J. Albert Homan, guardian ad litem.

   Gkimshaw, J. S. C.

This is an action to quiet the title to real property. The question raised by the pleadings is the nature and extent of the title acquired by Leopold Hoffman and Annie, his wife, under a deed from Herman H. Wundes, widower, dated May 15, 1926. In the questioned deed the granting clause is to Leopold Hoffman and Annie Hoffman, his wife, “and to his heirs and assigns forever.” The habendum is “unto the said party of the second part their heirs and assigns to the only proper use benefit and behoof of the said party of the second part, their heirs and assigns forever.” The covenants run to the party of the second part, “their heirs and assigns.”

It seems clear from an examination of the deed as ' a whole that the use of the singular pronoun in the granting clause was a scrivener’s error. I am satisfied that it was the intent of the parties that the grantees should take an estate by the entirety.

Under such circumstances the old rule of construction which placed the most emphasis on the granting clause of a deed must give way to the clear intention of the parties. Northeastern Tel. & Tel. Co. v. Hepburn, 73 N. J. Eq. 657 (E. & A. 1907); The Trenton Potteries Co. v. Blackwell, 137 N. J. Eq. 113 (Ch. 1945).

There will be judgment for the plaintiff.


author: Gkimshaw, J. S. 0.

text:
    JOHN STOTHERS, EXECUTOR UNDER THE LAST WILD AND TESTAMENT OF CATHERINE STEVENSON, ALSO KNOWN AS CATHERINE FLIEGER, PLAINTIFF, v. ALICE FLIEGER, WIDOW OF CHARLES FLIEGER, EDNA SCHADE, PHYLLIS COURTENAY AND MARY FLIEGER, HEIRS-AT-LAW OF CHARLES FLIEGER, DEFENDANTS.
    Superior Court of New Jersey Chancery Division
    Decided May 3, 1951.

      Mr. John Stothers, attorney for plaintiff.

      Messrs. Ward & Friedman, attorneys for defendants.
   Gkimshaw, J. S. 0.

The parties to this action join in-seeking a construction of the will of Catherine Stevenson,. also known as Catherine Elieger, who died on March 14-, 1950. The will was admitted to probate by the Surrogate of the County of Bergen on June 13, 1950. It provided, among other things, as follows:

“THIRD:—All the rest, residue and remainder of my estate, real, personal or mixed, whatsoever and wheresoever situate, including any power of appointment or disposition that I may have or acquire, I give, devise, and bequeath to my husband, CHARLES ELTEGER.”

The question posed for determination by the court is what, if anything, passed to Charles Flieger under the residuary clause of Catherine Stevenson’s will, quoted above.

The facts which occasioned the doubt are as follows: On March 12, 1935, Catherine Stevenson went through a marriage ceremony with Charles Flieger. Thereafter they lived as husband and wife until her death. At the time of the ceremony Flieger had a wife from whom he had not been divorced and to whom he remained married until his death on April 24, 1950, some five weeks after the death of Catherine Stevenson. The legal wife and children of Charles Flieger are the defendants in this litigation. So far as the record shows, Catherine Stevenson, also known as Catherine Flieger, left no next of kin or heirs at law.

Ordinarily where a bequest or devise is made to a named beneficiary who is, additionally, referred to as “my husband,” the quoted words are considered to be mere words of description and the beneficiary takes, even though at the time of the death of the testatrix he was not, in fact, her husband. Murphy v. Markis, 98 N. J. Eq. 153 (Ch. 1925), affirmed 99 N. J. Eq. 888 (E. & A. 1926). And the same result follows in spite of the fact that the parties were never legally married, provided that there is no showing of fraudulent concealment of the prior marriage. In re Dries’ Will, 69 N. J. Eq. 415 (Prerog. 1903).

There is no proof that Charles Flieger fraudulently concealed his prior marriage. In fact, in the stipulation of facts there is a copy of a proposed will drawn by Flieger after the death of Catherine Stevenson, the language of which tends to indicate that Elieger believed that he was legally married to Catherine Stevenson and had been divorced from his first wife.

I am of the opinion that at the time of. the making of her will, Catherine Stevenson intended to and did devise her entire estate to Charles Elieger and that the words “my husband” were mere words of description.

Judgment accordingly.


author: Conxon, J. C. C.

text:
    PUBLIC SERVICE ELECTRIC AND GAS COMPANY, A CORPORATION, PLAINTIFF, v. READING COMPANY, A CORPORATION, DEFENDANT.
    Superior Court of New Jersey Law Division
    Decided April 25, 1951.

      Plaintiff’s motion for summary judgment as to certain defenses.

      Mr. Carl T. Freggens (Mr. Lulce Eiernan appearing), attorney for plaintiff.

      Messrs. Lum, Fcdrlie ¡é Foster (Mr. Raymond W. Troy appearing), attorneys for defendant.
   Conxon, J. C. C.

(temporarily assigned). The plaintiff sues in two counts to recover approximately $25,000 as a consequence of damage to three pieces of electrical equipment known as current limiting reactors while in transit over the defendant railroad from the General Electric Company plant at Pittsfield, Massachusetts, to the plaintiff’s siding on the defendant road at Port Reading, New Jersey.

The determination of the two motions before the court involves the construction and application of the Interstate Commerce Act, 49 U. S. C. A. sec. 20(11), sec. 2(b), the pertinent part of which provides as follows:

“* * * as a condition precedent to recovery, .claims must be filed in writing with the receiving or delivering carrier, .or carrier issuing the bill of lading, or carrier on whose line the loss, damage, injury, or delay occurred within nine months after delivery of the property. * * *”

The defendant contends that no notice of claim was given as provided by the statute and moves for a summary judgment of dismissal on the ground that plaintiff’s claim is thereby barred.

Plaintiff, on the other hand, contends that notice of claim was substantially given in accordance with the statutory requirement and seeks to strike that separate defense interposed to each of the two counts of the complaint.

The matter is presented on motion, counter-motion and affidavits. The facts, except as to one material situation, are not in dispute. They are substantially as follows: On June 6, 1948, defendant made delivery of the two reactors, which are the subject of the first count, to plaintiff’s siding at Port Eeading, New Jersey. On June 9, 1948, delivery was made in similar fashion of the reactor which is the subject of the second count. On June 21, 1948, the defendant sent to plaintiff a written notice of arrival specifying among other things the following: “2 reactors damaged in transit.” On June 28, 1949, a similar notice of arrival was received by the plaintiff containing the following: “1 reactor damaged in transit.”

Defendant does not deny that it had notice of the damage (as distinguished from notice of claim), and in fact the parties agree that after the discovery of the damage the equipment was examined by representatives of both the plaintiff and the defendant on the defendant’s cars. The examination of the first shipment was made on June 11, 1948, and of the second shipment on June 25, 1948. Exactly what transpired at those examinations is not fully disclosed by the moving papers. It is agreed, however, that as a result of them and presumably with the concurrence of the representatives of both parties, the equipment was returned to the General Electric Company in Pittsfield. Whether the reshipment was to ascertain the cause or extent of the damage or to consider whether the reactors should be repaired or scrapped is not clear. Presumably, therefore, questions of fact are involved as to which the parties are not now in agreement. Plaintiff did not ascertain the amount of damage to the equipment, i. e., the cost of repair, until December, 1949 (some 18 months after the shipment) at which time it notified the defendant of its loss and requested payment.

Admittedly, under the facts as presented, the plaintiff did not file a notice of claim in writing, and if such filing were a necessary prerequisite to a cause of action the plaintiff would be barred. However, the courts have declined to give such an inflexible construction to the statute. In Hyatt Roller Bearing Co. v. Penn. R. R. Co., 92 N. J. L. 94 (Sup. Ct. 1918); 92 N. J. L. 631 (E. & A. 1919), Justice Minturn* speaking for the Supreme Court in construing a bill of lading similar to the one before us, and subject to the same statute, says this (p. 96) :

“We think the information conveyed by the plaintiff to the defendant was substantially a claim within the meaning of the language quoted. The liberality of interpretation placed upon that term by the Federal Supreme Court, and the courts of sister states, where the question has arisen, evinces that the fundamental reason for the requirement is to enable the carrier to trace the goods within a reasonable period after the delivery, or the failure to deliver, so as to protect itself from resulting loss, upon a subsequent claim for damage.
In conformity with that general view, the rule is generally accepted to be, that a stipulation requiring the giving of notice of a claim for damages must be given a reasonable construction, and a substantial compliance therewith on the part of the shipper is all that is required.”

The defeudaut contends' with great force that all the plaintiff did was to give “notice of damage” as distinguished from a “notice of claim” and that a mere notice of damage is not sufficient to constitute compliance with the statute. That there is a clear distinction between the two is indicated in almost all the cases submitted. The forceful language of Judge Hand is typical (Anchor Line v. Jackson, 9 Fed. 2d 543 (C. C. A. 2, 1925)):

“The upshot of these cases is that notice that the goods have been damaged is not notice of a claim for recoupment. The result is perhaps a narrow interpretation, and has not been established in this circuit without strong opposition. Its existence is, however, unquestioned, and it seems to us undesirable by nice distinctions to invite perpetual litigation in its application. There can, indeed, be no doubt that it is one thing to advise a ship * * * that she has discharged damaged goods and another that you mean to hold her for the loss. * * * We may concede that notice of damage ordinarily presupposes that the consignee is contemplating a claim, but it is not equivalent even to an assertion that he will make one in the future; * * * there must be language showing an intention to make the claim.”

On the other hand, the cases uniformly hold that a strict compliance with the statute is not a sine qua non to recovery “where the carrier has or is chargeable with actual knowledge of all the conditions as to the damages that a written notice could give.” Hopper Paper Co. v. Baltimore & Ohio R. R. Co., 178 Fed. 2d 179 (C. C. A. 7, 1949).

In view of the foregoing principles the question whether or not there was a substantial compliance with the statute on the part of the plaintiff in lieu of a written notice of claim creates a factual issue to be determined by the court or the jury after a full presentation of the evidence. It may very well be that the resolution of that question will depend largely upon the testimony of the representatives of the two parties as to what took place on the occasions of the inspection of the equipment and the resulting conclusion that it be returned to the consignor. That issue is not determinable on these motions.

Both motions are denied without costs.


author: Habtshobne, J. C. C.

text:
    ARTHUR E. KLAIBER, PLAINTIFF, v. JOSEPH FRANK, DEFENDANT.
    Superior Court of New Jersey Law Division
    Decided April 26, 1951.

      Mr. Benjamin Shanefield, attorney for plaintiff.

      Messrs. Minará, Cooper, Gafey Webb (Mr. John J. Gafey appearing), attorney for defendant.
   Habtshobne, J. C. C.

(temporarily assigned). The trial of this cause has been submitted on stipulated facts to this court without a jury. The situation here involved has been before the courts of Yew Jersey and Florida for some years, starting with defendant decedent’s contest of his extradition to Florida for crime, as ordered by this court, and affirmed on appeal. Frank v. Naughright, Judge, 1 N. J. Super. 242 (App. Div. 1949). On his extradition to Florida, and while he was in custody there, decedent Frank was served with civil process at the suit of Diamante Mehos, plaintiff Klaiber’s assignor, upon a promissory note for $5,566.49. It is stipulated that this “civil action arises out of the same facts as the criminal proceedings” above, and while there may be a technical question as to this, in the light of the other facts stipulated, this question becomes immaterial, for reasons hereafter set forth. Judgment on this civil action was thereafter taken against defendant’s decedent in Florida, by default. Thereafter decedent died, the defendant in the instant suit being appointed executor of his estate.

The present suit is brought on the Florida judgment, by the assignee of such judgment, against the defendant, as executor of the estate of the judgment debtor. The present defendant claims that the Florida judgment was invalid for lack of jurisdiction in the Florida court so that the present complaint is based on a nullity. More specifically, this claimed lack of jurisdiction is based on the provisions of the Uniform Extradition Act in effect in both Florida and New Jersey, and throughout practically the entire country, the pertinent section being Laws of Florida, sec. 941.25, and of New Jersey, R. S. 2 :185—34. Such are the facts in barest outline.

The section in question provides: “A person brought into this state on, or after waiver of, extradition based on a criminal charge shall not be subject to service of personal process in civil actions arising out of the same facts as the criminal proceeding to answer which he is being or has been returned, until he has been convicted in the criminal proceeding, or, if acquit! ed, until he has had reasonable opportunity to return to the state from which he was extradited.”

The specific issue is whether the provision that such person shall not be “subject to service of personal process in civil action * * *” means that the Florida courts are powerless to serve a person so situated, though he be within their jurisdiction otherwise, or, on the other hand, that his exemption from service is a personal privilege, extended to him for his personal benefit, which he, therefore, can waive and does waive, if he does not seek to set aside such service before judgment is taken. In short, the question is whether such service of process under such circumstances is void or voidable. The pertinence of this issue is the handbook law, that normally New Jersey must enter prompt judgment upon the basis of the Florida judgment under the full faith and credit clause of the United States Constitution, unless it was beyond the jurisdiction of the Elorida court to take such judgment in the first place, or such fraud has been perpetrated on the Elorida court in taking such judgment as- to have deprived such court of jurisdiction in the eye of the law. Thus, if the Elorida court had no jurisdiction to enter the basic judgment, judgment in ETew Jersey must go for defendant. On the other hand, if the Elorida court retained jurisdiction over this person in custody, as it did over the State of Elorida generally, but this service of process on him was voidable at his instance, because of the protection extended. him by the Extradition Act, then, since he failed to avail himself of this privilege extended for his personal benefit, the Elorida court had jurisdiction, and its judgment must be given full faith and credit here, with resultant judgment for plaintiff in ETew Jersey.

Counsel admit, and this court confirms the fact, after careful search, that while the above statutory provision is the law in practically every state in the country, the meaning of this section of the statute, as to the question here involved, has never yet been construed by the courts of this country. In the absence of authority, the rule of reason is to be applied, first as to the language itself, and then, if within such language, to the presumed intent of those who drafted and enacted the statute, in the light of the evil to be remedied and the consequent purpose of the statute. True it is that the statute says that the person in question “shall not be subject to service of personal process,” the word “shall” being normally mandatory. However, depending upon the context, “shall” may be construed in a permissive sense, if the character of the legislation so indicates. In re Hardman, 131 N. J. L. 257 (Sup. Ct. 1944); Jersey City v. State Board of Tax Appeals, 133 N. J. L. 202 (Sup. Ct. 1945). Moreover, here plaintiff does not even seek to have “shall” construed in a permissive sense. Plaintiff agrees that .such a person “shall not be subject to service of personal process,” exactly.as the statute says—-if such person so elects. But, plaintiff contends that this statutory exemption is a mere personal privilege which defendant can waive, and has waived in this case. To hold otherwise, it is contended, would be to find that the Florida Legislature, the New Jersey Legislature, and the Legislatures of the rest of the states of the Union, as well as the National Conference of Commissioners on Uniform State Laws, which originally drafted the words in question, all intended to wipe out the power of the courts of this country over this particular person among all those physically within their jurisdiction, and this person, one who had fled from a charge of crime and been brought back against his will to the state over which such court has jurisdiction.

What then was the evil to be remedied, to meet which the provisions in question were drafted and enacted? More specifically, what was the nature at common law of the immunity from service of process of those coming into a state voluntarily, or of those who were extradited thereto from without the state?

Not only in New Jersey, but by the overwhelming weight of authority throughout the country, a non-resident is privileged from arrest or service of civil process while necessarily going to, attending at, or returning from, judicial proceedings in any court of this State, provided that person was a suitor, a witness, or even a defendant, who had come into this State voluntarily, to aid the administration of justice. This is because of the public policy of encouraging persons to aid the courts in doing justice. On the other hand, this rule did not apply to those who were brought into the State against their will, such as defendants on extradition. This was because, as to such persons, the reason of the rule was lacking. They were not voluntarily aiding in the administration of justice, but were being forced against their will to return to face justice. Halsey v. Stewart, 4 N. J. L. *366 (Sup. Ct. 1817); Rutledge v. Krauss, 73 N. J. L. 397 (Sup. Ct. 1906); Michaelson v. Goldfarb, 94 N. J. L. 352 (Sup. Ct. 1920) ; Morgan v. Morgan, 15 N. J. Misc. 101 (Ch. 1936), affirmed 122 N. J. Eq. 2 (E. & A. 1937). At common law, therefore, the extradited defendant in the instant Florida proceedings could ask for no protection whatever from the Florida courts. It is further settled law that as to a voluntarily returning witness, such “service of civil process, even upon a nonresident, is not void, but voidable. The exemption afforded a nonresident by law may be waived. If, however, he desires to claim his immunity, it is incumbent upon him to do so by a proper notice to vacate the service.” Morgan v. Morgan, supra, 15 N. J. Misc, at pp. 105-1,06. This, too, is the principle established throughout the country by the weight of authority. 50 C. J., Process, p. 558, sec. 251.

Parenthetically it is interesting to note that the court in the Morgan case apparently considered the question whether the defendant there was in the exact status of the defendant here, i. e., one involuntarily within the state in a civil action “arising out of the same facts as the criminal proceedings.” Further, the section of the Extradition Act in question had been adopted in New Jersey a few months before the decision in the Morgan case. But, since the opinion does not allude to the statute, the Morgan case cannot fairly be claimed as an authority in point.

Such being the common law situation, did our legislatures intend to give these criminal defendants, forced to face justice against their will, a greater protection than existed, for instance, for the benefit of witnesses who volunteered to come within the jurisdiction, for the purpose of aiding the courts in administering justice? The question answers itself.

What then was the purpose of the section? This is made clear by the additional words therein, that its protection is given such persons, only when the civil action arises “out of the same facts as the criminal proceedings.” Its clear purpose thus was to protect such defendants from a situation fraught with the possible abuse of the criminal process, at the instigation of a civil suitor, for his own personal profit. Nor did this protection exist at common law. Rutledge v. Krauss, supra. Thus construed, an appropriate purpose for the protection of an extradited defendant is perceived in the enactment of the statute. This construction, on the other hand, does not go to the unreasonable extreme of giving this defendant, forcibly returned to the state from which he has fled, to face criminal prosecution, a protection greater than that which the law gives witnesses and others who voluntarily return to the state to help its courts do justice.

Since this meaning is fully consonant with the words of the statute, such must be held to be its intent.

Defendant also claims fraud on the Florida jurisdiction, irrespective of the statute, this because the extraditing Florida district attorney had in the past represented plaintiff in the Florida civil action. But, the attorneys who brought the civil action for such plaintiff were a different law firm from the district attorney, and there is no proof , of any collusion or other arrangement between the district attorney and this other firm, or plaintiff himself. The fact that the district attorney, subsequent to the bringing of suit, became associated with the attorneys who brought it, is, of course, suspicious. But, fraud is not tó be imputed legally on mere suspicions, but only on clear proof. This proof is lacking.

Judgment will, therefore, go for plaintiff, counsel to prepare formal findings under the rules.


author: Haetsi-iokne, J. C. C.

text:
    IRENE HORBY, PLAINTIFF, v. JACK WESLEY KING, DEFENDANT.
    Superior Court of New Jersey Law Division
    Decided April 25, 1951.

      Messrs. Modes •& Modes {Mr. Irving- Modes appearing), attorneys for plaintiff.

      Mr. Thomas J. Marhey, attorney for defendant.
   Haetsi-iokne, J. C. C.

(temporarily assigned). This cause arises on motion to dismiss the above action, upon affidavits and transcript of proceedings at the previous trial at which a mistrial was declared.

The complaint is in two counts, the first for an assault and battery upon plaintiff by defendant, the alleged facts amounting to criminal rape. The second count, as stated in the pretrial, is based on the allegation that “The defendant has refused to perform his agreement” to compensate the plaintiff woman for the “expenses connected with the birth of the child” resulting from such intercourse, and to contribute to the support of the child.” The bases of the motion differ as to each count.

The motion as to the first count is based upon the claim that the plaintiff woman had no right to sue the man who raped her for damages, until after she had instituted criminal proceedings against the man for such rape. In support of this somewhat esoteric doctrine, counsel cites McBlain v. Edgar, 65 N. J. L. 634 (E. & A. 1901); Leeman v. Public Service, 77 N. J. L. 420 (Sup. Ct. 1909); Vineland v. Maretti, 93 N. J. Eq. 513 (Ch. 1922). These decisions, in alluding to the above rule as previously in effect in England, point out that it is an anachronism in present-day New Jersey, being “founded upon a reason which does not exist with us, and, therefore, should not be followed,” and alluding to the fact that it has either been “repudiated” or “abolished * * * by statute,” in most of the states where the question has arisen; McBlain v. Edgar, supra, p. 636; 1 C. J. S., Actions, sec. 11, page 994. Indeed, in the Leeman case, after rediscussing the matter, the court says: “as a matter of fact, this doctrine can have no application to our system of government and in practice it does not exist here, nor, as we have above seen, is there necessity for it on the ground of public policy.”

However, after these strong animadversions against the policy of this ancient English rule, enacted at a time when, and.because, the goods of the felon were forfeited to the Crown, so that an action for damages against him would be useless, these decisions apparently do indicate the rule to have been in effect here some half-century ago, at least to a limited extent. Since this court is, of course, bound to follow the decisions of the appellate courts, regardless of its pwn viewpoint, we turn to the ascertainment, and applicability to the cause at bar, of the limited rule, as applied in the above cases.

The McBlain case, like the case at bar, was founded upon allegations which would have constituted criminal rape. The court held, not as in the English rule, that the civil cause could not be instituted before the criminal proceedings were instituted, but “that the party may institute the proceedings for damages as promptly as he chooses, only he must not bring on the trial in advance of his public duty,” approving the language-of Bishop on Criminal Law. Eurther, the court stated: “The duty of a private person in this state ceases when he has made his complaint and appeared before the grand jury and secured, or failed to secure, an indictment.” In the Leeman case, the court concluded: “The failure to prosecute criminally could be urged merely for delaying the trial until the public duty had been fulfilled, not for a judgment of nonsuit.” Since, in the Leeman case, the court discussed for the first time the point that this anachronistic doctrine at all events applied only to common law felonies, plaintiff in the case at bar claims that rape was not a common-law felony. But, as to this, the serious character of the crime of rape is self-evident, and rape was made a felony in England as far back as the time of Edward the Confessor, literally centuries before New Jersey inherited its common law from the mother country. 52 C. J., Rape, sec. 6 (d), p. 1007.

It is a fact that no criminal proceedings as to this rape were instituted by plaintiff woman, or the authorities, prior to the institution of the present suit. In fact, nothing whatever was heard of this alleged bar to the suit in the pleadings, at the pretrial, or at the original trial, until after plaintiff’s opening, whereupon, for that and other reasons, a mistrial ensued. Promptly thereafter the plaintiff woman applied to the authorities to take a criminal complaint for rape against defendant. But, by that time, two years had elapsed from the time of the alleged rape, and the criminal court, therefore, refused to take the complaint. The defendant claims, that since the plaintiff woman failed to initiate those criminal proceedings till after they were barred by the statute, she is now estopped to allege her belated attempt to initiate same, as a compliance with her “public duty,” which under the above rule must precede the trial of the civil suit.

But what are the facts in regard to this claim of estoppel? Surely if defendant to avoid surprise must, under the rules, specifically allege in his answer the bar of the statute of limitations, or the nonperformance of conditions precedent generally, he should have set up this little known bar, arising from the nonperformance of an alleged condition precedent, to bringing suit. R,nle 3:8-3; 3:9-2. But this defendant failed to do. Had he done so, plaintiff would doubtless have done her public duty the minute she was aware of such claim. This is proven by her prompt action to that effect the minute she was advised of such claim by defendant’s belated motion at the original trial, as above. Since defendant’s answer was filed almost a year before the right expired to proceed criminally, the criminal complaint would have been timely had defendant done as he should in his answer. Nor did defendant notice the present motion raising this unusual question till long after the usual time therefor. Buie 3 :12~2. IPad he done so, again the criminal complaint would have been timely. Nor did defendant set up this alleged defense at pretrial, the very time the rules require the express statement of the “factual and the legal .issues to be litigated.” Buie 3 :16. Since even the pretrial occurred before the criminal ba-r had run, the criminal complaint again would have been timely had defendant done what the rule required.

Finally, at the request of defense counsel, the original trial was twice postponed till after the bar to the criminal proceedings had run. Had defense counsel not so requested, his belated notice to plaintiff of this alleged bar would even then have given her sufficient time to initiate the criminal proceedings before they were barred.

Thus, whether intentionally or not, defendant lulled plaintiff into a false sense of repose, until her attempt to take criminal proceedings could not be successful. Furthermore, it is well settled that the doctrine of estoppel applies to prevent a party from repudiating a “position assumed where that course would work injustice to another who, having the right to do so, has relied thereon * * *. While the creature of equity and governed by equitable principles it (the doctrine of estoppel in pais) is a doctrine enforceable in courts of common law jurisdiction.” N. J. Suburban Water Co. v. Harrison, 122 N. J. L. 189, 194 (E. & A. 1939). Here, defendant assumed the position for many months, contrary to his duty under the court rules, that his defense did not include the present alleged bar. That plaintiff relied on this attitude of defendant is obvious from the fact that the minute the existence of the bar was suggested, she promptly did all she could be expected to do in order to meet it. Thus, it would seem that the doctrine of estoppel in pais would apply not to plaintiff but to defendant, and that plaintiff having sought to institute criminal proceedings prior to the pending trial of the civil action, defendant is estopped from complaining that plaintiff’s efforts were unsuccessful.

Further, it would seem that by defendant’s repeated failure (1) to plead this alleged bar in Ms answer; (2) to move thereon in due course; and (3) to state same at pretrial, all as required by the above rules, defendant is now barred from relying thereon even on the present motion. This would seem the purport of the rule as to waiver of defenses. Rule 3 :12—8. The proviso in such rule as to defendant’s right to move on the trial to dismiss for “failure to state a claim upon which relief can be granted” should be limited to matters appearing on the face of the record. To permit it to apply to matters dehors the record would cause the very surprise that pleadings and pretrial are aimed to prevent.

Thus, plaintiff is not barred by the rule alluded to in the above cases, even if same still is, or ever was, the law in New Jersey.

Defendant’s motions to strike the second count are based on several grounds. First, that since the allegations of the first count are incorporated in the second count, its above objection to the first count equally applies to the second. Second, that plaintiff’s statutory right to obiain support for the child has wiped out its common-law right to sue on the agreement. Third, that such suit is a suit for breach of contract to marry, invalidated by statute. R. S. 2:394-1.

As to the first of such objections, not only is same invalid for the reasons above stated, but defendant’s contractual duty to support, as alleged, exists quite independent of whether the conception of the child was by consent, or vi et armis. In other words, as to the second count, the allegations of the first count are pure surplusage.

As to the second objection, the statutory remedies given primarily to the authorities, and, in lieu thereof, to the mother, to obtain support from the father, are all based upon the duty of the father to the public—to prevent his child from becoming a public charge. This duty exists even if the father had made no such agreement as is alleged as the basis of count two. This contract creates a duty additional to the statutory one. Not only do these statutes not indicate that they wipe out the common-law right to sue on the contract, or that they are the exclusive remedy, but the case of Lasasso v. Lasasso, 1 N. J. 324 (1949) shows that they are not the exclusive remedy. Since the language of Kopak v. Polzer, 4 N. J. 327 (1950), and Tuohy v. Boynton, 5 N. J. Super. 265 (App. Div. 1949), on which defendant relies, all refer solely to these statutory proceedings, and not to the pre-existing common-law and equitable remedies, they are not to be read as wiping out such pre-existing remedies. Such statutes thus do. not wipe out the ordinary common-law jurisdiction, relied on here.

As to the third objection, that the second count is one for breach of contract to marry, contrary to B. S. 2:39A-1, this is equally groundless. As the pretrial says, the essence of such count is that “defendant with knowledge of the plaintiff’s pregnancy, entered into an agreement with the plaintiff that if the plaintiff would not institute any bastardy proceedings against (him) on account of the child born of the assault, the defendant would compensate her for the hospital expenses and medical expenses connected with the birth of the child, and would contribute to the support of the child; that the defendant has refused to perform this agreement.” The count contains none of the usual allegations pertinent to a breach of contract to marry; its terse allusion to the fact that “defendant assured plaintiff that he would marry her” not 'being set up as a part of the contract sued on, and thus being mere surplusage. Nor does it ask damages to the woman pertinent to that kind of action. It is, therefore, not in violation of the policy of the above statute. Blackman v. Iles, 4 N. J. 82 (1950).

Defendant’s motion is, therefore, denied, and the pending trial may proceed.


author: Hughes, J. C. C.

text:
    IN THE MATTER OF THE APPLICATION OF FRANK LEGDON FOR ISSUANCE OF WRIT OF HABEAS CORPUS.
    Mercer County Court Law Division
    Decided April 26, 1951.

      Mr. Frank Legdon, petitioner, pro se.

   Hughes, J. C. C.

This petitioner applies for the writ of habeas corpus under B. 8. 2:82-l et seq., on the ground that he is unlawfully detained in the New Jersey State Prison, and in support thereof makes the following claims:

He states that he was born September 11, 1926, and at the age of 13 years was committed for juvenile delinquency (truancy) to the State Home for Boys at Jamesburg, an institution of the State described in B. 8. 30 :4U56 et seq.; that upon attaining the age of 16 years he was transferred by order of the commissioner under the statute B. 8. 30:4—85, to the New Jersey Eeformatory at Annandale, a reformatory described in B. 8. 30:4r-150 et seq.; that in April, 1944, he was paroled from Annandale, but by reason of changing employment in violation oí the parole conditions, the same was revoked and he was returned to Annandale, being re-paroled a month later, in May, 1944. In the latter part of May, 1944, he was sentenced in the former Court of Quarter Sessions of Passaic County to the Annandale Beformatory on conviction of the crime of receiving stolen goods.

The petitioner here leaves a gap in his narrative, but the institutional records (which he is at liberty to challenge if he wishes) indicate that he entered Annandale on the receiving sentence on "June 2, 1944, was. transferred by the commissioner to the former New Jersey Reformatory at Rahway on July 18, 1944 (R. S. 30:4-85, supra; R. S. 30:4-146, as amended, L. 1948, c. 60, p. 149, § 3), and escaped from such institution on November 23, 1944. A short time later, apparently while still at liberty on such escape, he was again convicted of crime.

I now return to petitioner’s recital of events as contained in his petition. He entered the New Jersey State Prison on January 19, 1945, to serve a sentence of not less than six nor more than seven years, imposed upon him in the former Court, of Quarter Sessions of Passaic County on conviction of the crime of atrocious assault and battery (R. S. 2 :110-1). He served the maximum of this sentence, which after credit of the uniform commutation time due him under R. S. 30 :4-140, expired on July 17, 1950, The State Prison authorities continue to hold him to serve out the unexpired maximum of his said receiving sentence to Annandale, the commissioner being authorized by R. S. 30 :4-85, supra, to require him to serve the balance of such sentence at such prison. Ex parte Zinowicz, 12 N. J. Super. 563 (Cty. Ct. 1951). The State Prison Admissions and Becord Clerk advises petitioner that his “adjusted maximum” on this term is January 20, 1957, less employment credits to which he may become entitled (R. S. 30 :4-92) and subject, of course, to the possibility of parole before the expiration of such maximum.

Now a word as to the nature of the sentence on which he is presently held. Since the punishment on the conviction for receiving consisted of a sentence to the reformatory at Annandale, it was an “institutional sentence,” which has no fixed minimum and of which the maximum corresponds to the statutory maximum term for the particular crime, which, for the high misdemeanor of receiving, amounts to seven years (R. S. 2:164-1, R. S. 2:103-5). On this type of sentence, unlike the direct minimum-maximum term to State Prison, the erstwhile reformatory inmate is immediately and always eligible for consideration for parole, despite the continuing service of such sentence at the State Prison. Ex parte Zinowicz, supra.

It is suggested that shortly before petitioner’s escape, consideration was being given his parole, but that parole apparently did not become effective and he was thus at liberty as an escaped prisoner when he was convicted of the subsequent crime of atrocious assault and battery.

This petitioner complains that the court in Passaic County, in 1945, did not specify that the six-to-seven year sentence imposed by it was to be served consecutive to or apart from any “parole or back time that I may owe” the Annandale institution. He thus necessarily argues that this time was served concurrently with the sentence completed on July 17, 1950. But such specification in the sentence imposed on the latter crime was unnecessary, whatever petitioner’s status was at the time of such sentence.

If he were then on parole, one of the parole conditions would have subjected him to revocation thereof in the event of conviction of crime while on parole. And in such case, neither the time elapsed during liberty on parole nor the time served on the subsequent sentence, which expired on July 17, 1950, would have run in diminution of the time which he would be bound to serve on his reformatory sentence, the interval between January 19, 1945, and July 17, 1950, being attributable only to the sentence imposed in 1945 on the conviction for atrocious assault and battery. Ex parte Macejka, 10 N. J. Super. 393 (Cty. Ct. 1950).

Nor does any interval of time while the prisoner is at large on escape run against his sentence. It is fundamental that a sentence of imprisonment is satisfied only by the actual suffering of the imprisonment imposed, unless remitted by death or by some legal authority. This rule applies to the “institutional sentence” referred to, for unless paroled by the institutional board oE managers (R. S. 30:4-152), or the New Jersey State Parole Board (L. 1950, c. 30; R. S. 30:4-123.40 et seq.), or pardoned by the executive (Const. 1947, Art. V, Sec. II, par. 1; R. S. 2:196A-1 et seq.; Ex parte Kneipher, 12 N. J. Super. 407 (Cty. Ct. 1951)), and except for time allowances granted by R. S. 30:4-92, supra, the prisoner under such sentence must serve the maximum term provided by law for the crime on which the sentence was based.

And while our statute dealing with the effect of escape time on the service of sentences does not deal with escape from the reformatory at Annandale (R. S. 2:192-14), that statute is, principally, merely declaratory of the common law (In re Edwards, 43 N. J. L. 555 (Sup. Ct. 1881)), and the rule was firmly established at common law that a prisoner escaping from custody while serving his sentence for a criminal offense is liable to recapture and confinement to serve out his sentence, the time of his voluntary absence on escape not being counted in his favor. Anderson, Warden, etc. v. Corall, 263 U. S. 193, 44 S. Ct. 43, 68 L. Ed. 247 (1923); 19 Am. Jur., Escape, etc., sec. 22.

Accordingly, I determine that the petitioner is presently held on the unexpired term of his sentence, for the crime of receiving, to the New Jersey Reformatory at Annandale, and that he is not entitled to immediate release. The writ of habeas corpus is, therefore, denied him.

        R. S. 30:4-152. Sentences. “The courts in sentencing to the reformatory shall not fix or limit the duration of sentence, but the time which any person shall serve in the reformatory shall not in any case exceed the maximum term provided by law for the crime for which the prisoner was convicted and sentenced, and the term of service may be terminated by the board of managers of the reformatory in accordance with its rules and regulations formally adopted.”


author: Habtshobile, J. C. C.

text:
    EX PARTE WILLIAM SAMBER.
    Essex County Court Law Division
    Decided April 24, 1951.

      Mr. Robert A. Huebner, attorney for petitioner.

      Mr. Maurice J. McKeown, attorney for the State.
   Habtshobile, J. C. C.

Defendant claims he is in State Prison under an illegal sentence. He petitions under the rule permitting the court to “correct an illegal sentence at any time.” Rule 2 :7-13. The court assigned counsel, and heard the cause on the record as agreed on by both the prosecutor and defense counsel, the testimony of the judges who imposed the sentences in question being unavailable by death and otherwise.

In brief, the facts are that on December 17, 1928, for five offenses of breaking, entering, larceny and receiving, defendant was sentenced on the first offense to Eahway Eeformatory, while on the four others he was sentenced to seven years in State Prison, consecutively, on each, the operation of such sentences being suspended.

On October 14, 1930, defendant was again sentenced on five allegations as follows:

“Accusation Year Defendant Court Crime
34064 Sept. 1930 William Samber SS BEL&K
34065 Sept. 1930 William Samber SS B&L
34066 Sept. 1930 William Samber SS BEL&R
34067 Sept. 1930 William Samber SS LR&Driv.
34068 Sept. 1930 William Samber SS BEL&R
Disposition: Sentence suspended on the above named defendants and upon the above stated convictions and the said defendants discharged.”

At the same time the court revoked the operation of the-above suspended sentences, entered December 17, 1928, and committed defendant to State Prison therefor.

On April 8, 1936, defendant came on a third occasion before the court for the offense of breaking, entering, larceny and receiving, on indictment 319, and was sentenced to State Prison for from five-to seven years. At the same time the court revoked the suspensions of the sentences imposed, as above, on October 14, 1930, and sentenced the defendant on such accusations (number 34064, 34065, 34066, and 34068) for from five to seven years consecutively on each, after the-service of the sentence on indictment 319.

Defendant was paroled April 9, 1946, while still serving-these sentences. While on parole he committed another similar crime and was sentenced December 10, 1947, to serve a sentence in State Prison of from two to three years. The commission of this crime automatically violated his parole. Because of such parole violation at the present time defendant is serving the sentences imposed April 8, 1936, as above, (number 34064, 34065, 34066, and 34068) on which sentence had been suspended on October 14, 1930.

Such being the facts, defense counsel argues that the sentences now being served by defendant are illegal for two reasons: (1) because on the day they were imposed, October 14, 1930, they were nullified, by the entry in the record as to each of them, “Sentence suspended on the above named defendants and upon the above stated conviction and the said defendants discharged”; the claim being that this discharge meant a discharge completely from the offense itself, and not a discharge merely from the custody of the court; (2) that the revocation of the suspension of these same sentences could not lawfully occur on April 8, 1936, after the lapse of five and a half years from the time of the suspension of such sentences to State Prison for seven years, the specific point being that the-lapse of time was unreasonable.

Clearly the questions involved here are as to the legal effect of a suspension of sentence. It is settled law that our courts have inherent power to suspend sentences and for a reasonable length of time. “The weight of authority and our courts recognize the inherent power of the courts to suspend sentences temporarily or for a reasonable length of time. State v. Osborne, 79 N. J. Eq. 430 (Ch. 1911); State v. Bongiorno, 96 N. J. L. 318 (Sup. Ct. 1921).” In re Baer, 140 N. J. Eq. 511, 513 (E. & A. 1941). The purpose of suspending sentence is obviously not only one of mercy toward the offender, but also to aid both him and the public, by inspiring him to refrain from the commission of further crime, through hanging a “Sword of Damocles” over his head.

That this purpose is beneficent both to the defendant and the public is obvious. That this beneficent purpose would be nullified by discharging the defendant completely from under this “Sword of Damocles” is equally clear. That the same court would effectuate this beneficent purpose, and in the same breath nullify this purpose, is a conclusion not lightly to be indulged. Particularly is this so if the action of the court is reasonably explicable otherwise. Slight consideration will indicate this reasonable intention otherwise.

When the court put into operation, on October 14, 1930, the sentences suspended on December 17, 1928, of a series of commitments to State Prison for seven years, it was the obvious intention of the court to have the defendant discharged from custody in the Essex County Court House, and committed to custody at State Prison in Trenton. But since defendant was then in the custody of the Essex County sheriff for the Essex County Court, the sheriff would have no right to turn him over to the State Prison authorities without an order of the court that he be discharged from the custody of the sentencing court. Such was the necessary order of the court, the only way in which the full sentence of the court could actually be served, and hence the reasonable construction to be put upon the word “discharge,” in such sentence. Indeed, it is the unvarying practice of the Essex County Court to enter orders to exactly that effect under all such circumstances, of practically weekly occurrence, the mimeographed forms maintained by the clerks to that effect having been duly produced before this court at the above hearing.

The first point argued for defendant is thus seen to be groundless.

The other objection argued by defense counsel to the sentences now being served by defendant is that the suspension of such sentences for five and a half years was so unreasonable as to render them invalid when imposed. Here we revert to-the settled rule in New Jersey, and by the weight of authority throughout the country, as to “the inherent power of the courts to suspend sentences temporarily or for a reasonable length of time.” As above set forth, this suspension of sentence of itself accords with sound public policy, a policy beneficent both to the prisoner and to the public. When such suspension substantially accords with this policy, it would appear valid. If this be the case, the time of the suspension must be clearly unreasonable in order to invalidate the imposition of the sentence thereafter.

Looking at the matter in another aspect, it is clear that the defendant cannot wipe out a sentence without performing it. Thus, if he does not wish to have it continue to hang over his head, he should ask to have it imposed. If he asked to have it imposed, it would be, and it would then continue for its expressed term, and from the time of its imposition. It is thus clear, regardless of its beneficence, that the suspension of the sentence can continue at least for the period stated in the sentence itself, in the absence of a request by defendant that it be promptly imposed, which defendant did not request here.

Eurthermore, because of the beneficial effect of the suspension of sentence upon both the prisoner and the public, it would appear reasonable to have this b'eneficial effect continue, at least for the period of time which the Legislature deems appropriate for a sentence to oustody for such crime. It surely accords with public policy, and the inherent power of the courts in this regard to that end, for a convicted defendant to be deterred from committing a further crime, by the possible imposition of a suspended sentence, for the same period that he could be sentenced to custody for the commission of that very crime.

Indeed, both our courts and the weight of authority throughout the country have already gone not this far, but further. Eor, our highest court has already held, where a one-year sentence was suspended on a charge of conspiracy, a crime for which a sentence of three years could be imposed, that this suspension could be revoked, and the prisoner committed to custody thereunder, “three years and four months after the original sentence.” In re Baer, supra; 26 A. L. R. 393, note; 101 A. L. R. 1402, note. Our highest court has thus upheld a suspension of sentence for a period greater than the term stated in the sentence itself, and greater than the term of the maximum penalty for the crime itself.

Indeed, as indicated in the last above note, ah utterly indefinite suspension of a sentence is valid when imposed under a statute to that effect, and in various of the decisions there noted such statutes are held to be but expressions of the inherent power of the courts themselves. However, in the case at bar it is not necessary to go that far, or even to apply the rule to the extent it was approved by our highest court in the Baer case, supra. Eor hero the sentences in question were suspended for a period not greater, but less than, that of the maximum of the term stated in the sentence itself, as well as less than that of the maximum penalty for the crime itself. The suspension here was for but five and a half years, while both the sentence imposed and the maximum penalty for the crime were seven years.

Since such suspension and the imposition of the sentences thereafter are valid, prisoner’s petition is denied.