text:
    New Jersey Department of Labor, Workmen’s Compensation Bureau.
    JULIA V. AYERS, PETITIONER, v. PUBLIC SERVICE COORDINATED TRANSPORT, RESPONDENT.
    Decided January 21, 1938.
    For the petitioner, Ellenstein & O’Brien.

    For the respondent, Henry H. Fryling.

   This matter coming on to be heard before me, one of the deputy commissioners of the workmen’s compensation bureau at Newark, New Jersey, on a petition to set aside the judgment entered in this court on October 13th, 1933, in the above entitled matter on a dependency claim on behalf of Robert Cramer on the grounds that the said Robert Cramer was neither a nephew of Julia V. Ayers or Marvin S. Ayers, her deceased husband, but was a son of a niece of the said Julia Y. Ayers, and, therefore, did not come within the dependency provisions of the Workmen’s Compensation act; and

Julia V. Ayers having been ordered to show cause before this court why the said judgment in favor of Robert Cramer as a dependent should not be set aside, * * * and it having been admitted by the attorneys for Julia Y. Ayers that Robert Cramer was not a nephew within the degree of consanguinity, but was a son of a niece of Julia Y. Ayers, and it also appearing that at the time of the original hearing of the petitioner’s claim, the petitioner testified that Robert Cramer was her nephew, and it further appearing that a judgment was entered by this court on October 13th, 1933, providing for compensation for three hundred weeks at the rate of $16.80 per week, at the scheduled dependency rate for two dependents, with payments to begin as of November 17th, 1931, and thereafter compensation at the rate of $14.70 per week to be paid until Robert Cramer, infant nephew, attained his sixteenth birthday, the said Julia Y. Ayers having been paid in full the compensation due to her under the former judgment of this court.

And it further appearing to the court that Julia Y. Ayers was appointed guardian of the property of Robert Cramer by the Orphans Court of the county of Essex on November 8th, 1934, and that as such guardian of Robert Cramer the said Julia Y. Ayers received by way of compensation for the benefit of Robert Cramer under the judgment of this court aforesaid a total sum of $630 as compensation, having been paid compensation from November 17th, 1931, to August 16th, 1937; and

It further appearing to this court that the said Robert Cramer for several years last past has not been living with the said Julia Y. Ayers, but has been residing with his mother at Washington, D. C., and has received no moneys or benefits whatsoever from the compensation so paid by the respondent company to Julia Y. Ayers as guardian on his behalf; and

After considering the arguments of the respective counsel and the briefs as submitted, I have come to the conclusion that in effect a mistake on a material fact was committed at the hearing on the original claim by the petitioner in testifying that Robert Cramer was her nephew, and from the facts and circumstances recently developed by the respondent company and submitted to this court, I am satisfied that the judgment in favor of Robert Cramer was erroneous and unjustified as he was not a nephew within the meaning and interpretation of the Workmen’s Compensation act, and particularly in view of the recent case of Pierson v. National Fire Proofing Corp., 117 N. J. L. 600; 190 Atl. Rep. 73, the Supreme Court of this state interpreting the dependency provisions of the act specified that “half nieces” and “half nephews” do not come within the provisions of the act, and that these words cannot be read into the statute; and

Also under the case of Fedi v. Ryan, 118 N. J. L. 516, the Supreme Court of this state in passing upon the dependency provision of the act relative to nieces and nephews said:

“In their primary technical sense, the words ‘nephews’ and ‘nieces’ import a consanguinous relationship, and by modern usage, the word ‘niece’ means the daughter of a brother or sister.”

The Supreme Court also said:

“In the enactment of the Workmen’s Compensation act, the legislature plainly had in mind the distinction between consanguinous and affined relationships; and it is only those specifically listed of the latter class who are entitled to benefits under the act. It therefore follows that the term ‘niece’ as used in that statute denotes the child of a brother or sister, and does not include the daughter of a brother-in-law or sister-in-law.”

While I have no hesitancy in holding that the judgment of this court as entered on October 13th, 1933, should be revoked and set aside under the facts and circumstances now before me, in so far as it applies to compensation payments for Robert Cramer, I feel, however, that I have no authority under the Workmen’s Compensation act to order repayments of any moneys that have already been paid by the Public-Service Co-ordinated Transport by way of compensation to Julia Y. Ayers, as guardian for the benefit of Robert Cramer, but that recourse for the return of the payments already made to Julia Y. Ayers by the Public Service Co-ordinated Transport must be had by the respondent company in some other court following the reversal of the judgment as herein ordered.

*******

Ordered that the judgment of this court as entered on October 13th, 1933, be, and the same is hereby revoked, set aside, and for nothing holden in so far as it applies to any compensation payments for the benefit of Robert Cramer as an alleged nephew of Julia V. Ayers, and that no further payments of compensation are required to be made by the Public Service Co-ordinated Transport under the original judgment of this court, and that in so far as the original claim on behalf of Robert Cramer as an alleged nephew dependent is concerned under the original petition as filed, judgment is entered in favor of the Public Service Co-ordinated Transport.

John J. Stahl, Deputy Commissioner.


source: Caselaw Access Project

author: John J. Stahl, Deputy Commissioner.

license: Public Domain

text:
    New Jersey Department of Labor, Workmen’s Compensation Bureau.
    EDWARD LEE, PETITIONER, v. MORRIS FISH, TRADING AS FISH BROS., AND AMERICAN MOTORISTS INSURANCE COMPANY, A CORPORATION, RESPONDENTS.
    Decided January 6, 1938.
    For the petitioner, William Fogel (David Roskein, of counsel).
    For the respondents, Stanley V. Phares.

   A dependency claim petition for compensation having heretofore been filed, claiming compensation for dependency and funeral benefits under an act of the legislature commonly referred to as the Workmen’s Compensation act; and an answer was duly filed by the respondent denying the material allegations thereof.

* * ijs ijí % #

There are two issues presented to me for determination. First, did the accident which the petitioner’s decedent admittedly sustained on October 22d, 1936, when he fell from an auto truck owned by the respondent as it was proceeding on the public highway in the city of Newark, arise out of and in the course of his employment with the respondent, and secondly, was Edward Lee, father of the decedent employe, a legal dependent within the terms of the Workmen’s Compensation act, and if so, was such dependency partial or total.

From the testimony of the various witnesses adduced, it appears that on October 22d, 1936, the petitioner’s decedent was in the employ of the respondent as a helper in his business as wholesale grocer, which business was operated on Cornelia street, Newark, New Jersey. On the day in question, at about one a. m., as was his custom, he went upon the truck of his employer preparatory to being taken home after the close of the day’s business. The said truck was operated by the respondent’s brother, Leonard Fish, who was the manager of the respondent’s business. It further appears that the decedent lived on the route between the employer’s place of business and the garage where the said truck was nightly stored. I further find from the testimony that it was the custom of the employer, through his brother, Leonard Fish, to call for the decedent regularly on Sundays and take him to the respondent’s place of business in order to aid the respondent in opening his business on time. This with the knowledge and acquiescence of the employer over a long period of time. The testimony is clear and convincing that the transportation was furnished by the respondent. I am satisfied that the furnishing of the said transportation by the employer was grounded, in the mutual convenience and advantage of both the employer and employe. They engaged in this practice until the same ripened into custom. It is clear that the furnishing of the said transportation was for the benefit of both parties. I feel that the same comes clearly within the rule established and so well expressed in the cases of Rubeo v. McMullen Co., 117 N. J. L. 574; 189 Atl. Rep. 662; 118 N. J. L. 530; 193 Atl. Rep. 797; Salomone v. Ansetta, 60 N. J. L. J. 365, and Alberta Contracting Corp. v. Santomassimo, 107 N. J. L. 7; 150 Atl. Rep. 830.

“The relation of employer and employe continues while the employe is riding to and from his employer’s premises, in a truck used in connection with his employer’s work, by direction of his employer, with his knowledge and acquiescence in the continued practice, which was beneficial to both the employer and employe; and an injury sustained while so riding arises out of and in the course of his employment.” Alberta Contracting Corp. v. Santomassimo, supra.

I find as a fact that the decedent’s death was the result of an accident which occurred on October 22d, 1936, and which arose out of and in the course of his emplojunent with the respondent.

In determining the question of dependency, its nature and extent, I find as follows: It is admitted that the petitioner’s decedent earned a weekly wage of $13. The testimony adduced conclusively shows that the decedent left surviving his mother, Lula Lee, of the age of fifty-three, and his father, Edward Lee, of the same age; that they resided with the decedent at the time of his death, and that Lula Lee, the mother, was ill and infirm at the time of the said accident and died shortly thereafter. With respect to the father, Edward Lee, the testimony is clear that he was unemployed at the time of the said accident and had so been for a number of years prior thereto.

I have had an opportunity to observe the petitioner on the stand. He is suffering from a peculiar skin condition which clearly can account for his lack of employment. The testimony of the father, as well as that of Mollie Lee, is to the effect that the decedent turned over all his earnings to his father. The decedent was the only member of the family gainfully employed and earning wages. Even these earnings were insufficient to support all the members thereof and consequently additional support was required. This was furnished by a local relief agency. Such aid does not, in my opinion, change the character of the dependency of the father. The relief authorities treated this family of six adults and an ill mother as a unit for relief purposes. Contributions of money, food, rent and other necessities were supplied to the family on that basis. The extension of charity to this family does not destroy the character of the dependency of the father, Edward Lee. The testimony is clear that the decedent turned over all his earnings to his father and the said moneys were used by the father in conjunction with the aid obtained from the relief authorities, for the support of the household.

I therefore find that the petitioner, Edward Lee, is a total dependent under the terms and provisions of the Compensation act of this state, and is therefore entitled to receive compensation for a period of three hundred weeks from the date of the death of Eaymond Lee, on October 23d, 1936, at the compensation rate of $10 per week, until the full amount of $3,000 is paid.

* % % % # sH ❖

John J. Stahl, Deputy Commissioner.


author: Smith, Joseph L., C. C. J.

text:
    GEORGE N. FLEMING, PLAINTIFF, v. SUSSEX CALCITE COMPANY, DEFENDANT.
    Decided January 28, 1938.
    For the plaintiff, McDermott, Enright & Carpenter.

    For the defendant, Walter J. Freund.

   Smith, Joseph L., C. C. J.

This comes on a motion to strike the answer filed, on the ground that it is sham and frivolous.

The action is for the recovery of the amount of certain conpons attached to bonds issued by the defendant, or its predecessor, and secured by a mortgage executed and delivered to the Montclair Trust Company of Montclair, as trustee. These coupons all became due on or before December 1st, 1930.

The answer set forth three lines of defense, namely: (1) That the plaintiff’s claim is barred by the statute of limitations: (2) that the present action is premature in that the mortgage securing the bonds has not been foreclosed; and (3) that a majority of the bondholders have not joined in the suit as required- by the trust indenture. In addition to these three defenses to the merits of the plaintiff’s claim, the answer further sets forth that the copy of the complaint served upon the defendant'was not signed by the plaintiff or his attorney.

The plaintiff filed a reply wherein he reserved the right to move to strike out the answer, and the present motion is made pursuant to such reservation.

As to the alleged irregularity in the service of an unsigned copy of the complaint upon the defendant, this point is not properly raised in an answering pleading and should have been raised by a motion in the nature of a special demurrer.

Before going into the merits of the questions raised by the motion, it is necessary to dispose of a matter of procedure. The defendant contends that the plaintiff having filed a reply can no longer move to strike the answer, and for this, relies upon Great American Indemnity Co. v. Gronowicz, 6 N. J. Mis. R. 821. In that case Mr. Justice Katzenbach, denying plaintiff’s motion to strike out the answer because plaintiff had filed a reply, stated:

“The case has been noticed for trial in the September term of the Middlesex Circuit, and when called, the plaintiff may make before the Circuit judge the present motion in accordance with the reservation stated in the reply.”

It appears from this that the present motion, made in the Circuit Court, in accordance with the reservation stated in the reply, is proper.

While it is true that Supreme Court rule 30 gives the order in which pleadings and motions may be made, motions addressed to the pleadings have been permitted even after the filing of a pleading. Thus in New Brunswick Motors, Inc., v. Scott, 114 N. J. L. 231, the defendant, after answering, was permitted to move to strike out the complaint. The case of Gronowicz, supra, was there discussed and differentiated, calling attention to Mr. Justice Katzenbach’s statement that the motion although denied by him could be renewed at nisi prius when the case should be called.

According to rule 40, the point of law raised in the answering pleading may be disposed of not only at or after the trial, but the court on motion of either party may determine the question so raised before the trial.

Passing to the validity of the separate defenses raised in the answer, it is contended by the defendant that the plaintiff’s claim is barred by the statute of limitations. In the case of Lovett v. Lessler, 99 N. J. Eq. 251, it is held that an action for an amount due on coupons annexed to the bond, is not barred by the statute of limitations until the principle debt itself is barred. The interest coupons attached and annexed to the bond are specialties governed by the same statute of limitations as the bond itself, a sealed instrument. Prescott v. Williamsport, 159 Fed. Rep. 244.

The next point argued is that the plaintiff, having failed to foreclose the mortgage pursuant to section 48 of the act on Mortgages, 3 Comp. Stat., p. 3421, the present action is premature. Defendant relics on the case of Holmes v. Seashore Electric Railroad Co., 57 N. J. L. 16. This case was discussed and distinguished in the case of Reinhardt v. Interstate Telephone Co., 71 N. J. Eq. 70, and the application of section 48 of the Mortgage act was confined to the ordinarv form of bond and mortgage. The court (at p. 73), stated:

“In order to bring a case within the prohibitory statute, the mortgage must be one which the holder of the bond could foreclose at his option. * * * Manifestly it could not have been the intention of the legislature to bar an action on a bond unless the holder of it had the right to foreclose the mortgage at his will and option.”

It appears, therefore, that the bond and the coupons attached thereto, the subject of the present litigation, do not come within the prohibition of section 48 of the Mortgage act.

What doubt there may have existed on the point, was cleared in the case of Levy v. Atlantic City and Shore Railroad Co., 103 N. J. L. 401, wherein the court stated:

“The single contention urged as a basis at the trial, and reiterated upon this appeal, is that the Mortgage act of 1881 (Comp. Stat., p. 3421, § 48) as well as the provisions of the mortgage itself, apply so as to prevent the institution of an action at law to recover the amount of the maturing detached coupons.
“We think the case is res judicata, the same question having been determined by this court in Fidelity Mutual Co. v. Wilkes-Barre and Hazelton Railroad Co., 98 N. J. L. 507, where we held upon a factual status substantially similar that the coupon was an independent obligation, and that the holder was entitled to payment thereof according to its terms. The direction of the learned trial court was therefore legally correct.
“The judgment will be affirmed.”

The next point raised is that the plaintiff cannot bring this action without the written request of the owners of the majority in amount of all the bonds in the series in question. This defense is made pursuant to the provisions of the trust indenture. This provision, however, relates to the right of the bondholders to accelerate the maturity date of the principal due under the bond under certain conditions, and it does not affect the right of the bondholder to sue on the bond after the bond has become due, and it does not affect the bondholder’s right to sue for interest due on the bond. The case of Mack v. American Telephone Co., 79 N. J. L. 109, is dispositive of the matter. The point is thoroughly discussed in that case, and the conclusion reached is:

“Where the condition of a bond, limiting the right of action thereon to the trustee appointed to administer the trust agreement under which the bonds were issued, applies only to the option given to have the bonds declared due in case of default, and not to the right to collect the bond or the coupons already due, a bondholder having unpaid coupons can institute an action to recover the amount due on the coupons.”

The motion to strike the answer will be granted.


author: Lloyd, J.

text:
    DANIEL MARINELLI, JOE MARINELLI, JOHN MAFFEY, TRUSTEES OF PARK FINANCE CORPORATION, A CORPORATION IN DISSOLUTON, PLAINTIFFS-RESPONDENTS, v. PETER LOMBARDI, DEFENDANT-APPELLANT.
    Submitted October 5, 1937
    Decided January 28, 1938.
    Before Justices Lloyd, Case and Donges.
    For the appellant, Samuel H. Nelson.

    For the respondents, Benjamin M. Ratner and Milton S. Goldberg.

   Lloyd, J.

The action in this case was on a guaranty of a promissory note, the note and guaranty reading as follows :

“$300.00 Newark, N. J., May 10, 1926.
Dor value received, the undersigned, promise to pay to the order of Park Dinance Corporation, at its office 106 PaTk Avenue, Newark, N. J., the sum of Three Hundred 00/100 Dollars in weekly payments of $6.00/100 per week, commencing on Monday after the date hereof, together with interest from the date hereof, at the rate of 9/20% per week on the unpaid balance, and payable weekly with each installment of principal, until the full amount of this note and interest is paid.
If default be made in any of the payments of this note or if the maker of this note shall abscond or move out of the State of New Jersey or shall become bankrupt or shall assign, secrete or dispose of his or her property, or if the holder shall deem any security given by the maker as being impaired in any way or unsafe, then and in any of said events the entire balance remaining due on this note together with all accrued interest shall, at the option of the said Park Finance Corp., become due and payable without any notice or demand.
The undersigned hereby waive all exemptions under any Federal or State statute now in effect, or at any time hereafter becoming effective.
Loan No. 75. Signed Joseph Di Biasb.”
“License No. 311.
320.
For value received, we and each and all of the endorsers hereon, jointly and severally guarantee payment of principal and interest of the within note, as and when the same shall become due, and of any extension thereof, in whole or in part, accepting all its provisions, authorizing the maker, without notice to us or either of us, to obtain an extension or extensions in whole or in part, and waiving presentment notice of non-payment and protest. Suit may be brought by the holder of this note against any one or more or all of us, at the option of said holder, whether such suit has been commenced against the maker or not, and that in any such suit, the maker may be joined with one or more or all of us, at the option of the holder; hereby waiving all exemptions by reason of any State or Federal statute now in effect or at any time hereafter becoming effective.
Petek J. Lombakdi.”

The defenses were that the contract was made on Sunday and the statute of limitations.

The first defense need not be considered as this was a question of fact for the judge.

The defense of the statute of limitations was based on the following state of facts.

The note which was guaranteed is dated May 10th, 1926, and called for payments in installments of $6 per week with interest. It was more than six years overdue when the action was brought. There was proof of payments made on the note by the maker Di Biase as late as November 23d, 1931, and the action was instituted in March, 1937. The judge gave judgment for the plaintiff and it is urged on the defendant’s appeal that the statute of limitations was a complete answer to the case and that judgment should have been rendered for the defendant.

It is also urged that because the note and the guarantee stipulated that the guarantor should be bound by any extensions that the payments made on account automatically effected such extensions and that this inured to hold the guarantor.

Beading of the proofs fails to disclose any extensions of the note. The payments made standing alone simply constitute an acknowledgment of the debt by the maker, and being an acknowledgment might create a continuing liability from the date of payment. But the relations of the parties are independent. The contract of the guarantor is distinct from that of the maker (Smith v. Dowden, 92 N. J. L. 317; 105 Atl. Rep. 720; Corn Exchange Bank v. Taubel, 113 N. J. L. 605; 175 Atl. Rep. 55; Mesce Loan Co. v. Marinaro, 117 N. J. L. 86; 185 Atl. Rep. 742), and the acknowledgment by the maker did not inure of itself to create liability in’ the guarantor. Mason v. Kilcourse, 71 N. J. L. 472; 59 Atl. Rep. 21. This being true no liability was imposed on the defendant by the payments made by the maker. There was in these payments nothing to create an extension of the note, and therefore nothing upon which the liability of the guarantor could be predicated under his agreement. The plea of the statute of limitations was available and should have been recognized as a bar to recovery.

The judgment is reversed.


text:
    MARIO RIOTTO, BY HIS NEXT FRIEND, MICHAEL RIOTTO, AND MICHAEL RIOTTO, INDIVIDUALLY, PLAINTIFFS-RESPONDENTS, v. GORMAN’S EXPRESS, INCORPORATED, AND FRED LUDVIG, DEFENDANTS-APPELLANTS.
    Submitted October 5, 1937
    Decided January 28, 1938.
    Before Justices Lloyd, Case and Donges.
    For the appellants, Martin Klughaupt and Jerome Alper.
    For the respondents, Nicholas Martini.

   Lloyd, J.

A truck of the defendant company was backed on the boy plaintiff while he was playing in a yard adjoining both the garage occupied by the express company defendant and the ice house rented by the boy’s father, both being tenants of a common landlord.

Por the injuries resulting judgment was given for the plaintiffs against both defendants and the latter appeal, contending that there should have been a nonsuit or direction of a verdict in defendants’ favor. Also that there were errors in the rulings on evidence.

The motions were properly denied. Prom the evidence it was open to the jury to find that the yard in which the accident happened was one used by the tenants of the respective buildings. While it does not appear that the adult plaintiff had actually leased the yard or any part of it, on the contrary it did not appear that the defendant company had the exclusive use of the yard, but whether the plaintiff had a right of user or the yard was still in the possession of the landlord with the right of user only in the defendant company, a duty would be owing to the occupants of the yard to use reasonable care in the operation of its vehicles. Guinne v. Delaware and Atlantic Tel. and Tel. Co., 72 N. J. L. 276; 62 Atl. Rep. 412. In either event the child would not be a trespasser in the yard so far as the defendants were concerned. There was evidence that the truck was backed without warning and that the child was injured in consequence.

Examination of the remaining specifications respecting the rulings on evidence discloses that none of them are presented with sufficient identification of the questions and answers presented to bring anything before this court.

The judgment is affirmed, with costs.


author: Leyden, C. P. J.

text:
    Bergen County Court of Common Pleas.
    LOUIS ZUGA, PETITIONER-RESPONDENT, v. FORD MOTOR COMPANY, RESPONDENT-APPELLANT.
    Decided January 24, 1938.
    For the respondent-appellant, McCarter & English.

    For the petitioner-respondent, Skeffington & Walker.

   Leyden, C. P. J.

This appeal of the Ford Motor Company, hereafter called the employer, from an award for increased disability granted to Louis Zuga, hereafter called the employe, is interesting as illustrative of the lengths to which compensation matters sometimes go.

The employe worked for the employer for eleven years, not as an ordinary workman, but as what is known in the trade as a “pusher.” A pusher, it appears, is in charge of a group of men and is responsible for the maintenance of the production schedule at his point in the assembly line. His long employment in such capacity is a fact of peculiar significance as will presently appear. On May 8th, 1933, he informed the plant physician, a Dr. Mockett, that he had a pain in the right side of his abdomen. He was examined, a tentative diagnosis of appendicitis or kidney "pathology made and he was referred to his family physician. The significant fact is the employe, in view of his long employment and his knowledge that the employer maintained a fully equipped first aid department for the immediate treatment of injuries, with a registered physician and nurses in constant attendance, gave no history of the happening of any accident whatsoever. He consulted Dr. Abels, a physician of his own selection who specializes in urology, and gave a history that the pain of which lie complained had existed for the past six months and was getting progressively worse. Objectively, Dr. Abels found he was suffering from a congenital condition, namely, a kink in the right ureter due to adhesions and recommended operative intervention. The employe requested the physician to assist in an endeavor to recover from the employer on the basis of an accident, but the physician properly declined, advising him that his condition was not due to trauma, he was born with it. Dr. Abels made a written report of his diagnosis which was submitted to Dr. Mockett, on the strength of which the employe was given a leave of absence for illness. When this leave was granted, again no complaint or report was made by the employe of the happening of an accident arising out of and in the course of his employment. Dr. Daly, a urologist and surgeon, was consulted by the employe on July 24th, 1933, and he performed the suggested operation on August 19th, 1933. His post operative diagnosis was “congenital angulation of the right ureter.” In his opinion, based of course upon actual knowledge of the condition as disclosed by the operation, the angulation or kink of the right ureter was due to a congenital malformation and the employe’s alleged disability was caused by the dilatation of the ureter above the kink due to the partial blocking of the tube at that point.

Three weeks prior to the date of the operation the employe, on July 29th. 1933, filed his original petition for compensation, alleging that on May 4th, 1933, at three-twenty-five p. ir., he met with an accident arising out of and in the course of his employment, in that he strained himself while attempting to lift a bench weighing five hundred pounds on a hand truck. He alleged he was compelled to stop work immediately — although the record indicates he worked until June 2d, 1933 — and claimed permanent injury to the right side and back and sprain of the spermatic cord.

The matter came on for hearing on May 17th, 1934, before Beferee Wegner, at the outset of which the attorney for the employe moved the amendment of the petition to read “that the petitioner has a permanent injury to his right side and back and a strain of the urethra; that is, an aggravation of a pre-existing or a congenital condition resulting in a disability to him as a result of this strain while lifting a table.” The following colloquy between counsel then took place:

“Mr. Baer: In other words, the petition is amended now to allege an aggravation ? Mr. Skeffington: That is correct. Mr. Baer: Bather than an injury? Mr. Skeffington: Yes.”

The permanency of the disability of the employe was, then, an issue inter alia, to be determined at that trial. After hearing the testimony of the employe and that of his witnesses regarding the happening of the accident, and the conflicting opinions of the doctors as to the extent of the disability, the referee, under date of June 20th, 1934, sent an opinion letter to counsel, the material portion of which is as follows:

“I have carefully considered all the facts in connection with the above case as well as the medical testimony of the various doctors.
“There is no question that the petitioner was suffering from a pre-existing condition, namely, right ureter pulled over to the median line, thus forming what would appear to be a kink, with a decided hydroureter above this point, further that the hydroureter is very well defined. The trauma caused an aggravation at the point of the kink but in my opinion this aggravation was only of a temporary nature.
“I do feel that eventually, regardless of whether or not the petitioner met with an accident it would have been necessary for him to have this operation performed, I am therefore finding as follows:
“Temporary disability — from June 2d, 1933, date petitioner stopped work, until January 1st, 1934, at $17.33 per week.
“Permanent disability — none.”

The conclusions thus reached were incorporated in the original determination and order dated July 10th, 1934, except the words “permanent disability none” were left out by the draftsman. The award thus made, with the usual incidentals, amounted to the sum of $519, for which a check was tendered to the employe on July 12th, 1934, and returned, refused, on January 8th, 1935. Thereafter the employe reconsidered his refusal to accept the award and it was paid to him on February 20th, 1935.

The record further discloses that on December 26th, 1935, a new petition for increased disability was filed and hearings held thereon before the same referee commencing May 20th, 1937. It is from the determination and rule for judgment on this second petition awarding the employe compensation for permanent disability of fifteen per cent, or seventy-five weeks at $17.33 per week and the usual incidentals, that the present appeal has been taken.

ISTo appeal was taken to the Pleas from the original determination by either party, although it is manifest that the employe was dissatisfied therewith from his refusal to accept the award for so long a period of time. An examination and consideration of the record thus far leads, I think, irresistibly to the conclusion that the employe did not meet with any accident arising out of and in the course of his employment on May 4th, 1933, either in the form of a sprain or a strain or the aggravation of a pre-existing condition despite the original finding of the referee to the contrary. This conclusion finds support in the failure of the employe to report the happening to the plant doctor on two occasions, and his improper proposal to the family physician to assist him in an attempted recovery against the Ford Company on the basis that he was injured in the plant. It is inconceivable that the employe, if he had been injured in the manner which he described, did not report it immediately and seek medical assistance. His story is unreasonable, illogical and improbable and is entitled to little weight. Then, too, Dr. Daly doubted whether the lifting of the table caused the angulation. When he operated and saw the actual condition, he was impressed that the angulation was due to a congenital malformation. To doubt in such a situation is to deny. The man’s disability and pain were caused by a dilatation of the ureter above the kink and the referee himself concluded that regardless of whether or not the employe had met with an accident, it would have been necessary for him to have the operation performed. With that conclusion of the referee I agree. Assuming, but not admitting the fact of the accident, and its happening aggravated a congenital condition, I agree with the referee’s original determination that the disability arising therefrom was only temporary in character. That the employe is presently suffering from a disability as disclosed by the record is not denied, but this disability arises from the attempt to cure or to lessen the effect of a progressive, congenital condition from which the employe suffered. The record may be searched in vain for any credible proof of any causal connection between the alleged accident and his present disability.

I am not unmindful that the Workmen’s Compensation act is remedial legislation and as such should be liberally construed. In the administration of the act regard must also be had to the substantive rights of employers and the general public, who in the last analysis pay the cost. They, too, are entitled to the even-handed administration of justice and to the equal protection of the laws.

Finding no causal connection between the employe’s present disability and the happening of the alleged accident, the award for increased disability will be set aside.


text:
    JOHN R. DITMARS, PLAINTIFF, v. INTERCHEMICAL CORPORATION ET AL., DEFENDANTS.
    Decided February 14, 1938.
    For the plaintiff, McCarter & English.

    For the defendants, Pitney, Hardin & Skinner.

   Smith, Joseph L., C. C. J.

This is on a motion for bill of particulars demanded by the plaintiff concerning the answers set up by the defendants.

The suit against the defendant Chambón Corporation sounds in contract, and the suit against the defendant Inter-chemical Corporation sounds in tort.

As appears from argument of counsel, both defendants have set up similar defenses, namely: (a) that the plaintiff canceled and terminated the agreement upon which suit is brought, (b) That the plaintiff waived the provisions of a certain paragraph of the memorandum of agreement upon which suit is brought, and (e) that the defendants attempted in good faith to perform the contract, but that they were prevented from completing the performance of the contract, “by difficulties and circumstances beyond their control.”

The demand for the bill of particulars is directed to these three defenses. As to “a,” whether or not the cancellation and termination was in writing, and if in writing, to furnish a copy; and if not in writing, to whom the said cancellation was made, where and when, and who were present.

As to “b” -whether the actions of plaintiff alleged to constitute a waiver were in writing, and if so, to furnish a copy, and if not in writing, plaintiff demands to know what such acts consisted of, when made, to whom directed, wdiere made and who were present when such acts were done.

It is argued on behalf of the defendants, that the plaintiff is not entitled to demand a bill of particulars of the defendants’ answer and separate defenses in an action at law either upon contract or in tort. It was stated in Watkins v. Cope, 84 N. J. L. 143; 186 Atl. Rep. 545:

“It is true that section 102 of the Practice act of 1903 provides only for a demand of particulars in contract cases; but I do not understand that this in any way abrogated the common law practice of directing a bill of particulars to be furnished by either party in a proper case, whether of contract or tort.” (Italics mine.)

To the same effect is Dwight v. Germania Life Insurance Co., 84 N. Y. 493, in which it is stated:

“* * * jq-or p0wer confined to an exercise of it in behalf of the defendant in an action. In favor of the plaintiff, as -well, the court majr order the defendant to give the particulars of the facts which he expects to prove. Thus, on a plea of fraud and consequent repudiation bjr the defendant, he has been compelled to give particulars of the acts of fraud and repudiation.”

The defendants rely on the case of Wigler v. Public Service Co-ordinated Transport, 10 N. J. Mis. R. 1077; 162 Atl. Rep. 878, in which case a demand for particulars of contributory negligence alleged bjr the defendant was not granted. The reason for the ruling in that case, however, was not the position of the parties as plaintiff or defendant, but because the defense of contributory negligence would be a conclusion that may be based upon facts adduced by the plaintiff’s own case, and not within the knowledge of the defendant. That case is in line with the general principle that a demand for bill of particulars will be refused where the facts are equally or exclusively within the knowledge of the demanding party.

Applying the last stated rule to the demands in the present case, it appears that the facts constituting the cancellation or termination by the plaintiff are equally within the knowledge of the plaintiff. As stated in American Transfer Co. v. George Borgfeldt, 91 N. Y. S. 209, concerning particulars demanded by defendant of a fraud alleged by the plaintiff, in his complaint.

“If the defendant procured the execution of the contract by fraud, it knows that fact just as well as the plaintiff does. The general rule is that where the information sought is peculiarly within the knowledge of the party seeking it, or he has as much knowledge on that subject as the other party, then the bill of particulars will not be ordered.”

The same principle will apply to the demand for particulars of the alleged waiver, because plaintiff, in the preparation of his case, is in the same position as the defendant with respect to the knowledge of facts constituting such waiver. However, obtaining detailed information concerning opponents’ claim not given in the pleadings in order to prepare the answering pleading, is not the sole function of a demand for bill of particulars; it is also to apprise the demanding party of what his opponent will prove at the trial so that the demanding party can be prepared to combat the proof. Billy v. Tatarsky, 11 N. J. Mis. R. 184; 165 Atl. Rep. 413.

With respect to the demands referred to under “a” and “b,” the said demands are objectionable in so far as they ask for the names of witnesses present, which is an attempt to seek the disclosure of the evidence of the defendant. Therefore demands 1 and 2 will be allowed, except in so far as they call for names of witnesses present.

As to the bona fide failure of the defendant to complete the contract, by reason of difficulties and circumstances beyond its control, being demand number of 15, such facts being peculiarly within the knowledge of the defendants, the demand for particulars is proper.

An order will be entered accordingly.


author: Barbour, S. C. C.

text:
    LEO GOLDBERGER, PLAINTIFF, v. CITY OF PERTH AMBOY, DEFENDANT.
    Decided February 14, 1938.
   Barbour, S. C. C.

This matter comes before me as Supreme Court commissioner on motion to strike amended answer and counter-claim and on stipulation of fact.

The plaintiff sues to recover money alleged to be due him on his salary while serving as judge of the District Court of the city of Perth Amboy, from January 19th, 1931, to July 1st, 1936, alleging that the defendant illegally deducted certain sums from the salary due him and has refused to pay the same.

It is admitted that on January 19th, 1931, the plaintiff was duly appointed and commissioned by the governor, by and with the advice and consent of the senate, to the office of the judge of the Perth Amboy District Court and acted as such during his term and until July 1st, 1936; that the plaintiff was entitled to receive for his services a salary of $3,500 per annum; that on March 18th, 1931, there was established as part of said District Court a division known as “Division of Small Claims,” pursuant to resolution of the board of commissioners of the city of Perth Ambojf, approved March 18th, 1931, which action was in accordance with the provisions of chapter 223 of the laws of 1926 (Supp. Comp. Stat. 1925-1930, § 61-221a), and chapter 161 of the laws of 1927 (Supp. Comp. Stat. 1925-1930, § 61-221r); that such latter act provided for payment to the judge of such District Court of a salary of $600 per year in addition to the amount theretofore fixed by law as the salary of such judge; that the plaintiff’s total salary as judge of such court amounted to the sum of $19,074.99, and that his total salary as judge of the Small Claims Division of such court amounted to the sum of $3,171.60; that he was paid on account of the first mentioned salary the sum of $16,386.63, leaving a balance of $2,688.36, and was paid on account of salary as judge of the Small Claims Division the sum of $2,692.41, leaving a balance of $479.19. These two balances amount to the sum of $3,167.55; the total amount set forth in the amended complaint being, however, the sum of $3,126.20.

The defendant contends that the 1926 act and the 1927 act were both unconstitutional and that, therefore, the plaintiff has been paid more than is due to him and that the defendant is entitled to a judgment on its counter-claim in the sum of $2,692.41, being the amount paid to the plaintiff for the services rendered by him in the Small Claims Division of such court.

The defendant on the argument alleged that the only point was the question of the constitutionality of the acts of 1926 and 1927 providing for the establishment of the Division of Small Claims and the payment of salary to the judge of the District Court by reason thereof, and stated that if such acts were declared constitutional the plaintiff is entitled to recover the full amount alleged to be due to him, conceding that under Delmar v. Bergen County, 117 N. J. L. 377; 189 Atl. Rep. 75, the acts pursuant to which deductions were made from plaintiff’s salary were unconstitutional.

This action, therefore, differs from the actions which have been and are being instituted by persons who have held office pursuant to appointment by the governor, but whose salaries were paid by municipalities or counties, and who sue for the amount deducted pursuant to the so-called “Economy acts,” in that the defendant city admits the unconstitutionality of such acts but contends that the balance alleged to be due to the plaintiff is for services in the Small Claims Division of the court and that such act is unconstitutional. It alleges the plaintiff, therefore, cannot recover the moneys claimed, but, on the other hand, should repay to the city the moneys already paid to him on account of such services in such Small Claims Division, allowing credit, however, for the balance due on what might be termed the main salary as judge of the District Court.

The defendant contends that the 1926 act is unconstitutional alleging it amounted to an unconstitutional delegation of legislative authority to the governing body of the municipality.

Chapter 225, Pamph. L. 1926; Supp. Comp. Stat. 1925-1930, § 61-221a, is entitled “A supplement to an act entitled. 'An act concerning District Courts’ (Revision of 1898), approved June 14th, 1898,” and the first section thereof pro-: vides as follows:

"1. In all places in this state where there is a District-Court there shall be established as part of said Court a division known as 'Division of Small Claims’ of the District Court of the (naming the Court as already established); provided, the governing body of the municipality, or, if the court be a Judicial District Court, the board of chosen freeholders of the county shall so determine.”

The defendant contends that because it required the affirmative action of the governing body of the municipality there was an unconstitutional delegation of legislative authority. The 1926 act covers four pages in the pamphlet laws and contains seventeen sections, setting up a complete scheme for the bringing of suits where the amount involved does not exceed the sum of $50, exclusive of costs, fixing costs for such at considerably less than the cost fixed for regular District Court actions, setting up a simplified method of procedure, so that services of an attorney are not necessary, and limiting-jurisdiction to debts, claims, and demands sued upon by the original creditor and not by assignee or transferee.

It is, therefore, to be noted that the 1926 act was a complete legislative enactment requiring offiy action by the governing body of the municipality to put it into effect and operation. This is not an unconstitutional delegation oí legislative power. See Sandford v. Morris County, 36 N. J. L. 72 (at p. 74).

In Hayes v. Hoboken, 93 N. J. L. 432; 108 Atl. Rep. 868, our Court of Errors and Appeals had before it for consideration chapter 72, Pamph. L. 1911; Cum. Supp. Comp. Stat. 1911-1924, § *136-3900E(1), the last section of which provided that the governing body of any municipality to which such act was applicable might “adopt” the provisions of such act. Mr. Justice Black, in speaking for the court, distinguished the act in question from that under consideration in Attorney-General, ex rel. Booth v. McGuinness, 78 N. J. L. 346; 75 Atl. Rep. 455, saying: “This court held that act was the delegation of legislative power to municipal corporations, and it is not valid when submitted to the governing body of such municipality only. Here we have no such procedure, but only the acceptance by a municipal corporation of the provisions of a legislative act, which does not carry the delegation of legislative power. This is a vital distinction, from a constitutional standpoint, as was pointed out in that case.”

In the Small Claims Division act the language complained of reads: “provided, the governing body of the municipality * * * shall so determine.” To my mind it is evident that since the legislature set up a complete enactment that the word “determine,” meaning “to decided,” is, at least, analogous to the word “adopt” or the word “accept.” The act in question when it passed from the hands of the law-giver had taken the form of a complete law. Sandford v. Morris County, supra.

I, therefore, determine that the act of 1926 is constitutional and, inasmuch as the 1927 act merely provided for the payment of an additional salary to the judge of the District Court in which a Division of Small Claims is established, such act is likewise constitutional.

It is interesting to note that the defendant in it’s brief (page 18) said, “the 1926 act does not create the office or position of judge of the District Court. In fact, under section 16 of that act, it is provided, The judge of the District Court as now established shall be the judge of the Division of Small Claims during his term as District Court judge.’ The office of judge of the District Court in the city of Perth Amboy was created by the District Court act proper. The act of 1926 merely added to the established District Court a Division of Small Claims and brought that division within the province and presidenee of the judge of the existing court. The plaintiff was appointed under the District Court act proper. He was not appointed under the act of 1926.” With this I agree.

While by the stipulation of facts it appears that there is ■ due and owing the plaintiff the sum of $3,167.55, the amount claimed in the complaint is only $3,126.20, together with interest from August 9th, 1937. The judgment must, therefore, be limited to such sum.

Inasmuch as it was stipulated by counsel that my determination should be dispositive of the entire case and that the matter be considered not only as being on motion to strike the answer and counter-claim, but also as a trial without jury on stipulation of facts, the answer and counter-claim will be stricken and I find a verdict in favor of the plaintiff, Leo Goldberger, and against the defendant, city of Perth Amboy, and assess his damages at the sum of $3,126.20, together with interest thereon, from August 9th, 1937.

We find, therefore, that the plaintiff is entitled to receive the full compensation fixed for him by statute without any deduction, because he was not a municipal officer hut was a state officer paid by the municipality. Had he been a state officer paid by the state treasurer or from appropriations, license fees, or from other state sources, he would have been subject to the deductions imposed upon such state officers and employes pursuant to chapter 172, Pamph. L. 1932, and chapters 1 and 292, Pamph. L. 1933, effective for the fiscal years commencing July 1st, 1932, and July 1st, 1933, respectively. Such state officers and employes in the same salary class were subjected to deductions of nine per cent, of their salaries for those two years.

It was the intention of the legislature that all persons in the employ of the state, the counties and the municipalities should be subject to deductions because of the financial stress which was then so acute. It may be that the plaintiff is one of those persons who occupied the unique distinction of having been overlooked by the legislature, and, therefore, entitled to his salary in full without deduction for any period during the depression.

At the time of the enactment of these various acts the financial stress was most acute and the acts were passed to give municipalities, counties and the state some degree of relief therefrom. They enabled many municipalities and counties to meet their payrolls when otherwise there would have been more payless pay days. As a result of these acts and other legislation pertaining to municipal financing many of our municipalities were the better enabled to weather the storm and put themselves on a firmer basis.

The storm signals are still flying and troubled waters must still be crossed before safe anchorage is reached. There are signs that the financial stress may again be very acute. We all hope the present “recession” will not reopen the seams, but in any event this is not the time for the increasing the load on municipalities by forcing them to pay not only their current expenses in full but also to pay the moneys which were deducted in the past from those officers who enjoy the distinction of being state officers not subject to either municipal or state deductions. It seems to me they should be subject to one or the other. The justices of our Supreme Court voluntarily submitted to deductions imposed upon state officers in their salary class even though they were protected by direct constitutional provision. I believe some deductions were made in the form of donations by officers who were not legally subject to such deductions.

Perhaps some of those who are now bringing suit to recover deductions may see their way to donate the equivalent of the deductions imposed upon state officers in the same salary class who were subject to the state acts.

Nevertheless, as a matter of law, on the stipulation and pleadings the plaintiff is entitled to a verdict in full as hereinbefore set forth.

An order and posiea may be presented accordingly.


author: Smith, Joseph L., S. C. C.

text:
    KENT FEATHER COMPANY, A CORPORATION OF NEW JERSEY, PLAINTIFF, v. WEST HUDSON COUNTY TRUST COMPANY, A CORPORATION OF NEW JERSEY, DEFENDANT.
    Decided February 19, 1938.
    For the plaintiff, William L. Greenbaum.

    For the defendant, Frank W. Hastings.

   Smith, Joseph L., S. C. C.

This conies on a motion to strike a demand for bill of particulars. The plaintiff’s action is in tort for damages sustained as the result of alleged negligence of the defendant in the maintenance of the building occupied by the plaintiff and owned by the defendant.

Plaintiff is in the feather business, and seeks damages to its business. The defendant previously having demanded and received certain particulars of the plaintiff’s claims, seeks further bill of particulars.

The first ground of the motion to strike the demand for the bill of particulars, is that it is improper in time, because the defendant has already filed an answer, and the parties are at issue, and the case is listed for trial. The plaintiff maintains that as a matter of law, the defendant at this time is not entitled to particulars.

The power of the court to grant bill of particulars in a tort action, after issue joined, where the questions asked are proper, is no longer a matter of dispute in New Jersey. In Abe Cantor v. Public Service Corp., 10 N. J. Mis. R. 1285; 162 Atl. Rep. 876, Mr. Justice Katzenbaeh said:

“The fact that this case is a tort action and that issue has been joined by the filing of an answer is no bar to the authority of the court to order a bill of particulars to be furnished the defendant by the plaintiff. The exercise of this power on the part of the court is discretionary, and should only be exercised where the court is satisfied that justice to the demanding party requires the furnishing of the information sought. To hold otherwise, would be to countenance a practice that would be harassing and vexatious, and would, in many instances, prolong trials in matters relatively unimportant to the issues. Whether a demand for a bill of particulars should be ordered depends upon the circumstances of each case. It therefore requires consideration, seriatim, of the questions above set forth forming the demand.”

See, also, Wigler v. Public Service Corp., 10 N. J. Mis. R. 1077; 162 Atl. Rep. 878, to the same effect, and in Galganski v. Andrysiak, 8 N. J. Mis. R. 96; 149 Atl. Rep. 57, Mr. Justice Case stated:

“It is said in Arch. Pr. 221, that the obtaining of a bill of particulars by the defendant fis usually done before plea pleaded although it is discretionary with the judge to make an order at any time before the trial, whether the application be made by the defendant or plaintiff.’ Tidd Pr. says (at p. 596), The summons for particulars, however, is usually taken out after appearance and declaration and before plea,’ and (at p. 597), fin actions for wrongs, the injury complained of is in general stated in the declaration, and therefore, in such actions, it is not unusual to make an order for the particulars; but the circumstances may occur which render it necessary,’ and, further, The granting of an order of particulars is considered as a matter of favor.’ The gist of which is that under the practice there outlined bills of particulars were less usual in cases of tort than of contract, and in either the allowance was ordinarily before answer filed and was discretionary. So far as I am aware the same practice maintains today with respect to time of allowance and the discretionary phase thereof.”

It is quite clear, therefore, that the court has the power to grant a demand for bill of particulars after issue joined, and it is also clear that such power must be used with discretion and according to the circumstances of each case.

The exact nature of the questions asked and the particulars demanded, does not appear from the briefs submitted in the present case. It is alleged by the plaintiff that some of the questions have previously been denied. Such questions will not be allowed unless a change of circumstances is shown. As to the propriety of the other questions, counsel will be permitted to present oral arguments pertaining to the reasonableness and necessity of the particulars demanded.

Counsel may therefore, present their oral arguments pertaining to the questions in particular, in accordance herewith.


author: Perskie, J.

text:
    SARAH RIGGS, PETITIONER-PROSECUTOR, v. NEW YORK SHIPBUILDING CORPORATION, RESPONDENT-DEFENDANT.
    Argued January 19, 1938
    Decided February 16, 1938.
    Before Justices Bodine, Heher and Perskie.
    For the prosecutor, Joseph R. Moss (D. M. Stackhouse, of counsel).
    For the defendant, Rocco Palese.

   The opinion of the court was delivered by

Perskie, J.

This is a workmen’s compensation ease. The question is whether the accident may be said to have arisen out of and in the course of decedent’s employment with respondent.

The proofs disclose that on October 1st, 1936, decedent traveled by bus to his work in respondent’s plant. The bus stopped immediately in front of the offices of respondent which were on the east side of a main street (Broadway) in Camden, New Jersey. The gate to the plant was on the west side of the same street. As decedent was crossing Broadway from east to west to enter the plant, he was struck by an automobile traveling in the same direction as did the bus from which he had alighted. As a result of the injuries sustained, decedent died and his widow sought compensation. The proofs further disclose that decedent had not, by reason of the accident, reported for duty; that he had, in fact, not passed through the gate in order to reach respondent’s property; in short that, at the time oE the accident, decedent was not upon his employer’s premises. The deputy commissioner of the workmen’s compensation bureau and the judge of the Camden County Court of Common Pleas dismissed the petition. Mr. Justice Lloyd denied an application for a writ of certiorari. Hence like application is now made to us.

We fail to discern any fairly debatable question in this case. We are of the opinion that the recent decision of our Court of Errors and Appeals in the case of Gullo v. American Lead Pencil Co., 118 N. J. L. 445, is dispositive of the application.

Accordingly, the application for a writ of certiorari is denied, with costs.


author: Lawrence, S. C. C.

text:
    FRANCES GABRIELLE, CARLO GABRIELLE AND LILLIAN GABRIELLE, PLAINTIFFS, v. JOSEPH MASSELLI AND CHARLES C. ARMSTRONG, DEFENDANTS.
    Decided February 21, 1938.
    For the motion, Gross & Gross.

    Opposed, Edward J. Ascher.

   Lawrence, S. C. C.

The question here involved appears to be novel. Plaintiffs seek in this suit to recover compensation of defendants for injuries received in an automobile accident which occurred in this state. Defendant Masselli is a non-resident. With his answer denying liability he has filed a counter-claim against defendant Armstrong charging him with negligently causing the accident and seeking damages in his own right. On the theory that by so pleading he (Masselli) has in his counter-claim assumed the position of a party plaintiff as against him (Armstrong) the latter has, by notice, demanded of him in that relation security for costs, pursuant to section 204 of the Practice act of 1903. Pamph. L., p. 590; 3 Comp. Stat. 1910, p. 4115. Defendant Masselli now moves to strike the demand as improper on the ground that he is not in fact a party plaintiff in the suit and that the statute is not applicable to him, even though he is a non-resident.

'

In Candiano v. Pittenger, 7 N. J. Mis. R. 1027, 1028; 148 Atl. Rep. 14, it was pointed out that under rules 65, 66 and 68 of the Supreme Court a defendant in an accident case may counter-claim against another defendant; that a counterclaim is deemed to be a cross-action and may designate those not made parties by the complaint. Pule 68 speaks of a counter-claim where a co-clefendant is made a party to it, while the Practice act of 1912 contemplates a liberal construction, “to the end that legal controversies may be speedily and finally determined according to the substantive rights of the parties.” Section 12 of the act permits a defendant to counterclaim or set-off any cause of action. In such case he may, and when required by the court shall, issue summons against any third party necessary to he brought in; but in the discretion of the court separate trials may be ordered, or if the counterclaim cannot be conveniently disposed of in the pending suit, the court may strike it out.

It was also said in the cited case that since it is thus made discretionary in the court, ox largely so, with regard to the determination of all the issues arising out of the same cause of action or based on the same set of facts, it would seem that no difficulty or inconvenience would arise at the trial in not only trying out the main issue but also that presented by such a counter-claim. Should it there appear, under the fair preponderance of the proof, that the defendant filing it had been wholly blameless, that is to say, had not been negligent, he could have brought an independent action against the other defendant or have properly been a party plaintiff in the pending suit. His counter-claim consequently is a cross-action in which he appears obviously in that relation therein to the other defendant. His mere titular designation as a defendant in the present action is not controlling and does not change his status as a non-resident moving party in the counter-claim. He may properly be termed in effect the plaintiff therein. It also follows that in the event that no evidence should be found at the trial to support his counterclaim the defendant named therein would be entitled to have his costs taxed in that respect.

On the argument of the present motion counsel for defendant Masselli urged that the language of the statute is limited to non-resident plaintiffs and that the court would be obliged to indulge in judicial legislation to extend the express provision of the statute to cover a counter-claimant in a case such as this. But this does not appear to be so. If Masselli had instituted suit against Armstrong, or if at the trial of the present action the court should find that the counter-claim cannot be conveniently disposed of and direct that it be separately tried, the question of the right of defendant Armstrong to security for costs, under the statute, could not very well be raised. The intent of the provision to require a moving party to an action who is not a resident of the state to post security seems sufficiently clear.

While it was not stated on the argument of the motion whether any of the plaintiffs resides in the state, it was admitted that Masselli does not, and in Kearney v. Baptist, 10 N. J. Mis. R. 431; 159 Atl. Rep. 405, it was held that a non-resident plaintiff would be required to give security for costs, even though one or more of them be resident. The fact that the Practice act of 1912 permits a defendant to counter-claim against another defendant, instead of being required to bring a separate action as formerly, does not, it would seem, make section 204 of the Practice act of 1903 inapplicable to him if he be non-resident. The conclusion is that the motion to strike the demand for security for costs should be denied.


author: Bodine, J.

text:
    CHARLES SALOMONE, PETITIONER-DEFENDANT, v. PATRICK ANSETTA, RESPONDENT-PETITIONER.
    Argued October term, 1937
    Decided November 4, 1937.
    Before Justices Bodine, Heher and Perskie.

      For the respondent-petitioner, Avidan & Avidan (Alexander Avidan).

    For the petitioner-defendant, Harold S. Lewine.

   Bodine, J.

Charles Salomone was awarded compensation in the bureau and the award was affirmed in the Court of Common Pleas. Subsequently, the cause was remanded to the bureau for the purpose of determining the extent of the permanent disability which at that time the bureau was unable to ascertain. The writ brings up both the order remanding the cause and that awarding compensation.

The question before us is merely whether the evidence supports the findings of the two tribunals that the accident arose out of and in the course of Salomone’s employment. This court does not lightly disturb the judgments of two concurring tribunals.

Petitioner was employed as a helper on one of the defendant’s trucks used in the collection of garbage. He lived above the garage used by the defendant. After the collection of garbage had been completed, petitioner and other helpers were taken back in the trucks on which they had worked to the garage. On the day of the injury, which was Christmas of 1934, the driver of the truck, on which petitioner was one of the helpers, stopped at a beer garden and the driver and the helper had a few drinks. Petitioner Salomone and the other helper, a man named Lemma, were unable to leave the garden as soon as the driver of the truck. Lemma by running was soon able to catch the truck but Salomone was not. He hailed a passing vehicle, which being faster, enabled him to pass the truck. He left this car and signaled the truck driver that he wanted to ride home. The truck driver motioned for him to come on but kept on driving slowly in order that he might pass the lights at a nearby intersection before they changed. Salomone then boarded the truck by the tailboard, walked forward and knocked on the cab to be let in. However, the driver seemed not to heed him, so he climbed over the cab and the hood and while on the running board preparatory to climbing into the cab was jostled off, suffering the injuries for which compensation was awarded.

“We believe that the pertinent rule to be extracted from the cases is this: The relation of employer and employe continues while the employe is riding to and from his employer’s premises, in a truck in connection with his employer’s work, by direction of his employer, with his knowledge and acquiescence in the continued practice, which was beneficial to both the employer and employe; and an injury sustained while so riding arises out of and in the course of his employment.” Alberta Contracting Corp. v. Santomassimo, 107 N. J. L. 7; 150 Atl. Rep. 830. See, also, Gullo v. American Lead Pencil Co., 118 N. J. L. 445; 193 Atl. Rep. 804.

The dependents of a brewer’s drayman, who had left his truck and had gone to a public house to get a glass of beer and who was killed by an automobile while recrossing the street, were held entitled to compensation. Martin v. J. Lovibond & Sons, Ltd,. (1914), 2 K. B. 227. Apparently stopping for refreshment does not in that jurisdiction take the employe out of his employment.

It does not seem to us, under the proofs, that the employe in this case was injured as a result of horse plajr or so called skylarking. The driver of the truck was not too careful of the petitioner’s safety nor did he show much regard for his own welfare.

“It is argued that it was negligence on his part to jump on the running board of the truck. But negligence does not bar recovery in a proceeding such as this under section 2 of the Workmen’s Compensation act. Taylor v. Seabrook, 87 N. J. L. 407; 94 Atl. Rep. 399.” Bolos v. Trenton Fire Clay, &c., 102 N. J. L. 479; 133 Atl. Rep. 764.

The judgment under review will be affirmed, with costs.


text:
    Middlesex County Circuit Court.
    NO-WORRY CHEMICAL COMPANY, A CORPORATION OF THE STATE OF NEW JERSEY, PLAINTIFF, v. DU-ALL CHEMICAL COMPANY, A CORPORATION OF THE STATE OF NEW JERSEY, AND LOUIS CICETTI, DEFENDANT.
    Decided February 24, 1938.
    For the plaintiff, Kraemer, Siegler & Siegler.

    For the defendants, Andrew B. Crummy and Francis A. Kraus.

   Smith, Joseph L., C. C. J.

This comes on a motion to strike the answer filed by the defendants as sham. The answer, in turn, raises objections in points of law, stating that the complaint sets forth no cause of action and that the statute upon which the complaint is based, is unconstitutional. Therefore, the sufficiency of the complaint as well as of the answer is now before the court.

The complaint is based on chapter 366 of the laws of 1933 (N. J. Stat. Annual 1933, § 25-43), and alleges that the defendants violated the provisions of section 7 of the said act, by having in their possession, without the written consent of the plaintiff, three hundred and eighty bottles and sixteen cases bearing the registered mark of the plaintiff, and thereby became indebted to the plaintiff in the sum of $1,980, being $5 per container, as provided by the statute. The answer sets forth a general denial in addition to objections in point of law.

The affidavits in support of the answer allege an oral agreement, with the plaintiff for the exchange of bottles and cases, and further state that the defendants stand ready to deliver to the plaintiff said bottles and cases in their possession pursuant to such agreement.

It is contended by the defendants that the act is unconstitutional because the title does not set forth the object of the act, contrary to article 4, section 7, paragraph 4, of the New Jersey Constitution, which provides that every law shall embrace but one object, and that shall be expressed in the title. The act in question was entitled “An act concerning bottles, barrels, half-barrels * * * [and other types of containers and vessels enumerated in the title].” The point attempted to be made by the defendants is that the word “concerning” does not indicate the object, but merely designates the subject of the legislation; that the purpose of the act, the scheme intended by the legislature, is not expressed in the title. The general rule is that the title must express the subject-matter generally, together with an indication of the legislation respecting it. Mortland v. Christian, 52 N. J. L. 521; 20 Atl. Rep. 673. However, in Sawter v. Shoenthal, 83 N. J. L. 499; 83 Atl. Rep. 1004, the rule is given that the validity of the title is not to be determined by nice distinctions of etymology or definition of words, but by the facts of the case and the history of the legislation. Bearing in mind previous legislation on the subject, it appears clear that the title of the act gave notice to all those interested in the subject that the legislature, under the act, would deal with the whole subject of bottles, cases and similar containers enumerated in the title.

In State v. Haight, Receiver, 36 N. J. L. 54, “An act relating to taxes to be paid, &c.,” was held not in violation of the constitutional provision herein discussed.

In Rader v. Township of Union, 39 N. J. L. 509, the statute in question was entitled “An act-m relation to streets in Union Township, in Union County.” Under this act, certain provisions were also made for parks. Chief Justice Beasley, holding that the act was invalid in so far as it attempted to make provisions for parks, held that the rest of the act was constitutional. H e stated:

“The object of the legislation is described to be streets in Union township, and in tile body of the act, power is given to construct a sewer and to make public parks * *

Chief Justice Beasley then concluded that the legislation pertaining to sewers, under that act, was constitutional, because sewers may be said to be comprehended in a description purporting to relate to streets, but that the legislation concerning parks was outside the scope of the title.

It will be noted that the Chief Justice used the word “object” as synonymous with the subject-matter of the legislation and not necessarily as indicating the intended product. It is perhaps sufficient to note that the act was held constitutional in so far as it affected streets, although the title merely stated the the act was in relation to streets, without stating what the act intended to accomplish with reference to such streets. The constitutional objection, therefore, is not well taken.

It is further argued by the defendants that the affidavits in support of the complaint do not state that the possession of the defendants was without the written consent of plaintiff, stating only that it is without consent. This point is not well taken because if possession was without consent, it certainly was without written consent; the former is all inclusive. Incidentally, the argument is not addressed to any defects appearing on the face of the complaint, and therefore is improperly raised.

It is next urged by the defendants that the complaint does not negative the proviso contained in the statute. The said proviso states that any person having possession, by reason of purchase from the owner, shall not have violated the section until such person retains the containers for a period longer than reasonably necessary after the removal of the contents thereof. The defendants urge that this proviso should have been negatived in the plaintiff’s complaint. Defendants have stated no authority supporting the view. The proviso indicates circumstances which would constitute an affirmative defense, to be so pleaded. In determining the sufficiency of indictments in criminal law, it has repeatedly been ruled that an indictment for a statutory offense need not aver that the defendant is not within an excepted class, unless the exception is found in the enacting or prohibitory clause of the act. If it is found in a separate substantive clause, or in a subsequent statute, and is not an essential part of the description of the offense, it is a matter of defense. Mayer v. State, 64 N. J. L. 323; 45 Atl. Rep. 624.

Likewise, in the present case, the proviso sets forth circumstances constituting an affirmative defense; it does not set forth items necessary for the plaintiff’s case. Therefore, it was not necessary to negative the proviso in the complaint.

It is concluded, therefore, that the complaint itself discloses a cause of action, and that the plaintiff’s affidavit discloses nothing to negative such a cause of action.

As to the sufficiency of the defendants’ answer and the affidavits supporting them, the defendants set forth an alleged oral arrangement or agreement for the exchange of bottles between themselves and plaintiff. It is true that the statute requires a written consent as justification for the various acts mentioned. The statute states that no person shall sell, buy, give, take or possess, use, dispose of or traffic in any bottles, barrels, &c., which are marked or distinguished with any registered mark or device. Taking the statute as a whole and pursuing its purpose, it is clear that mere physical possession is not what is prohibited, but possession of containers by a manufacturer for the purpose of making use of them for its own benefit or depriving the holder of the registered mark of the use of the said container is what is intended to be prohibited. Therefore, possession of the containers under an oral arrangement or agreement for the exchange of bottles between two manufacturers, would not be in violation of the statute, and would therefore constitute a good general defense.

In. view of the substantial contradiction as to the facts on this point, raised by the affidavits of the respective parties, the motion to strike the answer as sham will not be granted. This is in accord with the rule expressed in Jaeger v. Naef, 112 N. J. L. 411; 171 Atl. Rep. 166.

It will also be noted that the plaintiff’s affidavit in support of the motion contains no statement of belief that there was no defense to the action. This is necessary, under rule 81, and the lack of such a statement is fatal to the motion. Katz v. Inglis, 109 N. J. L. 54; 160 Atl. Rep. 314.

An order will be entered denying the motion to strike the answer.


author: Lyon, O. C. J.

text:
    Middlesex County Orphans Court.
    IN THE MATTER OF JOHN BARBOUR, DECEASED.
    Decided February 15, 1938.
    For the next of kin, Paul Ewing.

    For the heirs, Henry A. Berg.

   Lyon, O. C. J.

John Barbour died in the county of Middlesex leaving a last will which was admitted to probate on April 11th, 1924; the third and fifth clauses of which are as follows :

“3. All the rest, residue and remainder of my property, both real and personal, I give, devise and bequeath unto my executor hereinafter named, National Bank of New Jersey, in trust, to invest the same and out of the income thereof to pay unto my wife, Margaret Barbour, the sum of sixty dollars per month from the date of my decease, during the term of her natural life, and such farther sitni as in the judgment of my said trustee shall be absolutely necessary for her maintenance and support. Upon the death of my said wife, Margaret Barbour, my trustee shall pay her funeral expenses and shall expend the balance of the principal and the accrued income of my estate in the beautification of the cemetery plot owned by my mother in Elmwood Cemetery, near the City of New Brunswick, New Jersey, and in the erection therein of a monument or mausoleum in the memory of my mother, Sarah Barbour, and in providing with the said Cemetery Association for the perpetual care of said plot.
“5. I hereby constitute and appoint the said National Bank of New Jersey, a corporation organized under the National Banking Laws of the United States, and whose principal office is located in the City of New Brunswick, Middlesex County, New Jersey, executor and trustee of this my last will and testament, and hereby authorize it as such executor and trustee to sell and convey the whole or any part of my real estate at public or private sale, at such times and upon such terms as to it shall seem proper.”

Margaret Barbour, the widow of the said John Barbour, died on March 13th, 1930, leaving a will which was admitted to probate on March 27th, 1930, which, after providing for her debts and funeral expenses and a $200 bequest, devised all the rest, residue and remainder of her personal estate to Anna Woener.

Upon the death of said John Barbour he left a personal estate amounting to $1,816.07. JIis debts at that time amounted to $6,922.37. The administration expenses of his estate amounted to $1,195.26, so that there was a deficiency of his debts and administration expenses over his personal property of $6,301.56.

Tn addition to his personal estate he left a property at No. 20 Albany street, New Brunswick, and a tract of land of little value in East Brunswick township.

On October 1st, 1924, the executor, under the power of sale in the will, sold the New Brunswick property for $22,605.30, and in December, 1934, sold the East Brunswick township property for $75. A mortgage of $4,000 on the New Brunswick property with accrued interest was paid out of the receipts of the sale.

On December 11th, 1925, the final account of the executor was allowed by this court which showed a balance of $17,193.06.

On October 17th, 1936, the executor filed a bill in the Court of Chancery for the purpose of having the will, and especially the third clause thereof, construed; and as a result thereof the Court of Chancery decreed that the executor should expend the sum of $3,000 in the erection of a monument in memory of testator’s mother and in the beautification of her plot and the establishment of a fund with the cemetery association for the care thereof.

The court further held that the provision in said third clause to any further extent than the $3,000 as above decreed “has lapsed by reason of impossibility of performance and passes by intestacy to the decedent’s next of kin.” The balance so lapsed now amounts to the sum of $11,186.13.

The executor now applies for an order of distribution of this fund and has brought into court both the next of kin and the heirs-at-law of the said John Barbour. The next of kin claim that the fund is personal property and should be distributed among them; the heirs-at-law claim that the fund is real estate and should be distributed among them.

There can be no question but that the testator intended that his real estate should be sold. The provisions of his will could not be carried out unless it were sold. His debts and administration expenses exceeded his personal estate by $6,301.56. He gave all his property to his executor directing it to invest it and pay his wife $60 per month for her life and such further sum as might be necessary for her support; he directed the payment of her funeral expenses and finally that the balance should be expended upon the cemetery plot. He gave the executor power of sale at its discretion.

Since the directions of the will required a sale it was equivalent to a direction to sell and therefore the land was deemed personal property from the death of the testator. But eren if that were not the case the land certainly became personal property at the time it was actually sold on October 1st, 1924. Wurt’s Ex’rs v. Page, 19 N. J. Eq. 365; Cook’s Executor v. Cook’s Admr., 20 Id. 375; Crane v. Bolles, 49 Id. 373 (at pp. 379, 380); 24 Atl. Rep. 237; Aitken v. Sharp, 93 N. J. Eq. 336 (at p. 346); 115 Atl. Rep. 912; Sampson v. Sampson, 96 N. J. Eq. 198; 124 Atl. Rep. 708.

If that were all there is in the case there is no doubt but that the whole of the estate oE the testator would be considered as personal property and be distributed in accordance with the laws governing the distribution of such property.

However, it appears that by the decree of the Court oE Chancery a part of the trust mentioned in the third clause of the will failed and that thereupon John Barbour died intestate of so much of the property as is represented by the trust which failed.

The rule in such a case is that if a testator dies intestate as to a part oE his property then that part would be in the same position as any other property of which a person dies intestate and would retain the same character which it possessed in the lifetime of the testator, and of course at his death.

The intention of the testator was to accomplish certain things, therefore the conversion of his real estate into personalty to effect his intention could be considered as done only to the extent that his intention could be carried out, and when his intention could not be carried out (in this case by the order of the Court of Chancery) then of course the conversion into personalty must fail. The situation is the same as where laud, for a certain purpose, is required to be converted into money, and in the sale more is sold than is required for that purpose, the excess oE the proceeds will be considered as land. See Cook’s Executor v. Cook’s Administrator, supra.

The rule applicable here is stated in the case of White v. White, 109 N. J. Eq. 553. There it is stated as follows: “Equitable conversion is a fiction to protect beneficiaries and to sustain and carry out the intention of the testator or settlor; it rests in the personal intention of the owner of the property and operates no further than to accomplish its purpose.” It is also well stated in the case McGlynn v. McGlynn, 101 N. J. Eq. 66 (at p. 71); 137 Atl. Rep. 434, as follows: “The conversion was solely for the purpose of carrying out the testamentary scheme, and with respect to matters in which the scheme failed, the conversion failed.” In the latter case Vice-Chancellor Backes quotes the case of Canfield v. Canfield, 62 N. J. Eq. 578; 50 Atl. Rep. 471, as follows: “Where a testator orders his land to be sold, the conversion will, unless contrary intention distinctly appears, be deemed to have been directed merety for the purpose of the will, and, consequently, if any of the purposes fail so that the money does not pass under the will, it will in equity be considered land and given to the heirs.”

In the case of Roy v. Monroe, 47 N. J. Eq. 356 (at p. 360); 20 Atl. Rep. 481, there was a gift of $10,000 to the testator son for his life, and to go to his son’s children after his son’s death. The court said: “Though the land, which this sum represents, was changed, by a direction contained in the testator’s will, from land to money, yet it has so happened that his will does not, in the present situation of affairs, dispose of the money.” The son died without leaving children so that it appeared that the purpose of the conversion had failed. The court there held that it retained the character as real estate.

In the present case John Barbour intended that all the residue of the property should be used for the purpose of the cemetery and it was to carry out that intention that his land was turned into personalty. His intention failed through the order of the Court of Chancery so that he died intestate as to the part which failed. If he died intestate of it then it must be considered as entirety outside of the scope of his will and his will cannot affect it in any way. So far as this part of his property is concerned it is the same as if he left no will at all. If he had left no will his real estate would have descended to his heirs. That is the result in this case.


author: John C. Wegner, Referee.

text:
    New Jersey Department of Labor, Workmen’s Compensation Bureau.
    VICTOR DE BARI, PETITIONER, v. FORD MOTOR COMPANY, RESPONDENT.
    Decided February 4, 1938.
    For the petitioner, George M. Eichler.

    For the respondent, McCarter & English.

   A formal petition for compensation was heretofore filed herein by the petitioner against the respondent on April 11th, 1935. A hearing was in due course had on said petition and an award made by this bureau under date of December 24th, 1935, in which award it was adjudicated that the petitioner had sustained a temporary disability from January 26th, 1935, to June 15th, 1935, and that he had sustained no permanent disability by reason of his alleged accident and that the petitioner was then suffering from ah osteoarthritic condition as well as a ptosis of the right kidney and a fracture of one of his vertebrae, all of which were in no way caused by or aggravated by the accident alleged in the petition as having occurred on January 26th, 1935.

The aforesaid award together with the incidental allowances to the petitioner’s attorney and doctors was duly paid by the respondent and under date of February 23d, 1937, a new petition was filed by the petitioner in which he alleged the same injuries set forth in his first petition and did not claim any increased disability.

Upon motion of the attorneys for the respondent, the said petition filed February 23d, 1937, was ordered dismissed by this bureau under date of May 28th, 1937.

Subsequently under date of September 15th, 1937, the petitioner filed a still further petition in this cause and as in all previous petitions alleged that he had sustained an accident on January 26th, 1935, while working for the respondent. In this last petition, however, the petitioner alleged that his disability had increased since the determination of this bureau dated December 24th, 1935, which determination was on the original petition filed by him. To this last petition an answer was duly filed by the respondent wherein the respondent denied that the petitioner was suffering from any disability by reason of his alleged accident at this time and denied that the petitioner was permanently disabled by reason thereof. In its answer the respondent also alleged that the determination of facts and rule for judgment entered on December 24th, 1935, wherein it was adjudicated that the petitioner was not suffering from any permanent disability, was res ad judicata on the question of permanent disability and a bar to the last petition filed.

The matter came on in due course to be heard. * * * At this hearing the petitioner testified generally to his complaints but admitted that he had not had any medical treatment since December, 1935. Petitioner denied that he had sustained any accident whatever or sustained any injury other than that he claims to have sustained while employed by the respondent on January 26th, 1935.

Dr. Ruoff was called to testify for the petitioner and stated that he had examined the petitioner on October 20th, 1937, and that the petitioner’s condition then was the same as it was at the time of his previous examination" in connection with the first trial of this case made on September 24th, 1935. He testified that he based his estimate of disability to the petitioner upon the crushing injury to one of his vertebrae.

Dr. Reiss and Dr. Hill likewise testified in behalf of the petitioner and were of the opinion that the petitioner had sustained a permanent disability by reason of a fracture to one of Ms vertebrae. Neither Dr. Eeiss nor Dr. Hill had testified at the first trial.

For the respondent Dr. Maver, Dr. Blumberg and Dr. Brozdowski testified that in their opinion the petitioner was not suffering from any permanent disability by reason of his alleged accident.

In addition the respondent produced Mr. Chester Morrissey who said that he was in charge of the records pertaining to the petitioner in the United States Veterans Hospital at Lyons. Mr. Morrissey produced an original petition filed by the petitioner herein with the United States veterans bureau in 1931 in which petition the petitioner said under oath that he had received a permanent injury to his heart, chest, back and nervous system as a result of a fall which he sustained in August, 1918, on the United States army transport, George Washington, for which condition he was treated at St. Mary’s Hospital at Hoboken.

The witness, Chester Morrissey, also brought out the fact that the petitioner in 1936 filed a claim for total permanent disability with the United States veterans bureau by reason of tuberculosis, and that the petitioner is now receiving compensation from the United States government on the theory that he has suffered a total and permanent disability by reason of tuberculosis.

After carefully considering all the testimony in this case and bearing in mind the findings of this bureau made on December 24th, 1935, on the conclusion of the first trial of this matter on the first petition filed, I find as a matter of fact that the petitioner is not suffering from any permanent disability whatever which is in any way attributable to the accident he sustained while in the employ of the respondent on January 26th, 1935. I find as a matter of fact at this time just as I found heretofore on December 24th, 1935, that the petitioner’s disability as a result of that accident on January 26th, 1935, was only of a temporary nature and terminated on June 15th, 1935.

I further find that the petitioner is suffering from a fracture of one of his vertebrae in addition to a ptosis of the right kidney and an osteoarthritic condition, none of which conditions were caused by nor aggravated by his alleged accident of January 26th, 1935.

I further find as a matter of fact that the petitioner is not suffering from any injury to his nervous system or any other portion of his body by reason of his alleged accident of January 26th, 1935.

It is, therefore, * * * adjudicated that the petitioner is not suffering from any permanent disability whatever by reason of any accident arising out of or in the course of his employment with the respondent and that any disability which the petitioner may have sustained by reason of an accident arising in and out of his employment with the respondent on January 26th, 1935, was only of a temporary nature, not permanent, and terminated June 15th, 1935.

It is further adjudicated as a matter of fact that while the petitioner to-day is suffering from certain disabilities including a fracture of one of his vertebrae and other conditions hereinabove set forth, such conditions and the disabilities arising therefrom existed previous to the accident of January 26th, 1935, and were in no way caused by or aggravated by the said accident.

It is, therefore, ordered that the petition filed herein under date of September 15th, 1937, be and the same is hereby dismissed.

John C. Wegner, Referee.