author: Kocher, Advisory Master.

text:
    Essex County Orphans Court.
    In the matter of the estate of Harriet J. Cooper, deceased.
    [Filed January 5th, 1924.]
    Wills — Legacies—Extensive Consideration of General and Specific Legacies — Instant Legacy Held Specific — Inheritance Tax Payable Out of Estate which Contains Specific Legacies and General Legacies in which the Estate is not Sufficient to Pay All.
    On petition for decree of distribution.

      Mr. Philip Gooclell, proctor for petitioner.

      Messrs. Ames & Crane, proctors for Stone House Plains Reformed Church.
   Kocher, Advisory Master.

Harriet J. Cooper died leaving a last will and testament, dated May 15th, 1919, by the second clause of which she provided as follows:

“Second: I give and bequeath to the Stone House Plains Reformed Church of Brookdale, Essex County, New Jersey, five (5) bonds of the denomination of One Thousand Dollars each of the Newark Gas Company; but if I should not own said bonds at the time of my death, I give and‘ bequeath to said Church the sum of Five Thousand, dollars.”

The testatrix, both on May 15th, 1919, and at the time of her death, owned more than five bonds answering the description set forth in this clause of her will, but her estate is insufficient to pay all the legacies in full, and the problem presented for solution is whether this legacy is general or specific.

The cardinal principle underlying the construction of wills is, of course, that the testator’s intention, as expressed in the will, shall be carried out, unless prevented or controlled by some statute or rule of law. The intention expressed in this clause of testatrix’s will seems to be clear and unmistakable. The meaning of the clause is exactly the same as though she had said: I give and bequeath five bonds of the corporation named if I own said bonds at the time of by death; but if I should not own them, then I give and bequeath $5,000 in money; or, if I own five bonds of. the corporation named at the time of my death, I give and bequeath said bonds to the legatee named; but if I should not own them, then I give and bequeath to it $5,000. The testatrix’s obvious intention was that the legatee should receive from her estate five bonds of the description given, upon condition that she owned said bonds at the time of her death; as the condition was fulfilled, the remainder of the clause, directing what should happen if the condition were not fulfilled, may’ be disregarded. Or, to put it in another way, the legacy may be regarded as being in the alternative, bequeathing specifically five bonds in case the testatrix owned said bonds at the time of her death, or bequeathing generally $5,000 in case she did not. Moreover, the use of the word “said” in the will is significant; it is, in this connection, practically equivalent to the use of the word “my,” which, it has been held in the cases to be hereinafter considered, is sufficient to make the legacy specific. To use the words of Norris v. Thomson, 16 N. J. Eq. 542, “it seems to me that the language used yvas a clear reference to the particular bonds which the testatrix possessed when she executed her will, and it shorva she meant that the legacy should be discharged by the executor handing over to the legatee bonds which he would find in her strong box after her death.” The legacy is a specific one unless there is some rule laid down by our courts — there is no statute — constraining me to hold to the contrary.

An exhaustive examination of the reported cases in this state dealing with the question of yvhether a legacy of stocks, bonds or other securities is general or specific, does not dis.close any case with facts sufficiently similar to the case under consideration to make it controlling.

In Norris v. Thomson, 16 N. J. Eq. 218; reversed, 16 N. J. Eq. 542, the will, after bequeathing the household effects, &c., to testator’s wife, devised and bequeathed “all the rest and residue of my real and personal estate” to his executors,' “in trust” “to give” to various named legatees specified numbers of shares of stock or bonds of certain named corporations, and then disposed of “the residue of my estate.” Testator, at the time of the making of the will and at the time of his death, owned more than the number of shares of stock and bonds of the corporations named so bequeathed.

The court of chancery held the bequests of the stocks and bonds to be general, on the ground that the mere possession by the testator at the time of making his will of a larger amount of stocks or bonds than are bequeathed, would not make a bequest specific when it is given generally of stocks or of stocks in particular funds without further explanation.

The court of errors and appeals, however, after reviewing, the provisions of the will and the circumstances surroundings its execution, held the legacies to be specific, and said (at p. 549):

“The intention of a testator upon the subject of specific legacies, as in every question on the construction of wills, is the principal object to be ascertained, and it is therefore necessary that the intention be either expressed in reference to the thing bequeathed, or otherwise clearly appear from the will, to constitute a legacy specific.
“This is not a technical arbitrary rule, to be answered only by the use of particular words and expressions, but is an embodiment of the general principles, by‘which the character of legacies should be tested and determined, each will resting, for correct construction, upon the language employed, and established surrounding, significant circumstances, if such exist.
“It seems to me that the language used in creating and directing the trusts was a clear reference to the stocks and particular bonds which Mr. Thomson possessed when he executed his will, and it shows he meant that the legacies should be discharged by his trustees handing over to the respective legatees stocks and bonds which they would find in his strong box after his death.
“If, however, the language of the will does not of itself come up to the rule laid down in the books, the circumstances by which the testator was surrounded when the will was drawn, and the whole scope and texture of the instrument, taken in connection with the particular clauses of bequest, clearly indicate the intention for which the appellants and complainant contend.”

Eor concurring opinion, see 15 N. J. Eq. 493.

In Blair v. Scribner, 65 N. J. Eq. 498; reversed, 67 N. J. Eq. 583, the testator, after leaving specified securities to his executor in trust for his son, added: “If I should not leave at my decease all of the bonds or stocks mentioned in my said will and given to my executor in trust, he shall not he required to supply said stocks and bonds, but only to take such as I may leave.” The testator, although owning sufficient of these securities at the time of making the will to satisfy the legacy, died possessed of less than the amount of the particular securities bequeathed. The court of chancery held that the additional clause showed that the testator intended, so far as these securities were concerned, to give a specified portion of particular stock owned by him at the time of his will, and that the legacy was therefore specific; but the court of errors and appeals, reversing the decree below, held that the legacy was general, and that the only effect of the additional clause was “that his executor, instead of pursuing the usual course of supplying the securities named by him in the trust bequeathed, in case they were not found in liis estate at his death, should take such other bonds and stocks as he might leave in order to supply the deficiency.” The reason for this rather strained construction adopted by the appellate court is clearly indicated in that portion of its opinion where the court says that “it is to be borne in mind that the testator was providing for his own flesh and blood. His expressed purpose was to benefit them to the extent disclosed by the provision of the trust clauses, and that purpose must prevail unless the testator has shown by clear language his intention to make its taking effect turn upon the contingency of his property remaining unchanged until his death.”

In Savings, &c., Co. v. Crouch, 93 N. J. Eq. 311, affirmed on the opinion below, 118 Atl. Rep. 927, there were bequests of specified numbers of shares of specified stocks, without more, except that it appeared that the testator, at the time of making the will, owned the exact number of shares bequeathed of some of the.stocks. The legacies were held to be general; and the court said, quoting 3 Pom. Eq. Jur. 1130, note, that “where the bequest is merely descriptive generally of the stocks, shares, &c., given, the legacy is not specific, although the testator may at the time own stock answering the description, and even may own the exact number of shares given, e. g., as where he gives so much stock, or so many shares, or the like, not using additional words pointing to any identical shares, as finy5 stock, or the stock which T now possess,” &e., citing as authorities Norris v. Thomson and Blair v. Scribner, supra, and Mecum v. Stoughton and In re United States Fidelity and Guaranty Co., infra.

The ease of Mecum v. Stoughton, 81 N. J. Eq. 319, is similar in its facts to Savings, &c., Co. v. Crouch, and applies the same rule quoted in that case.

In re United States Fidelity and Guaranty Co., 90 N. J. Eq. 254, holds a bequest of “one-half of the balance of moneys, bonds and investments that I may die possessed of” .general.

In Kearns v. Kearns, 77 N. J. Eq. 453, a-legacy bequeathing “all my stock, right, title and interest in S. & P. Co.” was held to be specific.

In Allen v. Allen, 76 N. J. Eq. 245, a bequest of “the sum of $17,000, to be paid to her out of the securities which I now' hold, instead of cash,” was held to be specific.

In Pennsylvania, Co. for Insurance, &c., v. Riley, 89 N. J. Eq. 252, the words, “I direct that out of the proceeds of the sale of mv house or other property $1,000 shall be set apart and held in trust,” were held to make the legacy a general one.

In Moore v. Moore, 30 N. J. Eq. 554, a bequest of “ten shares of my E. C. N. B. stock” was held to be specific.

In Trenton, &c., Co. v. Cook, 88 N. J. Eq. 516, a bequest to the testator’s executors in trust of “the sum of $10,000, this fund to be composed of mortgages, bonds and securities in my hands at the time of my decease, which may be selected by them,” was held to be specific.

In Aitken v. Sharp, 98 N. J. Eq. 336, testatrix bequeathed “ten Middlesex Water Company bonds, of the par value of $1,000 each.” The court said (at p. 339) :

“The testatrix never owned water bonds of that name, but, for some years prior to the making of the will and continuously down to the date of her death, owned ten Piseataway Water Company bonds of the par value of $1,000 each. There is nothing in the language of the will which indicates her intention to bequeath bonds which she then owned, but, on the contrary, she gave such bonds generally. Such language makes the legacy general and not specific.”

Clearly, none of these cases are controlling or will prevent the carrying out of what seems to be the testatrix’s intention in this case.

The situation in the case now under consideration has, however, arisen in other jurisdictions.

In Langdon v. Astor, 3 Duer (N. Y.) 477, the court, in considering a bequest similar to the one here under consideration; said (at p. 550) :

“A legacy may be specific for one purpose or in one aspect and general in another; specific as entitled to immediate satisfaction, or not liable to abatement, and yet general, as not liable to ademption; a doctrine recognized and established in numerous cases in which the legacies have been held to be general, and applicable in all, where a legacy, general in its terms, is charged upon, or payable out of a specified fund. In these cases, if the fund exist at the death of the testator, the legacy attaches directly upon it, and as specific is entitled to precedency in payment and is not liable to abatement; if the fund does not exist the legacy, as general, is a’ charge upon and must be satisfied from the general personal estate. Thus, in Fontaine v. Tyler, 9 Price 94, where the legacy was held to be specific because the stock remained in the hands of the testator at the time of his death, the chief baron expressly said, that had the stocks been previously disposed of he would have had no difficulty in holding that the legaej^ was pecuniary, an equivalent term to general.”

This ease was reversed, but on other grounds, 16 N. Y. 9.

The case of Fontaine v. Tyler, 9 Price 94; 147 Eng. Rep. 32, cited in Langdon v. Astor, supra, is practically identical in its facts with the case now under consideration.

In Townsend v. Martin, 7 Hare 471; 68 Eng. Rep. 194, the language of the will was: “I give and bequeath the sum of 5,000 pounds sterling Bank Consolidated annuities and I direct that, if at my death I shall not have sufficient stock standing in my name to answer the several legacies herein-before given by me as in that stock that my executors and trustees do, out of my residuary estate, purchase sufficient to malee up the deficiency.” At the death of the testatrix there was more than sufficient consols belonging to her to satisfy the legacy; but the estate was insufficient to pay all the legacies in full. It was held that the legacy was specific and would be paid in full.

To the same effect is the case of Queen’s College v. Sutton, 12 Sim. 521; 59 Eng. Rep. 1233.

In Roberts v. Pocock, 4 Ves. Jun. 150; 31. Eng. Rep. 77, on the other hand, the testator directed a legacy to be paid out of certain monejr owing to him on a bond, “but in case I shall receive the said monies, or alter the said security, such receipt or alteration shall not be deemed or construed a revocation of any or either of the said legacies; but the same shall iii such case be paid by and out of some other' part of my estate and effects.” The bond in question proved uncollectable, and it was held that the legacy should be paid out of the residuary estate.

So in Raymond v. Brodbelt, 5 Ves. Jun. 199; 31 Eng. Rep. 545, the testator bequeathed a legacy of certain investments; and in case the sums he had already invested should not be sufficient for the purposes of the will he authorized his executors to invest a sufficient part of the estate in the same kind of securities to answer such purposes. The court said:

“This is not a specific legacy; and it is not correct to say a legacy is either general or specific; for there is a general legacy not attended with the qualifications of a specific legacy, yet with an appropriation upon part of the property. That was the ground I went upon in Roberts v. Pocock, supra, and that is the case here.”

The case under consideration appears to come directly within this line of authorities; the securities existed at the death of the testatrix, and the legacy attached directly upon them, and, as specific, is entitled to precedence in payment, and is not liable to abatement; and this construction will carry out the expressed intention of the testatrix.

The general rule cited by the executor in his brief, that in order that legacies may not fail, and that the testator’s will may be carried out, and because a specific legacy is subject to ademption, the courts are adverse to construing legacies to he specific and will not do so unless it be clear that the testator so intended, has not been overlooked; but this, after all, amounts to no more than saying that the testator’s intention is, if possible, to prevail. Thus, in Norris v. Thomson, supra, the language used (at p. 221) is that “to guard against an ademption or extinguishment of the legacy, contrary to the intention of the testator, the general leaning of the court is against making the legacy specific;” but, as has been seen, the court of errors and appeals in that case did hold the legacy to be specific on the ground , that “the language used was a clear reference to the particular bonds which testator possessecl when he executed his will;” and it would appear that the language used by the testatrix in the case now under consideration contains a clearer reference to the particular bonds owned by her when she executed her will than did that used in Norris v. Thompson.

As was said in In re Foote, 22 Pick. (Mass.) 299, 302, “there is no doubt the law favors general rather than specific legacies, and the courts lean towards the former and against the latter. But neither the preference of the law, nor the leaning of the courts, extends to cases where the intention of the testator can be satisfactorily ascertained. That is the ¡solar star to which both, look for a guide.”

I will advise a decree directing the executor to deliver to the legatee five of the bonds in question, together with the income accrued thereon since the death of the testatrix.

The executor also seeks the court’s directions as to his duties in respect to the twenty-eighth clause of the will, which is as follows:

“I direct my executor hereinafter named to pay the legacies above mentioned in full to the several legatees without any deduction for any collateral inheritance tax which may be levied thereon by the State of New Jersey, but to pay such tax out of the residue of my estate.”

As has already been stated, the estate is not sufficient to pay the legacies in full, so that there is no residue.

There appears to be no reported case in this state, or in this country, dealing with a similar situation; practically the same state of facts has, .however, been adjudicated upon in an English case.

In Farrer v. St. Catharine’s College, L. R. 16 Eng. Cas. 19, the testator provided that all the legacies given by him were given free of duty. It appeared that the general personal estate of the testator was insufficient for the payment of the general legacies in full, and the question was raised as to whether any legacy duty was payable out of that estate on the specific legacies. The court (Lord Selbourne, L. C.) said (at p. 25) that a gift of a legacy duty on a specific or general legacy amounted to a general legacy for the benefit of the specific legatee in the one case, and of the general legatee in the other; and in the event of the general estate being insufficient the gifts of legacy duty must abate along with other general legacies. The value of the specific legacies must, therefore, be ascertained and the amounts of legacy duty payable thereon calculated; and such amounts must be treated as general legacies, and aba.te accordingly.

The rule laid down by this case appears to be sound. I will therefore advise that the decree direct the executor to ascertain the values of the specific legacies; to calculate the transfer tax on the values so ascertained as well as on the amounts of the general legacies; to consider the respective amounts or tax so determined as general legacies bequeathed to the respective legatees, specific and general, in addition to the legacies bequeathed to them by the will; to add the total amount of the additional general legacies so determined to the total amount of general legacies bequeathed by the will, and on the basis of such total sum of general legacies to determine the proportion in which the general legacies must abate. This proportion of the amount of the transfer tax due on each general legacy bequeathed by the will should then he deducted and retained by the executor from the amount due such general legatee, and this proportion of the amount of the transfer tax due on each specific legacy bequeathed by the will should be paid to the executor by such specific legatee.

Eor example, suppose there is a specific legacy worth $1,000, and two general legacies of $2,000 and $1,000 each; that all the legacies are taxable at the rate of five per cent., and that, after the payment of the specific legacy, the executor has in his hands a balance of $2,400. The total amount of tax will then he $200. Adding this amount to the amount of the general legacies miakes a total of $3,200. The proportion by which the general legacies must abate will, therefore, lie computed by deducting from $3,200 the total amount of general legacies including the tax, the sum of $3,400, the assets available for' the payment of the general legacies, and dividing the result by the said amount of $3,300, thus making this proportion one-fourth. The specific legatee; on receiving his legacy, must therefore pay to the executor one-fourth of five per cent, .of $1,000, or $13.50. The general legacies having, as has been seen, each abated oné-fourth, the' executor will pay to the general legatees, respectively, three-fourths of $3,000 minus one-fourth of five per cent, of $3,000, or $1,475, and. three-fourths of $1,000 minus one-fourth of five per cent, of $1,000, or $747.50. The executor will then have left in his hand's $3,400, plus $13.50 minus $3,313.50, or $300, the amount to be paid for tax.


source: Caselaw Access Project

author: Mr. Jess.

license: Public Domain

text:
    State of New Jersey, State Board of Taxes and Assessment.
    In the matter of the application of the Paterson Savings Institution for the reduction of the tax assessment for the year 1923 on property situate in the city of Pater-, son, county of Passaic and State of New Jersey.
    [Filed December 18th, 1923.]
    Taxation — Savings Banks — To Become Entitled to Exemption Under Act of 1918, the Institution must be Mutual in Nature Without a Capital Stock — Profits for the Benefit of Depositors not of Stockholders.

      Mr. John M. Harding, for the petitioner.

      Mr. Edward F. Merrey, for the respondent.

      Mr. James J. Murner, pro se.

   Mr. Jess.

The Paterson Savings Institution appeals from the action of the Passaic county board of taxation with respect to the asscsment of the institution’s real and personal property located in the city of Paterson. The petition sets forth the following facts: The property of the petitioner was assessed bv the taxing officials of the city of Paterson as of October 1st, 1922, as follows:

Land ................................... $358,400

Buildings ............................... 185,000

Personal i>roperty, consisting of furniture . . 15,000

Total............................. $358,400

After the tax rate for the city of Paterson had been fixed at $3.09, and the table of aggregates had been transmitted to the county collector, the county tax board made large increases in the valuations of taxable property in some of the wards of Paterson and substantial decreases in other wards. Among the assessments increased was that of the personal property of the petitioner, which was raised from $15,000 to $2,759,000. The petitioner appealed to the county board from the valuation thus increased. At about the same time James J. Murner, who is secretary of the Passaic county board of taxation, filed with the board, as a resident and taxpayer, an appeal praying that the assessment on petitioner’s property should be increased to the following amounts:

Land ................................... $500,000

Buildings ..............................i 200,000

Personal ..........................:..... 3,590,909 '

After hearing evidence and argument on these cross-appeals, the county board rendered three judgments. The first dismissed the appeal of the Paterson Savings Institution. The second judgment, on the appeal of Murner, placed the assessment on the savings institution’s personal property at $2,759,400. The third judgment revised the assessment on real property, as follows:

Land ................................... $331,500

Improvements ........................... 203,700

Total.............................. $535,200

The petitioner alleges that it is aggrieved by the foregoing judgments for the following reasons: First, because the county board was without power to make the changes in the .assessments at the time the changes were made; second, because the petitioner, in accordance with the provisions of its charter, was liable only for a tax of one per centum upon its paid-up capital, payable annually to the state in lieu of all state, county and municipal taxation, which tax has been paid; third, because its personal property, not including exempt bonds, amounting to $14,982,970.19, was not taxable, inasmuch as petitioner’s debts claimed to be deductible from the valuation of its personal property amounted to $21,621,243.97; fourth, because, if taxable as a banking association the petitioner is taxable only upon the shares of its capital stock under the provisions of the Bank Stock Tax act of 1918; fifth, because the assessment is illegal, excesses and discriminatory.

Upon the hearing of this appeal evidence was taken and argument hear on behalf of the petitioner the city of Paterson and the county board. Counsel for the petitioner and the city, at the conclusion of the argument, concurred in the view that the petitioner probably was subject to taxation under the provisions of the statute commonly known as' the Bank Stock Tax act. P. L. 1918 p. 997. It .was then agreed by all parties that, if the board should be of the opinion that the petitioner lawfully was taxable under that act, the board’s decision on that issue would be accepted as dispositive of all the questions raised by the appeal, except the question as to the- value of the real property of the petitioner.

The Bank Stock Tax act was approved March 31st, 1914 (chapter 90, laws of 1914), and amended by an act approved March 24th, 1918 (chapter 265, laws of 1918). The supreme court declared the statute to be constitutional in the ease of Commercial Trust Co. of New Jersey v. Hudson County Board of Taxation, 86 N. J. Law 424. One of the grounds upon which the constitutionally of the act was assailed was that the legislature bad created a class for the purpose of taxation and had not included all the members of the class, since it excluded private bankers and savings banks. Speaking for the court, Mr. Justice Swayze held that this exclusion was warranted by the fact that savings banks are quite different from ordinary banks of discount and deposit. “They are,” he said, “engaged in a different business, not primarily for the making of money, but rather for the purpose of enabling people of small means to * * * earn a moderate rate of interest. So far as they are without capital stock, the same reasons that justify the omission of private bankers from the act justify the omission of savings banks.”

Mr. Justice Swayze stated he had looked into the facts and found but one savings bank with capital stock — the Paterson Savings Institution. He points out, however, that while under its original charter (P. L. 1869 p. 1265) there was nothing to prevent its stockholders from making a profit, as any bank of deposit and discount might, that charter expired by its own limitation in 1889. “It may have been extended,” he continues, “under the act of 1888 (Gen. Stat. p. 3018 pl. 73, 74), but, if so, it must necessarily have been subject to the provisions of the general act of 1876 (Gen. Stat. p. 3000), since otherwise the act for the extension of the charter would amount to a special act conferring corporate powers, and be forbidden by the constitutional amendment of 1875. Article 4, section 7, paragraph 11. In 1888, the -general act (Gen. Stat. p. 3006 § 32) required that depositors should receive, as nearly as might be, all profits of the corporation after deducting necessary expenses and reserving a surplus for the security of depositors. Similar provisions are to be’ found in the act of 1906. Comp. Stat. p. 4705 pl. 40. These statutory provisions, as well as the strict limitation of the character of investments to be made by savings banks, emphasize the fact that they are not commercial institutions like other banks and trust companies. I think they form a class by themselves, and may properly be excluded from an act taxing commercial'banks and trust companies.” In affirming the judgment below (87 N. J. Law 179) the court of errors and appeals reached the same result with respect to the effect of the existence of the Paterson Savings Institution upon the classification of the bank-taxing statute, but by different reasoning. Mr. Justice Garrison, who spoke for the court, adverted to the express provision in the general act under which the corporate existence of the Paterson institution was extended that:

“ ‘Every such saving bank shall be subject to such general laws on the subject of taxation as shall apply to other savings banks.’ P. L. 1888 p. 264.
"If this be so,” the opinion concludes, "the present class-' ideation is unaffected by the fact that this savings institution lias shares of stock, whereas, if it be not so, such institution falls within the classification of the statute.”

While neither of the opinions which we have cited clearly indicates the course to be followed in disposing of the case under review, both are helpful in solving the problem presented. In neither case was the Paterson Savings Institution before the court. The facts as to the scope of its business or the method' of its operation were not disclosed. The only reason for reference to it in the supreme court opinion was that its existence raised a serious question as to the validity of the classification of the Bank Stock Tax act. .To sustain that classification the court deemed it essential to demonstrate that the Paterson Savings Institution could not lie distinguished from savings institutions as a class.

The court of errors and appeals, when it came to pass upon the same question, did not find it necessary to adopt the views of the lower court, but rested its decision upon different ground as already has been shown.

Two deductions are warranted by these opinions. The first is that if it had been established as a fact before the supreme court that the Paterson Savings Institution was authorized to, and actually does, issue capital stock, and that the holders of the stock receive dividends thereon from the earnings of the institution in the same way-that shareholders participate in the profits of commercial hanks, the court would have held that its exclusion from the bank-taxing classification rendered the act invalid.

The second deduction is that any savings institution having shares of stock upon which it is permitted to pay dividends may fall within the class contemplated by the Bank Stock Tax act, even though that acts excludes "sayings banks” from its operation.

This brings us to a consideration of the actual status of the petitioner.

The Paterson Savings Institution was incorporated under the provisions of a special act of the legislature. P. L. 1869 p. 1265. Its period of existence was limited to twenty years. It was authorized to issue capital stock to the amount .of $100,000, divided into shares having a par value of $100 each. It is empowered to regulate the rate of interest allowed to depositors so that they shall receive a just proportion of the profits upon the business of the corporation. The only restriction upon the declaration of dividends upon the stock of the corporation is that such dividends shall not be paid out of capital, nor at any time when losses equal or exceed gains. It also is given broader loaning powers than are enjoyed by savings banks organized under the general act.

The general act concerning savings banks was passed in 1876. P. L. 1876 p. 341; Rev. 1877 p. 1058; P. L. 1906 p. 348. By a supplement to this act passed in 1888 (P. L. 1888 p. 264) it was provided that any savings bank or savings institution theretofore or thereafter created under any law of this state, at any time before the expiration of its charter, or of the period named in its certificate of organization, might extend its existence for any period not exceeding fifty years. The supplement further provided that “every such savings bank shall be subject to such general laws on the subject of taxation as shall apply to other savings banks.” In conformity with the requirement of the constitution as amended in 1875, this act was general in its application, but the history of the legislation indicates that it was intended primariy to permit the Paterson Savings Institution, whose charter was about to expire, to extend the period of its corporate existence. Whatever may have been the genesis of the statute, the fact is that the Paterson Savings Institution availed itself of the privilege which the act conferred and continues by virtue thereof to exercise its corporate powers. It is further to be noted that this corporation has not availed itself of the privilege provided in the Savings Bank act (Rev. 1877 p. 1068 § 52), that any savings institution then existing might, if it desired, come under and be subject to the provisions of that statute.

The Paterson Savings Institution, therefore, in its origin and in its operation, is sui generis. Its corporate powers are derived, not from the general statutory authority for the incorporation of savings hanks, but from the act of 18G9, under which it was organized., and, apparently, under the supplement, of 1888 under which its corporate existence was continued.

The Savings Bauk act expressly provides that it shall not apply to any savings hank organized under a special charter as a stock company prior to March 8th, 1811, except as to certain sections. An examination of these excepted sections shows that their application to the Paterson Savings Institution in nowise impairs the fundamental powers which differentiate it from all other savings banks. We need not discuss these differences in detail, but simply point out that in'two determinative characteristics the Paterson Savings Institution is, ip. its operation, distinguishable from all other savings ' institutions. The first is that it is a corporation having a capital stock; the second is that the shareholders as such participate in the gains and profits of the business. In these respects the institution has no similarity to other savings banks which are essentially and by force of law assoeiatons in which the depositors are the sole participants in the net profits; it is precisely similar to ordinary banks of deposit and discount whose net earnings inure to the stockholders.

We are therefore of the opinion that the Paterson Savings Institution is within the class of banking associations made subject to a special scheme of taxation by the Bank Stock Tax act of 1918, notwithstanding the provision of section 11 of that act. This section reads as follows: “Savings banks incorporated as such under the laws of this state relative thereto, as distinguished from other banks, banking associations and trust companies, shall be exempt from taxation under this act.” Had the object cf the legislative draftsman been expressly to exclude the Paterson Savings Institution from the purview of the exempting provision, words more apt to- express the purpose could hardly have been chosen. This institution was not incorporated under the laws of the state relative to savings banks, and it is not, as has been shown, in important particulars, distinguished from other banks, banking associations and trust companies.

The result of these conclusions is that the shares of the petitioner should be assessed in accordance with the provisions of the Bank Stock Tax act. As to the real property of the petitoner we .are of the opinion that the judgment of the county board with respect thereto should be affirmed. If and when the new valuation is duly made the assessments upon the petitioner’s personal property under review should be canceled, and a judgment entered substituting therefor an assessment levied in accordance with the views herein expressed.


author: Elannagan, J.

text:
    Essex County Orphans Court.
    In the matter of the probate of the last will and testament of Ernest C. Klipstein, deceased.
    Wills — Revocation—Statute Requires that Revocations Shall be Executed in Same Manner as Wills are Executed — In instant Case this was not Done.

      Mr. Charles B. Clancy, Mr. Julian J.' Gregory (on the brief), proctors for proponent.
   Elannagan, J.

Ernest G. Klipstein died a resident of Essex county, on the 29th of April, 1923, and his alleged will having been presented to the surrogate for probate has been certified by him to this, court on the ground that doubts appear on the face of the instrument.

The instrument in question contains an attestation clause which recites facts which, if true, establish the proper execution of the will. Both the witnesses are dead but their signatures have been proved, and it is presumed that the recitals in the attestation clause are true. Mundy v. Mundy, 15 N. J. Eq. 290; In re Gahagan, 82 N. J. Eq. 601. Upon this presumption the will is entitled to probate unless some valid objection obtains.

There are several objections which present themselves and which raise the doubts which have induced the certification by the surrogate. The first of these objections is that at the top of.the first page, written in ink, there appears the following in handwriting:

“Oct. 7/1913,

This is no longer valid.

E. C. Klipstein,

E. H. Klipstein — C. L. Nicholson,”

The writing E. O. Klipstein (the testator), E. H. Klipstein and C. L. Nicholson, has been proved to be the genuine signatures of these persons, but Mr. Nicholson is dead, and only E. C. Klipstein, who is the son of the deceased, remains. He testifies that he has no> recollection whatever concerning the matter except that he signed his name. The question arises as to whether, under these circumstances, the writing is ^ effective as a revocation, which it was evidently designed to be.

The statute requires that revocations shall be executed in the same manner as wills are required to be executed. 4 Comp. Stat. p. 5870. Was this alleged revocation so executed? There is no^ proof that it ivas, and in the absence of any -attestation clause no presumption arises that it was. Vernon v. Vernon, 69 N. J. Eq. 759, 760, 761; In re Van Hadlyn, 83 N. J. Eq. 290; Swain v. Edmunds, 53 N. J. Eq. 142, 143. This handwriting as a revocation must therefore fail.

The second objection to the probate of the will is that a line is drawn through the testator’s signature subscribed to the will, and under the signature and in the testator’s handwriting are the following words:

“Cancelled 7/1912,. and replaced by mj^ will as expressed in my letter of Jan. 13th. 1913, herewith enclosed.

E. C. Klipstein.”

On the back of the cover, also in deceased’s handwriting, the following words appear:

“Cancelled,

October 7/1912,

January 15, 1913,

E. C. Klipstein.”

There was no “letter of January 13th, 1913/’ attempting to dispose of testator’s property found with his papers, but there was such a letter found therewith dated January 15th, 1913, and it is patently to this letter that deceased refers.

The dates themselves and the testimony satisfy me that these two handwritings were made substantially at the same time and were made at a later time than the handwriting at the top of the first page. These two handwritings show a purpose on the part of the testator to substitute the disposition of his property provided for in the letter for the disposition provided for in the alleged will. While they were made at a date later than the handwriting at the top of the first page, all three writings must be considered together, and while not simultaneous, I am of opinion they all three are manifestations of a continuous purpose and express a single intention, namely, the intention already indicated, to wit, to supersede the provisions of the will by the provisions of the letter. The situation presented is that of a conditional revocation, sometimes called a “dependent relative revocation.” The letter cannot be effective as a will since it fails to comply with the formalities prescribed by the statute governing the execution of wills, in that it is not witnessed by two witnesses. The conditions failing the revocation must fail. The case falls within the principles enunciated by Judge Martin in Smith v. Runkle, 97 Atl. Rep. 296, and in cases cited in Koch. N. J. Prob. Law 181.

Yvhile the RunMe Case was reversed on the facts by the court of errors and appeals on the branch of the case in which the question of conditional revocation arose (sub. nom. Smith v. Haines, 98 Atl. Rep. 317), st-ill the principles of law applicable to conditional revocations, as stated in the opinion of the lower court, were not questioned either on the appeal in this branch of the case or on the appeals in the other branches, the latter appeals appearing under the names Smith v. Runkle and Smith v. Schorfield, in 98 Atl. Rep. (at pp. 1086, 1087).

Eor these reasons probate will be granted.


author: Church, V. C.

text:
    Sarah Connelly, complainant, v. Alonzo W. Ward, defendant.
    [Decided December 21st, 1923.]
    Specific Performance — Contract for Performance Falling on Sunday Does Not Void Agreement — May be Consummated on Following Day.

      Mr. Thomas M. Kane, for the complainant.

      Mr. Harry Campion, for the defendant.
   Church, V. C.

This is an action for specific performance of an agreement for sale of property. The agreement was in the usual form; the time fixed for the performance thereof was on October 1st, 1922. October 1st, it transpires, fell on a Sunday. Was the agreement of sale void for that reason? I do not think so. It seems to me that the only effect of this would be to continue the completion of the contract to the next legal day. My attention has also been called to the statute which holds that the performance of such a contract is limited to a period of three months after the date fixed for the completion of the contract, and that in this case this time had elapsed before the beginning of the suit.

In my opinion, it was not the intention of this statute to permit an agreement of this nature to be defeated because of the refusal of the prospective vendor to consummate it. The testimony in this case shows that Mr. Collins, representing the complainant, saw Mr. Ward, the prospective vendor, on the 1st of October and asked him if he was willing to complete the contract. Ward informed Mr. Collins that “You can go to hell.” Collins again went to see Ward on the 2d of October and Ward refused to do anything. Collins went to the attorney for Ward several times and was informed that he could not find Ward. He also wrote Mr. Ward two letters. It seems to me that Mrs. Connelly, through her attorney, made every reasonable effort to consummate this contract.

It also appears that on March the 7th, 1923, a lis pendens was filed with the county 'register’s office of Essex county in the case at bar. The suit was started and subpoenas were returnable on March 15th; nevertheless, on the same day, Ward signed a contract with another purchaser. Ward had been served with a subpoena and legally should have known of the lis pendens. Moreover, the second contracts says that the deposit called for by it was to be returned if the contract did not go through, or Ward could not convey the property. However, no deposit was paid by the new purchaser, but the money was held by the attorney for Ward.

Under these circumstances, I am of the opinion that the complainant made every proper effort to consummate the first agreement and that the first agreement is still binding upon the parties, and I will advise a decree for specific performance on the first contract.


author: Per Curiam.

text:
    THOMAS A. McDONALD, RELATOR, v. THE BOARD OF CHOSEN FREEHOLDERS OF THE COUNTY OF HUDSON, DEFENDANT.
    Decided January 10, 1924.
    Mandamus* — Inclusion in County Budget of Provision for Emergency and Discretionary Appropriations. .
    , On demurrer to return by defendant to an alternative writ of mandamus.

    For the relator-demurrant, McCarter & English.

    For the defendant, John J. Fallon.

   Per Curiam.

The facts of this case are fundamentally the same as were before the court, between the same parties, in McDonald v. Board of Chosen Freeholders of the County of Hudson, 1 N. J. Adv. R. 525, with the single difference that in the case referred to the ground on which the peremptory writ of mandamus was allowed was based upon the theory that an emergency had arisen under section 25 of chapter 175, Pamph. L. 1919, p. 378, entitled “An act concerning municipal and county finances, approved March 28th, 1917, as amended by an act approved March 4th, 1918,” and that thereunder the board of freeholders was obligated to make provisions for the payment of salaries, &c., forthwith — that its duty in that respect was mandatory, but on appeal to the Court of Errors and Appeals, reported in 1 N. J. Adv. Rep. (No. 41) 1426, that tribunal rejected the theory of the Supreme Court that the duty imposed on the board of freeholders was a mandatory one and held that it was discretionary, and the opinion concludes (at p. 1430) as follows: “We conclude, therefore, that the action contemplated by section 25 is discretionary and not mandatory, and no other lawful method of raising the needed funds short of their inclusion in the next budget being pointed out, the award of the peremptory writ in the form stated was erroneous, and the judgment under review must be reversed.”

What the relator now seeks is to direct the board of freeholders to provide in the county budget of 1924, for the fiscal véar beginning January 1st, 1924, salaries and compensation for the relator and those appointed by him from March 28th, 1923, to December 31st, 1923, and as certified to the treasurer of Hudson county, and salaries and compensation for the relator and those appointed by him the sum of $112,200, being the amount of moneys estimated by the relator as being by him deemed necessary to carry on the work of the office of the superintendent of elections for Hudson county for the fiscal year commencing January 1st, 1924.

An alternative writ was allowed to which the defendant made a return, which as amended admits the truth of the principal and essential satements as set forth in the writ, accompanied by the averment that chapter 9 of the laws of 1923 is claimed by defendant to be unconstitutional. . It admits that it has refused to order the treasurer of the county of Hudson to make payment of salary and compensation to the relator and his employes referred to in the writ, and that it has refused to include in the annual “county budget” for the fiscal year beginning January 1st, 1924, the sums of money claimed by the relator as being necessary to carry on the work of the office of superintendent of elections of the county of Hudson, and that the reason of its refusal is the claim that the legislative act under which the relator and his said employes are appointed and said to-be acting is unconstitutional.

The defendant further avers that it is not authorized or required by law to appropriate moneys in the “county budget” for the fiscal year beginning January 1st, 1924, for the payment of salary or compensation claimed by the relator in the writ for services alleged to have been performed during the fiscal year beginning January 1, 1923.

The return further sets forth that the writ is misdirected, in that it should have been directed to the county treasurer of Hudson county.

And, lastly, that (Pamph. L. 1923) chapter 9, as amended,is unconstitutional.

To this return the relator filed a demurrer.

1. Por the defendant it is contended that the writ is misdirected, in that it is directed to the board.of freeholders of Hudson county, whereas it should have been directed to the "county treasurer.”

There is no .merit in this contention. The writ of mandamus must be directed to the person or corporation who is to execute it by doing the act commaxLded. Freeholders of Mercer v. Pennsylvania Railroad Co., 41 N. J. L. 252.

The duty of making up the county budget devolved upon the board of freeholders, therefore the writ was properly directed to it.

2. It is further contended that for the moneys due the relator and his appointees for sendees performed during the year 1923 no duty rests upon the board of freeholders to include such sums of money in the county budget of 1924, forasmuch, if the relator and his appointees have a valid claim against the defendant, they are obligated to commence an action at law therefor, and if a judgment be entered in such action against the county of Hudson, such judgment may be satisfied by moneys derived through the issuance of an “emergency bond” or “emergency note” by the defendant under the authority of section 25 of said Budget act, as amended. Pamph. L. 1919, ch. 178.

A careful reading of section 25 will.make clear that the situation of the present case does not fall within any of the conditions set out in section 25 requiring the circulatory proceeding contended for by defendant, especially as it is admitted that the services were performed and the amounts due as claimed by the relator, and payment is resisted upon the ground that the act on which the claims are founded is unconstitutional.

3. The further contention is, that the act which gives rise to the claims made by the relator is unconstitutional.

We have nothing further to add to what was said by us on the subject in McDonald v. Board of Freeholders of Hudson County, 1 N. J. Adv. R. 525.

This disposes of all the questions properly raised and argued under the issue presented by the demurrer to the return.

If it becomes necessary to mould the pleadings in order that an appeal may be taken to the Court of Errors and Appeals, such leave is granted.

° The demurrer is sustained and judgment is given for the relator, with costs, and-a peremptory writ of mandamus is allowed.


author: Pee Cueiam.

text:
    NEWTON G. GABRIEL, PLAINTIFF-RESPONDENT. v. MASON ART, INCORPORATED, DEFENDANT-APPELLANT.
    Submitted June term, 1923
    Decided January 10, 1924.
    Service of Process — On Secretary of State in Case of Corporations Having no Agent or Principal Officer — Such Service Good in Cases of District Courts’ Actions.
    On appeal from the First Judicial District Court of Hudson count}’.
    Before Justices Kalisch and Katzenbach.
    For the .appellant, Insley, Vreeland & Decker (Hamilton Gross, of counsel).
    For the appellee, William F. Burke.

   Pee Cueiam.

The state of the case, agreed upon between counsel of the respective .litigants, presents the following facts: “A judgment by default was entered on the 27th day of September, 1922. An application to reopen the same was presented and an order for the reopening of such judgment signed on the 3d day of October, 1922, a copy of which affidavit and order are attached hereto and made part thereof.”

The affidavit is made by the president of the appellant company and in substance sets out that he was informed a judgment was entered against the appellant company; that he was in charge of the offices of the company in New York City and never received notice of the pending action and that no one else in the employ of the company received any notification to his knowledge of the pending cause, and that if any such communication had been received in the office of the company in New York it would have come to his attention since he had personal charge of the mail in the office.

That in the month of June, 1922, a similar action was commenced in the same court by the plaintiff and that upon this occasion summons was served upon the secretary of state on the ground that there was no registered agent within the state; that the defendant has a good and valid defense to the within action, and that the matter was at one time tried upon its merits, in the Second District Court of Jersey City and dismissed at that time for the reason that the plaintiff herein did not prove any damage upon his claim; “that this affidavit is being made for the -purpose of reopening the judgment entered heretofore by default as aforesaid.”

The order made on the affidavit was as follows: “It is on this 3d day of October, 1922, ordered that judgment hertofore entered in the within stated cause by default be reopened, and the matter placed on the calendar for Thursday, October 12th, 19,22. And it is further ordered that there be reserved to the defendant such motions as may be made in its behalf, regarding service of summons and to the jurisdiction of this honorable court.”

The state of the case continues: “Under the terms of such order the case was placed on the calendar for trial on the 12th day of October, 1922; said day being a legal holiday the matter was placed on the calendar for trial on the 19th day of October. The judge of the court was not present on that day, at two p. m., the time set for trial, and the matter was adjourned to October 26th. The judge notified the parties to the cause that he would not sit on that day, and the matter was again adjourned to November 1st. At the request of the attorney for the plaintiff-appellee the matter was again adjourned to November 8th, at which time the case was tried.

“Upon the opening of the case the attorney for the defendant-appellant moved to dismiss the summons on the ground that the defendant was a corporation and that service was made by reading the summons to Thomas E. Martin, secretary of state, and delivering to him a copy thereof, and that said sendee was bad because the office of the secretary of state is in Trenton, New Jersey, and the limits of the District Court for the First Judicial District of the county of Hudson are the geographical limits of Hudson County, which county does not include the city of Trenton.

“The trial judge overruled the motion of the attorneys for the defendant-appellant on the ground that there was no special appearance entered, and that the attorneys for the defendant-appellant were appearing generally and could not make such a motion.

“The case proceeded to trial and resulted in a judgment in favor of the plaintiff-appellee- and against the defendant-appellant in the sum of $165, together with costs of $12'.0o.

“Exception to the court’s ruling upon the denial of the motion to dismiss the summons was prayed and granted.”

The record shows that there was a trial had upon the merits — two Avitnesses sworn on the part of plaintiff-ap'pellee and two witnesses were swern on the part of the defendant-appellant, one of which Avas the president of the defendant company.

The single question argued and relied on in the brief of appellant’s counsel and as stated therein “relates to the validity of the service of the summons and as to whether the decision of the trial court in refusing to dismiss the summons on the ground that sendee was improper Avas correct.”

The appellant company, as appears by the record, is a domestic corporation. It is practically conceded that at the time of the service of the. summons upon the secretary of state the company’s office was in the city of New York, and that it had no designated agent in this state upon whom summons could be served. The contention is that notwithstanding the situation referred'to the service of the summons upon the secretary-of state was without lawful authority because such sendee could only be properly made at Trenton, in the county of Mercer, and as the District Court’s territorial jurisdiction is limited to the confines of Hudson county, therefore the service was nugatory.

By section 43a of the Corporation act (2 Comp. Stat., p. 1626) process against a corporation in the situation, as was the present appellant company at the time of service, could be properly served upon the secretary of state.

The statute is general in its terms and expressly refers to the service of process against corporations in the condition described by the statute, and, therefore, it seemss to us that it can make no difference what the territorial limits of the jurisdiction of the court may be, so long as it has jurisdiction of the subject-matter in controversy, process issuing out of such court may be served as directed by the statute. To take any other view wonld require us to- read into the statute a provision that it should only apply to process issuing out of the Supreme Court. The territorial jurisdiction of both the Circuit and Common Pleas Courts is limited to the counties in which such courts are. Such a construction would tend to defeat the plain legislative intent.

Wo think, therefore, the process issuing out of the District Court, and served upon secretary of state, was a proper service.

But even upon an assumption that there was no proper service of the summons, nevertheless the fact that the court had jurisdiction of the subject-matter, and the defendant appeared and went to trial upon the merits of the case, constituted a waiver of any jurisdictional defect in the service of the process.

And this wonld be so even though there was a special appearance as to the motion to dismiss for want of jurisdiction by reason of lack of proper service of process.

In McGuiness v. McGuiness, 72 N. J. Eq. 381, Chief Justice Gummere, speaking for the Court of Errors and Appeals (at p. 384), says: “I have no criticism of the rule which declares that a defendant, who in one breath challenges the jurisdiction of the court in a pending suit, and, in the next, asks relief against the plaintiff on the merits in the same litigation, submits himself generally to the jurisdiction. for I can imagine no more potent act of submission by a party defendant in a pending suit than the asking that affirmative judicial action be taken in his behalf for meritorious reasons.” See, also, Laura, v. Puncerelli et al., 91 N. J. L. 38.

In the present case the-defendant company by its president, in his affidavit, which is made a part of the state of the case for the purpose of having the judgment by default opened, based his application not only upon the ground that there was a lack of proper service, but also upon the ground that the defendant had a meritorious defense, and the case was subsequently tried upon its merits.

For the views expressed herein the judgment of the District Court is affirmed, with costs.


author: Eieldtsk, Yice-Obdiyaby.

text:
    In the matter of the appeal from the decree of the Essex county orphans court revoking letters testamentary granted to John Hanretty as co-executor of the estate of Nora Hanretty, &c.
    Executors — Removal of Under Statute of 1921, o. 26S — Evidence Examined and Found Not to Justify Removal.

      Mr. Joseph M. Degnan, proctor for the appellant.

      Mr. J dim Trier, proctor for the respondents.
   Eieldtsk, Yice-Obdiyaby.

Nora Hanretty die'd September 17th, 1922. Her will was admitted to probate September 28th, 1922, and letters testamentary were granted to her two sons John and Owen A. Hanretty, the executors therein named. The will directs the executors to sell the real property, 64-66 Littleton avenue, Newark, and to divide the proceeds among her four sons, John, Joseph, William and Owen.

.V petition was filed in the orphans court April 24th, 1923, by Owen, individually and as executor, and by Joseph and William for the removal of John as executor, and after a hearing a decree was entered May 31st, 1923, reciting that it appeared to the court that said John Hanretty, as such executor, was guilty of all the offences (except embezzlement) mentioned in the statute hereinafter referred to and had thereby hindered and prevented the proper administration of said estate and ordering that the letters testamentary granted to him be revoked and that he be removed as executor.

The authority for such order must be found in chapter 268 of the laws of 1921, so much of which as is applicable, reads as follows:

“If it, shall be made to appear * * * that any executor * * ® has embezzled, wasted or misapplied any part of the estate committed to his custody, or has abused the trust and confidence reposed in him, or if it shall be made to appear * * * that any one of several executors • * * * has failed, neglected or refused to properly perform his duties as such executor * * * or has failed, neglected or refused to join with the other executors * * * in the administration of the estate committed to their care and by such failure, neglect or refusal has hindered or prevented the proper administration or settlement of such estate, the said orphans court may revoke the letters of such executor * * * and remove such executor * * * from office.”

There is no testimony upon which the finding of the orphans court that the executor had wasted or misapplied part of the estate can be based, and the only question to be determined is whether the refusal of the' executor, on or abont April 19th, 1922, to execute with his co-executor a contract for the sale of the Littleton avenue property was an abuse of the trust and confidence reposed in him, or was a failure to properly perform his duties, whereby _ he hindered or prevented the proper administration or settlement of his estate.

Joseph, William and Owen had quarreled with their brother John over some part of the estate the day of their mother’s funeral and-thereafter they were not on speaking terms. Eor several years prior to his mother’s death, John had occupied a floor in the Littleton avenue house as tenant, at $35 per month. Two days after the will was probated the three brothers signed and served a notice on John demanding that he pay rent at the rate of $75 per month, and on October 31st, 1922, they served him with a notice to quit the premises and surrender possession to Owen. On October 1st, 1922, the three brothers went to John’s home, and Owen as their spokesman, told John that the real estate should be sold as soon as possible, and he asked John if he would like to buy the property. John agreed to a sale and expressed his desire to buy. Without further consultation with John, Owen placed a “for sale” sign on the property in December and interviewed prospective purchasers. Nothing further was done with reference to a sale until April 9th, 1923, when Joseph, William and Owen again called on John and informed him that Owen had a purchaser'at $14,000. They asked John if he wanted the property and how much he was willing to pay. John offered $8,000, and the brothers then hid among themselves, John finally raising his bid to $13,000 and saying he would pay no more. Owen asked John whether the latter would sign a contract to sell at $14,000, and John said he would. Without discussing the matter further with John, Owen obtained an offer of $14,500 from one Brady and had Brady give him his check for $500 on account and sign a contract to buy, and with his two other brothers he called on John, April 19th, 1923, and standing'in the hallway of John’s home, demanded that John sign the contract. A discussion of a few minutes followed. John again expressed a desire to bny the property and refused to sign the contract; whereupon the brothers left and two days later swore to the petition for John’s removal as executor.

I do not feel that these facts justified the orphans conrt in placing the stigma of removal on John. The facts do not appear to me to show bad faith, or a lack of fidelity, on John’s part in the performance of his duty as executor. His duties under the will included not only the sale of the property in question, but the disposition and distribution of the balance of the estate. His mother desired that the two executors should administer her estate and she reposed confidence in John and by her will said that he should he one of-her two executors. Her testamentary wish should not be nullified by removing John, thus making Owen sole executor, unless it appears clearly that John was flagrantly derelict in his duties. Owen appears to have assumed sole charge of the sale of the property; to have dealt with various prospective purchasers without consultation with John and to have ignored John’s rights as co-executor. The feeling of hostility between them kept them apart, and the treatment which ail the brothers had accorded John quite naturally did not engender a friendly feeling toward them, or toward the sudden and peremptory demand presented by them that he forthwith sign the Brady contract. He wanted to buy the property, and while a sale to him, without leave of the court or without the consent of the heirs would have been invalid; the heirs had offered and were willing to consent to such sale and so stated at their last interview prior to April 19th, 1923. When they called on him, April 19th, 1923, and demanded that he sign the Brady contract, had-they presented their request in a friendly spirit or shown a willingness to further discuss a sale to him at a sum greater than, or equal to, the Brady offer, or had they thereafter called him to attend a conference with an attorney, or with some third person, as peace maker, their differences might have been adjusted satisfactorily. But they were unwilling, apparently, to give him an opportunity for consideration or reflection, because they instituted proceedings for his removal forthwith. The law gives an executor a reasonable time within which to settle his estate, and I do not think that John's refusal, to accept an offer for and to join with his co-executor in the execution of a contract for the sale of the property within seven months after his appointment as executor, even if such refusal was based upon a desire to purchase the property for himself (when the heirs had expressed their willingness to sell to him), can be said to have been an- abuse of the trust and confidence reposed in him, or to have hindered or prevented the proper administration or settlement of his estate. There is nothing in the evidence to show'the value of the property, except the inference which may be drawn from the fact that $14,500 was the best offer made for it up< to that time and that none of the brothers had offered more than $13,000. Perhaps the property can be sold for a greater sum, and in case the sum offered by Brady cannot be again obtained from him, or from another, it may be that John will be chargeable with the difference between $14,500 and what the property does bring; but that is a matter for future consideration.

A decree will be advised reversing the decree of the orphans court.


author: Minturn, J.

text:
    STATE OF NEW JERSEY, DEFENDANT IN ERROR, v. Thomas McCarthy, PLAINTIFF IN ERROR.
    Argued June term, 1923
    Decided January 11, 1924.
    Evidence — Immoral Nature of Subject-Matter Notwithstanding Trial Judge’s Directions Probably Prejudicial to Defendant and a Venire de Novo Ordered.
    On error to the Atlantic Quarter Sessions for conspiracy to extort money.
    Eor the plaintiff in error, Romulus P. Rimo.

    Eor the state, Herbert R. Voorhees.

    Before Gummere, Chief Justice, and Justices Mint urn and Black.
   The opinion of the court was delivered by

Minturn, J.

The facts are unprintable, and yet after perusing the evidence as a matter of judicial duty, one is Tempted to agree with the philosophy of Terence, “Deteriores onmes sumus UcentiaP Our review of the testimony, as well as of the action of the court in dealing with a trying situation of moral stupefaction, which would agonize the equinimity of a God, leads us to the conclusion that the plaintiff in error was doubtless prejudiced by the court’s intervention; and while the learned court quite properly attempted to correct such a tendency by directing the jury to disregard the testimony so adduced, it must be manifest that to the average juror of the vicinage, breathing as he did here, an atmosphere of revolting moral putridity, nothing short of the possession of the angelic- virtues wonuld suffice to disinfect the normal memory and restore the scales of justice to the palsied hand. We think, therefore, the laudable effort of the learned trial court to cure the diffculty was not sufficient to insure to the defendant the fair and impartial trial to which the law entitles him. Malone’s Crim. Br. 445; State v. Terry, 91 N. J. L. 539; Sprinkle v. Foote, 71 N. C. 306.

The judgment of conviction will therefore be reversed, and a venire de novo will issue.


author: Newman, J.

text:
    Passaic County Circuit Court.
    Sophie Majowicz, by Andra Majowicz, her next friend, and Andra Majowicz, plaintiffs, v. Mary Magda and Lawrence Magda, her husband, defendants.
    [Decided February 9th, 1924.]
    Assault and Battery — By Married Woman Not in Presence of Husband — Liability of Husband as at Common Law Sustained Notwithstanding Reason for the Common Law Rule Alleged to No Longer Exist.
    Action at law.

      Mr. Albert Comstock, for the plaintiffs.

      Messrs. Weinberger & Weinberger, for the defendants.
   Newman, J.

This action is brought against a married woman and her husband to recover damages for an alleged assault and battery committed by such married woman not in the presence of her husband.

The husband moves to strike out the complaint, so far as it relates to him, on the ground that there is no liability on his part for such a tort, and that he is not a proper party defendant.

Roth counsel concede that at the common law he was liable, and a proper party. The plaintiffs maintain that the provision of the common law is still in existence in this state, while the defendant claims that the rule of the common law has been abrogated. Defendant contends that such abrogation has arisen because, first, that the reason for such rule no longer exists, and that therefore the rule does not exist; second, that the statutes of this state emancipating women from many of the disabilities of coverture, both as to their person and property, have operated to extinguish the rule.

Conceding the existence of the rule at common law it must still be effective unless abrogated by one or both courses.

The rule has not been abolished by the act of 1852, more familiarly known as the Married Woman’s act, nor by any subsequent legislation up to the opinion of the supreme court in the case of State v. Martini, 80 N. J. Law 685, an opinion which was filed November 25th, 1910. See, also, Hildreth v. Camp, 41 N. J. Law 306 (decided February, 1879); O’Brien v. Walsh, 63 N. J. Law 350 (decided June, 1899); Wolff v. Lozier, 68 N. J. Law 103 (decided June, 1902).

Defendant contends that the rule has been abolished if not directly, at least by implication, by “An act respecting actions by or against married women” (P. L. 1912 p. 416), which provides that “a married woman may sue, or be sued, without joining her husband, in any case whatsoever in which he would be an unnecessary party if he were not her husband.” It is true that in some states a similar statute has been held to abrogate the rule, but my attention has not been directed by counsel to a case where such result is arrived at bv what seems to me' to be compelling logic. The title of this act deals not with the liability of a husband, but with a suit against a married woman. Such a result would also necessitate a construction of the optional word “may” to- be the imperative word “must.” Such was not the construction placed upon the word “may” in the act of 1906 (P. L. 1906 p. 525), providing that she “may” maintain an action in her own name for a tort committed against her. It was held optional. Davis v. Public Service Corp., 77 N. J. Law 275. It is true that statute contained a provision that it should not be construed to interfere with or take away any common law right of action, but I do not believe that that provision was a factor in determining the question. I conclude, therefore, that the rule has not been abrogated by statute. See, also, McDonald v. Freeholders of Hudson, 1 N. J. Adv. R. 1426.

Oortnsel for defendant have presented a very able and exhaustive brief, urging that the rule has been abrogated because the reason for it no longer exists as it did at the common law when the married woman had lost her entity. They have cited respectable authority in the form oli opinions of the courts of sister states to that effect, but in the absence of any opinion of any appellate court, or court of superior jurisdiction in this state, I am unwilling to declare that such abrogation has taken place. Such radical change in our fundamental law, if it exists, should come from one of those courts.

The motion will therefore be denied, with costs.


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    IN THE MATTER OF SAMUEL GREENSTONE, AN ATTORNEY-AT-LAW.
    Argued November 9, 1923
    Decided February 19, 1924.
    Attorneys-at-Law — Suspension from Practice — Dispute Between Attorney and Client Regarding Amount of Fees Contingent Upon Amount of Recovery — Evidence not Convincing Beyond Reasonable Doubt of Attorney’s Guilt.
    Before Justices Kalisch and Katzexbach.
    Eor the prosecutor, Marie Townsend, Jr.

    Eor the respondent, Thomas G. Haight, Wilbur H. Heisley and John A. Hartpence.

   Pee Cueiam.

Samuel Greenstone was admitted to the bar of this state at the June term, 1909, of the Supreme Court. In the fall of 1922, William B. McMiehael, a referee of the Workmen’s Compensation Bureau, referred to the ethics committee of the Hudson County Bar Association, a complaint made by one-Stanley Kopaz, against Mr. Greenstone. The complaint was two-fold. It charged that Mr. Greenstone made a contract to represent Kopaz in a claim for personal injuries against the'Central Railroad Company of New Jersey for thirty-three and one-third per cent, of the amount claimed; that Mr. Greenstone collected $2,500 and then retained $1,250, or fifty per cent, of the amount collected for his services. It also charged that out of the fifty per cent, which Mr. Greenstone gave to Kopaz, which, was in the form of a check for $1,250, which Kopaz endorsed and which was then cashed by Mr. Greenstone at the bank upon which it was drawn, $250 was taken by Mr. Greenstone, so that out of the case Mr. Greenstone obtained $1,500 and Kopaz $1,000.

The complaint was investigated by a committee of the Hudson County Bar Association, but no report thereon was made. The chairman of the committee laid the matter before a justice of this court, who directed that the complaint be investigated b}r the bar examiners. The bar examiners investigated the complaint, took testimony, and rendered a report that Mr. Greenstone had been guilty of unprofessional conduct and recommended that he be suspended for two years.

The question now presented is whether or not the report of the bar examiners shall be confirmed.

Of the two charges mentioned above the examiners found that the second charge was not supported by the testimony and should be dismissed. The first charge with reference to the amount Mr. Greenstone’s fee was to be, the board of examiners found was sustained by the testimony. It is upon this charge that the suspension of Mr. Greenstone is recommended.

ICopaz was an employe of the Central Railroad Company. On February 9th, 1922, he was injured while at work at Elizabethport. Ilis injury was caused by being struck by an engine. Tie was taken to the Elizabeth General Hospital, where he remained until February 27th, 1922. He then returned three days a, week to the dispensary of that hospital to have his wounds bandaged. While at the hospital one Frank Warwick, a stranger to him, but an agent to Mr. Greenstone, recommended to Kopaz that he engage Mr. Greenstone for his lawyer. Kopaz had already gone to Mr. Samuel Hollander, a Newark lawyer, and had signed an agreement by which Mr. Hollander was to receive one-half of any sum recovered. Kopaz never returned to Mr. Hollander’s office. He then engaged Mr. Greenstone. Mr. Greenstone says that there was no written contract between Kopaz and himself, but that the oral contract between them was that there was to be an equal division of the amount received and out of his share he was to pay all the expenses. This agreement, Mr. Greenstone says, was made at the first interview' and was contingent upon the case coming within the Federal Workmen’s Liability act. Mr. Greenstone also says that when Kopaz first came to him he was in doubt as to whether Kopaz’s case would be under the New Jersey Workmen’s Compensation act or under the Federal Employers’ Liability^ act. If the former, no contract for services could be made, as the court would fixe the fee. If the latter, then it was a proper subject-matter for'an agreement for a contingent fee.

Mr. Greenstone then interviewed some of the workmen and had an investigation of the accident made by Warwick. He concluded that the case of Kopaz rvas within the Federal Employers’ Liability act. Mr. Greenstone says that there was at no time an agreement in writing made’ with reference to the fee; that Kopaz signed an original and duplicate petition for compensation under the New Jersey Workmen’s Compensation act at the time he first came to his office.

Mr. Greenstone sent Kopaz to a Dr. Kline for treatment, and Dr. Kline charged $300, which Mr. Greenstone paid. Kopaz says that the agreement was two-thirds for him and for him to pay the expenses. Mr. Greenstone says that the agreement was one-half to each and that he, Greenstone, was. to pay the expenses. The difference betwen'the two versions of the contract amounts to $51.66.

The case seems to us to be one of a dispute between an attorney and client. We are not particularly impressed with the testimony of Kopaz. He first made an agreement with Mr. Hollander for an equal division of the amount recovered. His explanation is that when he learned the nature of the agreement -which he had signed he told Mr. Hollander “there was nothing doing.” Mr. Hollander, however, testified that Kopaz said nothing to him to this effect and that he wrote to the Central Railroad Company and received a letter from them stating that they had settled the claim through Mr. Greenstone. Mr. Hollander is a reputable member of the bar. His testimony contradicts that of Kopaz.

The board of bar examiners was unwilling to accept the testimony of Kopaz to the effect that Mr. Greenstone abstracted $250 from the $1,250 paid him as his share. If the testimony1' of Kopaz was not deemed credible in, this matter, can it be given credit as to the division of the amount recovered ?

Kopaz also testified that he had not been to the Foreign Language Bureau in New York prior to having received the money from Mr. Greenstone. There is evidence that in April, 1922, Kopaz had gone to the Foreign Language Bureau and stated his case, and asked that the bureau find out the status of his ease.

It is said that Kopaz is ignorant. He could not be so ignorant as not to know that he had gone to this bureau prior to the receipt of the money from Mr. Greenstone.

At the time that Kopaz was in the office of Greenstone there was present a man by the name of Bedner. Bedner testified that he heard the agreement between Kopaz and Greenstone and that it was a fifty-fifty agreement. Kopaz later went to Bedner and offered him $100 if he would go to the Workmen’s Compensation Bureau and sign a statement that Mr. Greenstone was to charge Kopaz only one-third.

Kopaz also testified that he had not written on a book belonging to Bedner the words “571 Jersey avenue.” He was then asked to write “571 Jersey avenue,” which he did. This writing is a part of the exhibits in the case. We have compared them and are of the opinion that Kopaz did write the words “571 Jersey avenue” on the book of Bedner. This tends to corroborate Bedner’s testimony and to discredit Kopaz.

Upon a review of the entire case we have reached the conclusion that the evidence is not so clear and convincing as to satisfy us beyond a reasonable doubt of the guilt of Mr. Greenstone. We will decline to affirm the report and recommendation of the bar examiners and order that the rule be discharged.


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    DOROTHY M. GOLDWEBER, ASSIGNEE OF MISSOURI PAINT AND VARNISH COMPANY, PLAINTIFF, v. WILLIAM J. CALLAHAN, DEFENDANT.
    Argued November 8, 1923
    Decided February 19, 1924.
    On motion to open judgment entered by default.
    Before Justices Kalisch and Katzenbach.
    For the plaintiff, Joseph M. Goldweber.

    For the defendant, Cole & Cole.

   Pee Cueiam.

This case is before us on a rule to show cause why a judgment entered herein should not be set aside and the defendant permitted to file an answer.

On September 4th, 1923, the defendant was served with a summons and complaint in this suit. On the second page of the complaint there was a notice to the defendant that he must file an affidavit of merits within ten days after service upon him if he desired to make a defense and that if he failed to file an affidavit of merits within ten days judgment by default would be entered against him.

The defendant, in' his deposition, says that he read merely the summons upon the first page, which required an answer to be filed within twenty days, and did not turn to the second page of‘the complaint, which contained the notice with reference to the filing of an affidavit of merits.

The defendant was served in Atlantic City. He went to Philadelphia. His wife, on September 18th, 1923, took the summons and complaint to his attorneys, who had represented him in a previous suit upon the same subject-matter. .

In the meantime judgment had been entered against the defendant for failure to file an affidavit of merits. Thereupon the rule in this ease was granted. Depositions have been taken under the rule.

In order to open a judgment it must be shown that there is a meritorious defense. The testimony of the defendant is that the material, for the price of which the suit was brought, was worthless; that he lost by its purchase $1,800, as it was necessary to reroof the portion o£ the building upon which the material, a liquid roof cement known as “Sealaleak,” was used; that it had been sold to him under a guarantee. The guarantee is produced. It is, however, to the effect that if the roofing' material fails to give perfect satisfaction for ten years the maker, Missouri Paint and Varnish Company, assignor of the claim sued on, will furnish the user, without charge, a sufficient quantity of the same material to keep the surface in waterproof condition until the ton years has expired, provided the original invoice must have been paid in full.

As this suit is for the original invoice, the defendant is not in a position to claim under the guarantee. He puts forward no defense other than that under the guarantee. We have, therefore, reached the conclusion that the defendant presents no meritorious defense.

The defendant contends, secondly, that because the notice relating to the filing of an affidavit of merits was not placed upon the back of the summons and complaint no judgment could be entered against him for failing to file an affidavit of merits. Pule 77 of the Supreme Court rules provides that judgment can he taken within ten days after personal service, if an affidavit of merits be not filed, “provided the notice be endorsed on the complaint and on the copy served that if the defendant intends to make a defense lie must file an affidavit of merits within ton days,” &e.

The contention of the defendant’s counsel is that endorsement means upon the back. While “endorsed” literally means on the hack, we think that this is too restricted an interpretation of this rule. It has been held that where a payee wrote his name under that of the maker, instead of putting it on (he hack of the promissory note, that it was a good endorsement. Haines v. Du Bois, 30 N. J. L. 262. In Musselman v. Wise, 84 Ind. 251, it was held that a complaint upon a contract of sale which referred to a warranty as endorsed thereon could be proven bjr a contract followed by the warranty upon the face of the paper on which the contract was written. The court said that the word “endorsed” as used in the1 contract was not to be understood in its literal sense.

In Vermont there is a provision in the law that the sheriff may deputize any proper person to serve a copy by endorsing thereon a special deputation. It was held that this statute did not require that the deputation should be written on the very fabric of the process itself, but that it could be written on a piece of paper attached to the back of the process by the sheriff. Cowdery v. Johnson, 15 Atl. Rep. 189.

We have reached the conclusion that the defendant has shown no proper defense to this action and also that there is no merit in the contention that the notice with reference to the filing of an affidavit of merits was not endorsed on the complaint.

The rule to show cause will be discharged.


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    THE BRENDONNE CORPORATION, PLAINTIFF, v. THE BART CORPORATION, DEFENDANT.
    Argued November 8, 1923
    Decided February 19, 1924.
    Attachment — Entry of Judgment of Non Pros — Provisions of Practice Act and Consequences of Such Judgment Considered and Motion Denied.
    In attachment. On motion for .leave to enter judgment of non- pros.

    Before Justices Kalisch and Katzenbach.

      For the plaintiff, Charles Jones (Frank E. Bnulner, of counsel).
    For the defendant, Abraham Rudensey (Edwin G. Adams, of counsel).
   Per Curiam.

This is a motion made on behalf of the defendant that a judgment he entered in the above suit. The motion is based upon the ground that the plaintiff has failed for more than a year to file a declaration or complaint.

On May 26th, 1921, the defendant was indebted to the plaintiff in the sum of approximately $1,100. On that day the plaintiff caused a writ of attachment to be issued. The defendant’s personal property in this state was attached. The defendant desired its property released. Instead of giving a bond, under the Attachment act, there was deposited, by agreement with the sheriff of Essex county, in lieu of a bond, the sum of-$1,200. On August 3d, 1921, the plaintiff’s attorney was in the sheriff’s office when he was informed by a, deputy sheriff that the ease had been settled and he was given a cheek for $1,203.50. The $3.50 was the balance of a deposit which had been left with the sheriff as security for the payment of a watchman necessary to be employed to guard the property attached. The $1,200 was the sum deposited by the defendant. The plaintiff’s attorney then paid this sum o£ money, less a fee of $100, to the plaintiff.

On June 20th, 1921, an appearance was entered by the defendant in the attachment suit. On June 30th, 1921, there was filed a notice of appearance by the defendant with service thereof acknowledged by the plaintiff. The notice of appearance was in the usual form, notifying the plaintiff that the defendant was willing to accept service of a complaint in the suit at the time and in the manner provided by statute.

Under the Practice act of 1912 a complaint must be filed and served with the summons, but the attachment provisions of the 1903 Practice act are still in existence and provide (section 89)' that the issuance of a writ of attachment shall be the beginning of an action at law and “the plaintiff shall file his declaration within thirty days after the return day of the writ, and shall rule the defendant to plead thereto, which rule shall be served personally on the defendant, either in or without the state, or shall be served or published, as the court or judge may direct, and in default of a plea a judgment interlocutory may enter against the defendant, and the practice and procedure thereon and generally in the action shall be the same as though the action had been begum by summons, except as otherwise herein provided.”

No complaint was filed by the jdaintiff. It should have been filed by July 15th, 1921, which was within thirty days from the return day of the writ of attachment. The defendant now asks that the judgment of non pros be entered upon this state of facts. Section 100 of the Practice act of 1903 provides as follows: “If a party -would take advantage of the failure of the adverse party to 'file any pleading within the time limited he shall do so before or. a-t the term next after such failure, and if he fail to do so it shall be considered as a waiver of his right and he shall not afterwards have such judgment, unless he shall rule the party to plead.”

In Wolf v. Stillman Co., 79 N. J. L. 284, it -was held that this provision did not alter the rule which requires a declaration to be filed within a- year. It is upon this decision the defendant relies. If, however, a judgment of non pros is entered the plaintiff may ultimately be deprived of the deposit which took the place of the lien upon the defendant’s property attached.

Under the circumstances we think it unfair to grant a in on pros. We will permit the plaintiff to file his complaint or declaration within thirty days from1 the filing of this opinion. The case can then proceed hereafter in its regular course. The defendant corporation has gone into bankruptcy, but the trustee in bankruptcy can be substituted as the defendant.

The motion to enter a judgment of non pros is denied.


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    H. & R. REALTY COMPANY, A CORPORATION, REALTOR, v. JOHN QUIGLEY ET AL., RESPONDENTS.
    Submitted December 3, 1923
    Decided February 19, 1924.
    Zoning Ordinance — Case Controlled by Ignaciunasi v. Risley, 1 N. J. Adv. R. 1023.
    On application for mandamus.

    Before Justices Tren chard and Campbell.
    For the relator, Mendelsohn & Mendelsohn.

    For the respondents, ¡Edward F. Merrey.

   Per Curiam.

This is a rule to show cause why a mandamus should not be awarded.

The relator desires to alter a dwelling which it owns at 100 Carroll street, Paterson, into a'store. It applied to John Quigley, building inspector, for a permit to make the alterations and was refused for the sole reason that the property in question was placed in the residential zone by the Paterson zoning ordinance, and by a provision of that ordinance no store could be erected on the property in question.

We think that this case, so Ear as this court is concerned, is controlled by Ignaciunas v. Risley (Supreme Court), 1 N. J. Adv. R. 1023, and under the authority thereof a peremptory mandamus should issue.

As this proceeding is before us on a rule to show cause, the parties may prepare and mold the pleadings in this case, to the end that the questions presented here may he passed upon by the Court of Errors and Appeals, if the municipal authorities desire to appeal from the result arrived at in this court.


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    G. M. S. HOLDING CORPORATION, RELATOR, v. FRANK HAGUE, JOHN SAUL, A. HARRY MOORE, MICHAEL I. FAGEN AND WILLIAM B. QUINN, BOARD OF COMMISSIONERS OF THE CITY OF JERSEY CITY, AND JOHN SAUL, SUPERINTENDENT OF BUILDINGS OF JERSEY CITY, RESPONDENTS.
    Submitted December 3, 1923
    Decided February 19, 1924.
    Zoning Ordinance — Location of Garage — Not Against Provisions of Ordinance in Question.
    Oil demurrer to an alternative writ of mandamus.

    Before Justices Tríen chard and Campbell.
    Eor the relator, Gross & Gross.

    For the respondents, Thomas J. Brogan.

   Per Curiam.

This case is before the court 'on a demurrer to an alternative writ of mandamus allowed upon an application of the relator to compel the issuance of it of a building permit by the authorities of the city of' Jersey City

The writ alleges, among other things, that the relator is the owner of land in Jersey City; that the city has adopted an ordinance whereby such land was zoned for business purposes ; that the relator applied for a permit to erect a garage thereon in accordance with the building code, which application was refused.

These facts are admitted by the demurrer which sets forth that the city is not bound to grant the permit, because of an ordinance passed March 21st, 1922, pursuant to the act, chapter 229 of laws of 1920.

Looking at the ordinance we fail to perceive any reason why the permit should not be granted. The property seems to be zoned for business purposes and is covered by section 3, and its provisions do not exclude the building in question. Paragraph 8 oí section 3 does not apply to the relator because the garage is not within one hundred and fifty feet of any institution enumerated, nor are any of the institutions enumerated within the intersecting streets on which relator’s property exists.

The demurrer will be overruled and judgment given for the relator, with costs, and peremptory writ of mandamus awarded.


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    PLAZA APARTMENT HOTEL CORPORATION, RELATOR, v. FRANK HAGUE, JOHN SAUL, A. HARRY MOORE, MICHAEL I. FAGEN AND WILLIAM B. QUINN. BOARD OF COMMISSIONERS OF THE CITY OF JERSEY CITY, AND JOHN SAUL, SUPERINTENDENT OF BUILDINGS OF JERSEY CITY, RESPONDENTS.
    Submitted December 3, 1923
    Decided February 19, 1924.
    Zoning Ordinance Case Controlled by ígnaciunas v. Risley, 1 N. J. Adv. R. 1023.
    On demurrer to an alternative writ of mandamus.

    Before Justices Trenchabd and Campbell.
    For the relator, Gross & Gross.

    For the respondents, Thomas J. Brogan.

   Per Curiam.

This case comes before the court on a demurrer to an alternative writ of mandamus.

The relator is the owner of property, on which are five brick five-story buildings, on the westerly side of Hudson county boulevard. It applied for a building permit to alter its property, so that stores may be erected therein, which application was refused, for the reason that the city ordinance zoned this property as a residential zone from which stores were excluded.

It appears that the ordinance in question is founded upon chapter 229 of Pamph. L. 1920.

We think that the decision of this ease, so far as this court is concerned, is controlled by Ignaciunas v. Risley (Supreme Court), 1 N. J. Adv. R. 1023, and under the authority thereof a peremptory writ of mandamus should issue.

The demurrer will be overruled and judgment given for the relator, with costs, and a peremptory writ of mandamus awarded.


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    ROBERT JOHNSTON AND FRANCIS SCANLON, RELATORS, v. FRANK HAGUE, JOHN SAUL, A. HARRY MOORE, MICHAEL I. FAGEN AND WILLIAM B. QUINN, BOARD OF COMMISSIONERS OF THE CITY OF JERSEY CITY, RESPONDENTS.
    Submitted December 3, 1923
    Decided February 19, 1924.
    Zoning Ordinance — Location of Garage for More Than Five Cars Within 150 Feet of Church — Ordinance Opposing Such Locar tion Legally Unobjectionable.
    On demnrrer to an alternative writ of mandamus.

    Before Justices Tren chard and Campbell.
    Por the relator, Gross & Gross.

    For the respondents, Thomas J. Brogan.

   Per Curiam.

This case comes up on demnrrer to an alternative writ of mandamus.

The relators seek to bnild a garage, as set forth in the writ, which is a continuation of a garage business in which they have been engaged for the past five years. While it is not expressly stated that the garage intended to be constructed is for the use of more than five cars, the relators’ recital of their continuing a garage business and the purchase of the premises in question for the purpose of building a garage thereon for business purposes, when considered in relation to the size of the plot, lead this court to infer that the proposed garage will be used for the accommodation of more than five cars.

The ordinance in question upon which respondents rely for the refusal to grant the permit is predicated upon the legislative authority contained in chapter 229 of the laws of 1920 (at p. 436).

Such ordinance bjr paragraph 8 of section 3 provides that no building shall be erected 'in the business district in question, intended or designed for a garage for more than five automobiles, “if any part of the lot or plot in question is situated within a distance of one hundred and fifty (150) feet, as measured along the public street of, or in any case within any portion of a street between the intersecting streets in which'portion there exists * * * (d) a church.”

Such ordinance provision is legally unobjectionable. Schait v. Senior, 97 N. J. L. 390.

The relators admittedly desire to construct a public garage “for business purposes” in the zone thus affected, and it is not denied that the plot in question is situated between Arlington avenue and Bramhall avenue, fronting on Grand street, and between which intersecting streets there exists a church. Indeed, such is expressly stipulated to be the situation.

In the face of that stipulation it seems clear that the city authorities cannot be compelled to issue the permit in question. Indeed they were quite justified in refusing it.

The result is that the demurrer will be sustained and judgment given for the respondents, with costs.