author: Peb Cubiam.

text:
    RAYMOND HEETNER, PROSECUTOR, v. CITY OF NEWARK AND FIRST CRIMINAL COURT OF THE CITY OF NEWARK, DEFENDANTS.
    Submitted January 26, 1934
    Decided June 25, 1934.
    Before Justices Case, Bodine and Donges.
    For the prosecutor, Brenner & Kresch.

    For the defendants, Frank A. Boettner and Thomas M. Kane.

   Peb Cubiam.

This writ brings np for review the conviction of prosecutor for the violation of an ordinance of the city of Newark entitled “An ordinance to license newly established merchants and itinerant vendors and to provide penalties for the violation of the provisions thereof.” The ordinance, which purports to put into effect chapter 88 of the laws of 1931, a statute authorizing the control and licensing of itinerant vendors and transient merchants, requires the obtaining of a license not only by itinerants but by “new merchants.” A “new merchant” is defined as “a person who engages in business in this municipality by hiring premises for the sale of merchandise and intending to remain longer than one year subsequent to the opening of said premises.”

Prosecutor leased premises for a period longer than one year and entered into a men’s furnishings business in the leased premises without first obtaining a license. Complaint being made, he was tried before the First Criminal Court of Newark and fined $25.

The power of the municipality to require a license of itinerant vendors and the validity of the ordinance in so far as it requires a license to be obtained by that class is not before us in this proceeding. The question brought up is whether or not the ordinance is effective to require a license to be obtained by one such as the prosecutor, who comes within the definition of a “new merchant” set forth in the-ordinance.

Chapter 88 of the laws of 1931 has no application to “new merchants” and the power to impose the requirement of obtaining a license upon the prosecutor must be found in the general power of the municipality granted by the Home Eule act and its amendments.

The Home Eule act authorizes regulation of many kinds of businesses, in fact practically every kind of business that might be transacted within a municipality, but nowhere does it authorize a distinction between newly established businesses and those already in existence. Ordinances of regulation must be general in their application and not discriminatory. Siciliano v. Neptune, 83 N. J. L. 158; 83 Atl. Rep. 865. We are of the opinion that the ordinance in question makes an unwarranted discrimination in so far as it applies to those defined as “new merchants,” and is to that extent void.

The conviction is reversed, with costs.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    NATIONAL BANK OF NEW JERSEY, PLAINTIFF, v. ALFRED ROY AINSCOW, SUBSTITUTED ADMINISTRATOR OF THE ESTATE OF GEORGE W. AINSCOW, DECEASED, DEFENDANT.
    Argued May term, 1934
    Decided June 22, 1934.
    Before Justices Trenohard, Heher and Perskie.
    For the applicant, Keating <& Keating.

    Por the defendant, Theodore Strong & Son {Stephen V. R. Strong, of counsel).
   Per Curiam.

This is an application for a rule directing the Com•mercial Trust Company and the defendant to show cause why the sum oi $708.14 oil deposit in the Commercial Trust Company to the credit of George W. Ainscow & Son, levied upon by the sheriff of Hudson county by virtue of an execution issued out of the Supreme Court, should not be turned over and paid to the sheriff of Hudson county for the use of the plaintiff.

The same application was made to the Chief Justice who issued a rule to show cause such as is now sought and after hearing discharged the rule. Now the same application is made to this court, and the defendant insists that we have no jurisdiction in the circumstances to grant the rule.

There seems to be merit in this contention. The case of Gordon v. Pannaci, 90 N. J. L. 392; 103 Atl. Rep. 677, indicates that the review sought may be had only by certiorari.

But apart from that we think that we would not be justified in allowing this rule. The Chief Justice discharged the rule because section 108 of the Orphans Court act provides that no execution shall issue in any case after the making of an application to have decedent’s estate declared insolvent, and that such application had been made. We find no fault with that conclusion. That the estate was insolvent at the time of the execution and levy seems to be admitted, and certainty was not denied.

Moreover, this application was made pursuant to section 9 of the Supplement of the Execution act. Pamph. L. 1915, p. 182. Thereunder “an order may be made requiring the garnishee to pay said debt, if he admits it, to the officer,” and such an admission is essential to the jurisdiction. In N. Drake, Inc., v. Donovan, 8 N. J. Mis. R. 870; 152 Atl. Rep. 337, it was said “there can be no adequate admitting of the debt unless the garnishee admits, as its creditor, the defendant against whom the execution stands.” It will be noticed that the defendant against whom the execution stands in this case is the administrator of the estate of George W. Ainscow, deceased. The levy was upon all the right, title and interest of Alfred Roy Ainscow, substituted administrator of the estate of George W. Ainscow, deceased, in and to certain moneys in the sum of $708.14 on deposit in the Commercial Trust Company to the credit of George W. Ainscow & Son.

The most that is said in regard to the admission is that the bank “said that said sum of money was held on deposit, to the credit of George W. Ainseow & Son/’ ■

■ It seems to us quite plain that such was not an admission by the bank that it was a creditor of the defendant against whom the execution stands.

In such posture of affairs it seems the court would not be-justified in ordering this sum of money to the plaintiff in such a proceeding as this.

The application for a rule is denied, with costs on this motion.


author: Swayze, J.

text:
    ANNA KUSTOR v. METROPOLITAN LIFE INSURANCE COMPANY.
    Decided June term, 1910.
    Before Justices Gabbison, Swayze and Voobhees.
    Dor the respondent, II. W. Kehoe.

    Por the appellant, McCarter & English.

   The opinion of the court was delivered by

Swayze, J.

This is a suit upon a policy of life insurance. At the trial the only proof that the policy was issued by the company was the testimony of a man named Cross, who had been an agent working for the company, that the policy was issued by his company, but on cross-examination he admitted that he did not know the signatures to the policy; that he could not say, except from the fact that the paper was in the form of a policy issued by the defendant, that it was a policy. He went no farther than to say, “it looks like the usual form,” but admitted that he did not know whether it was signed by the officers of the company. In response to the court he testified that that kind of policies came to him and that from his investigation of the policy and the looks of it it looked like a policy issued by the defendant. There was proof that a man named Salinski had received payment of premiums and had countersigned receipts, but these receipts on their face stated that they were not binding upon the company until countersigned by the company’s cashier at its home office or the superintendent of the district in which payment was made; and there was no proof that Salinski was either cashier or district superintendent. If this testimony could possibly be held to be any proof of the fact that the policy was issued by the defendant company, it was at most evidence to be submitted to the jury. The judge, however, treated it as conclusive evidence and did not submit this vital question, so that there is no finding of the fact in that respect. The policy as printed provides for the payment of the amount upon receipt at the home office of the company of due proof of the death of the assured. No proof of death was made, either at the home office of the company or elsewhere. The nearest approach to it was proof that the beneficiary after her husband’s death gave the paper to a man named Cross, a superintendent of the insurance company in Perth Amboy. There was also proof that the attorney of the plaintiff had written to the company, although his letter was not in evidence, and in reply the company simply declined to pay the claim. The trial judge left to the jury to say whether this was a waiver. He told the jury that what was due proof depended very largely upon circumstances; that if it was brought to the knowledge of the company through proper channels that the insured is dead, it would be sufficient proof. Clearly the letter of the company simply declining to pay the claim was not a waiver. That the trial judge was wrong in his view as to what constituted due proof is apparent, we think, from the language of the policy, which requires receipt of due proof at the home office of the company. This can have no meaning except that some sort of written proof should be furnished. A mere statement of the beneficiary or her attorney could hardly be regarded as proof. What the policy probably contemplates is proof in form of affidavits.

For these manifest errors the judgment must be reversed in order that there may be a new trial in the District Court.


author: Pee Ctjbiam.

text:
    GEORGE DAWSON, PROSECUTOR, v. BOROUGH OF RUTHERFORD, NEW JERSEY, ET AL., DEFENDANTS.
    Submitted January 26, 1934
    Decided June 25, 1934.
    Before Justices Case, Bodine and Donges.
    For the prosecutor, Joseph 0. Paul.

    For the defendants, Edwin Joseph O'Brien.

   Pee Ctjbiam.

This writ of certiorari brings np the action of a deputy commissioner of compensation in dismissing prosecutor’s petition for compensation.

The facts are that prosecutor was employed by the borough of Eutherford at its sewage disposal plant under the poor relief plan in effect in that municipality, receiving his pay in food, fuel, clothing and rent. On October 19th, 1932, while so employed he received an injury, which admittedly arose out of and in the course of his employment, which injury resulted in the loss of the sight of one eye. The defendant and its insurance carrier, recognizing the right of prosecutor to compensation, provided medical attention and paid prosecutor temporary compensation for a period of twenty-six weeks.

On March 29th, 1933, there was approved chapter 81 of the laws of 1933, which declares that all such employments as that of prosecutor shall, for the purpose of the question of determining liability for compensation, be deemed to be casual employments. A companion statute, chapter 162 of the laws of 1933, provides that when an injury is received by one working under the emergency relief, application for compensation may be made to the state director of emergency' relief. The amount, terms and conditions of any such award are made discretionary with the state director, with the limitation that the award shall in no case be greater than it would be for a similar injury under the Workmen’s Compensation law.

When these statutes became effective, the insurance carrier for the borough stopped paying prosecutor compensation. He thereupon filed a petition in the compensation bureau, which petition was dismissed because of Pamph. L. 1933, ch. 81, above mentioned, which made such an employment casual.

The question for decision is whether these statutes can be given a retrospective effect, defendant’s contention being that there is no impairment of the obligation of a contract but a mere change in the remedy afforded the workman.

It is clear that a statute may not be given retrospective effect so as to impair the obligation of a contract. Thomas Deegan v. Morrow, 31 N. J. L. 136; Citizens Gas Light Co. v. Allen, 44 N. J. L. 648, 653.

At the time of the passage of these statutes the prosecutor, provided he had suffered an injury of compensable nature, which must be assumed for the purposes of this case, had a definite right to receive from his employer, or its insurance earner, the amount fixed by the Workmen’s Compensation act as compensation for such an injury to one in his circumstances. He likewise had a right to be represented by counsel in pressing his claim, and, if successful, to have counsel fees paid by the employer. It cannot be said that Pamph. L. 1933, ch. 162, merely changes his remedjr. By that act he is entitled to such sum as the state director of relief in his discretion awards him. He is deprived by section 4 of the right to have his counsel paid by the employer, if he succeeds in establishing his claim. It thus appears that the contract which was established by law between him and his employer upon the happening of the accident and the determination of the injuries is wiped out by the statutes under consideration. This is a clear violation of prosecutor’s constitutional rights.

The order is reversed and the case remanded with instructions to reinstate the petition and proceed to a determination upon the merits.


author: Case, J.

text:
    CAR AND GENERAL INSURANCE CORPORATION, PLAINTIFF-RESPONDENT, v. HARRY T. DAVIMOS, DEFENDANT-APPELLANT.
    Argued May 2, 1934
    Decided June 23, 1934.
    Before Justices Lloyd, Case and Donges.
    For the plaintiff-respondent, William H. D. Cox.

    For the defendant-appellant, Harry T. Davimos, pro se.

   The opinion of the court was delivered by

Case, J.

This is an appeal by Harry T. Davimos from a judgment rendered against him in the First District Court of the city of Newark. There were other defendants, alleged clients of Mr. Davimos, who were granted judgments of nonsuit at the trial.

Plaintiff, Car and General Insurance Corporation, was the insurer of Silver Stores, Incorporated, the defendant in a tort action brought by the administrator ad prosequendum of Gable, an infant, under the Death act. Davimos was the attorney for the plaintiff in that action. A verdict for $6,000 was returned against Silver Stores, Incorporated, which, on rule to show cause, was reduced to $3,000. An appeal from the judgment was taken by Silver Stores, Incorporated, to the Court of Errors and Appeals.

The contract now sued upon was found by the trial court to be that “Mr. Davimos, acting independently and not on behalf of the Gables, agreed with Mr. Cox (viz., attorney for Car and General Insurance Corporation) to settle the entire case for the sum of $2,750, Mr. Davimos stating that he was in need of money and would put through the settlement by sacrificing part of his fee to be paid to him by the Gables.” The hitch came when Cox, ready to pay the $2,750, demanded a release from the judgment, executed by the general administrator of the decedent. Davimos declined to provide such a release unless Cox would pay the cost of the administrator’s bond, a condition that was refused.

At the argument before us respondent moved to strike, as an error in the transcript, the words "ad prosequendum” from the phrase “administrator ad prosequendum” as shown in the testimony of Mr. Cox. That motion followed upon a rule issued by a Supreme Court justice and a certification by the trial judge that the disputed words were not used by the witness. The motion will be granted.

It is first said on behalf of the appellant that the District Court erred in refusing to nonsuit and in refusing to direct a verdict in his favor. The reasons presented on the making of these motions were that no damages had been proved; that no contractual rights or privity of the plaintiff had been shown and that it did not appear that Davimos was a principal. However, the proofs sustain the finding that the contract was made as quoted, supra, and that there was a breach of that contract by the appellant. The breach of a contract is per se a legal injury from which some damage will be inferred, and in the absence of proof of actual damage arising from such breach the plaintiff is entitled to nominal damages. VanSchoick v. VanSchoick, 76 N. J. L. 242; 69 Atl. Rep. 1080. The question of quantum, of damages is not properly before us. The liability of the respondent as insurer of the judgment debtor in the tort action constituted, we think, sufficient privity to sustain the contract entered into on its behalf. The testimony by Davimos that he was acting only for himself was, with the remaining testimony in the case, sufficient to support the trial court’s finding that he was acting as a principal. Therefore, there being evidence that there was a contract between the parties and that there was a breach thereof, and the plaintiff being thereon entitled to damage's, the motions were properly denied.

Appellant’s point three is that the District Court found as a matter of fact that a settlement was entered into between Davimos and Cox whereby the former was to sacrifice part of his fee which he was to receive from the Gables. We discover no error herein.

It is next said that the court below erred in the admission in evidence of the payment draft which the respondent had prepared and executed for delivery to the appellant. This, if error, was harmless.

Point five is that the court below erred in its conclusion that an agreement existed between Mr. Davimos and Mr. Cox which implied that a release of the general administrator would be forthcoming. We pass over the omission to set out any ruling toward which the point is directed. The situation, briefly, was that the administrator ad prosequendum held a judgment that he was powerless to collect or to give acquittance for. By the terms of the statute (Pamph. L. 1917, ch. 180; 1 Cum. Supp. Comp. Stat., p. 928, § 55-10) payment of the claim or satisfaction of the judgment could be made “only to a general administrator, who has given bond as required by law.” When Davimos obligated himself to the settlement, he obligated himself to provide a person to whom the settlement moneys could be lawfully paid, and this independently of the further conversation had between him and Cox on the occasion of making the contract which was quite consistent with the theory that he fully understood the obligation upon him to furnish the usual formal documents in closing the transaction. The breach came, not upon the simple question of whether the general administrator should execute and deliver a release, but whether there should, indeed, be a general administrator, none having been then and, so far as appears, none having yet been appointed. It was no part of the judgment debtor’s duty, either under the contract or otherwise, to pay the cost of the qualification or the appointment of the decedent’s general administrator to whom the judgment debt might be paid. The present plaintiff occupied, in that respect, the position of the judgment debtor and was within its rights in refusing to be squeezed into paying more than it had agreed to pay. The point presents no error.

Under points six and seven it is said that the settlement contemplated immediate payment and that the respondent failed in that obligation. This, too, was a fact question; and the determination thereof has support in the testimony.

Points eight and nine are that the plaintiff proved no damages, and point ten is that there were no facts upon which the contract sued upon could be founded—all of which we have already decided adversely.

Finding no error, we conclude that the judgment below should be affirmed.


author: Pee Cubiam.

text:
    CITIZENS TITLE INSURANCE AND MORTGAGE COMPANY OF THE CITY OF PASSAIC ET AL., RELATORS, v. ANTHONY PERRAPATO, MAYOR OF THE CITY OF GARFIELD, ET AL., RESPONDENTS.
    Submitted January 26, 1934
    Decided June 25, 1934.

      Before Justices Case, Bomne and Donges.
    For the relators, Peder tO Binder.

    For the respondents, Rickard J. Balter.

   Pee Cubiam.

This matter is here on a rule to show cause why a writ of mandamus should not issue to comjtel the city of Garfield to cancel and discharge of record certain taxes assessed against certain lots for the years 1925 to 1931.

The situation appears to be that the Belmont Lumber Company owned certain lands in Garfield; certain streets were laid out across this land; the plan to open these streets was abandoned by the city and the lands deeded back to the Belmont Lumber Company sometime in 1921; no taxes were assessed against the lands so deeded back until 1933 when the omission was discovered and bills were sent to the owner for the period from 1925 to date.

In March, 1929, a mortgage in the sum of $65,000 by the Belmont Company to Citizens Title Insurance and Mortgage Company was placed of record. It is testified by Frederick B. Conant, one of the relators, that in November, 1931, the other relator, Citizens Title Insurance and Mortgage Company, at his request, procured an official tax search of the tax collector, Noonburg, which search did not show the disputed assessment as unpaid. There can be no question about this, because it was not until 1933 that the omission was discovered. Conant says that in reliance on this search he and the other relator advanced moneys to the Belmont Company. Apparently no new mortgage was executed and the security of the mortgage of 1929 was relied upon, although the testimony is not clear on this point. At any rate, it may properly be said, we assume, that the relators acquired an interest in the property in reliance upon the official tax search.

A mandamus is sought under section 14 (Pamph. L. 1918, p. 886) :

“Any person who shall acquire for valuable consideration an interest in any lands covered by any such official tax search, in reliance on said tax search, shall hold such interest free from any municipal lien held by the municipality and not shown on such search.”

The only question necessary to be dealt with is whether the relators in the present situation are entitled to have the lien canceled of record. Relators are mortgagees and -are not the owners of the fee. It is not asserted that foreclosure proceedings have been instituted or that the mortgage is in default. In Cliffside Park Mortgage Co. v. Englewod, 113 N. J. Eq. 146; 166 Atl. Rep. 36, relied upon by relators, the mortgagees seeking to have the taxes canceled had become owners of the fee by virtue of purchase at the sale in foreclosure. The taxes were clearly an encumbrance on their interest in the property. Such is not the case here. The mortgage was given as security for a loan or loans. These loans may be paid in full by the borrower and the mortgage canceled of record. If the taxes be canceled in this proceeding, the city will then be unable to collect them against the interest of the Lumber Compah3r.

Under the section above quoted the relators are entitled only to hold their interest free from the lien of the taxes and do not have an absolute right to have the lien canceled of record. Until such time as the interest they acquired in reliance upon the tax search is impaired by the existence of the tax lien, they are not entitled to the relief sought. Such impairment does not now appear, and the right to mandamus must be clear.

The rule to show cause is discharged, with costs.


author: G-eosman, A. M.

text:
    Hazel Howe Rushmore, complainant, v. Samuel Willis Rushmore, defendant.
    [Decided June 23d, 1934.]

      Mr. Merrüt Lane, for the complainant.

      Mr. Francis A. Gordon, for the defendant.
   G-eosman, A. M.

Complainant sues for separate maintenance under section 26 of our Divorce act. The defendant, by his answer, as well as by a separate petition for divorce, charges the complainant with statutory desertion and seeks a decree of divorce against her on this ground. The two actions have been consolidated.

Heretofore the complainant herein sued the defendant for separate maintenance in this court (D. 84-247). Her bill of complaint in the original suit filed on the 29th day of April, 1931, charged the defendant with extreme cruelty consisting generally of physical brutalit}»-, abusive language, violent temper, and specifically as follows: That on one occasion he assaulted her and threw her to the floor; that when she arose, he again threw her backward, whereupon she tripped over a suitcase and suffered a miscarriage: that he then spat in her face twice; that he frequently accused her in the presence of others of being drunk; that she was a protestitute and had been the mistress of a number of men; that in the presence of strangers he would discuss intimate details of his married life; that frequently he would arouse the complainant at two or three o’clock in the morning and accuse her of improper conduct; that on one occasion the defendant told his butler the vilest and most indecent things about the complainant; that he ordered the servants to refuse to serve meals to the complainant; that he threatened to kill her; that three times in one week, while sitting at the table with the defendant, he threw glasses of icewater at her; that on an occasion in December of 1930, while they were on a boat trip to the West Indies, he accused the complainant of misconduct and became so violent and threatening in his attitude that the complainant became apprehensive for her safety and locked herself in a bathroom, whereupon the defendant began to kick the door and pounded it with his fists, breaking the panels so that the complainant was compelled to call for the help of a steward who in turn sent for the ship’s doctor in an effort to quiet the defendant; that on numerous occasions the defendant assaulted her phj'sieally Avith murderous ferocity, in consequence of which she was compelled to leave him, which she did on the 4th day of February, 1931.

On June 2d, 1931, the defendant, through his then solicitors, Messrs. McCarter & English, of Newark, filed an answer to said bill of complaint wherein, after admitting the first three paragraphs of the bill which contain recitals of a jurisdictional nature, he categorically denied each and every remaining allegation of the bill, paragraph by paragraph. On August 8th, 1931, some three months after the filing of the bill of complaint and two months after the filing of the original answer, the defendant, through his solicitors, filed an amended answer wherein for the first time he charges that on the 15th day of February, 1931, the complainant condoned the supposed acts of cruelty charged against him. No explanation appears for the omission of this defense from the original answer. Its significance must have been apparent to the defendant and certainly to his solicitor. Seemingly, it was but an afterthought.

The case was tried before Vice-Chancellor Church for seven days. Before deciding it he resigned and the voluminous transcript was turned over to Advisory Master Hugh B. Reed, who, merely from a reading of the record and transcript, held that in his opinion the complainant was not entitled to a decree because on the 15th of February, 1931, as charged by the defendant, she had condoned any act of cruelty which had preceded that date. I consider it most unfortunate that the advisory master who decided this case in the first instance did not have the benefit of observing the parties in person during their recitals. It may well be that his conclusions would have been otherwise. A decree ivas subsequently entered on the 1st day of November, 1932, directing the defendant to pay to the complainant $391.92, the costs of depositions de bene esse taken in Tacoma, Washington, $100 for an expert handwriting witness and a counsel fee of $3,000, and dismissing the complainant’s bill. From this decree an appeal was taken to the court of errors and appeals, which resulted in an affirmance on the 27th day of September, 1933.

On April 2d, 1933, while the appeal from the original decree was pending in our court of errors and appeals, the complainant called the defendant on the telephone at his home, this day being his birthday. Her purpose, as testified to, was to seek a reconciliation. The defendant, however, upon ascertaining her identity refused to talk to her. On November 8th, 1933, the complainant having consulted with Mr. Merritt Lane, her counsel, definitely determined to return to her husband, and on that date wrote him a conciliatory letter (Exhibit 0-3) to the following effect:

“My dear Sam-—It lias been sueli a long time since we have seen each other and I am wondering how you feel toward me. I, for one, am older, wiser, and sadder. We have gone thru such a lot of horrible publicity and litigation for 1 left you thinking that I was justified in doing so and in remaining away. I am anxious to try it again. Don’t you think we could make a go of it this lime? I shall try very hard but you should, I think, promise not to let your temper get the better of you.
Won’t you let me hear from you if you are' willing that t should return ?
Sincerely
Hazei,.”

To this she received no response and on the 14th of November, 1933, the complainant again wrote to the defendant (Exhibit 0-3), offering to return and make an effort to rehabilitate herself as the defendant’s wife. To this communication he likewise failed to answer.

On December 4th, 1933, the complainant’s solicitor wrote to the defendant’s solicitor, Mr. George W. 0. McCarter (Exhibit 0-4), advising him of the complainant’s efforts to communicate with her husband in an effort to have him take her back, and laying the entire situation before him with a request apparently for enlightenment as to the defendant’s attitude in the matter. On December 7th, 1933, Mr. Lane received a letter (Exhibit 0-5) from Mr. McCarter in answer to his communication wherein it is stated that he had talked to Mr. Rushmore who had shown him the two letters which the complainant had written him. He thereupon proceeds to one-sidedly review the case and ends his letter with these words:

“Under all these circumstances, Mr. Rushmore is unwilling to' take her back. For him to accept her cold proposition would require a degree of self-abnegation by Mr. Rushmore, called for neither by the law of nature nor the law of the land.”

This letter was followed by another letter from Mr. Lane to Mr. McCarter (Exhibit G-6) which reiterates the complainant’s willingness to return. This exchange of correspondence was concluded by a final letter from Mr. McCarter to Mr. Lane, dated December 42th, 1933 (Exhibit 0-7), the significant portion of which reads as follows:

“Suffice it to say that on Mr. Itushmore’s part I have nothing further to add.”

Thereupon on January 2d, 1934, the complainant filed her present bill for separate maintenance. The defendant by his answer sets up proceedings in the previous suit and then by a separate petition, which will be treated as a counter-claim, seeks a decree of divorce from the complainant on the ground of desertion, his claim being that the pendency of the original suit did not stay the running of the desertion period because it was not brought in good faith.

Upon the trial of the instant case, the complainant offered to return to the defendant unconditionally, even going to the length of asserting her willingness to respect the defendant’s wishes with regard to the company which she kept and to which he had objected. The defendant refused to take her back, stating that he believed her testimony to be perjury pure and simple. At page 99 of the transcript he states in detail his reasons for his unalterable determination not to resume cohabitation with the complainant, none of which are valid in law.

I shall deal with the defendant’s counter-claim first because my position thereon will be dispositive of the case. He seeks a decree on the ground of desertion, charging that the defendant deserted him in the month of February, 1931, ever since which time and for more than two years last past, the defendant has willfully, continuedly and obstinately deserted the counter-claimant. If true, his cause of action would have ripened in February, 1933. However, the complainant filed her bill for separate maintenance in this cause on April 29th, 1931. The decree dismissing her bill was entered November 1st, 1932, and her appeal therefrom was decided by our court of errors and appeals on September 27th, 1933. The appeal, of course, was but a step in the cause. If, therefore, the original suit was brought in good faith, the complainant’s desertion has not been of two years’ duration and the counter-claim must fail. The general rule is that in a suit for divorce for desertion, none of the time occupied by the pendency of a former bona fide proceeding for divorce by one of the parties against the other can be computed as part of the time of the desertion in the later case. Barbour v. Barbour, 94 N. J. Eq. 7; 118 Atl. Rep. 778; McKee v. MeKee, 107 N. J. Eq. 1; 151 Atl. Rep. 620. I incline to the view that this rule is equally applicable where the previous proceedings were for the purpose of obtaining a decree of separate maintenance on the ground of extreme cruelty. However, if the previous suit was not brought in good faith, its pendency would not operate to .stay the running of the desertion period. The defendant and counter-claimant contends that the complainant’s previous suit was not brought in good faith; that therefore it comes within the exception to the general rule and that her desertion must be computed as having commenced in February, 1931, without regard to the time during which the previous suit between the parties was pending, namely the period from April 9th, 1931, to September 29th, 1933. This of necessity leads us to an examination of the facts in the original suit for the purpose of determining the bona fideness of the complainant’s previous action.

I have permitted the introduction of not only the technical record in the first case but also of all the pleadings and testimony taken therein. Weigel v. Weigel, 63 N. J. Eq. 677; 53 Atl. Rep. 1123; Locher v. Locher, 112 N. J. Eq. 25; 163 Atl. Rep. 251. Of necessity I have read and considered the testimony in the previous suit in order to determine the question of good faith. Perhaps as clear an exposition as any to be found, on the question presented here, is that of Vice-Chancellor Grey in the case of Weigel v. Weigel, supra, viz.:

“The general proposition appears to be indisputable that the separation of one spouse from the other during the pendency between them of a suit for divorce is justifiable, and is therefore not an obstinate desertion during that period. If the previously pending suit were for divorce on the ground of adultery, cohabitation would ordinarily condone the offense and deprive the complainant of her remedy. The same principle applies if the divorce sought is a limited one from bed and board on the ground of extreme cruelty. Por if the wife, who is in such cases usually the complainant, continues to live with her husband pending such a suit, she throws doubt upon the extremity of the cruelty of which she alleges she is the victim. Ordinarily cohabitation is proof that the treatment of the wife by the husband is not cruel, and is usually of itself a contradiction of that which the wife must in such cases establish, namely, a condition of such extreme discomfort and wretchedness as incapacitates her to discharge the duties of a wife, or seriously endangers her health. But in all the cases which state the proposition in general terms there is an assumption that the case which relieves from the duty of cohabitation during its pendency is one brought in good faith, in order to submit to the consideration of a court a condition of facts which the complainant really believes entitles her to the relief sought. In such a case it is of no significance whether the complainant succeeds or fails in the suit by which she presents her claim. Her separation during its pendency is not obstinate, for the reason that there is a justifiable cause for it, and that it is her right to have a judicial determination of what she believes to be real grievance, unembarrassed by presumptions adverse to her which would necessarily attend upon continued cohabitation with her husband. When, however, it is shown that the wife’s previous suit, the pendency of which is set up to excuse her apparent desertion, was based on allegations which were known by her to be false when they were submitted to the court, and when her testimony in that suit in support of those allegations is proven to have been untrue by many disinterested witnesses, so that it is made quite clear that her previous suit was a false pretense, and not a genuine presentation of a believed grievance, the excusatory effect of the pendency of the previous suit is wholly lost. Such an exhibition shows that the proceeding was a fraud upon the court, on the law, and on the defendant attacked by it. Its pendency is no answer to proof that the wife willfully, continuedly, and obstinately abandoned her husband. Indeed, it may be additional evidence of the obstinacy of her determination to desert her husband and escape from her marital duty. This exception to the above-stated rule is recognized in all the cases which consider this phase of the question. Chancellor McGill, in Drayton v. Drayton, 54, N. J. Eq. 302; 38 Atl. Rep. 26, refers to the element of good faith, as necessary to prevent the time consumed by such a suit from being computed as part of the statutory period of desertion. In Porritt v. Porritt, 18 Mich. 420, the question of the good faith of the previous suit is discussed as an essential matter to its effective use as a defense. Mr. Bishop designates such a sham proceeding as a fraud and a pretense which will not justify the desertion. Bish. Mar., Div. & Sep. No. 1758. See, also, 1 Nels. Mar., Div. & Sep. 146.”

.It follows therefore that in order to conclude that the complainant’s initial suit was not brought in good faith, it must in fact have been “a sham and a pretense;” that the charges levelled against the defendant in that proceeding were merely a figment of the complainant’s imagination, incapable of proof to her knowledge and advanced by her maliciously for the purpose of publicly embarrassing and humiliating the defendant. Such is not the fact. .

This court in disposing of the original proceedings found that the defendant was guilty as charged of the extreme cruelty attributed to him but that the complainant had condoned his offense. The judgment of this court against the defendant was “guilty but forgiven.” This is a far different proposition from a finding of not guilty because the accusation was false.

The defendant contends, however, that the mere fact that the complainant denied the condonation which fact was found against her, is sufficient to establish her “bad faith” in prosecuting her original suit. The argument is advanced that “she is presumed to know the law” and that she should have known that upon the facts as ultimately found, she was not entitled to a decree and consequently to maintain her suit. I have been unable to find authority, nor has any been submitted to me by the able counsel for the defendant, in support of so radical a view. If it can be seriously urged that because all persons are presumed to know the law, the complainant must be charged with having known in advance that her ease would fail because the fact of condonation would be found against her, it would necessarily follow that all lost causes must be held to have been brought in bad faith. This, of course, is not the rule.

In Weigel v. Weigel, supra, it is held that:

“Where the suit is brought in good faith, in order to submit to the consideration of a court a condition of facts which the complainant really believes entitled her to the relief sought, it is of no significance whether the complainant succeeds or fails in the suit by which she presents her claim.”

Even if the defendant could successfully invoke against the complainant the presumption that “all persons are presumed to know the law,” it could not avail him in the instant case because condonation is a question of fact and not of law (Greims v. Greims, 80 N. J. Eq. 233 (at p. 234.); 83 Atl. Rep. 1001), and the rule in its broadest sense can only be said to charge a person with a knowledge of the law and certainly not with knowledge of the court’s probable conclusions upon disputed facts.

The complainant has consistently throughout the previous trial, and also in the instant suit, denied that on the 15th and 16th of February, 1931, she condoned the defendant’s offense in the sense that she freely and wholeheartedly forgave him for his transgressions and sealed her forgiveness by submitting to sexual intercourse. The trial court found the fact against her, undoubtedly basing his conclusions on the testimony of the defendant, his butler, Herman Fransson, and partly upon the complainant’s own testimony. The facts surrounding the alleged condonation are as follows:

The complainant left the defendant on the 4th of February, 1931, because, as she states, his cruelty toward her was unbearable and she could endure it no longer. Undoubtedly she left in haste because she failed to take with her certain of her personal papers which she thought important. Mistakenly she believed the butler Fransson to be sympathetic to her and appealed to him to bring these papers, if not directly to her, to one Eev. John Meyer, who maintained a music shop in the town of Plainfield. The butler agreed, or at least told her that he would bring the papers to the music shop. Perfidiously, however, he betrayed her to his employer, the defendant, who thereupon evolved a scheme to entrap the complainant at the moment that she called for her papers, it being his thought that she would oiler or that the butler would exact from her some monetary reward for the service, and that this would constitute an act of bribery and subject the complainant to arrest and criminal prosecution. The butler readily fell in with this scheme. A meeting was arranged for by him with the complainant at the Eev. Meyer’s place. Arrangements were made that a member of the Plainfield police department was to secrete himself on the premises, observe the proceedings and thereupon arrest the complainant. Subsequently the chief of police refused to be a party to the transaction whereupon the defendant engaged the services of a private detective. Unfortunately for the success of this plan, someone phoned the complainant before the appointed time and warned her not to attend. To whom she is indebted for this service is not apparent. She did not keep the appointment.

The defendant in his testimony vigorously contends that he did not wish to bring about the complainant’s arrest. If he did not, I fail to see the purpose of these elaborate preparations for his wife’s entrapment. I am convinced that he fully intended to bring about the natural result of his scheme, namely, her entrapment and arrest upon the charge of bribery of his butler. I dwell at length upon this incident because of the light which it throws upon the attitude and purpose of the persons upon whose testimony the fact of condonation was established.

Nothing more transpired between the parties until about the 14th of February, 1931. In the meantime the defendant developed what his doctor believed to be a gangrenous diabetic ulcer on his leg. He was ordered to bed and there remained with his limb bandaged from the ankle to the knee. He then instructed his physician to phone the complainant at the New Tork hotel where she was stopping with her mother and request her to come and see him. She did so on the afternoon of February 15th, 1931. From what the doctor had told her over the phone, she believed that the defendant was suffering from a serious illness. Upon entering the room, undoubtedly moved by the defendant’s stricken condition and her natural womanly sympathy, she kissed him. She spent sometime with him and then signified her intention of leaving and returning to New York. He protested vigorously against her so doing but she nevertheless persisted and left the house. He followed her to the door and shouted unpleasant accusations against her. She could, of course, have continued on her way and disregarded the defendant. Moved, however, by his wrought up condition, and undoubtedly sorry for him because of the serious illness from which she believed him to be suffering, she returned to the house, as she states, intending to leave at a later time when she could do so without so greatly upsetting the defendant. Perhaps she should not have returned but she did. Whether her motives were those of pity for the defendant because of his physical condition, as she states, or otherwise, is of no particular moment. Her presence in the same house with the defendant is not condonation. Taber v. Taber, 66 Atl. Rep. 1082 (at p. 108—not reported). Whether or not the complainant did actually condone the defendant’s previous conduct depends entirely upon what transpired between the time when she returned to the house on February 15th, 1931, and the morning of February 16th, 1931. It is undisputed that the weather was inclement; 'that the complainant’s hat and coat were secreted from her and she states that for hours she sought to locate her outer wearing apparel so that she might leave but without success. She also admits that in the late hours of the night or in the early hours of the morning, fully clothed, she threw herself upon the defendant’s bed and fell asleep for several hours. The defendant, however, contends that she fully undressed, put on a pair of his pajamas, got into bed with him and submitted to sexual intercourse. This she denies vehemently. The only other testimony on this point is that of the butler, Fransson, who testified' that he came to the room occupied by the parties on the night of the 15th for the purpose of giving the defendant a drink of orange jnice; that when he entered, the defendant was in bed; that the complainant, fully dressed, was also lying on the bed alongside of the defendant who had his arm about her and then he proceeds to testify to what I consider to be most significant. He amplifies his testimony by stating that in his presence the defendant proceeded to pat the complainant “over the part where the stomach is” apparently with an amorous or affectionate gesture. Continuing he states further: “I excused myself for interrupting, but he [Rushmore] said, “it is all right, Herman, everything is all right,” so I went out again.” I cannot believe that this defendant, who unquestionably is a man of culture, would treat his wife so intimately in the presence of his servant. Moreover, I cannot eradicate from my mind the admitted fact that this butler who testified so glibly to these acts of marital intimacy between the parties, is the same man who, while leading the complainant to believe him sympathetic to her cause, and agreeable to aiding her in recovering her personal papers, as has been indicated, actually conspired only a few days before this incident with the defendant to bring about her entrapment and arrest. His moral responsibility as indicated by his conduct leads me to conclude that it would be highly dangerous to predicate any conclusion upon his testimony and that it should be disregarded.

Much, however, is made of the fact that the complainant admitted that she was in the defendant’s bed sometime between February 15th and 16th. This of itself is not sufficient to establish condonation. Hann v. Hann, 58 N. J. Eq. 211; 42 Atl. Rep. 564. Even if it were definitely established that sexual intercourse had taken place between the parties, on the night of February 15th or 16th, this fact standing alone would not be sufficient to establish condonation. If this were so, an offending husband might by force of arms exact this marital right from a wife whom he had most grievously offended and then plead condonation. Sexual intercourse is not condonation; it is merely presumptive evidence of a forgiveness which the law terms condonation and like all presumptions may be rebutted. What is meant in law by the term condonation is clearly expressed by Vice-Chancellor Stevens in the case of Taber v. Taber, supra, wherein he states: •

“These expositions of the meaning of condonation show clearly that it is something more than forgiveness, in the sense of ceasing to harbor resentment. It is not only a blotting out of the offense from the mind and heart of the person forgiving, but a restoration of the offender to his former position.”

A careful examination of the circumstances surrounding the alleged condonation leaves me wholly unconvinced thereof because the conduct of the defendant was in nowise conducive to forgiveness. It must be borne in mind that he stands guilty of extreme cruelty. As stated by Vice-Chancellor Bergen, in the case of Totlen v. Totlen, 60 Atl. Rep. 1095 (not reported), “condonation is based on repentance * * Nowhere in the testimony do we find a single word uttered by the defendant to indicate repentance for the cruelty which he had visited on the complainant. Why then should this aggrieved spouse have taken it upon herself to grant a forgiveness which was never asked for? She had been maltreated physically on numerous occasions; she had been publicly accused of being a “golddigger;” her chastity and sobriety had been impugned before her friends and servants; she knew that only a few days prior to the 15th of February, 1931, her husband, with the aid of his butler, had sought to entrap and bring about her arrest and yet it is urged that without the slightest evidence on the part of the defendant indicating compunction for his past conduct and a promise to treat her with conjugal kindness in the future, she without more ado condoned his offenses. It taxes credulity, particularly so in view of the temperament of the parties as I have observed it.

Furthermore, the mere allowance by this court in its final decree of a counsel fee of $3,000 to the complainant’s solicitor as well as suit moneys, militates against the contention that the first suit was brought in bad faith. Ordinarily counsel fees by way of costs are allowed to the prevailing party. On occasion such are allowed to a defeated litigant but only whore the court feels that the action was brought in good faith. It would be anomalous to say the least if this court felt that a suit was brought in bad faith to allow costs and substantial counsel fees for the bringing thereof. Nor can I believe that our court of errors and appeals ordered the defendant to pay for the printing of the record in the first case, thoroughly considered it and nevertheless failed to denounce the bad faith of the complainant in bringing the action if such were the fact. Certainly this court, which tried the case for seven days, and our court of errors and appeals, which considered the matter at length, would have discerned the complainant’s bad faith in bringing the original suit and so stated the fact to be, if such were the case.

1 am satisfied that the original action was not brought in bad faith and that the time consumed during its pendency cannot be computed as part of the period of desertion.

Even if this were not so, the defendant cannot prevail upon his counter-claim. The law requires that a husband who has been deserted by his wife must make the efforts of a just man to terminate the desertion and that these efforts must be continued by him during the entire period of desertion unless it be manifest that his efforts would be useless or that the wife is unchaste. Goldberg v. Goldberg, 101 N. J. Eq. 284; 137 Atl. Rep. 438. This is the rule where the husband’s conduct did not in any way contribute to the desertion. Where, however, the desertion may in the first instance-be attributable to his acts, he is in duty bound to exercise-greater efforts to obtain his wife’s forgiveness and return. Van Wart v. Van Wart, 57 N. J. Eq. 598; 41 Atl. Rep. 965.

In the case at bar there is no question but what the defendant by his unreasonable conduct, amounting to extreme cruelty, is responsible for the separation. lie contends that during the pendency of the litigation he wrote to his wife repeatedly and asked her to return. The fact of the matter is that while he did write a number of letters to her which apparently indicated a desire on his part to have her return, he also during this period sent her cartoons and clippings from newspapers of such nature as to have a diametrically opposite effect upon the mind of any intelligent woman to that which he testifies he sought to create. A cartoon, a reproduction of which will be found in the original transcript, is entitled “gold-diggers” and depicts generally an aged man with a moneybag in his hand being waylaid and entrapped by a female adventuress aided by her attorneys and detectives. A clipping which he sent her refers to the probable feelings of the husband of Ruth Snyder, a notorious murderess, at the time when he awoke and found his own wife in the act of taking his life. It is incomprehensible how the defendant thought to win his way back into the affections of his aggrieved spouse through the media of such communications. The mere writing of letters to an estranged spouse seeking her return is not sufficient to satisfy the duty imposed upon a husband to make reasonable efforts to terminate a desertion. Smith v. Smith, 55 N. J. Eq. 222 (at p. 228); 37 Atl. Rep. 49. I am of the opinion that the defendant did not make a bona fide effort to terminate his wife’s desertion and if there were no other elements in the case, for this reason alone, his counter-claim would have to be dismissed.

We now come to the last issue in the case and that is whether or not the complainant was privileged in law to return to the defendant and resume her position as his wife, and whether she has made a bona fide effort to do so. In Stover v. Stover, 94 N. J. Eq. 703; 120 Atl. Rep. 788; it was held that where after a wife’s suit for separate maintenance had been dismissed, her offer to return was repulsed, the husband’s petition for divorce would be dismissed, and also that the husband was not privileged to impose any conditions upon his wife for her return.

In Loux v. Loux, 57 N. J. Eq. 561; 41 Atl. Rep. 358, the wife had deserted without sufficient cause but offered to return within the two-year period. It was held that it was the husband’s duty to receive her as his wife.

Throughout the trial of the instant case the statement was repeatedly made with a sense of injury, that the complainant-wife at no time publicly apologized for her conduct in having instituted her suit against the defendant with its attendant publicity. I know of nothing in the law which casts this duty upon her. Apparently the defendant was of the opinion that the complainant should have covered herself with sackcloth and ashes, grovelled at his feet and begged his forgiveness and in some similar manner indicated remorse for her conduct, publicly. She was not called upon to do any such thing. He prevailed in the previous suit not because of his lack of guilt of the charges levelled against him but because the trial court felt that he had made out the defense of condonation. She lost because of her alleged forgiveness. He was the one to apologize and humble himself, not she. All that the law requires of a wife in these circumstances is an honest, unconditional offer to return to her husband which majr be made in a manner consistent with her womanly dignity. I think that she has fulfilled her obligation under the law in this regard. The complainant wrote the defendant twice in a conciliatory tone offering to return to him. Twice she phoned him but in each instance she was rebuffed. Her solicitor on three occasions wrote the defendant’s counsel in an effort to bring about a reconciliation between the parties, all without avail. Not only did the defendant fail to offer any encouragement to the complainant but he bluntly repulsed her. At the trial she again repeated under oath her willingness to return to her husband unconditionally and even went beyond the call of duty and offered to be guided in her associations and conduct by the defendant’s wishes. The defendant, on the other hand, twice during the proceedings emphatically declared his unwillingness to resume marital relations with the complainant claiming that she was a liar and a perjurer and that she had married him only for his money.

Even if these charges be true, they are no defense in law. Nothing short of the complainant’s guilt of a matrimonial offense will suffice to excuse the defendant from supporting and maintaining her according to their station in life. It may be that it was folly for this man to have married this lady in the first instance. The things which motivate men and women in entering into matrimony are only too often beyond comprehension. This, however, is a matter with which we have no concern. He should have realized the limitations which his years placed upon him. At the time of the marriage he was sixty and she forty—old enough to be her father. Their views of life were as divergent as the poles. She wanted life and love, laughter and the society of gay companions. He was interested in “steam cooling,” the construction of buildings and engineering inventions. It was a marriage of convenience pure and simple on the part of both. If she married him for his money, as he charges, he married her because he desired the society and companionship of a young and attractive woman. It may be that the defendant has become so embittered by the litigation which has taken place between him and the complainant that he finds the thought of becoming reconciled to her totally abhorrent. This, of course, is an unfortunate condition from which we can offer him no relief. Like countless others he must suffer for his indiscretion in having married a woman of a younger generation, whose views, habits and general outlook upon life are not and, in the very nature of things, cannot be his.

I will advise a decree dismissing the counter-claim and awarding the complainant a decree of separate maintenance. If the parties can agree upon an allowance, well and good. If not, let the matter be presented to me according to the usual practice.


author: Gordberger, J.

text:
    Perth Amboy District Court.
    JOSEPH SHAKIN ET AL., PLAINTIFFS, v. MURRAY ABRAMS, DEFENDANTS.
    Decided June 20, 1934.
    For the rule, Charles Blume.

    Fox the Metropolitan Life Insurance Company, opposed, Clifford I. Voorhees.

   Gordberger, J.

On September 18th, 1933, plaintiffs recovered judgment against defendant in the sum of $144.75, thereupon application was made for an order to compel the Metropolitan Life Insurance Company to satisfy said judgment out of moneys which it is alleged it has in its hands as belonging to the said Abrams. Prior to entry of judgment debtor entered into an agreement with the said insurance company as follows:

“May 3d, 1933.
Metropolitan Life Insurance Co.,
1 Madison Avenue, New York, N. Y.
Gentlemen:
In connection with my appointment as yonr agent, I hand you herewith the sum of $250 to be held and disposed of as follows:
Such sum is transferred to and received by you to be held as a cash deposit to protect you against loss by reason of (a) any loans or cash advances made by the company, (b) any deficiency in my accounts as your agent, or (c) any violation of the rules and regulations of the company.
In case of any such deficiency or loss to the company on my account, you are hereby expressly authorized to apply such deposit or so much thereof as may be necessarjr, to reimburse you for the deficiency or loss so incurred, or to reimburse any surety on my bond as your agent.
The said deposit, or the excess thereof over and above any portion applied as above set forth, is to be returned to me at the time of the settlement, of my salary account under the contract appointing me an agent, following final of my agency. I am to receive interest on such deposit, or on any excess not applied as above set forth, at rate determined by the company, but not less than 4% per annum, payable annually from the date hereof; provided that, if such date of deposit is prior to the date of my appointment, interest thereon shall run from such date of appointment.
I understand and agree that my rights in and to said deposit and the return thereof or any part thereof, and to interest thereon, as above set forth, is personal to me and not subject to transfer or assignment.
Yours truly,
Murray L. Arrams, Agent.
May 23d, 1933.
District Yew Brunswick, Y. J.
Debit 9, Date of Appointment 5/8/33.”

The plaintiff’s contention is that it was incumbent upon the garnishee company, as soon as a levy was made, to discharge the (agent) debtor, audit his accounts, and to pay the plaintiff’s judgment out of moneys it may ascertain (after accounting), it has remaining in its hands, and to return the balance, if any, to agent.

The garnishee, while it acknowledges it has moneys on hand which may at some future time belong to debtor, does not admit the debt within the meaning of the statute, making it subject to garnishment within the perview of section 9 of the supplement. Pamph. L. 1915, p. 183, 184; Barrett Co. v. United Building and Construction Co., 5 N. J. Mis. R. 87; 135 Atl. Rep. 477.

Courts are not established to make or sever contracts that the parties choose to make between themselves. Funds that debtor could not recover from garnishee cannot be reached by process of garnishment, there being no fraud. American Trust Savings Bank, v. O’Barr, 67 So. Rep. 794; Walton v. Hookan, 112 Ga. 814; 38 S. E. Rep. 105; Miller v. Swift, 138 Ky. 408; 128 S. W. Rep. 312.

The agreement in question evidences a trust relationship and not that of debtor and creditor. 28 Corp. Jur. 245, &c.; Carl v. Grand Union Co., 105 Pa. Sup. Ct. 371.

And where funds as here are transferred for the payment of specific claims or as security for a definite purpose, there is an appropriation or pledge that the said funds be used for such specific purpose; places them beyond the grasp of the creditor or pledgor. The plaintiff stands in the same shoes as the debtor and any defense good against the latter would enure to the garnishee. Netter Bros. v. Stoeckle, 56 (Pa.), Atl. Rep. 604, 605; Brown v. Brewery Co. (Pa.), 40 Atl. Rep. 60.

The agreement under consideration is a continuing one, and can be severed only by the parties themselves, and until then, there is nothing due the debtor. It is the general rule that the right to recover against the garnishee depends upon the subsisting rights between the debtor and garnishee, and the service of a summons (or rule to show cause) in garnishment does not change or interrupt the contractual relationship existing between the garnishee and defendant. Furthermore the plaintiff cannot compel the garnishee to terminate or perform his contract with the principal debtor otherwise than in the manner provided by the contract. 28 Corp. Jur. 245, 246; First National Bank v. Lofland (Del.), 143 Atl. Rep. 407; Lovejoy v. Hartford, 11 Fed. Rep. 63; L. R. A. 1916 A. D. 365 (note).

In view of the foregoing, I do not think a case for a summary order has been made.


author: Pee Cueiam.

text:
    STATE OF NEW JERSEY, DEFENDANT IN ERROR, v. LEWIS DEL DUCA, PLAINTIFF IN ERROR.
    Submitted October term, 1933
    Decided July 12, 1934.
    Before Beogan, Chief Justice, and Justices Teeitcitaed and Hehee.
    For the defendant in error, William A. W. Grier.

   Pee Cueiam.

The writs of error herein bring up the judgments given upon three indictments charging, inter alia, that on April 29th, 1932, plaintiff in error and Lena G-atz and Prank Mucci “by night willfully and maliciously did break and enter” the garages of Prank Dalbow, Nelson Emmons and William H. Harris, 3d, respectively, with intent to steal the goods and chattels therein contained. There was a joint trial of the three indictments, by consent, and plaintiff in error was convicted of each of the offenses so charged. The entire record of the proceedings had upon the trial was, under section 136 of the Criminal Procedure act (2 Comp. Stat., p. 1863), returned with the bill of exceptions. Error is assigned on the bill of exceptions, and, in addition, there is a specification of causes for reversal, based upon the entire record, pursuant to section 131)' of the Criminal Procedure act.

The cause was submitted on briefs, but the brief presented on behalf of plaintiff in error is not signed by a counselor-at-law, and therefore has not been considered, in accordance with rule 161 of this court.

We have, however, considered the assignments of error and the causes for reversal specified, and have reached the conclusion that they are all devoid of merit. The principal point made is that the verdict is contrary to the weight of the evidence, but this is clearly not the case. We do not deem it necessary to discuss the evidence. Suffice it to say, that a consideration of the proofs leads the mind irresistibly to the conclusion of the guilt of plaintiff in error of the several offenses of which he was convicted. Assuming, without deciding, that there was error in any of the trial rulings and instructions complained of, a reversal would not be justified. Plaintiff in error did not thereby suffer manifest wrong ■or injury.

Judgment affirmed, with costs.


text:
    RAYMOND BARVIER, RELATOR, v. JOSEPH A. PRESTON, RESPONDENT.
    Submitted June 22, 1934
    Decided July 12, 1934.
    Before Justices Teenchabd, Hetiee and Pebskie.
    Por the relator, Levitan <& Levitan.

   Pee Cubiam.

There was presented to us informally on June 22d, 1934, two affidavits entitled as above, averring in substance that .at a meeting of the board of directors of the trust company of which the respondent was president and the relator had been and still claimed to be a director, the president refused to recognize the relator as a director on the ground that he was not then a director, and apparently after some sort of an investigation in the presence of the relator; and that thereafter the relator was excluded from the meeting by the order of the respondent.

Apparently the relator has been refused a writ of mandamus by a justice of this court and he has also resorted to the Court of Chancery for relief with what result' we are not definitely informed.

We are now asked for a writ of mandamus apparently to run against the relator alone. No notice whatsoever has been given of this application. No information is given us as to what, if any, formal action was taken by the board of directors or stockholders of the trust company affecting relator’s rights.

In these circumstances we are unwilling to move in this matter to any extent without affording the respondent and the trust company and its board of directors an opportunity to be heard.

Wé express no opinion as to whether mandamus is the proper remedy. If the relator desires to pursue the matter he may serve notice as the circumstances require and certainly upon the respondent and the trust company (with copies of affidavits upon which he relies) of such application as he desires to make at the opening of the next term of this court.


author: Gkosman, A. M.

text:
    Ethel Broeder, Knapp, complainant, v. Julius Knapp, defendant.
    [Decided July 7th, 1934.]

      Mr. Freem,an Woodbridge, for the complainant.
    Unopposed.
   Gkosman, A. M.

Complainant sues for separate maintenance under section 26 of our Divorce act and also to restrain the defendant from prosecuting a suit for divorce in the state of Morelos, in the republic of Mexico. The parties were married on the 27th day of October, 1929, at the city of Elizabeth, in this state. They took up their domicile in the borough of Highland Park, Middlesex county, in this state, and continued to reside there until the 14th day of October, 1932, when the defendant deserted and went to Hew York, where he engaged in the plumbing business. The complainant has continued to reside in this state. Subsequent to his desertion the complainant caused the defendant’s arrest on a charge of nonsupport and lie was ordered to pay her the sum of $4 per week by our Middlesex county court of quarter sessions, and in addition thereto, was placed on probation for the term of five years. He continued to pay the sum ordered until December 19th, 1933.

In November, 1933, the complainant was served with what purports to be process in a suit for divorce instituted by the defendant against her in the state of Morelos, Mexico. She thereupon filed her bill in this cause. No service has been effected upon the defendant within this state but an order was made herein on the 19th day of February,. 1934, requiring the defendant to appear, plead, answer or demur to the complainant’s bill of complaint on or before the 20th day of April, 1934. This order was served upon the defendant personally in the State of New York. He has failed to appear or defend. The complainant has abandoned her prayer for separate maintenance conceding that personal service not having been obtained upon the defendant within this state, such relief cannot be afforded her. She prays, however, for a decree restraining the defendant from prosecuting his Mexican suit. I think she is entitled to this relief.

The parties having established a bona fide domicile within this state, this court has jurisdiction both of the defendant and of the marital res. The Maxican action instituted by the defendant is seemingly a mail-order proposition. It is common knowledge that Mexican divorces may be obtained by mail even where neither of the parties have ever set foot on Mexican soil. Such suits are palpable frauds and decrees rendered thereunder are worthless.

Even though process was not personally served upon the defendant within this state, I think this court has jurisdiction to grant the relief prayed for under the order of February 19th, 1934, which was served upon the defendant personally in the State of New York and required him to appear and answer or otherwise plead to the complainant’s bill on or before the 20th day of April then next. Such orders are authorized by sections 13 and 14 of our Chancery act (1 Comp. Stat. 1910 p. 415), and section 13 as amended by P. L. 1912 p. 224 (Cum. Supp. Comp. Stat. § 33-13). I think this case comes squarely within the doctrine of Kempson v. Kempson, 58 N. J. Eq. 94; 43 Atl. Rep. 97; affirmed, 63 N. J. Eq. 783; 52 Atl. Rep. 360, 625.

I will advise a decree restraining the defendant from further prosecuting his suit in Mexico. If a decree has been entered therein, I will advise a decree declaring such foreign decree fraudulent and of no effect.


text:
    PETER W. SKLADZIEN, PROSECUTOR, v. BOARD OF EDUCATION OF THE CITY OF BAYONNE AND STATE BOARD OF EDUCATION, DEFENDANTS.
    Submitted January term, 1934
    Decided July 10, 1934.
    Before Brogan, Chief Justice, and Justices Trenchard and Hefier.
    For the prosecutor, Ghares Rubenstein.

    For the defendants, Alfred Brenner.

   Per Curiam.

The writ of certiorari allowed in this case brings up for review a resolution of the board of education of the city of Bayonne terminating the services of the prosecutor, Dr. Peter Skladzien,. as medical inspector in the schools of that city. The record in the ease shows that the prosecutor was, on August 3d, 1931, by resolution of the board of education, reappointed medical inspector for a term of three years. He had been in the service of the board prior thereto in a like capacity for a five-year term, the date of the former appointment being June 3d, 1926.

Certain rules and regulations, concerning the affairs of school administration, had been in effect since 1931, upon which, in part, the prosecutor relies for his reinstatement to office. Among them we find the following:

“91. The chief medical inspector and medical inspectors shall be appointed in the first instance for a term of one year and thereafter in case of reappointment for a term of three years in the discretion of the board * *

The board of education, for the year 1932, adopted the same rules as the preceding board, which included rule 91, supra, and the 1933 board of education did likewise. This rule (91) is of importance in this case and remained among the regulations, word for word, as above stated, at the time of the adoption of the resolution, here challenged. It was amended on April 6th, 1933, so as to fix the term of medical inspectors for one year instead of three. However, on March 16th, 1933, the resolution here under consideration, was adopted wdrich terminated the services of the prosecutor as medical inspector. It will be observed that the prosecutor served under this board, i. e., the 1933 board of education, from February 1st, 1933, until March 16th, 1933.

The prosecutor appealed to the commissioner of education for a reversal of the action of the board, but he upheld the validity of the resolution. A further appeal was taken to the state board of education which affirmed the decision of the commissioner of education.

Three reasons are here assigned by the prosecutor for a reversal of the resolution in question, the chief of which is that the resolution illegally terminated the three-year appointment of the prosecutor as medical inspector. In support of this point, it is argued that the board of education, for the year 1931, was within its rights in appointing the prosecutor for a three-year term by virtue of the provisions of section 229 of the School law, which may be found under chapter 84 of the laws of 1931. Pamph. L. 1931, p. 143. That section provides as follows:

“229. Every board of education shall employ a competent physician to be known as the medical inspector, and may also employ a nurse, and fix their salaries and terms of office. Every board of education shall adopt rules for the government of the medical inspector and nurse, which rules shall be submitted to the state board of education for approval.”

The position of the prosecutor is perfectly plain. He says, first, that the statute (section 229, supra) authorized an appointment for a fixed term; second, the rules (section 91, supra) permitted a reappointment for three years, and third, that he was reappointed for a three-year term and, consequently, could not be molested (except for some delinquency, which is not the case here) until his term expired, relying on Bradshaw v. Camden, 39 N. J. L. 416, and Bohan v. Weehawken, 65 Id. 490; 47 Atl. Rep. 446. We do not think that the doctrine laid down in these and other cases of like import is controlling or even pertinent here. The former case concerned the make-up of the fire department of the city of Camden, the latter the creation of a police department of the township of Weehawken. In these cases the legislation in question granted the right of municipal control to the governing body. In the very nature of things this is rather essential with regard to the important duties devolving on police and fire departments.

Now the statute here under consideration (section 229, supra) provides that “every board of education shall employ * * * medical inspector, etc. * * *” which, as we see it, must be construed as giving such power of appointment to each board of education.

A new board comes into being each year since, as here, the term of three members expires each year and, whether new persons are appointed to complete the board or the personnel remains the same, in fact and in law it is a new board of education. Such board is not therefore a continuous body for that reason. It has all of the indicia of non-continuous bodies. It organizes in February of each year, adopts rules for its own administration each year, is completed each year by the selection of three new members in the place and stead of those three whose terms have expired. Cf. State v. Rogers, 56 N. J. L. 480; 28 Atl. Rep. 726; Gulnac v. Bergen, 74 N. J. L. 543; 64 Atl. Rep. 998; Greene v. Freeholders of Hudson County, 44 N. J. L. 388.

Nor has the prosecutor any rights, contractual in nature, that have been violated. The post is an office and not a position. It is a place in the governmental system expressly created by law and to which certain public duties attach. Stewart v. Freeholders of Hudson County, 61 N. J. L. 118; 38 Atl. Rep. 842; Fredericks v. Board of Health, 82 N. J. L. 200; 82 Atl. Rep. 528, and the acceptance of a public office does not create a contract between the parties. City of Hoboken v. Gear, 21 N. J. L. 265; Kenny v. Hudspeth, 59 Id. 320; 36 Atl. Rep. 662.

If the prosecutor’s contention is sound, he might have, under the rules of a particular board, been appointed for a term of thirty years instead of three. This, too, would be defensible if such was the legislative intent in enacting the statute (section 229, supra), but we do not so construe it. Generally, unless the term be fixed by statute, presently in force, or by ordinance or rule under legislative sanction, by direct delegation of that right of municipal control to the appointing power, the term of an appointee to office cannot be longer than co-terminous with that of the appointing power. Obviously it may be shorter.

The statute (section 229, supra) granted the board the right of administration only, with its essential incidents, which do not possess the quality of legislation. Mathis v. Rose, 64 N. J. L. 45; 44 Atl. Rep. 1135; Greene v. Freeholders, supra.

It was not the legislative intent, as we see it, to pre-empt a succeeding board of education from exercising its prerogative of appointing a medical inspector of its own selection.

The further point is made that because the prosecutor rendered services up to March 16th, and that during that interval, from February 1st, the board received his reports and paid him a salary, amounts to a ratification, is without merit. The commissioner of education held that that was not a ratification of the employment of the prosecutor and we agree with that finding.

As to the last point that the prosecutor was dismissed without charges being preferred against him, holding the view that we do, that his employment might be terminated by the new board, no charges were necessary.

The decision of the state board of education will be affirmed and the writ dismissed, with costs.


text:
    STATE OF NEW JERSEY, EX REL. WALTER SETH KIPNIS, RELATOR, v. WILLIAM A. DITTMAR, RESPONDENT.
    Submitted January term, 1934
    Decided July 12, 1934.
    Before Brogan, Chief Justice, and Justices Trenchard and Heher.
    For the relator, Waddington <& Mathews.

    For the respondent, John Milton.

   Per Curiam.

By an information in the nature of a writ of quo warranto, filed, apparently, under section 4 of the Quo Warranto act (3 Comp. Stat., p. 4212), relator challenges respondent’s title to the office termed “chiropractic member” of the state board of medical examiners.

The facts are stipulated. On April 19th, 1930, relator, who was then, and still is, a duly licensed practitioner of the art or science of chiropractic, was appointed by the governor the “chiropractic member” of the board of medical examiners, under the provisions of section 12 of chapter 136 of the laws of 1921 (Pamph. L. 1921, pp. 263, 269), which directed the governor to appoint, within thirty days after the passage of the act, an “additional member” of the board of medical examiners, established by an act to regulate the practice of medicine and surgery, and to license physicians and surgeons, approved May 22d, 1894. 3 Comp. Stat., p. 3329. The qualifications of such member were prescribed by the act, i. e., “a reputable chiropractor practicing chiropractic in this state, and * * * a graduate of a legally incorporated school or college of chiropractic requiring personal attendance.” It was further provided that the member so appointed “shall represent the school of practice to which he belongs in said board.” The term was fixed at three years, “and until his successor is appointed and qualified.”

On April 19th, 1933, the “Chiropractors of blew Jersey,” an unincorporated association of this state, submitted to Governor Moore “three names nominated by the said chiropractors of blew Jersey for the position of chiropractic member of the said board of medical examiners, to succeed” relator. The governor ignored the nominations so made, and appointed respondent, who was not nominated by any society or association, to succeed relator. It is stipulated that respondent is a duly licensed chiropractic practitioner, and possesses the qualifications required by the act of 1921, hereinbefore referred to, and that the association which made the nominations to the governor is the only society or organization of chiropractors having the status prescribed by chapter 269 of the laws of 1917 (Pamph. L. 1917, p. 884), and that its nominees wore then, and are now, in all respects qualified for appointment to the office in question.

The sole question at issue is the applicability of chapter 269 of the laws of 1917. Eelator contends that the act applies ; that the governor’s appointment, which concededly was not in compliance with its provisions, was invalid, and that, consequently, he is entitled to the office under the holdover provision referred to.

We incline to the view that the governor, in the making of the appointment in question, was not bound by the provisions of the act of 1917. The act of 1921, which created the office, prescribes the qualifications. The member so appointed shall be a reputable chiropractor practicing in this state, and a graduate of a legally incorporated school or college of chiropractic requiring personal attendance, but the field of choice is not otherwise limited. We discern no legislative purpose, expressed or implied, to impose upon the governor the limitation prescribed by the act of 1917. On the contrary, it may very well be that, for considerations that appealed to it, the legislature was disinclined to so restrict the governor in filling this particular office. In any event, the act of 1921, being a later expression of the legislature, will prevail. And the legislative body, having undertaken to lay down the qualifications, will be presumed, in the absence of a clearly expressed contrary purpose, to have intended that the restrictions therein imposed, and only those, shall limit the governor in the exercise of the power of appointment therein conferred.

Judgment for respondent.


author: Caffbey, S. C. C.

text:
    RALPH J. M. BULLOWA, PLAINTIFF, v. THERMOID COMPANY, A CORPORATION OF THE STATE OF DELAWARE, DEFENDANT.
    Decided July 10, 1934.
    For the plaintiff, Chandless, Weller & Selser.

    For the defendant, Kalzenbach, Gildea <& Budner.

   Caffbey, S. C. C.

This is a motion to strike the complaint filed by the plaintiff to recover $2,000 from the defendant corporation, based upon the default in the payment of two bonds bearing numbers M-2339 and M-2483. These bonds were issued on February 1st, 1929, as part of a series known as five-year six per cent, sinking fund gold notes. The total authorized issue was $3,000,000. All of the bonds in this series were issued under indenture of trust dated February 1st, 1929, -whereby the National Bank of Commerce of New York was designated as trustee. According to the allegations in the complaint, the Guaranty Trust Company of New York was later substituted as trustee under the indenture. From the affidavit of II. J. Koch, treasurer of the defendant corporation, there appears to be now issued and outstanding, notes in the aggregate of $2,847,500, which amount includes notes amounting to $163,500 repurchased by the Thermoid Company and held in its treasury.

There seems to be no question but that the bonds held by the plaintiff have not been honored according to their tenor and that there is now duo and owing to him the sum of $2,000 with accrued interest.

There is no difficulty in ascertaining the plaintiff’s right. The difficulty, as I see it, lies in the enforcement of it at this time, due to the language in the indenture of trust, which forms part of the contractual obligation. The bonds and the trust agreement are inseparable. It will serve no useful purpose to set out in full, either the bond itself or the indenture of trust—reference to certain paragraphs in both will clarify the issue. In the seventh paragraph of the bond (.Exhibit “A” attached to the complaint) this language is used, “in case an event of default as defined in the indenture shall occur, the principal of the notes may become or be declared due and payable in the manner and with the effect provided in the indenture.”

The indenture, in part attached to the affidavit of H. J. Koch, submitted by the defendant, and beginning at article 6, enumerates events which constitute default, among which is the non-payment of principal or premium when due, either by maturity, or call, or declaration, or otherwise. In the same article, the following language is used: “then and in any case the trustee, by notice in writing delivered to the corporation, may, and upon written request of the holders of twenty-five per cent, in principal amount of the notes at the time outstanding, shall declare the principal of notes, if not already duo and payable, to be forthwith due and payable, and upon such declaration the same shall become and may be immediately due and payable, anything in this indenture or in the notes contined to the contrary notwithstanding.”

Section 5 provides as follows:

“All rights of action under this indenture, or under any of the notes or coupons, may be enforced by the trustee without the possession of any of the notes or coupons, or the production thereof on any trial or other proceeding relative thereto, but the trustee may in its discretion require the deposit of such notes and coupons with it, as a condition precedent to the enforcement of any such rights of action; and any such suit or proceeding instituted by the trustees shall be brought in its name as trustee, and any recovery of judgment shall be for the ratable benefit of the holders of said notes and coupons. In any such event the warrants shall continue enforceable by the respective owners thereof and nothing in this article 6 and no act of the trustee under this article shall impair or affect the rights of the warrant holders.”

In section 8 the following language is used:

“In order to promote and protect the equal and ratable rights of every holder of the notes and to avoid multiplicity of suits, all the notes shall be subject to the condition that all rights of action thereon, or in respect thereof, or on or in respect of the coupons thereto appertaining, are vested exclusively in the trustee, and that no holder of any of the notes or coupons appertaining thereto shall have any right to institute any action, at law or in equity, upon the notes or any of the appurtenant coupons, or growing out of any provision thereof, or of this indenture, or for the enforcement of this indenture, unless and until the trustee shall refuse or neglect to institute proper proceedings by way of remedy within a reasonable time after request of the holders of twenty-five per cent, in principal amount of notes then outstanding, filed with the trustee, with an offer of satisfactory indemnity; and any recovery in any action or proceeding instituted by the holder of any of the notes or appurtenant coupons shall be for the equal pro rata benefit of all outstanding notes similarly situated, and, for the protection and enforcement of this section 8, each and every noteholder and the trustee shall he entitled to such relief as can be given either at law or in equity; provided, however, that nothing herein or elsewhere in this indenture or in the notes or in the coupons shall affect or impair the obligation of the company, which is unconditional and absolute, to pay at the date of maturity therein expressed the principal of the notes and the interest thereon to the respective holders of the notes and coupons at the time and place in the notes and coupons expressed, or affect or impair the right of action, which is also absolute and unconditional, of such holders to enforce such payment or shall affect or impair the right of the owner of any warrant to enforce the provisions thereof as provided by the terms of section 10 of article 2 hereof.”

The plaintiff contends that the language used in section 8, particularly this, that, “provided, however, that nothing herein or elsewhere in this indenture or in the notes or in the coupons shall affect or impair the obligation of the company, which is unconditional and absolute, to pay at the date of maturity therein expressed the principal of the notes and the interest thereon to the respective holders of the notes and coupons at the time and place in the notes and coupons expressed, or affect or impair the right of action, which is also absolute and unconditional, of such holders to enforce such payment” gives him the right of action with respect to his two bonds, irrespective of the other sections in the indenture and with much insistence claims that the language in this excerpt nullifies all other provisions of the indenture, limiting individual action when a default occurs. However, the acceptance of this theory would destroy the purpose of the indenture which, by its language, anticipated the likelihood of legal proceedings by an individual bondholder and to guard against the multiciplity of suit, there was incorporated in section 8 of the indenture (above quoted) a provision vesting exclusively in the trustee, the right of action, and further a clause providing that “no holder of any of the notes or coupons appertaining thereto shall have any right to institute any action at law or in equity.”

There is nothing in the moving papers to indicate that any of these conditions were met by the plaintiff. The affidavit submitted in behalf of the plaintiff, signed by John Trank, Jr. (a representative of the attorneys for the plaintiff), sets forth that on May 31st, 1934, a request was made of TL J. Koch, treasurer of the defendant corporation, for a list of the bondholders of the defendant corporation and their addresses. In passing it might be noted that the summons and complaint in this cause were issued on April 19th, 1934, and served upon the defendant on April 25th, 1934.

To permit the plaintiff to prevail at this time, would be destructive of the plan carefully thought out with a view to the safeguarding of the investors in general. Of course, an arbitrary or capricious attitude on the part of the trustee might warrant the intervention of the court, but if this came to pass, it would not be a subject for consideration by this tribunal.

The motion to strike the complaint will be granted and an order in conformity with this memorandum may be submitted.


author: John 0. Wegner, Deputy Qommissioner,

text:
    New Jersey Department of Labor, Workmen’s Compensation Bureau.
    SELINA ROBINSON, PETITIONER, v. GERALD B. JACKSON, RESPONDENT.
    Decided July 25, 1934.
    For the petitioner, Milton G. Kitay and Nathan Rabinowitz.

    For the respondent, Herbert G. Dolan.

   This petition is filed to recover compensation because of injuries sustained by reason of an accident which occurred August 2oth, 1933.

Petitioner, while employed as a housemaid by respondent at his premises and while about to hang clothes on the line in accordance with her duties, slipped on the lawn in the yard, suffering a fracture of the left foot.

The petition was filed April 3d, 1934, and it is conceded at this time that petitioner is suffering from a permanent disability of the foot although the several physicians called by the respective parties differed in their estimates thereof. In respondent’s answer, he contends that he is not liable, alleging that:

“Kespondent denies that any disability either temporary or permanent has resulted from petitioner’s alleged accident. The respondent further contends that if this petitioner had received medical attention, which she refused, she would have been cured and relieved of all injuries which she alleges to have suffered as a result of her alleged accident.”

Kespondent had almost immediate knowledge of the accident on August 25th, 1933. Outside of purchasing some liniment and informing his insurance agent who had issued a policy of workmen’s compensation insurance to him, he took no further action. On September 20th, 1933, respondent’s insurance company had its Dr. Keating examine petitioner and he placed the injured foot in a brace and ordered X-rays taken which were returned on September 23d, 1933. Dr. Keating then discontinued further treatment at the request of a representative of the insurance company. On September 27th, 1933, the insurance company addressed a letter to petitioner offering her medical services and a representative of the company visited her several times for that purpose, and on November 27th, 1933, the said insurance company again wrote to petitioner referring to their offer of medical services and her alleged refusal to accept the same.

Section 20 (e) of the Workmen’s Compensation act (chapter 93, laws of 1919, page 209), provides as follows:

“Whenever it shall appear that an employer is being prejudiced by virtue of the refusal of an injured employe to accept proffered medical and surgical treatment deemed necessary by the physician selected by the employer, or his failure or neglect to comply with the instructions of the physician in charge of the case, such employer is hereby authorized to file a petition with the workmen’s compensation bureau, which is hereby empowered to order proper medical and surgical treatment at the expense of the employer and in event of refusal or neglect by the employe to comply with this order the bureau shall make such modification in the award contained in the schedule as the evidence produced shall j ustify.”

This statute is mandatory and not self executing. It was the duty of the respondent or his insurance carrier, upon the refusal of petitioner to accept medical treatment, to comply strictly with the provisions of the act and file a petition with the workmen’s compensation bureau in accordance therewith. The bureau under this provision is empowered to order proper medical and surgical treatment at the expense of the employer and in the event of refusal or neglect by the employe to comply with such order of the bureau, the bureau may make such modification in the award contained in the schedule of awards as the evidence produced shall justify by reason of such refusal.

Here neither the employe nor the carrier filed such a petition. Under date of November 21st, 1933, the insurance carrier did prepare and forward to the compensation bureau at Paterson form Ho. 8, entitled “Application for Informal Hearing.” On December 1st, 1933, an informal hearing was scheduled before Acting Eeferee Prank Mobius, at which time petitioner did not appear. The only notation contained in the informal hearing file reads as follows :

“The Glens Palls Insurance Company requested this hearing as petitioner refuses to accept medical attention.”

The insurance company was represented at this hearing but petitioner was not.

I find from a reading of the statute that it was the duty of the employer or his insurance carrier to file a petition in accordance with section 20 (e) of the act, if in fact petitioner refused to accept proper 'medical and surgical treatment. Petitioner denies any such refusal on her part. If this was done, an order could have been issued for necessary and proper medical care and if then refused by the petitioner, the bureau would have been warranted in suspending further consideration of petitioner’s claim and providing for payments thereof. It could also have given consideration to any increase in the permanency of the condition due to petitioner’s refusal of treatment.

There was divergent testimony as to whether petitioner’s present condition can be corrected by open or closed operation and whether a local or general anaesthetic is necessary in order to perform said operation. That question is not at this time necessary to a decision and this for the reason that no petition had been filed in accordance with the statute. If such a petition had been filed that question could have been determined in those proceedings.

I find therefore:

1. That petitioner sustained a fracture of the left foot as a result of an accident arising out of and in the course of her employment, of which accident the respondent had actual knowledge.

2. As a result of the said fracture, petitioner suffered temporary disability as well as a permanent disability.

3. That petitioner’s alleged refusal to accept medical treatment does not preclude her from recovering therefor, assuming that that had been proven, for it appears uncontradicted that respondent did not file the petition provided for under section 20 (e) of the Workmen’s Compensation act as hereinabove mentioned.

John 0. Wegner, Deputy Qommissioner,