author: Lawrence, 0. C. J.

text:
    JOHN O. PAINE, PLAINTIFF, v. JERSEY CENTRAL POWER AND LIGHT COMPANY, BODY CORPORATE, DEFENDANT.
    Decided June 10, 1934.
    For the rule, Henry D. Brinley.

    Opposed, Henry Silverstein.

   Lawrence, 0. C. J.

Defendant’s rule to show cause is rested on the ground that the verdict of the jury at the trial in favor of plaintiff was contrary to the weight of the evidence. During the years 1929 to 1932, inclusive, defendant provided plaintiff at a place of business conducted by him with electric current for lighting. The business appears to have been a seasonal one, and at the close of the period in 1931, plaintiff was indebted to the company in the sum of $155. Desiring to reopen in 1932, he applied at the district office of the company, but was told by the manager that the current would not be turned on, unless the delinquent bill was paid. He thereupon offered as collateral security certain shares of stock to which reference is made in the following receipt:

“April 30, 1932.
Received from Mr. J. 0. Paine one Simmons Company common stock certificate No. A35994 for one hundred (100) shares issued to William Hipke. This certificate was given Jersey Central Power & Light Company as collateral for bills rendered for electrical energy consumed. This certificate to be returned to Mr. Paine when the above accounts are paid.
Yery truly yours,
Jersey Central Power and Light Company,
(Signed) L. Merritt,
L. Merritt: H. O. C. Chief Clerk.”

Upon the receipt of the stock, the company turned on the current and continued to serve plaintiff until on or about July 20th, 1932, when it appeared that plaintiff had paid neither the delinquent bill of 1931 nor the bills rendered to the date mentioned. Demand was thereupon made for payment and plaintiff authorized the sale of the stock held as collateral, writing a letter addressed to a brokerage concern directing them to make the sale and remit the proceeds to the company, inasmuch as it was held as security and he desired to liquidate his indebtedness to it. Since, however, the stock had not been issued directly to plaintiff and no satisfactory endorsement or authentication of the signature of the assignor appeared, the brokers declined to handle the transaction, and the company’s local manager took the certificate to a bank where its accounts for the district were carried and requested it to communicate with the assignor and obtain a proper assignment enabling the company to make sale of the stock. The effort to do this was not successful, and the certificate remained with the bank until May, 1933, when the company gave its bond to secure the former against loss and the stock was sold. Prom the proceeds, after deducting broker’s commission and plaintiff’s indebtedness, which amounted to $976.38, an excess of $3.12 remained, which later, by letter under date of August 7th, 1933, the company sent to plaintiff.

He declined to accept it, on the ground that he did not owe the company the amount deducted from the proceeds of sale; that he had revoked the authority to sell in August, 1932, wdien he had discovered that he was being billed for electric current at a rate higher than that of 1931, and that the company, through an official, with whom he had taken the matter up in September, 1932, had recognized such revocation of sale. Thereafter, he insisted, the stock could not have been sold without notice to him and none had been given. His suit was therefore to recover damages for the improper sale of the stock on the theory of conversion. The proofs disclosed that when the stock was left with the company as collateral in April, 1932, it was selling on the stock exchange for approximately $3 a share; when sold in May, 1933, it was then selling for $10, and on August 9th, 1933, twenty-four hours after plaintiff received the company’s letter informing him of the previous sale it was quoted at $25. Plaintiff therefore claimed that he was entitled to the market price of the stock as of the latter date. At the trial, the jury so found, and returned a verdict in his favor for $2,500, less the amount of the company’s bills which aggregated as stated $976.38, thus indicating the further finding that the bills as rendered plaintiff were correct.

On the argument of the rule, counsel for defendant company urged that there was no evidence offered at the trial from which the jury could have found that the written authority given by plaintiff to the company on July 20th, 1932, to make sale of the stock to liquidate the then indebtedness had been revoked and therefore the sale made in May, 1933, not only to cover such indebtedness but that later incurred, was not in violation of plaintiff’s so-called right to notice of such sale.

There was evidence, however, that in August, 1932, plaintiff had protested the amount of the bills rendered, insisting that they wore at a higher rate than in the previous year, and he testified that he had informed the local manager of the company that the stock should not be sold until an adjustment had been made. While this was denied, it did appear that in September, 1932, he had taken the matter up with the division manager, who, on the sixth day of that month, had written him a letter (offered in evidence) from which the following excerpts are taken :

“Since our last conference, I have submitted a written report and have discussed with Mr. Polhemus, our vice-president, the matter of your account with us. The proposition which you made is not satisfactory. Your proposition as I wrote it down was as follows:

“You will pay cash for all bills up to August 23d, 1932, readings at the old rate basis and from that date at the new rate basis, the latter under protest, until the case is settled by agreement, arbitration or court. Payment of the bills to August 23d reading are to be considered final and not a subject of further discussion. * * * * * ❖ *

“The above amounts include the federal tax on electricity from June 21st to August 23d in the amount of $10.02. This amount is all overdue (stated to be $762.86) and we must ask that it be paid on or before September 17th or it will be necessary for us to discontinue service. This ten daj^s’ time is allowed in view of the large amount of the bill and of your expressed wish to discuss the situation with Mr. Polhemus in case we are not willing to accept your proposition.

“As you have available according to your statements ready cash, we suggest that this payment be made in cash, in full, and we will return to you the stock certificate for 100 shares of Simmons Bed Company which you gave us as security but without satisfactory endorsement.”

It appeared that plaintiff declined to accept the proposal and refused to pay the suggested sum. Notwithstanding the service was continued and additional bills for current were incurred and not paid, so that at the time of the sale of the stock posted as collateral, in May, 1933, admittedly without notice to plaintiff, the indebtedness had been increased, but remained disputed as to the amount. No further conferences or correspondence occurred or passed between the parties, until plaintiff was notified by letter under 'date of August 7th, 1933, of the sale of the stock on May 3d, 1933.

In the circumstances, it was open to the jury to find, as it apparently did, that there had been a revocation of the right to sell the stock in question, without notice, under the authorization of July 20th, 1932, and that the sale in May, 1933, without demand for payment of the then existing indebtedness and notice of the sale was improper and amounted to a conversion entitling plaintiff to damages under the rule of law stated in the court’s charge.

As a general rule the pledgee is not entitled to sell the collateral upon default in the payment of the principal debt by the pledgor until demand for payment has been made and reasonable notice and opportunity to redeem the pledge has been given. 49 C. J. 997, § 248. Even though demand may have been waived or become unnecessary because of the attitude of the pledgor, it seems that notice of the sale is still required. See, also, section 250, and Dimock v. United States National Bank, 55 N. J. L. 296; 25 Atl. Rep. 926.

A careful review of the record in this case, leads to the conclusion that the rule to show cause must be discharged.


source: Caselaw Access Project

author: Hetiee, J.

license: Public Domain

text:
    STEPHEN KULICH AND JULIA KULICH, PLAINTIFFS, v. GABE C. KERTACY, STEPHEN LESKANIC AND ARTHUR J. MESSINEO, DEFENDANTS.
    Decided September 27, 1934.
    Before Justice Heheb, at the Passaic Circuit.
    For the plaintiffs, Anthony A. Pable.

    For the defendant Gabe C. Kertacy, Thomas Brunetto.

   Hetiee, J.

The challenged order directed that defendant Kertacy be held in bail, in a specified sum, “to answer unto” plaintiffs “in an action at law.” It was made under the authority of section 57 of the Practice act (3 Comp. Stat., p. 4069), providing, inter alia, that “upon proof by affidavit or otherwise to the satisfaction of -the court in which the action is about to be commenced or to a judge or Supreme Court commissioner, that there is a debt or demand founded upon contract, express or implied, due to the plaintiff from the defendant,” and that the defendant “fraudulently contracted the debt or incurred the demand,” an order to hold the defendant to bail (in such sum as shall be shown by the proof to be due) shall be made, and a writ of capias ad respondendum shall then be issued.

The asserted invalidity of the order is rested upon two grounds, viz.: (1) That it is “entitled in a cause which did not exist” when it was made, and (2) the proofs did not establish a fraudulently contracted debt or demand incurred. Both points are without merit.

As to the first, it is insisted that it is within the principle enunciated in the line of cases which hold that the entitling of the supporting affidavits in a non-existent cause is fatal to the validity of the order. Potter v. Cook, 30 N. J. L. J. 206; Veale v. Nichols, 12 N. J. Mis. R. 343; Van DeVelde v. Colle, 8 Id. 782; Stuerwald v. Furman, 4 Id. 470. But such is not the case. The rationale of the decision in Potter v. Goolc supra (the succeeding cases apply the principle therein declared), is that where the affidavits are entitled in a cause which is purportedly but not actually pending, an indictment for perjury will not lie if it be false. Such an affidavit is not a lawful but an extra-judicial oath. Humphrey v. Cande & Lasher, 2 Cow. 509; Milliken v. Selye, 3 Den. 54. This principle is manifestly not applicable to the order under attack, assuming that a cause did not pend when it was filed.

Moreover, an order holding the defendant to bail, based upon satisfactory proof of the particulars essential for the issuance of a capias ad respondendum, is a jurisdictional prerequisite. Under the old practice, where the action sounded in debt, as for goods sold, or on a promissory note, or the like, the defendant might be held to bail as of course, upon making and filing an affidavit establishing the cause of action, and endorsing upon the writ the sum shown by the affidavit to be due. But where it sounded merely in damages, and those damages were unliquidated, special bail could not be required except upon a judge’s order. Perry v. Orr, 35 N. J. L. 295. Now, by virtue of the constitutional prohibition against imprisonment for debt, except in cases of fraud (constitution of New Jersey, article 1, paragraph 17), and the express requirement of the Practice act the defendant cannot be imprisoned for debt, except in the case of fraud specified in the siaiute, and then only where there has been a special order formally adjudging that there is such fraud, based upon satisfactory proof thereof presented to the judicial officer ordering the arrest. Hufty v. Wilson, 78 Id. 241; Hill v. Hunt, 20 Id. 476; Perry v. Orr, supra.

The order for bail is therefore the authority for issuing the capias, without which it cannot be awarded. The statutory provision in respect of the filing of the affidavits may, perhaps, be regarded as directory merely. But the judicial order for bail is the foundation of the proceeding, and an essential prerequisite to the award of the capias. The statute declares that the capias shall be issued only upon the filing of proof of a cause of action and the special circumstances justifying the award of the writ, specified therein, and the order for bail. Without the requisite order for bail, the writ cannot lawfully issue, a7id an arrest made by virtue of such a writ is unwarranted. In such circumstances the proceeding upon the capias is not only irregular, but the writ itself is illegal. Compare State v. Dunn, 25 N. J. L. 214. In R. King, qui tam, v. Cole, 6 T. R. 640, an action for penalties, the defendant was arrested on an affidavit entitled as above, and the point was made that the affidavit was entitled in a non-existent cause. Lord Kenyon held that affidavits on the motion for leave to file the information ought not to be entitled; that the affidavits presented on showing cause against the rule might or might not be entitled; and that all affidavits made after the rule was made absolute must be entitled. See, also, Rex. v. Harrison, Ibid. 60. In a case in which a submission to an award was made a rule of court, and a rule to show cause why an attachment should not issue for disobeying the award was granted, it was held that “there was no proceeding in the court till the rule for the attachment was granted ” and that, consequently, the affidavits on which the rule was obtained need not be entitled in any cause. Bevan v. Bevan, 3 Id. 601.

The order for bail is therefore the first step in a cause in which the award of a capias is sought. And if it were entitled in a cause that technically did not then depend, the defeet is in a matter of form only, and is not to be regarded. The title may be rejected as surplusage.

The affidavits, while somewhat meagre in allegation, disclose a good cause of action, and, as well, the particulars essential for the holding of defendant to bail under the statute. Plaintiffs were shareholders in a building and loan association. There is satisfactory proof that the book value of these shares was $1,842, and the withdrawal value $1,706.60. Plaintiffs, having determined to withdraw from the association, appointed defendant their agent to collect the withdrawal value of the shares, and entrusted him with the documents evidencing their interest. Taking advantage of their unfamiliarity with the English language, defendant, misrepresenting an assignment of their shareholders’ interest to another as a withdrawal application, procured their signatures to that paper, and later delivered it to the assignee for a consideration of $1,300. He subsequently paid to plaintiffs $640, advising them that this sum represented the total payments by the loan association to him on account of the withdrawal value of the shares. Under the old practice there was a well settled distinction, in respect of the requirements of proof, between actions upon contract in which the defendant was held to bail upon the ex parte affidavit of the plaintiff, and cases in which the judge’s order was a prerequisite. In the latter the same strictness was not required either in matters of form or of substance. In stating the cause of action, the affidavit will be sufficient if it describes the circumstances with sufficient clearness to enable the judicial officer, in the exercise of his discretion, to determine the existence of a cause of action and the particulars necessary to justify the award of the writ under the statute, and in such a manner that if untruly stated the affiant may be indicted for perjury. It need not be as specific and particular as a complaint. Hufty v. Wilson, supra; Benson ads. Bennett, 25 N. J. L. 166, 170; Peltier ads. Banking Co., 14 Id. 257, 260. The affidavits in the instant case are sufficiently certain and positive to satisfy this rule. There was legal evidence from which the commissioner might well infer fraud justifying the award of a capias, and that being the case, his decision is conclusive. Wire v. Browning and Hull, 20 Id. 364; Van Wagenen v. Coe, 22 Id. 531.

Motion denied, with costs.


author: Pee Cueiam.

text:
    FREELAND P. TOWNSLEY, PROSECUTOR, v. STATE OF NEW JERSEY, EDWARD L. DAVIS, POLICE JUSTICE OF THE CITY OF ORANGE, AND GROVER DEITRICH, DEFENDANTS.
    Submitted May 11, 1934
    Decided October 9, 1934.
    Before Justices Tbenciiabd, Heiibk and Pebskie.
    For the prosecutor, Albert L. Vreeland.

    For the defendants, Bdward R. McGlynn.

   Pee Cueiam.

On December 20th, 1933, the prosecutor, Freeland P. Townsley, was arrested by police officer Deitrich, for violation of section 14, subdivision 3, of the Motor Vehicle act, which forbids the operation of a motor vehicle while under the influence of intoxicating liquor. The arrest was made pursuant to the authority of section 31, subdivision 1, of the same act.

At about nine a. m. of the same day, Mr. Vreeland, the attorney for the prosecutor, appeared before Judge Davis, police justice of the city of Orange, New Jersey, for the purpose of obtaining the release of his client. The subsequent facts are set forth in the stipulation as follows:

“Officer Deitrieh had not as yet arrived and in the meantime the question of the trial date and the amount of bail was discussed and agreed upon. Judge Davis then left the bench and Howard S. Roberts, clerk of the Police Justice’s Court of the city of Orange, remained to complete the matter. Thereafter, Officer Deitrieh arrived, and signed the complaint and was sworn by Mr. Roberts. Mr. Roberts, however, did not at that time sign the jurat. He handed the warrant to Officer Deitrieh for the purpose of having him serve it upon the prosecutor, who was then incarcerated across the hall in the same building. At the same time, Mr. Vreeland requested Mr. Roberts to permit him to copy the complaint and Mr. Roberts acceded to that request. When Officer Deitrieh returned’ to the court room with the prosecutor, the warrant having been already served, Mr. Vreeland was still copying the complaint. As soon as Mr. Vreeland finished copying the complaint, and while all of the parties were still in the court room, Mr. Roberts signed the jurat. The bail was then posted and the prosecutor departed with memorandum designating the date for trial.”

Thereafter, at the time designated for trial, the attorney for the prosecutor appeared specially raising certain objections which will be discussed hereinafter, and upon the overruling of these objections, he declined to proceed with the trial. The prosecutor was convicted, fined $200 and costs, and his license revoked for two years. The prosecutor then obtained this writ of certiorari.

The first point raised by the prosecutor is that the clerk of the lower court unlawfully acted in the name of the magistrate. This contention centers around the fact that the complaint read in part as follows:

“Before me, Edward L. Davis, police justice, city of Orange, New Jersey, personally appeared the subscriber, Officer Grover Deitrich * *

But the complaint was actually sworn and subscribed to before the clerk of the Police Court, because of the fact that Officer Deitrich had not as yet arrived when the police justice left the bench and the matter was left in the hands of the clerk for completion. The prosecutor suggests that the clerk is without authority to take a complaint. But that contention seems unsound in view of the provisions of section 25 of the Motor Arehicle act, which expressly states (amended laws, 1932, chapter 81) :

“All acts, whether in connection with the taking of complaints, the issuing of process, the return thereof, the taking of bail for appearance, and all proceedings preliminary to trial, including the arraignment, taking of plea and postponement of trial, and all ministerial acts and proceedings subsequent to trial may be performed by the clerk or deputy clerk of any * * * police judge * * *, and the jurisdiction so to do with respect to any violation of any provision of this act is hereby conferred.”

It so happened that the arrest in this case was made under the provisions of section 31 of the Motor Vehicle act, since the offense was committed in the presence of the police officer, but there is no reason to believe that the provisions of section 25 quoted above do not apply equally well to this situation. In fact section 31, subdivision 1, distinctly says in part that (amended laws, 1931, chapter 171) :

“* * * In the event of any violation of subdivision three of section fourteen of the act of which this act is amendatory, such magistrate, clerk or deputy clerk is not readily accessible, the constable, or police officer, or motor vehicle inspector, or commissioner of motor vehicles, apprehending the offender is authorized to detain in any police station, lockup * *

This language clearly contemplates that the clerk of the court would still have the powers set forth in section 25 even though the arrest take place pursuant to section 31.

The objection that the clerk here acted in the name of the magistrate rather than in his own name seems specious. The error is merely clerical and cannot by any stretch of the imagination be deemed to be prejudicial to the prosecutor.

It is next objected that after the issuance of the warrant the complaint was changed to read:

“Before me, Howard S. Roberts, clerk of the Police Justice Court of the city of Orange, H. J., * *

This change was made at the time of trial and after the objection heretofore discussed had been raised by the prosecutor. Since this amendment in no way affects the substance of the complaint, but deals purely with its form, it certainly is not fatal to the conviction.

It is next contended that the court failed to obtain jurisdiction because the warrant was issued before the complaint was made. There is no doubt that the complaint must precede the warrant. However, nothing in the facts of this case justifies the conclusion that this course was not pursued. The stipulation of facts clearly shows that the warrant was not issued, that is, delivered to an officer for service, until after Officer Deitrieh had signed and sworn to the complaint. This objection, therefore, is factually without basis.

The next contention of the prosecutor is that the complaint was not complete on its face when the warrant was issued. We see no merit in the point. This objection is based upon the fact that after the complaint was signed and sworn to by the police officer, but before the clerk signed the jurat, the warrant was issued to that police officer for service. It appears bjr the stipulation that when the warrant was thus issued, the attorney for the prosecutor requested of the clerk permission to copy the complaint, which request was granted. When the police officer returned to the court room with the prosecutor, who had been detained elsewhere in the same building, the attorney for the prosecutor was still copying the complaint. When he finished copying the complaint, the clerk signed the jurat, the bail was posted and the prosecutor departed with a memorandum designating the date of trial.

The prosecutor proceeds on the assumption that a complaint is not complete until the jurat is actually signed by the party administering the oath. Section 25 of the Motor Yehicle act provides that the complaint shall be made by any person “in writing and duly verified.” There is nothing in this language which requires that the jurat be signed before the warrant is issued. There is no question that the complaint was actually sworn to by the officer before the warrant was delivered to him for service.

blow in the case of Hitsman and Burkit ads. Garrard, 16 N. J. L. 124, the court had before it an application for a writ of mandamus to reinstate an appeal which had been dismissed because of the fact that the affidavit was not signed by the affiant. The court there said:

“An affidavit, is an oath in writing; generally speaking, it is an oath in writing, sworn before some person who hath authority to administer such oath. 1 Jac. Law Dic., tit. “Affidavit,” 60; 3 Blk. Com. 304. It is not necessary to constitute it an affidavit, that it should be signed by the party. He must make it, that is he must swear to it, and it must be in writing. In other words, it must be his oath in writing-- and to entitle it to be read in court, the fact that it was sworn to by the party, whose oath it purports to be, must be certified by the officer before whom it was taken: Which certificate is commonly called, the jural, and must be signed by such officer. This certificate, however, is no part of the affidavit. It is only the prima facie, and competent evidence, that it is the affidavit of the person by whom it purports to have been made. An affidavit need not be signed by the party making it, unless the statute, as is frequently the case, directs it to be so signed, or unless the case comes within some rule of court requiring such signature * *

The last contention is that he was not arraigned before the clerk within twenty-four hours, as required by the Motor Yehicle act. It is difficult to understand just what the prosecutor contends should have happened that did not actually occur. The attorney for the prosecutor was present in court on his behalf when the trial date and the amount of bail was discussed and settled. The prosecutor was himself present in court when the bail was posted and was handed a memorandum designating the date for trial. This seems to be a sufficient compliance with the act. Certainly the taking of a formal plea is unnecessary. State v. Bailey, 3 N. J. Mis. R. 297. It appears that the prosecutor submitted to the jurisdiction of the Police Court. He posted bail and accordingly was released. Ho objection whatever was raised at that time to any defect in the acquisition of jurisdiction by the court. It has been held that such conduct amounts to submission to the jurisdiction of the court. State v. Baker (Court of Errors and Appeals, 1926), 102 N. J. L. 349.

The judgment below is affirmed, with costs.


author: Per Curiam.

text:
    JOSEPH DICKERSON, PROSECUTOR, v. JOSEPH ALTMAN, RECORDER OF ATLANTIC CITY, RESPONDENT.
    Submitted August 14, 1934
    Decided October 6, 1934.
    Before Justices Teen chard, Hei-ier and Perskie.
    For the prosecutor-petitioner, Samuel Morris.

    For the respondent, Anthony J. Siracusa.

   Per Curiam.

The petition of the prosecutor for a rehearing is denied.

See Dickerson v. Altman, 12 N. J. Mis. R. 656; 174 Atl. Rep. 207.


author: Van Winkle, A. M.

text:
    Riva Kornfeld, petitioner, v. J Otto Kornfeld, defendant.
    [Decided October 10th, 1934.]

      Mr. Samuel Tartalslcy and Mr. Mathew M. Epstein, for the petitioner.

      Mr. John P. Nugent, for the defendant.
   Van Winkle, A. M.

Before filing answer in this divorce suit, counsel for the husband moved to dismiss the petition and the amended petition, on these grounds: “There is no basis in fact for the petition, and in all truth and honesty the petition does not exhibit the true state of facts, and the latter will preclude all possibility of success.” Counsel conceded that the amended petition “is drawn to set forth a cause for divorce on the ground of extreme cruelty; and that on its face it is regular and in every respect in conformity with the practice.” But he contended that “since the petition was filed, and again after filing the amended petition, certain affidavits were made and filed in the case by the petitioner, the contents of which unmistakably establish out of the mouth of the petitioner herself that the basic allegations in the petition and amended petition are untrue, and that the truth as established by her affidavits conclusively shows that she is not entitled to the relief prayed.” Counsel’s reference is to the affidavits annexed to the wife’s two petitions for alimony pendente lite, one of such petitions having been filed after the petition for divorce was filed, and the other having been filed following the filing of the amended petition for divorce.

Counsel for the husband relied upon Strauss v. Rabe, 97 N. J. Eq. 208; 127 Atl. Rep. 188; affirmed, 98 N. J. Eq. 700; 130 Atl. Rep. 920, and Tansey v. Belleville Relief Association, 99 N. J. Eq. 894; 133 Atl. Rep. 423, in which cases it was held that where a bill upon its face appears to set forth a valid cause of action, but it is otherwise made to appear by the complainant’s own proofs, such as the verifying affidavits or schedules annexed to the bill or otherwise, that in all truth and honesty the bill does not exhibit the true state of facts, and that the latter preclude all possibility of success, there is inherent power in the chancellor to dismiss the bill.

No reason arising out of the peculiar nature of a divorce suit was perceived why the motion to dismiss should not be granted, if it should be granted in an ordinary suit in equitjc Rather, the principles governing the procedure of divorce suits favored the motion, or, at the least, did not militate against it. If the matter were to be decided on the affidavits submitted by the wife in support of the two applications for alimony pendente lite, it should be said that the wife would not prevail. But, considering that it was to the causes for divorce alleged in the amended petition that the wife had primarily committed herself on oath (Chancery rule 256a; Riehl v. Rielhl, 101 N. J. Eq. 15; 137 Atl. Rep. 787), and that these affidavits might be explained or contradicted on final hearing—and with what effect could not be told—I thought the wife should be given an opportunity to explain or contradict; and so the motion was held until final hearing.

The parties were married on October 29th, 1927. The husband is thirtjr-seven years old, and the wife about thirty-three. A child was born to them on June 27th, 1933, at the Margaret Hague Maternity Hospital, Jersey City. The wife, for many years, was continuously employed as a secretary and manager of a service department, receiving $36 a week. The parties lived, from the time of the marriage, in the same house with the wife’s two unmarried sisters and the wife’s brother and his wife; and the wife admitted that the husband had repeatedly objected to this arrangement.

In October, 1932, five years after the marriage, the pregnancy of the wife obtruded itself. Whether or not the pregnancy was welcome to either the husband or the wife, it appears that it was not anticipated by either; and the wife did not give up her employment until February, 1933.

On November 6th, 1933, the wife filed an amended petition for divorce, on the ground of extreme cruelty, the allegations relied upon being these: That the husband, after

learning that the wife had become pregnant,, inflicted serious injury to her mental and physical condition, by ordering her to do everything possible to prevent the birth of the child; that he coerced her to be examined by a physician, to ascertain if she was physically capable of bearing a child; that he raged, and harrassed her, demanding that she do away with the child and that he seriously undermined her health while in her pregnant condition; that he actually attempted to put ingredients in her food which would prove fatal to the child. The period to be considered in ascertaining with respect to the charges terminated on May 6th, 1933, a month or so before the child was born, that being six months before the amended petition was filed.

The wife testified that, thinking she was pregnant, she went, of her own volition, to a woman physician, Dr. Mary Carr, who examined her and gave her pills, with the purpose, as she said, of “bringing me around.” She said that Dr. Carr told her that she was “built a little small,” but that she could have a child; that Dr. Carr said if she wanted to make absolutely sure of being physically able to bear a child Dt. Carr suggested the name of a doctor in New York, to whom she did not go: that she went, of her own choice, to Dr. Cosgrove, a well known Jersey City physician, whose specialty is obstetrics. Dr. Cosgrove examined and treated the wife seven times, and ultimately delivered her. Dr.. Mary Carr testified that after examining the wife she told her that she would not have a very easy labor; that she might, have difficulty in bearing the child; and that she would prefer that she would take her ease to Dr. Cosgrove and abide by his decision as to whether or not she would be capable of having a child. Dr. Carr admitted that she might have suggested an examination by a physician in New York. The husband testified that Dr. Carr told him, in the presence of the wife, when he went with his wife to Dr. Carr’s office, on his wife’s second visit there, that the wife has a, curvature of the spine, that her vaginal regions or female organs are unusually small, that her pelvic region is small, that it would be a rather precarious undertaking on the part of the wife to go through with the pregnancy. Dr. Cosgrove testified that the wife has a slight curvature of the spine and that her parts are slightly smaller than the average.

The husband had a real fear that his wife was not fit to give birth to a child. He told the physicians that she was “not robust;” and that, in fact, fairly describes the wife, judging from her appearance. Further, he said that her family were “sickly.” Dr. Mary Carr said he spoke of tubercular conditions. The wife’s own sister had not had an easjr time; a child had been taken away from her in a hospital, of which occurrence, as the wife’s friendly sister-in-law said, although there was a question as to the reason for the action. “It was either the'mother’s life or the baby’s life,” these were the husband’s notions and some of the reasons why he held them with respect to his wife’s ability to bear a child before the physicians told him of the curvature of the spine and the smallness of the wife’s parts, with seeming relation to her ability. Upon learning of these conditions with their presumptive effect on her ability, his fear became intensified. I believe he was sincere in his belief that his wife could not bear a child with safety to herself.

The charges in the amended petition are not substantiated. The husband did not coerce the wife to be examined by a physician during her pregnancy. She was examined by only two physicians, both of her own choice. The husband did not treat the wife cruelly in the period September, 1932, to May, 1933. During that period the wife enjoyed good physical and mental health. The physician attending her so testified. The husband did not “actually attempt” to put ingredients in the food. At no time was there any blow or violence of any kind nor were there any vile words. When the wife testified at the hearing there was no indication from her appearance that she was suffering from nervous instability. There was no medical testimony at the hearing about her mental or physical condition at that time.

On the hearing, as in the affidavits hereinbefore referred to, it clearly appeared that the wife was in good physical and mental condition up to the birth of the child; and the affidavits and the testimony are to the effect that her nervous instability, appearing after the birth of the child, resulted from the effect of the birth on her. Another Jersey City physician of her own choice, who attended her, stated in affidavits filed on the applications for alimony pendente lile, that this nervous instability was to be “attributed a great deal to hyper-thyroidism, which was greatly aggravated by the recent pregnancy;” and he added that the increase in the size of the wife’s thyroid gland had increased its function and had resulted in a marked nervous condition, raj)id pulse and nervous instability. This physician was not called by the wife to testify at the hearing. Irrespectively of the hyper-thyroidism, when it is stated that the child was born without a left hand, a reason appears why the wife should be afflicted with nervousness after the birth of the child.

The husband went to a rabbi in an endeavor to effect a reconciliation with his wife. The wife’s lawyer was called into the conference, and the discussion was chiefly about money. In November, 1933, the husband and wife themselves talked over matters, and the wife asked the husband to settle a certain amount of money on her and the baby. At the hearing the wife testified that she was willing to go back with the husband if he provided enough money for her .and the baby. The wife was never in fear of the husband, nor is she now in fear of him. He has done nothing to inspire any fear. The husband told the rabbi that he would buy a home, he would buy a car, and he would have the bank account in both their names. Apparently the birth and care of the child have brought the wife’s employment to a close; and if the husband and wife are to live together again, they will need to live in a home away from the wife’s relatives. This would necessitate pecuniary arrangements, and this accounts for these conferences about money.

There was some testimony given, over the objection of counsel for the husband, which was admitted with the idea that it might throw light on or give character to the acts alleged in the period terminating May 6th, 1933, and which testimony was given with more or less exaggeration, respecting what the husband is alleged to have said in the panic time just after the birth of the child upon the discovery of the child’s deformity. Obviously, what the husband said then cannot.be considered by itself as being an extremely cruel act upon which a decree could be based.

This case is to be decided on a consideration of its peculiar circumstances. I think that the husband’s testimony was truthful as to the essential particulars. And the wife’s testimony was not substantially different from the case presented by her affidavits on the applications for alimony pendente lite. Testing this case by the rule laid down by the court of errors and appeals, in Bonardi v. Bonardi, 118 N. J. Eq. 25 (at p. 27); 166 Atl. Rep. 207, I find that the wife is not entitled to a decree, and I will advise a decree dismissing her amended petition.


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    GREEN MOTORS, INCORPORATED, A CORPORATION OF NEW JERSEY, PLAINTIFF-APPELLANT, v. E. I. DuPONT DeNEMOURS COMPANY, A CORPORATION OF DELAWARE, DEFENDANT-RESPONDENT.
    Submitted May 11, 1934
    Decided September 28, 1934.
    Before Brogan, Chief Justice, and Justices Parker and Bodine.
    For the plaintiff-appellant, Jacob S. Xarkus.

    For the defendant-respondent, Xatzenbaeh, Gildea & Budner (Louis Budner).

   Per Curiam.

The suit grows out of a sale of a motor truck. The appellant, the plaintiff below, claims a balance alleged due. The only assignments of error challenge the admission in evidence of certain testimony and an exhibit. The ease is without merit.

The plaintiff, a dealer, had a contract with the General Motors Truck Company which provided as follows: “The company expressly reserves to itself the right to sell General Motors trucks and chassis to any person, firm or corporation, within the territory specified therein, upon the terms and conditions now hereafter set forth in which is designated by company as fleet users’ agreement, without any obligation to pay dealer any commission or other charges upon such sales, except as may be satisfactory and fixed by company.”

The defendant company, pursuant to its fleet users’ contract, made the purchase in question from the General Motors Truck Company, as the jury found. The claim in suit was for a balance of money which might have been due but for such circumstances. The plaintiff, a distributor for the General Motors Truck Company, appears only to have made delivery.

The assignments of error argued, relating to the admission of testimony, present no problem. In several, the objection was not interposed before the question was answered. The •examination complained of relates to the plaintiff’s contract with the General Motors Truck Company. The subject-matter was well within the sound discretion of the learned trial judge and the document, upon which the examination was made, was in plaintiff’s possession and control. A contrary ruling by the trial court could onfy have resulted in delay and a failure to present the true situation for the consideration of the jury. The purpose of a trial at law is to elicit the truth. The conduct of the trial rests in the sound discretion of the trial judge. A witness in possession of a document may produce it if he desires. In the present case, the writing which the plaintiff’s witness possessed and did not produce was the plaintiff’s contract with the General Motors Truck Company. The issue was the plaintiff’s right to recover the balance alleged due from the defendant for an automobile sold and paid for by the General Motors Truck Company. The ruling fell within the exception to the best evidence rule where the writing is only collateral to the question in issue. 22 Corp. Jur. 987; New Jersey Zinc Co. v. Lehigh Zinc Co., 59 N. J. L. 189; 35 Atl. Rep. 915.

The admission in evidence of the defendant’s agreement with the General Motors Truck Company was proper and well within a proper exercise of judicial discretion.

The judgment is affirmed, with costs.


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    Sarah H. Zweig, petitioner, v. Benjamin Zweig, defendant.
    [Decided October 10th, 1934.]

      Mr. Anihony P. La Porta, for the petitioner.

      Mr. Isadore Glauberman, for the defendant.
   Van Winkle, A. M.

The petitioner in this divorce suit íiled a bill for maintenance in 1932, alleging extremely cruel treatment on the part of defendant, and that “defendant remained with complainant under the same roof until the 24th day of November, 1932, at which time he completely severed all his relations with complainant and left and abandoned her, without her 2>ermission or consent, and separated himself from her.”

On final hearing counsel for defendant admitted, without any evidence about extreme cruelty or abandonment being taken, that defendant had unjustifiably abandoned complainant; and, after testimony had been taken to ascertain if defendant had neglected or refused to adequately support complainant, a decree of dismissal was entered on August 2d, 1933, which contains a recital “that the defendant unjustifiably abandoned the complainant, as alleged in said bill of complaint, but that the defendant has not refused or neglected to support the complainant, and the complainant is not entitled to the relief therein prayed,” which recital is written in the decree preceding the decretal part of the decree.

On December 13th, 1933, petitioner filed a petition for divorce from defendant, in which petition she sets up this decree of dismissal; and also the petition charges defendant with extreme cruelty, the acts alleged and the language charging their commission being the same as in the bill for maintenance; and petitioner prays a decree of divorce on the ground of this extreme cruelty. Defendant filed his answer admitting the entry of the decree of dismissal and denying the allegations of extreme cruelty; and his answer avers that subsequently to November 24th, 1932, he requested petitioner to return to him and resume marital relations with him and that she has refused.

Counsel for petitioner now moves to strike out this answer, on the following grounds:

1. The answer of the defendant discloses no defense to the petition for divorce.

2. There are no facts in the defendant’s answer which show, or tend to show, that the alleged acts of extreme cruelty complained of were in any way condoned by a resumption of cohabitation, or in any way whatsoever.

3. The defendant has not pleaded in his answer anything by way of confession and avoidance to preclude and bar the petitioner’s right to recovery.

4. The defendant is estopped from contesting and disputing the facts constituting the abandonment as alleged in the bill of complaint, which is made the basis for this divorce proceeding, under and by reason of the decree of dismissal which is annexed to the petitioner’s petition for divorce and is admitted by the defendant in his answer, and for the further reason that the defendant cannot attack the decree aforesaid, collateral^', which he is now attempting to do by his answer aforesaid.

At the outset it should be said that petitioner in her maintenance suit did not allege that defendant’s extreme cruelty compelled her to leave him, and thus there had been a constructive desertion. She claimed that defendant, although remaining in the homo, left her without her consent. The main issue, following the trial of which the decree was entered, was one of unjustifiable abandonment and neglect or refusal to support. However, in disposing of this motion I shall assume, as counsel for petitioner does, but as I think, improperly, that the recital in the decree of dismissal is equivalent to a finding of extreme cruelty.

Counsel for petitioner submits that his motion is “in the nature of a demurrer;” and, in substance, it is a demurrer, as I see it: but a demurrer to an answer in equity is not recognized. The court of errors and appeals affirmed Vice-Chancellor Stevenson’s opinion in toto in Commonwealth Title Co. v. New Jersey Lime Co., 86 N. J. Eq. 450; 100 Atl. Rep. 52, in which he held that a motion to strike out an answer is equivalent to exceptions; that the motion stands before the court precisely as if, under the old practice, complainant had filed exceptions; and in disposing of the application to strike out the answer the vice-chancellor was moved to say: “Demurrers in equity should be discouraged as tending to unnecessary delay and as presenting often to the judgment of the court purely academic questions, the discussion and determination of which frequently embarrass rather than aid the administration of justice, the application of law to the facts of the case when those facts are actually proved at the final hearing. Among the proposed amendments to our chancery practice is one abolishing demurrers. In my opinion, demurrers to bills should never be allowed excepting by leave of the court. The motion to strike out an answer, or a portion of an answer, which is a])pealable under our practice, is less worthy of favor than a demurrer to a bill. This motion is a proceeding often involving-only expense and delay.” In Leslie v. Leslie, 52 N. J. Eq. 332; 81 Atl. Rep. 724, it was held that on an application to striké out an answer or parts of an answer the same rules must be applied in determining whether the application shall be granted or not that would be applied in deciding whether exceptions to an answer are well taken or not; and in Doane and Jones Lumber Co. v. Essex Building and Land Co., 59 N. J. Eq. 142; 45 Atl. Rep. 537, it was held that a motion to strike out allegations of an answer in equity on the ground that matter set up does not disclose an equitable defense is a mere demurrer, and hence erroneous under the rules authorizing adjudication of objections to any pleading on motion without demurrer. Vice-Chancellor Grey in Haberman v. Kaufer, 60 N. J. Eq. 271, 274, said: “The characteristics of a motion to strike for impertinence appear to have been overlooked by the counsel on both sides, as they have each argued the motion to strike as if it presented a question of the sufficiency in law of the challenged facts set forth in the answer to constitute a defense. * * * The complainant seeks, under a motion to strike, to demur to the defense set up in the answer. This practice is not allowed in this court, and is not within the spirit of rule 213 governing motions to strikeout answers. A motion to strike out a defense in an answer, under that rule, takes the place of the more tedious procedure by exceptions. The rule does not introduce a new practice whereby the legal sufficiency of a defense presented in an answer may be tested by moving to strike it out; that is, under the form of a motion to strike out, the complainant cannot, in substance, demur to the answer. Leslie v. Leslie, 5 Dick. Ch. Rep. 155; Doane v. Essex Building Associaton, ubi supra; Brill v. Riddle Co. (May, 1900, in this court).” 47 Atl. Rep. 223.

The rules of this court have been changed since Haberman v. Kaufer, supra, was decided; but there is nothing in the rules which permits a demurrer to an answer, or a motion to strike out an answer, except so far as rule 67 is to be considered—of which rule more hereinafter. The old rule 213 referred to by Yice-Chancellor Grey in Haberman v. Kaufer, supra, read as follows: “Any objections to any pleadings or any part thereof, may be made and adjudicated upon, on motion, without the filing of a demurrer or exceptions, but the notice of such motion (which shall he an eight days’ notice) must state the' particular ground or grounds of objection. The making of a motion under this rule shall be deemed a waiver of the right to demur or except, and the motion, if made in reference to a bill, must be made within the time limited by law for demurring, unless the court, on application, shall grant further time (and in ease of an answer, the objection thereto shall be taken before a replication has been filed).” The present rule 15 provides that “all objections to pleadings must be made by motion.” Buie 59 annexed to the Chancery act of 1915 (P. L. 1916 p. 196). now included in the present rule 75, is the same in words as rule 75.

Exceptions to an answer are of two kinds: (1) For insufficiency: (2) for scandal and impertinence. The former lies where the answer does not sufficiently respond to the allegations and charges in the bill, and the latter where the answer contains scandalous or impertinent matter. Exceptions for insufficiency can only be sustained where some material allegation, charge or interrogatory in the bill is not .fully answered. Fletch. Eq. Pl. & Pr. 355. Impertinence consists of an allegation that is irrelevant to the material issues made or tendered. Ibid. 156. Any matter in an answer which is fairly responsive to the bill is not impertinent. The test of impertinence is to inquire whether the subject of tlie allegations could be put in issue. Ibid. 344.

Defendant denies the alleged extreme cruelty, and in denying the alleged cruelty defendant is impliedly asserting that the decree of dismissal does not preclude him from calling on petitioner to prove her allegations of extreme cruelty. This is what defendant has put in issue, and this is not impertinent. This is the thing that is challenged by this motion to strike out. As the grounds for the motion to strike out do not allege insufficiency or impertinence, the motion to strike out must fail, because it is, in substance, a demurrer to the answer, it being a motion made with the purpose of testing the legal sufficiency of the defense presented by the answer. In an ordinary equity case, as it was not permissible to file a demurrer to an answer, before the promulgation of rule 67, if it was desired to submit the case on questions of law arising on the answer, the only method was by setting down the cause for hearing on bill and answer. Fletch. Eq. Pl. & Pr. 354. But a divorce suit may not be set down for hearing on the pleadings.

If there were no adjudications in this court, or in the court of errors and appeals, other than those I have referred to, on the subject thus far discussed, it would be clear that the motion to strike out the answer in the present case should be denied; but there is an opinion by the late chancellor (Weidman Silk Dyeing Co. v. East Jersey Water Co., 88 N. J. Eq. 397; 108 Atl. Rep. 858, 1056) in which he held that while a motion to strike out an answer on the ground that it discloses no defense would not have lain prior to the promulgation of the present chancery rule 67, which reads as follows: “Demurrers, pleas and exceptions to answers are abolished. Any pleading may be objected to on motion on the ground it discloses no cause of action, defense or counter-claim respectively,” that this rule is, in its language, “a clear departure from that of the former rule 213; and that an answer may be objected to on motion on the ground that it discloses no defense;” and he added, “of course, if the answer be struck out in its entirety the complainant would be entitled to a decree, either as on confession or on proofs taken ex parte, unless leave were given to answer over.” This decision was affirmed by the court of errors and appeals (Weidmann Silk Dyeing Co. v. East Jersey Water Co., 89 N. J. Eq. 541; 105 Atl. Rep. 194), but it is to be noticed that in its short affirmance that court did not at all discuss rule 67. This is part of the affirmance: “The opinion of the chancellor sufficiently vindicates the result he reached * * *. We agree that the facts conceded in the bill and answer entitle the complainant to a decree.” As I understand, this affirmance shows that the court of errors and appeals approved a decree for the complainant because the bill and answer together showed a situation which entitled complainant to a decree, which is different, of course, from the striking out of an answer. And, even if the opinion of this court, in this Weidman Silk Dyeing Co. v. East Jersey Water Co. Case, does state that the answer, as a whole, should be struck out, the court of errors and appeals approved only the result reached in this court and not necessarily the procedural method by which that result was reached. I think this opinion of the court of errors and appeals shows that what was approved was a decree for the complainant, which was based not only on the bill, but also on the answer. But a decree in a divorce suit cannot be so based.

There are two reasons, as I view the matter, which together warrant me in holding, on principle and on authority, that the present motion to dismiss should be denied, despite this decision of the late chancellor and its affirmance by the court of errors and appeals. As to the first reason, which has application to an ordinary suit in this court as well, I but suggest that rule 67, on the language of which, as “a departure from that of the old rale,” the late chancellor based his decision, was in force at the time the court of errors and appeals affirmed Vice-Chancellor Stevenson’s decision in 1916 (Commonwealth Title Co. v. New Jersey Lime Co., supra); and while rule 67 is not specifically mentioned in the opinion of the vice-chancellor it should be held to be within the purview of his decision. If this suggestion is well made it follows that, if the court of errors and appeals, in its affirmance of the late chancellor (Weidmann Silk Dyeing Co. v. East Jersey Water Co., 89 N. J. Eq. 541; 105 Atl. Rep. 194) did not necessarily approve the striking out of an answer on the ground that it showed no defense, then either the point may now be ruled on by this court, or it is controlled by the decision of the court of errors and appeals (Commonwealth Title and Trust Co. v. New Jersey Lime Co., supra) in affirming Vice-Chancellor Stevenson. I may add that it seems clear that the old practice, as laid down in Commonwealth Title Co. v. New Jersey Lime Co., supra; Leslie v. Leslie, supra; Doane and Jones Lumber Co. v. Essex Building and Land Co., supra, and Haberman v. Kaufer, supra, is the better practice, because the achieving of justice with the most expedition is the desire of suitors and the aim of this court. I think that the observations of Vice-Chancellor Stevenson, which he made in Commonwealth Title Co. v. New Jersey Lime Co., supra, show that the practice approved in that suit is the better practice.

Next, I think that rule 67 does not relate to answers in divorce suits, because of the peculiar nature of such suits. Consider the result of an answer in a divorce suit being struck out on the ground that it showed no defense. Apply the language of the late chancellor in the case hereinbefore discussed (Weidmann Silk Dyeing Co. v. East Jersey Water Co., 88 N. J. Eq. 397; 102 Atl. Rep. 868, 1056), to wit, “of course, if the answer be struck out in its entirety the complainant would be entitled to a decree, either as on confession or on proofs taken ex parte, unless leave were given to answer over.” But there can be no decree “as on confession” in a divorce suit. Here we think of Mr. Bishop’s so-often-repeated language that a divorce suit is “a triangular suit, sui generis.” In divorce suits the state is a party whose interest the court at all times will save and protect. And as the lawr favors marriage and disfavors divorce, the court will do nothing to facilitate the latter, but will onty dissolve the marriage relation when the complaining party is strictly entitled to a decree. A judgment by default'is not favored in a divorce suit. Grant v. Grant, 84 N. J. Eq. 81; 92 Atl. Rep. 791; Rinehart v. Rinehart, 91 N. J. Eq. 354; 110 Atl. Rep. 29. It is the policy of the law that all proper defenses be made or compelled. Feickert v. Feickert, 98 N. J. Eq. 444; 131 Atl. Rep. 576. The peculiar characteristics of divorce suits are written large in the decisions of our courts, as in the courts of virtually every American jurisdiction. An admission in an answer in a divorce suit may not prove a case. Otherwise there might be a decree based on a petition and the answer thereto, with no testimony taken. It is my opinion that, unlike in ordinary equity suits, the allegations of the petition are not necessarily to be taken as true on the ¡(resent motion to strike out the answer. Nothing can be taken as true in a divorce suit. Schoul. Marriage, 1). D & S. § 15-31. 1 think this is a principle to be applied not only to the substantive law of divorce, but also to the procedure of a divorce suit, to what we call the adjective law. This principie and the other principles referred to permeate a divorce suit from beginning to end.

In my opinion an answer in a divorce suit should not be stilled by any procedure. This court should not, by its order on the pleadings, override or suppress the denials of an answer in a divorce suit. To strike out the answer in the present suit would be wrong in principle; and I find no compulsion in rule 67, for the reasons somewhat expressed herein. I am not ignoring the provision of section 9 of our Di vorce act that the same process and procedure shall be had and pursued in divorce suits as are usually had and pursued in other causes in the court of chancery, except so far as other process and procedure is prescribed by or under the authority of the act. But I should say that what is substantive law and what is adjective law in divorce suits is not so clear, because of the peculiar characteristics of divorcie suits. “Students of legal history know the truth of the statement that The substantive law is secreted in the interstices of procedure/ nor need practitioners be reminded how frequently changes in procedure affect the substantive rights of parties.” (Professor Morris B. Cohen, Law and the Social Order, published 1933—at p. 128).

There are other reasons why the motion should be denied; and they should he mentioned, because counsel for petitioner is not to regard his motion as dismissed only on the grounds hereinbefore stated. He is not to be left with the thought that he may have the right to renew his motion on final hearing on his offering the decree of dismissal in evidence.

Counsel for petitioner is in error in attributing to the recital in this decree of dismissal the force of an adjudication of extreme cruelty as in a decree of divorce in a suit for divorce. A matter is not res judicata unless there he identity of the thing sued for, of the cause of action, of the persons and parties, the quality of the persons for and against whom the claim is made, and the judgment in the former action be so in point as to control the issue in the pending one. Hoffmeier v. Trast, 83 N. J. Law 358; 85 Atl. Rep. 221. In the absence of proof that a particular issue actually was tried and determined in arriving at a former judgment, it is conclusive by way of estoppel only as to those facts without the existence and proof or admission of which it could not have been rendered ; in other words, it is conclusive evidence of whatever it was necessary for the court or jury to have found in order to warrant the decision or verdict in the former action, and no further. 34 Corp. Jur. 927. If it is doubtful whether a second suit is for the same cause of action as the first the proper test is to consider whether the same evidence would sustain both. If different proof would be required to sustain the two actions, a judgment in one is no bar to the other. It has been said that this method is the best and most accurate test as to whether a former judgment is a bar in subsequent proceedings between the same parties. 15 R. C. L. § 439. In a second suit between the same parties for a different cause of action only those matters within the issues actually litigated and determined (in the first suit) are res judicata. Spingarn v. Spingarn, 8 N. J. Mis. R. 423; 150 Atl. Rep. 764, citing Nagle v. Conrad, 96 N. J. Eq. 61; 125 Atl. Rep. 20; Paterson v. Baker, 51 N. J. Eq. 49; 26 Atl. Rep. 324, and In re Walsh’s Estate, 80 N. J. Eq. 565; 74 Atl. Rep. 568. In a second suit between the same parties for a different cause of action it is permissible to look into the record to ascertain whether an issue presented in the second suit was actually tried and decided in the first (Ibid.).

In the present suit there is not identity of the thing sued for, nor of the cause of action, nor of the judgment, nor of the evidence. The relief asked for in the present divorce suit is not the same relief as was asked for in the maintenance suit. The present suit is brought to dissolve a marriage. The maintenance suit was brought to enforce the legal obligations of that marriage and to obtain a money decree. Even if, however, the decree of dismissal is to be viewed as one which establishes the fact that the extreme cruelty alleged in the bill for maintenance was in issue and was proved in the maintenance suit, it is to be said that the decree did not, necessarily, establish the existence of extreme cruelty to such an extent or to such a degree, that such cruelty should or could be viewed as a sufficient basis for a decree of divorce for extreme cruelty, because' a maintenance decree may be made where extreme cruelty is alleged and adjudicated, on evidence which is not corroborated. A decree in a maintenance suit may be founded on evidence of a lower degree than that necessary to entitle a petitioner to a decree of divorce.

The opinion of Vice-Chancellor Learning, in Taylor v. Taylor, which was affirmed by the court of errors and appeals in toto (73 N. J. Eq. 745; 70 Atl. Rep. 323), impliedly, but plainly, held that where a wife separates herself from her husband and claims alimony, she must justify the separation by proof of the extreme cruelty alleged to the same extent as if she were suing for divorce on the ground of extreme cruelty. This holding is best shown by the vice-chancellor’s own words: “The testimony upon the part of the complainant, if accepted in its fullness, might justify an affirmative conclusion. If all that is claimed in her behalf be accepted, it is probable that her treatment at her home may have been of such nature as to justify her, in the preservation of her health, to take the radical step which she took in leaving her home; but that testimony and that claim, in practically all of its essential features, is without corroboration. The witnesses called to corroborate her in these matters have failed entirely to disclose any such condition of affiairs at her home as would entitle a court to make an affirmative finding to the effect of extreme cruelty, as claimed by complainant; and in view of the contrary and opposing testimony that exists in this case it is entirely manifest that no such finding can properly be made.”

Later, in Pinkinson v. Pinkinson, 92 N. J. Eq. 669; 113 Atl. Rep. 143, a maintenance suit, the court of errors and appeals held that “the court will consider in the disposition of the case the evidence of the parties as to the cessation of marital relations, although the evidence is uncorroborated.” In this case the wife left the husband, and extreme cruelty was not involved. This opinion distinguished with respect to corroboration as between maintenance suits and divorce suits, and refers to Stieglitz v. Stiegliiz, 92 N. J. Eq. 292; 112 Atl. Rep. 310, in which case it was held that a divorce on the ground of desertion would not be granted upon the uncorroborated admission or testimony of a party to the suit that no sexual intercourse had been had. Then the opinion continues: “In the present case there is no corroboration of the testimony of the parties that prior to the separation they had sexual intercourse. We do not, however, feel that in taking into consideration this evidence we are running counter to the opinion of this court in Stieglitz v. Stieglitz. In that case the parties sought a dissolution of the marriage relation. The dissolution of the marriage relation is a proceeding which the law does not favor. The present proceeding is not one seeking a dissolution of the marriage relation, but one to uphold an obligation implied by the relation. The cessation of intercourse is but one element or factor to be taken into consideration in reaching a conclusion upon the question involved. We are, therefore, of the opinion that it is proper, under such circumstances, to con sider the testimony of the parties on this subject, although uncorroborated.” This holding in Pinkinson v. Pinkinson, supra, was followed in Shore v. Shore (Court of Errors and Appeals), 96 N. J. Eq. 661; 126 Atl. Rep. 320, in which ease the husband had physically left the wife, and extreme cruelty was not involved.

It has been held that where a wife obtains a decree in a maintenance suit on the ground that the husband has unjustifiably abandoned her and has neglected or refused to support her, even if the decree rests on consent, she may use the decree in a suit subsequently brought by her for divorce on the ground of desertion after two years have run from the entry of the decree, as conclusive of the fact that the husband left her. However, before she may have a decree of divorce she must, in addition, present corroborated evidence of the continuance and obstinacy of the desertion for the two-year period.

If the contention of counsel for petitioner is correct, a wife, unable to corroborate her testimony with respect to extreme cruelty, might plan to first get a decree for maintenance, based on her uncorroborated testimony, and then, immediately after the entry of such decree, file a petiton for divorce and get a decree of divorce for extreme cruelty, with no corroboration, by default. Moreover, a decree of divorce for extreme cruelty might rest entirely on consent and with no corroboration. Corroboration of a petitioner’s testimony in divorce cases is part of the substantive law of divorce, evolved by the court as a matter of sound public policy. Rogers v. Rogers, 89 N. J. Eq. 1; 104 Atl. Rep. 32.

As no corroboration is required in a maintenance suit where extreme cruelty is the issue, if a decree in a maintenance suit, like the decree under examination, is to be held an adjudication of extreme cruelty, it should be so held only to the extent and to the degree that proof of extreme cruelty is required in a maintenance suit.

Holding, as 1 do, that an answer in a divorce suit, which contains denials of the petitioner’s right to relief, may not be struck out on the ground that it discloses no defense: and that the rule adopted by the court of errors and appeals in Taylor v. Taylor, supra, has been changed by the decisions of the same court in Pinkinson v. Pinkinson, supra, and Shore v. Shore, supra; and that the rule declared by the court of errors and appeals in these last two named cases is that corroboration is not essential in maintenance suits; that this is a general rule; that it must be viewed as a general rule because of the reasons on which it rests, as stated by the court of errors and appeals in these two cases; and that this rule therefore includes within its scope an issue of extreme cruelty in a maintenance suit; it appears that the decree of dismissal pleaded in the present suit—leaving aside the fact that the reference to extreme cruelty in the decree is in the reciting part of the decree, the fact that the recital is of an affirmative fact which did not warrant the decree, which is a negative decree, and the fact that the decree rests on consent—was no! made on testimony which was necessarily corroborated, the motion to strike out the answer is denied.


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    SAMUEL JACKSON, PETITIONER-PROSECUTOR, v. FLORENCE THREAD COMPANY, DEFENDANT-RESPONDENT.
    Submitted May 11, 1934
    Decided October 5, 1934.
    Before Justices Teen chard, Heher and Perskie.
    For the prosecutor, Joseph Beclc Tyler.

    For the respondent, George B. Evans.

   Per Curiam.

Samuel Jackson (hereinafter called the -workman) was injured by an accident arising out of and in the course of his employment by the Florence Thread Company (hereinafter called the employer). The accident happened November 21st, 1928. No formal petition for compensation under the Workmen’s Compensation act was filed until July 27th, 1932, when the workman filed the petition now in question. That petition alleged, among other things, permanent disability. The employer’s answer admitted that notice of the accident was given to it on the date of the accident.

At the hearing before the workmen’s compensation bureau, the employer moved to dismiss the petition on the ground that it was barred by the statute of limitations. That motion ivas granted by the deputy commissioner. An appeal was taken by the workman to the Burlington Court of Common Pleas and the dismissal was affirmed. The workman then obtained this writ of certiorari and now questions the propriety of that judgment.

The -workman contends that the petition should not have been dismissed, because the failure to file reports, particularly the so-called second report, as required by the act {Pamph. L. 1924, p. 401), deprived the employer of the defense of the statute of limitations.

We think there is merit in this contention.

The act of 1924 requires an employer carrying insurance, as required by chapter 178 of the laws of 1917, when an accident occurs to one of his employes, to make report thereof in accordance with the terms of his insurance policy. It is admitted that the employer here had notice of the accident on the day that it occurred, and it appears that the insurance company received notice of the accident from the employer not later than December 4th, 1928.

Now section 3 of the act of 1924, after providing that the insurance carrier, immediately upon receiving knowledge of the accident to an employe, shall make report thereof to the workmen’s compensation bureau, and then further provides that “within three weeks after the carrier has learned of the accident or the contraction of such disease such carrier shall send to the bureau a second report containing a statement of wages and an agreement to care for the case according to the terms of the compensation law. This report shall be signed by the employe as provided thereon and by the employer or insurance carrier.” The section further provides that “when an employe refuses to sign any of the required forms, such fact shall be noted on the blank at the point where the signature should be placed and the forms filed with the bureau.” The act further provides that any employer or insurance carrier failing to make reports as required by this act shall in such instance be deprived of the defense of the statute of limitations.

It is quite clear from the record that the so-called second report was not sent or filed within the time definitely fixed by the statute, that is, “within three weeks after the carrier has learned of the accident.” As heretofore pointed out the accident happened on November 21st, 1928. The insurance carrier knew of the accident not later than December 4th, 1928. The second report was not sent or filed until March loth, 1929.

It has been held in effect that the failure to file reports in accordance with the provisions of the act continued to the petitioner his right of action and removed the defense of the statute of limitations. Frazier v. L. Bamberger & Co., 160 Atl. Rep. 630; affirmed by the Court of Errors and Appeals in 110 N. J. L. 447. That case seems to dispose of the present case as far as this court is concerned.

The act of 1924 abolishing the defense of the statute of limitations where reports are not filed as required by the statute, was in existence at the time the accident occurred. This act was later amended (Pamph. L. 1931, ch. 280) by extending the time for bringing suit to two years and omitting the provision for abolishing the statute of limitations upon failure to file reports.

In Hunt v. Gulick, 9 N. J. L. 205, it was held that the right of the plaintiff in an execution to recover against a constable for neglect of duty in the service of an execution is a vested right and a repeal of the statute that rendered the constable liable will not defeat the recovery. See, also, 4 Comp. Stat., p. 4971, § 3.

It appears, therefore, that the workman’s cause of action in the present case is not in any way affected by the repeal of the act of 1924 by the act of 1931.

The judgment below will be reversed, and the case remitted for further proceedings not inconsistent with this opinion. The costs in this court to abide the final determination.


text:
    JULIA V. AYERS, PETITIONER-DEFENDANT IN CERTIORARI, v. PUBLIC SERVICE CO-ORDINATED TRANSPORT, RESPONDENT-PROSECUTOR IN CERTIORARI.
    Submitted May 11, 1934
    Decided October 9, 1934.
    Before Justices Trenchard, Heiier and Pbrskie.
    For the prosecutor in certiorari, Henry IT. Fryling (Elmer W. Roniine, oí counsel).
    For the defendant in certiorari, Meyer 0. Ellenstein (James F. X. O'Brien, of counsel).
   Per Curiam.

Judge Hartshorne, in the Essex County Court of Common Pleas, when this case was there on appeal from the workmen’s compensation bureau, delivered the following opinion:

“A careful reading of the four hundred-page record shows that the key to the situation lies in the fact that the original injury, as alleged by petitioner, was trivial in character, the ultimate death of petitioner’s decedent resulting from infection in such wound, despite medical care. With this in mind, the solution of both the factual and legal difficulties becomes simplified.

“Respondent-appellant contends that petitioner has not established her case by the greater weight of: the credible evidence. But the only direct evidence as to the accidental injury is that given by one Cresse, a totally disinterested eyewitness, whose testimony is clear and convincing in every detail, and the testimony of one Stiefel, produced by the respondent-appellant, to deny the accident. Not only in theory but in fact, this witness appears to have been hostile to petitioner, yet his testimony, when analyzed, corroborates petitioner.

"Cresse’s story is that petitioner’s husband, since deceased, a trolley inspector of respondent-appellant, was alighting from a trolley car in the course of his duties on September 22d, 1931, on Bloomfield avenue, in Verona, opposite Stiefel’s place of employment, when he missed his footing and fell, slightly cutting or abrasing his left leg just above the ankle. Decedent’s written statement was taken by the respondent-appellant, after his leg was amputated and three days before he died, and was put in evidence by the respondent-appellant. This indicates Stiefel saw the occurrence. Stiefel denies this, basing his denial upon the fact that September 22d, 1931, was his day off. Irrespective of the facts that another witness for respondent-appellant testifies that Stiefel’s 'day off’ record is sometimes in error, and that, both petitioner and her daughter testify that Stiefel later told them he saw the accident, Stiefel himself testified that 'I seen him [decedent] from the trolley car he got off,’ that he 'saw him [decedent] when he fell,’ and that decedent thereafter asked Stiefel for some iodine, evidently for his leg, and that all this occurred the latter part of September, 1931. He further admits that he 'might have’ told decedent to report the accident to the respondent-appellant at once. Finally, Stiefel bases his claim that September 22d, 1931, was his day off, mainly on the fact that it was a Thursday, his regular day off. As a matter of fact, September 22d, 1931, fell on a Tuesday, not Thursday. Nor does respondent-appellant produce its motorman, who operated its cars at the spot in question at or about the time claimed, to deny such occurrence.

"Nor is decedent’s written statement to respondent-appellant’s investigator, taken as above, to the contrary. This was taken by an investigator from respondent-appellant’s welfare department. He was primarily interested in illnesses, not accidents. Therefore, decedent’s illness, gangrene, was what was stressed, not its alleged cause, the fall, abrasion and infection. After discussing the gangrene and its inception at some length, the statement continues:

“ ‘About two or three weeks before I remained away from work on October 6th, 1931 [Ú e., in the neighborhood of September 22 d], I had boarded an east-bound car on the Bloomiield-Oaldwell line on duty and, at about six o’clock p. m., I attempted to alight from the car at Bloomfield and Mount Prospect avenues, Verona. As no passengers were getting off or on, I believe the operator, whom I do not remember, slowed down the car, and I stepped off the step and fell to my knees and hands on the street pavement, but I got right up and I did not feel anything wrong with me—no pain resulted from the fall in my legs or hands and, to my best knowledge, I had not hurt myself at all * * *. John Stiefel told me that I ought to report it, but I said to him that I wasn’t hurt and I didn’t believe the fall amounted to anything * * *. I felt no pain or other effects of the pain the balance of the day nor any that day following. I didn’t bother to examine myself because 1 didn’t have any pain and I didn’t believe I had injured myself. I never did report to the company about it. To my best knowledge the above are the only times that I had any kind of an accident while on duty. I never have had any trouble before with my legs, until Sunday, October 4th, 1931, when 1 noticed the foot was cold and numb, nor have I ever had any treatment for any condition like rheumatism or arthritis.’

“When we bear in mind the fact that decedent had just gone through the amputation of his left leg above the knee, it is little wonder that the trivial scratch he received at the time of the above fall appeared quite inconsequential—‘I didn’t believe the fall amounted to anything.’ Small wonder, after such an operation, that he recollects no pain from such a scratch. It is a matter of common knowledge that infection may result from the slightest pin prick opening in the skin. Clearly this pin prick opening may occur without a healthy man feeling any substantial amount of pain, certainly, without his recalling it after undergoing a major operation. Note that decedent does not say that he did not fall or that he was not injured in fact. He expressly says he did fall, though he 'didn’t [then] believe I had injured myself.’ But in the self-same statement he says that his physician, Dr. Bleier, 'thought the condition [gangrene] was caused by a fall,’ and after recounting the above facts and another incident in his statement, decedent adds, 'to my best knowledge the above are the only times that I had any kind of an accident while on duty.’ Decedent’s statement, the respondent-appellant’s strongest reliance, therefore does not deny the accidental injury, and such is clearly established by the requisite burden of proof.

''Petitioner’s and the doctor’s hearsay testimony as to the fall will, of course, not be considered in this aspect. But the fact that same were inadmissible (Helminsky v. Ford Motor Co., 111 N. J. L. 369), and the fact that they may have improperly formed a part of the basis of the award by the bureau, will not result in a reversal here, when the burden of proof is otherwise properly sustained, since this court is to 'decide the merits of the controversy.’ Pamph. L. 1932, ch. 25, § 19; Helminsky v. Ford Motor Co., supra.

“Furthermore, the casual connection of decedent’s ultimate death is properly established! There is ample testimony as to decedent’s previous good health in all respects. Four doctors testify that the wound became infected; that this infection caused gangrene of the foot; that this gangrene spread and required amputation of the limb, and that decedent died as a result of this amputation. The testimony of Dr. Samuel, not an attending physician, for the respondent-appellant, stands practically alone to the contrary.

“Respondent-appellant objects that it did not have 'knowledge of the occurrence of the injury,’ nor was it given written notice. Regardless of the fact that it is 'knowledge of the occurrence of the injury,’ as distinguished from knowledge merely of the accident, that is requisite, it would appear that respondent-appellant had such knowledge, if it was not, in fact, given written notice. ‘First hand personal knowledge is not what is meant’ by the statute, but ‘what would be called knowledge in common parlance, such knowledge as most of us are confined to in the daily affairs of life.’ Allen v. City of Millville, 87 N. J. L. 356. Petitioner testifies that respondent-appellant’s doctor in charge at the home office was told of the entire situation shortly after it occurred. The person in charge of respondent-appellant’s welfare department at the home office called by respondent-appellant, testified that this physician, Dr. Pascall, was uncertain ‘whether he should treat the case as a compensation case or as one of illness.’ Finally, respondent-appellant sent its investigator to find out the true facts from the lips of decedent in the hospital, after the amputation and three days before he died.

“As noted above, decedent does not there deny, either that he had an accident or that an injury resulted, but merely does not recollect pain as a result of such accidental injury. In such statement, on the contrary, decedent does set forth the fall exactly as petitioner now claims, explicitly calls it an ‘accident’ and says that, while he, decedent, ‘did not believe I had injured myself,’ his doctor thought his gangrene ‘was caused by a fall.’ The above clearly constituted compliance with the statutory requirements and decedent’s statement is, admissible fox this purpose, if fox no other.

“As to the question raised by the respondent-appellant concerning the dependence of decedent’s nephew, the testimony is that such nephew was actually being supported by decedent as a member of his family. The statutory requirement is that the claimant must be ‘dependent in fact.’ Muzik v. Erie Railroad, 85 N. J. L. 129. Even if dependency in fact means not only support in fact, but as well a duty to so support, in the face of such testimony, the burden was upon the respondent to show the existence of such nephew’s parents, who were both able and responsible for his maintenance. This it did not attempt to do.

“For the above reasons, the determination of the compensation bureau is affirmed, and an order may be entered accordingly.”

Now in oar judgment the foregoing opinion of Judge Hartshorne in deciding the appeal in the Court of Common Pleas completely disposes of the reasons of the prosecutor in certiorari now presented. Those reasons in effect are: (1)

There was no proof of knowledge or notice, either oral or written, as required by the statute; (2) the judgment of the workmen’s compensation bureau and the Essex County Court of Common Pleas is unsupported by legal evidence; (3) the judgment of the workmen’s compensation bureau and the Essex County Court of Common Pleas was based upon an incorrect assumption of law and facts.

Since we find no merit in the reasons or arguments on behalf of the prosecutor in certiorwi'i, as is demonstrated b.y the opinion in the court below, the judgment below will be affirmed, with costs.


author: Pee Curiam.

text:
    MORRIS SPRITZER, PLAINTIFF-APPELLANT, v. RUTGERS CHEVROLET COMPANY, DEFENDANT-RESPONDENT.
    Submitted May 11, 1934
    Decided October 14, 1934.
    Before Justices Lloyd, Case and Donges.

      For the appellant, William Lowenthal.

    For the respondent, Herman Chiman.

   Pee Curiam.

This is an appeal from a judgment of the New Brunswick District Court in favor of the defendant. The facts are that one Milton May purchased an automobile from defendant Putgers Chevrolet Company on a conditional bill of sale, which contract was assigned by defendant to General Motors Acceptance Corporation. May fell behind in his payments and the plaintiff, Morris Spritzer, who is May’s brother-in-law, agreed to buy the car from May. This agreement was reached on August 29th, 1933. The acceptance corporation was notified of this pending sale and it prepared the necessary papers to consummate it, and informed the parties to come to its office to execute the papers. Plaintiff paid $46 to the acceptance corporation which it accepted and applied to the May account. The papers were never executed because May refused to do so, but retained the automobile and refused to deliver it up. The plaintiff informed the finance company where the car could be found and the finance company seized it under the conditional sales contract and sold it. At the sale the defendant was the purchaser.

At the time plaintiff expected to acquire the car under the oral agreement with May, he placed thereon four new tires and tubes. These were on the car when it was seized and sold to defendant. Neither the finance company nor the defendant had knowledge that plaintiff had put tires and tubes on the car. After the sale the plaintiff offered to pay the defendant the full amount due on the purchase price, together with the expenses of the seizure and sale, but this was refused. Plaintiff then demanded the tires and this was likewise refused. The present action in replevin was then brought in the District Court and resulted in a judgment of nonsuit.

We are not called upon to decide what the rights of plaintiff might be if he had sold tires to May, which were placed on the car, either with or without a reservation of title thereto. The question is as to the right of the plaintiff, who expected to succeed to any rights of May, against an innocent third person, who purchased without knowledge that plaintiff, had so placed the tires in reliance upon an agreement with May. If May had put the tires on the car, they would pass with the car, under the terms of the recorded conditional bill of sale, which provided that the conditional vendor, after default, might take the car “including any equipment or accessories therto.”

In the circumstances of this case, we conclude that the substitution of tires by plaintiff was made in the right of May, and, that, as against a purchaser without notice, they cannot be recovered.

The judgment is affirmed.


author: Lawrence, C. C. J.

text:
    THE MATAWAN BANK, A BODY CORPORATE, PLAINTIFF, v. LEO FELDMAN AND HERMAN ELLIS METAL CORPORATION, DEFENDANTS.
    Decided August 6, 1934.
    For the plaintiff, Reuser •£ Reuser.

    For the defendant Leo Feldman, Giordano, Golden & Hurley.

   Lawrence, C. C. J.

This suit was submitted to the court without a jury, by consent, at the Monmouth Circuit. The action is based on a promissory note, dated January 16th, 1931, for $2,750, made by the defendant metal corporation, endorsed by defendant Feldman, and payable three months after date. It appears that the amount was reduced by payments to $1,700, the last of which was made on September 29th, 1931. No answer was filed by the corporation to the suit, but defendant Feldman, in an answer filed denied liability as an endorse!' by reason of Ms discharge in bankruptcy in the United States District Court for the district of New Jersey, on August 17th, 1931, from all debts due and owing by him on April 27th, 1931, the date of the petition, and in which lie scheduled, among Ms debts, the note in suit as a liability, and which had apparently fallen due on April 16th, 1931, and had not been renewed. Plaintiff’s reply to this answer was that defendant could not plead the discharge of August 17th, 1931, as a bar to the present suit, because he had been previously discharged in the same court on December 25th, 1927, and that since the second discharge was within six years of the first, it was void by virtue of section 14-B, item 5, of the Bankruptcy act, which reads as follows:

“The judge shall hear the application for a discharge and such proofs and pleas as may be made in opposition thereto by the trustee or other parties in interest, at such time as will give the trustee or parties in interest a reasonable opportunity to be fully heard; and investigate the merits of the application and discharge the appellant, unless he (5) has been granted a discharge in bankruptcy within six years.”

Since the facts were admitted, the sole question argued at the trial of the present suit was whether defendant’s second discharge, which was within six years of the first, could be collaterally attacked. It was conceded on the argument that where a court of general jurisdiction has jurisdiction of the subject-matter and has acquired jurisdiction over the person of the defendant, its judgment is invincible against collateral attack.

It was urged, however, in behalf of plaintiff that if any judge or referee in the United States District Court attempts to supersede the power given by the Bankruptcy act itself, he is without jurisdiction and any decree or order given by him may be attacked collaterally or impeached in any court of any state wherein such order or decree might be pleaded; reliance being had on In re Fahy, 116 Fed. Rep. 239, construing section 14-A of the act, limiting the right of the bankrupt to apply for a discharge to eighteen months subsequent to adjudication, and in which it was said that the power and right to grant a discharge effectual to bar the enforcement of debts due conferred by statute is governed by the limitations found in the statute, and unless it is petitioned within the time fixed, the court of bankruptcy is without power and jurisdiction to grant the discharge, but if it yields to equitable considerations and should grant the discharge, such discharge could be impeached before any court wherein it might be pleaded as a bar to a claim, on the ground of want of jurisdiction to entertain the petition for discharge.

While the point here raised is not without some doubt, in view of the admitted fact that the second discharge of defendant was within six years of the first, and on voluntary petitions filed by him in both instances, it seems that a person is not deprived of the right to file such a petition and have an adjudication of bankruptcy thereon, even though he may not be entitled to a second discharge within the limited period. 7 C. J. 42, § 51. It thus appears that the federal court may acquire jurisdiction of the person and the subject-matter in any event, and if this is so, the question arises whether it is not the duty of a creditor to object to the second discharge, by calling the court’s attention to the first within the limited period; as it is not supposed that if it is, the second by reason of its irregularity would be granted. See Bluthenthal v. Jones, 208 U. S. 64, cited in 13 L. R. A. (N. S.) 629. The proofs here are adequate that plaintiff as a creditor had notice of the filing by defendant of the second petition, in the schedule attached to which it was listed, because of his endorsement of the note in suit. It paid no attention to the proceeding, however, and allowed him to petition for and obtain the second discharge, with the result that the court evidently had no information as to the first. It is suggested, however, that the court should have made its own independent investigation of prior records, which it does not appear to have done. It is not so clear that this is so, although it would seem to be beside the point which is that the proceeding appears to have been entirely regular, and the irregularity is apparent only by proof, outside the immediate record, of a prior discharge within the limited period. In the circumstances, can plaintiff collaterally attack the second discharge, in all respects regular on its face, in the present suit? The question seems to require a negative answer. In Crawford v. Lees, 84 N. J. Eq. 324; 93 Atl. Rep. 201, it was held that the erroneous determination of a court of general jurisdiction of facts, on which its jurisdiction depends, cannot be collaterally attacked. The principal that a judgment of a court having jurisdiction of the subject-matter and parties cannot be collaterally impeached applies to an action in rem, as in such cases all the world is a party; although want of jurisdiction of the subject-matter will subject the judgment of any court to collateral impeachment.

In Lippincolt v. Godfrey, 103 N. J. L. 407; 136 Atl. Rep. 407, it was said that where a court has jurisdiction to order the entry of judgment, and there were procedural errors in the steps taken to that end, such judgment is only properly subject to attack by a motion to vacate the same in the court where such judgment was entered, or by appeal therefrom, and cannot be questioned in a collateral manner. Citing Plume v. Howard Savings Institution, 46 N. J. L. 211. See, also, In re Leupp, 108 N. J. Eq. 49, 58 et seq.; 153 Atl. Rep. 842. The interesting question whether the apparently improper second discharge in bankruptcy can still be annulled, because improvidently entered, is suggested in the discussion in In re McKee, 165 Fed. Rep. 269. In any event, it seems clear that plaintiff cannot be permitted to collaterally attack defendant’s discharge in the present suit. The result is that judgment must be entered in favor of defendant and against plaintiff.