author: Per Curiam.

text:
    LALEN C. KRISHER, TRUSTEE, PLAINTIFF-RESPONDENT, v. WILLIAM N. MURPHY AND HIS WIFE, DEFENDANTS-APPELLANTS.
    Superior Court of New Jersey Appellate Division
    Argued January 8, 1951 —
    Decided January 24, 1951.

      Before Judges Jacobs, Eastwood and Bigelow.

      Mr. Carl Kisselman argued the cause for the respondent (Mr. Henry S. Ross, attorney).

      Mr. George Purnell argued the cause for the appellants (Messrs. Curry & Purnell, attorneys).
   Per Curiam.

This is an appeal by the vendors from a judgment for the specific performance of a contract for the sale of land. The contract was dated June 25, 1940, and called for the delivery of the deed and payment of the purchase money December 2, 1940. The suit was not commenced until nearly nine years later, September 22, 1949. The vendors contend that the agreement had been abandoned by the parties, and that in any event the purchaser, Krisher, is barred by laches from the remedy of specific performance. In our review of the facts, we adopt the version presented by the plaintiff, since the trial court seems to have accepted that version as true.

The premises in question consist of a dwelling house in Gloucester County. The sales price for the property, free and clear, was $2,500, of which $300 was paid on account upon the making of the agreement. The title to the premises was encumbered by judgments against the vendor William N. Murphy, aggregating more than $35,000 besides interest. On October 23, 1940, one Louis O. Joyce, a real estate agent who was then acting for the vendors, wrote the purchaser’s lawyer that negotiations for releases from the judgment liens appeared to be progressing satisfactorily. On January 18, 1941, tire lawyer, Mr. Friedman, wrote Joyce asking him “to advise me when you will be prepared to make settlement.” In response, Joyce called on Friedman:

“He told me that he couldn’t make settlement, that he was unable to make a seltlement of the two judgments, and he said he was anxious to keep the agreement in force, that he was prepared to work it out in any way that he could. There was some talk with respect to the deposit, and I have a recollection that he was prepared to let the $300 cover a certain period of rent in order to protect the purchasers in the event that he was unable to make settlement of the two judgments.”

Eriedman then reported- to his client, Krisher, and had nothing further to do with the matter.

Eor some time prior to the date of the contract, Krisher had been the tenant of the premises described in the contract, paying rent at $20 a month. But instead of using the property himself, he permitted his sister-in-law to live there. Krisher testified that in March, 1941, Joyce telephoned him “that it didn’t look as’ though he could get clear title immediately.” He suggested that the $300 deposit be applied to rent arrears and that Krisher start paying rent again “until he had time to work out this cloud on the title.” Krisher complied with the suggestion; the deposit was applied to the arrears and payment of rent on the old basis was resumed.

For eight years, from March, 1941, to August 13, 1949, the matter restéd there. On the latter date, Joyce wrote Krisher offering the property to him for $5,000. A month earlier, the judgments had been satisfied of record. Krisher replied to Joyce’s letter, asserting that the old agreement was still in force. Soon thereafter, he filed his complaint in the Superior Court.

Krisher also testified to a conversation he had with Joyce “after the war.” “In a friendly way he said, Uf this thing isn’t cleared up in the immediate future, I would be careful of the money you are spending on that place.’ ” But there is no scrap of evidence that Joyce at that time was authorized to speak for the vendors. Indeed, Krisher (who lives in Philadelphia) says, “He was representing me, and he sort of did my work down there.”

Mrs. Krisher — who lived in the house — testified that before the execution of the agreement of sale, major repairs were made by the owners, but after that date all repairs were made by her at a total cost of $489, or an average of $50 or $60 a year. We see no significance in this. The rent remained at the prewar level at $20 a month. During the war landlords generally stopped painting and other repairs.

The parties, when contracting with each other, contemplated the possibility that the vendors would be unable to discharge the liens and give good title. They stipulated that in such event, “then at Buyer’s option, the above payment or payments shall be returned to the Buyer, together with the reasonable expenses of examining the title and making survey, or the Buyer may prosecute any legal or equitable action to which the Buyer may be entitled.”

Krisher contends that he was not obligated to make an election in the early months of 1941, but could defer deciding what course to pursue until the title was cleared, or perhaps until his equitable interest as vendee was cut off at the expiration of 20 years, measured from the date of the contract. We cannot agree. A fair construction of the agreement required a reasonably prompt election by the purchaser when it became apparent that the vendor could not give a title free of liens. It is unthinkable that the parties intended that, while the vendors remained bound, the buyer would have the option for nine years — or it might have been for twenty— whether to take or not to take the land.

Furthermore, Krisher did make an election that the money paid on account of the purchase price, the $300, should be returned to him; for when the money was applied, with his approval, to the rent arrears which he owed the appellants, it was, in legal affect, returned to him. It was no longer a part of the purchase price. This action constituted an election to rescind the agreement of sale, and the election was irrevocable. Krisher could not choose thereafter to enforce the contract by specific performance. Blum Building Co. v. Ingersoll, 99 N. J. Eq. 563 (Ch. 1926); affirmed, 101 N. J. Eq. 291 (E. & A. 1927).

But Krisher argues that the disposal of the $300 and the resumption of rent payments was to continue only until the encumbrances on the title should be removed; that such was his agreement with Joyce. Any agreement with respect to future rent did not touch the application of the deposit. That was intended to be absolute and final. Cf. Kazepis v. North Jersey Holding Co., 111 N. J. Eq. 342 (E. & A. 1932), holding that delay added to a payment of interest constituted a binding election, even though the payment was accompanied by a letter stating it to be “without prejudice.” Again, we point out that Joyce is not shown to have had any authority from the vendor to vary, or to waive, the terms of the contract, or to make a new agreement. In the absence of proof, we must find he had no power.

We conclude that the plaintiff Krisher elected to abandon the contract. Lastly, even if there had been no clause in the contract defining the rights of the purchaser which arose when the vendors found themselves unable to satisfy the liens; even if there had been no application of the deposit, we are satisfied that the discretionary remedy of specific performance should be denied. Nine years is far too long a time to keep alive the buyer’s right to a deed. The complaint should be dismissed.

The judgment.is reversed with costs.


source: Caselaw Access Project

author: Eastwood, J. A. D.

license: Public Domain

text:
    ROSE SCHLECTER, PLAINTIFF-RESPONDENT, v. PHILIP HOLLANDER AND MATILDA HOLLANDER, DEFENDANTS-APPELLANTS.
    Superior Court of New Jersey Appellate Division
    Argued December 18, 1950 —
    Decided January 17, 1951.

      Before Judges Jacobs, Eastwood and Bigelow.

      Mr. Huyler E. Romond argued the cause for the plaintiff-respondent (Mr. John E. Toolan, attorney).

      Mr. Morris N. Hartman argued the cause for the defendants-appellants (Mr. Dougal Herr, attorney).
   The opinion of the court was delivered by

Eastwood, J. A. D.

The defendants appeal from the judgment of the Chancery Division for specific performance of an agreement to sell to plaintiff, Rose Schlecter, certain real estate situate in South River, Middlesex County, this State.

The defendants advance as their grounds for a reversal of the judgment: (1) the agreement was mutually rescinded; (2) the alleged parol extension of the agreement was void under the Statute of Frauds; (3) the parol extension of the contract was void as indefinite and for an unreasonable length of time; (4) specific performance should not have been granted because the evidence on the merits is not clear, cogent and convincing; and (5) specific performance should have been denied on the ground that it would result in injustice and inequity.

The factual findings of the Chancery judge are as follows: On September 11, 1944, the parties executed an agreement for the sale of said realty at the office of Stanley S. Dickerson, a member of the bar of this State. Whereupon, plaintiff delivered to Dickerson a cheek payable to him for the down payment of $50, which, in turn, Dickerson endorsed and delivered to the defendant, Philip Hollander. Dickerson was retained by the plaintiff to make a search of the property to ascertain the status of defendants’ title. Pinal closing and settlement were set by the terms of the agreement for October 2, 1944. Time was not made of the essence of the agreement. Dickerson discovered several judgments against predecessors in title to Philip Hollander, and so informed Hollander. Thereafter Dickerson, at the apparent request of Hollander, undertook to and succeeded in clearing the title to the land involved of all encumbrances except a judgment of the James-burg-South Kiver Hebrew Association. On or about December 8, 1944, Dickerson learned that the Court of Chancery had declared invalid an Arkansas divorce obtained by Philip Hollander against Margaret Hollander, his first wife, as a consequence of which she had an outstanding dower interest. Shortly thereafter Dickerson advised Mr. Hollander that defendants could not convey complete title because of the first wife’s dower. On January 3, 1945, Dickerson on behalf of Philip Hollander was still attempting to cancel the judgment held by the Jamesburg-South Eiver Hebrew Association. Dickerson, on several occasions thereafter, made unsuccessful attempts through conversations with one Katz, attorney for Margaret Hollander, to obtain a release of her interest in the realty. The evidence negated the contention that there was a rescission of the contract; in fact, the court found that the affirmative testimony supported the view that the contract was considered valid and subsisting, that one outstanding instance in substantiation thereof is to be found in the circumstance that plaintiff purchased a contiguous parcel of realty anticipating the use of both parcels fox the erection of a house; that Margaret Hollander’s inchoate right of dower was extinguished when she obtained a divorce from Philip on July 29, 1949.

The trial court further determined that the plaintiff had never agreed to the acceptance of the return of the deposit check nor to a rescission of the contract and, consequently, there had never been a mutually effective rescission; that the plaintiff was not guilty of laches, in view of “the fact that the action was commenced on July 22, 1949, actually seven days before the plaintiff could in any event have succeeded in a suit for specific performance;” that the parol agreement for the extension merely enlarged the time for performance, that it did not alter or vary the terms of the agreement and, therefore, it was not violative of the Statute of Frauds.

Our review of the record satisfies us that there was sufficient competent evidence to support the factual findings of the Chancery judge. Therefore, we find no justification for disturbing them. State v. Richardson, 4 N. J. Super. 503 (App. Div. 1949).

As to defendants’ contention that the agreement was mutually rescinded, the parties are in accord as to the applicable law, that an executory contract within the Statute of Frauds may be rescinded by parol. Kessler v. Fuchs, 95 N.J. L. 443 (E. & A. 1921). The defendants contend, however, that the deposit check was returned to attorney Dickerson upon plaintiff’s demand on the ground that the defendants were unable to give good title. The Chancery judge found “* * * as a fact that the plaintiff never agreed to a rescission and that Dickerson had no authority to consent for her.” We concur in this finding and conclude, therefore, that there is no merit in this contention.

With respect to defendants’ contention that the parol extension of the agreement is void under the Statute of Frauds, the parties concede that a contract in writing under the Statute of Frauds cannot be extended by a subsequent parol agreement if the terms of the original contract are altered, but where the parol agreement merely enlarges the time of execution, the agreement may be extended by parol. Stryker v. Vanderbilt, 25 N. J. L. 482 (Sup. Ct. 1856) ; Nissel v. Swinley, 76 N. J. L. 288 (Sup. Ct. 1908); Dooley v. Kushin, 105 N. J. L. 595 (E. & A. 1929). The Chancery judge found, and we agree, that the parol agreement did not alter or vary the terms of the original contract, but merely enlarged the time of execution and, therefore, it was not void under the Statute of Frauds. Stryker v. Vanderbilt, supra; Nissel v. Swinley, supra; Dooley v. Kushin, supra.

We are not in accord with defendants’ argument that the parol extension of the contract was indefinite and for an unreasonable length of time and, therefore, void. It is undisputed that time was not of the essence of this particular contract. Consequently, where, as here, the parties have not expressly made time of the essence, the court will enforce the specific performance of agreements after the time fixed for their performance has been suffered to pass by the party asking for the intervention of the court, unless the facts submitted show that the parties to the contract intended that time so fixed should be of its essence. Gerba v. Mitruske, 84 N. J. Eq. 141 (E. & A. 1915) ; Rose v. Wisniewski, 112 N. J. Eq. 364 (E. & A. 1933); Caldwell B. & L. Ass’n. v. Henry, 120 N. J. Eq. 425 (Ch. 1936).

The defendants contend that the plaintiff, if she believed her contract remained binding on Hollander, should have paid the intervening taxes or offered to do so. It is conceded that the taxes have been paid by Mr. Hollander. In decreeing performance, a court of equity may prescribe equitable conditions. Hulmes v. Thorpe, 5 N. J. Eq. 415, 429 (Ch. 1846) ; Seven Mile Beach Co. v. Dolley, 71 N. J. Eq. 735, 737 (E. & A. 1907). In view of the fact that the plaintiff has had the use of the agreed purchase price, we think it only equitable that interest thereon be paid to the defendants from October 2, 1944, being the date on which she was entitled to a conveyance, to the date of the filing of the complaint, viz.: July 22, 1949.

We have examined the other grounds advanced by defendants for reversal of the judgment and find no merit therein.

The judgment of the Chancery Division is affirmed, with costs, and the cause is remanded for the entry of a judgment in conformity herewith.


author: Jacobs, S. J. A. D.

text:
    FIREMAN’S FUND INDEMNITY COMPANY, ET AL., PLAINTIFFS, v. HARRY D. BATTS, DEFENDANT-APPELLANT, AND NEW AMSTERDAM CASUALTY COMPANY, A CORPORATION, DEFENDANT-RESPONDENT.
    Superior Court of New Jersey Appellate Division
    Argued January 2, 1951 —
    Decided January 16, 1951.

      Before Judges Jacobs, Eastwood and Bigelow.

      Mr. Leo Rosenblum argued the cause for the appellant Harry D. Batts (Mr. Jacob J. Levey, attorney).

      Mr. Arthur F. Mead argued the cause for the respondent New Amsterdam Casualty Co. (Messrs. Cox & Walburg, attorneys).
   The opinion of the court was delivered by

Jacobs, S. J. A. D.

The appellant Harry D. Batts appeals from a judgment entered in the Chancery Division pursuant to the opinion of Judge Stanton reported in 8 N. J. Super. 519 (1950).

While employed by William Laubenheimer & Bros., Inc., Batts was injured and received compensation and medical expenses aggregating $8,778.25 from New Amsterdam Casualty Company, the employer’s compensation insurance carrier. Batts instituted a common law action against third parties whose negligence caused his injury and recovered judgment of $48,000. After its affirmance on appeal (Batts v. Joseph Newman, Inc., 3 N. J. 503 (1950)), Fireman’s Fund Indemnity Company was prepared to pay the judgment and interest, but a dispute arose as to the amount payable therefrom to New Amsterdam which claimed that it was entitled to full reimbursement of the sum of $8,778.25 plus interest thereon from the date of the judgment. On the other hand, Batts claimed that New Amsterdam should be reimbursed only to the extent of two-thirds of its expenditure of $8,778.25, without any interest, the remaining one-third to be paid to his attorney who had prosecuted his third-party action to judgment. The lower court in an interpleader action instituted by Fireman’s Fund sustained the claim of New Amsterdam and entered judgment accordingly.

The original Workmen’s Compensation Act (P. L. 1911, c. 95, p. 144) permitted the injured employee to retain his full compensation plus the entire amount recovered by him in a third party negligence action. To correct this situation the act was amended in 1913 to provide for appropriate reimbursement to the employer in the event of such double recovery. P. L. 1913, c. 174, p. 312. See also P. L. 1919, c. 93, p. 212; P. L. 1931, c. 279, p. 705; Henry Steers, Inc., v. Turner, &c., Co., 104 N. J. L. 189, 195 (E. & A. 1927); United States Casualty Co. v. Hercules Powder Co., 4 N. J. 157, 163 (1950). However, as judicially construed, this statutory provision required the employee to make full reimbursement from the gross recovery against the third party even though the reimbursement exceeded the net amount actually received by the employee after having deducted his expense of litigation. Deuchar v. Standard Accident Insurance Co., 117 N. J. L. 375 (E. & A. 1937). It was largely to obviate this ^injustice that the provision was revised in P. L. 1936, c. 162, now R. S. 34:15-40. See Savitt v. L. & F. Construction Co., 124 N. J. L. 173, 174 (E. & A. 1940) ; McClare v. Tasty Baking Co., 127 N. J. L. 492, 494 (Sup. Ct. 1941) ; affirmed, 129 N. J. L. 98 (E. & A. 1942); Werthman v. Prudential Ins. Co., 19 N. J. Misc. 604, 606 (C. P. 1941).

In the instant matter we are not concerned with the statutory language which governs situations where the employee’s net recovery from the third party, after payment of expenses of suit and attorney’s fee, is less than the compensation due him under the Workmen’s Compensation Act. It is conceded that the appellant’s net recovery under the judgment far exceeded the claim of reimbursement and as we read the express terms of R. S. 34:15-40, particularly paragraphs (b) and (d), the employer or his insurance carrier, under such circumstances, is entitled to a “sum equivalent to the medical expenses incurred and the compensation paid.” The decision in McClare v. Tasty Baking Co., supra, supports this view.

The appellant urges that if this construction of the statute is followed New Amsterdam will inequitably receive the benefit of the legal services rendered in the third party action without in any wise contributing thereto. On the other hand, New Amsterdam urges that if it had withheld payment until after the third party judgment it would be under no liability for compensation or attorney’s fee (cf. Rosa v. Kaplan, 19 N. J. Misc. 300 (W. C. B. 1941)) and should not be penalized for promptly discharging its obligations. These and other related considerations may well be appropriate for submission to the Legislature in the event it considers further revision of the statutory provision; insofar as the case before us is concerned, we find no warrant for departing from the construction which seems to be compelled by the language of the statute and the decision of the court of last resort in the McGlare case.

The appellant contends that New Amsterdam is not in any event entitled to any interest in the absence of express statutory provision therefor. When the judgment of $48,000 was entered it was immediately payable and New Amsterdam had a rightful claim to a portion thereof amounting to $8,778.25. When payment was not made forthwith, interest duly accrued and has since been paid on the entire amount of the judgment from the date thereof together with the principal. We see no reason why, under accepted principles, the interest which actually accrued on that part of thé judgment claim which may, in substance and legal contemplation, be said to have been due but withheld from New Amsterdam should not be payable to it. Cf. Fidelity, &c., Co. v. Wilkes-Barre, &c., Co., 98 N. J. L. 507, 510 (E. & A. 1923).

The judgment is affirmed.


author: Freund, S. J. A. D.

text:
    JULES E. TEPPER AND DAVID Z. JESELSOHN, TRUSTEE UNDER INDENTURE DATED JULY 1, 1941, PLAINTIFFS-RESPONDENTS, v. ANN EARLE TALCOTT, DEFENDANT-APPELLANT.
    Superior Court of New Jersey Appellate Division
    Argued December 18, 1950 —
    Decided January 15, 1951.

      Before Judges Freund, Proctor and Rogers.

      Mr. Alfred C. Clapp argued the cause for the plaintiffs-respondents.

      Mr. Robert F. Darby argued the cause for the defendant-appellant (Messrs. Harrison & Roche & Darby, attorneys).
   The opinion of the court was delivered by

Freund, S. J. A. D.

The defendant, Ann Earle Talcott, appeals from an order entered in the Chancery Division “appointing a receiver and trustee, providing for the deposit of securities and imposing restraints on defendant.”

Jules E. Tepper, one of the plaintiffs, is named in the last will and testament of Francis E. Talcott, deceased, dated July 1, 1941, as a beneficiary and as an executor and trustee. David Z. Jeselsohn, the other plaintiff, is an alternate executor and trustee under decedent’s will, and a trustee under an indenture dated July 1, 1941, made in contemplation of the marriage of the decedent and Ann Earle Talcott, the defendant.

The complaint seeks a judgment that the defendant, Ann Earle Talcott, holds all the assets of the estate of the decedent, Francis E. Talcott. in trust for the plaintiff, Jules E. Tepper; a restraint against the defendant from transferring, assigning and selling or in any way disposing of such assets; and the appointment of a receiver pendente lile. The plaintiffs had an order to show cause and upon its return a consent order was entered wherein all the bonds, stocks and securities owned by the decedent at the time of his death, constituting assets of his estate, were to be deposited with the National State Bank of Newark, New Jersey, to be held in a safe deposit box, the bank to collect the income on such securities and remit the same to the defendant. Two weeks later, the plaintiffs gave notice of an application for an order appointing a receiver or trustee. The petition, verified by plaintiffs’ affidavits, alleged that pursuant to the order the depository received securities having a face value of $609,000 and certain shares of stock, but that during his lifetime the decedent entrusted to the defendant other securities of a substantial amount, which were not deposited. The petition further alleged that the defendant improperly secured these assets from the decedent during his lifetime; that they constitute part of his estate and should have been, but were not, deposited with the National State Bank as required by the court’s order, and that the assets in decedent’s estate were substantially in excess of $1,000,000.

The defendant filed an answering affidavit denying that the decedent entrusted securities to her, but admitting that his gross estate reported for tax purposes amounted to $924,855.39, and stating that she deposited with the National State Bank securities having a face value of $609,000 and certain shares of stock having an undisclosed value. The defendant also shows that since 1940 the decedent had disbursed the aggregate sum of $134,000 for legal fees, payments to his former wife and gifts. Accepting but not passing upon the correctness of these figures, the defendant thus accounted for about $750,000, without placing any value on the shares of stock in decedent’s estate, so that the sum of about $250,000 seems to be unaccounted' for.

Upon the foregoing showing, a receiver and trustee was appointed of all the assets belonging to the decedent at the time of his death, and the Federal Trust Company of Newark was named depository. The receiver and trustee was' authorized to “inquire after, collect and sue for other assets of” the decedent, to examine any persons respecting the affairs and transactions of the decedent and his real and personal assets, and to pay monthly to the defendant the income from the assets in his possession. It is from this latter order that the defendant appeals, arguing that the appointment of a receiver and trustee and the removal of the securities were not justified.

The decedent under the indenture and a will dated July 1, 1941, gave and bequeathed to the defendant the sum of $100,000, the income of the residuary estate during her life, and his jewelry, household furniture and other miscellaneous personal articles. The residuary estate was bequeathed to the plaintiff, Jules E. Tepper. Under a later will dated April 16, 1945, and admitted to probate, the entire estate was left to the defendant and she was appointed executrix. The plaintiffs allege that the latter will was the product of undue influence. To support this contention, the plaintiff, J ules E. Tepper, annexed to the complaint four letters written to him by the decedent during the period from October 18, 1944, to April 7, 1945, which show that the relations between the decedent and his wife, the defendant, were strained. He wrote in one of the letters to Mr. Tepper, his friend and confidant, that “from the very beginning of our married life, she (the defendant) started systematically to impose her will on me, and tried to get away from me any money or property which she could, threatening to leave me or other consequences if I refused.”

In view of the charges, the court was obliged to exercise its sound discretion with respect to the appointment of a receiver and another depository. The order appointing the receiver and depository does not adjudicate the merits of the controversy, which remain to be litigated, nor does it substantially affect the legal or equitable rights of the parties. From all the facts and circumstances, it cannot be said that there was an abuse of discretion, nor does the defendant furnish any particulars of abuse of discretion. Hoffman v. Maloratsky, 112 N. J. Eq. 333 (E. & A. 1933); Carlo v. Okonite, &c., 3 N. J. 235 (1949).

Affirmed.


author: Wm. J. Brennan, Jr., J. A. D.

text:
    STATE OF NEW JERSEY, CITY OF BRIDGETON, BY BART GUMPART, OVERSEER OF THE POOR, PLAINTIFF-RESPONDENT, v. STANLEY WEISS, DEFENDANT-APPELLANT.
    Superior Court of New Jersey Appellate Division
    Argued January 8, 1951 —
    Decided January 18, 1951.

      Before Judges McGeehan, Jayne and Wm. J. Brennan, Jr.

      Mr. William, Gallner argued the cause for plaintiff-respondent.

      Mr. Edward S. Miller argued the cause for defendant-appellant (Mr. David C. Harper, attorney).
   The opinion of the court was delivered by

Wm. J. Brennan, Jr., J. A. D.

An illegitimate child was born on April 12, 1949, in Bridgeton Hospital, at Bridgeton, Cumberland County. The child’s mother, whose home, and legal settlement, was in Pleasantville, Atlantic County, had come to the hospital from Pleasantville for the sole purpose of her confinement, and upon discharge had returned with the child to Pleasantville. Several months later, in January, 1950. the Overseer of the Poor of Bridgeton, at the request of the mother, who with the baby was still living at the time in Pleasantville, initiated a bastardy proceeding against the defendant in the Bridgeton Municipal Court under R. S. 9 :17-2, as amended by P. L. 1949, c. 141. Defendant unsuccessfully challenged the jurisdiction of the Municipal Court and an order under the statute was made against him. lie appealed to the Cumberland County Court, R. S. 9 :17-20, and at the hearing on the appeal raised the single question of jurisdiction. The County Court on June 30, 1950, entered the order before us for review, dismissing defendant’s appeal from the order of the Municipal Court and holding that “jurisdiction, in bastardy matters, resides in the place where the child is born, and the Magistrate’s Court of the City of Bridgeton, as well as this Court, has jurisdiction.”

The order of the County Court will be reversed. Although the child was born in Bridgeton, the mother was not living in that municipality when the proceeding was brought, and Pleasantville, her legal settlement, where she was living, is a municipality of Atlantic County, not of Cumberland County. The statute invests jurisdiction in any magistrate of a county, but only if at the time the proceeding is initiated the mother is living in a municipality of that county, which municipality, also, is either that in which the child is .born, or is likely to be born, or that of the mother’s legal settlement. Section 9:17-2, as amended in 1949 provides:

“If a woman is delivered of an illegitimate child or declares herself to be pregnant of a child likely to be born illegitimate, which is or is likely to become a public charge, a duly authorized representative of the State Board of Child Welfare or an overseer of the poor of the municipality where the woman is, or of the municipality wherein she has a legal settlement, may, by complaint, apply to a magistrate of the same county wherein the woman is, to make inquiry into the facts and circumstances of the case; provided, however, that the initiation of proceedings under this chapter shall in no wise be deemed a condition precedent nor a deterrent to the granting of assistance or relief under any law of this State to persons otherwise eligible therefor.”

Originally the proceeding was maintainable only by the overseer of the poor of the municipality in which the child was born or was likely to be born, so tliat, the mother living there, the child was, or was likely to become, chargeable to the municipality. Act of February 26, 1795, Rev. 1821, p. 171; Dally v. Overseers of Woodbridge, 21 N. J. L. 491 (Sup. Ct. 1848); Quick v. Overseer of Amwell, 3 N. J. L. 569 (Sup. Ct. 1813); Hawkins v. State, 21 N. J. L. 630 (E. & A. 1845); Nottingham v. Amwell, 21 N. J. L. 27 (Sup. Ct. 1848). By Act of March 1, 1851 (Laws of 1850-51, p. 137) authority to maintain the proceeding was given also to the overseer of the poor of the municipality in which the mother had her legal settlement at the time of the child’s birth if subsequently the mother again took up her residence there. Garwood v. Township of Waterford, 27 N. J. L. 436 (Sup. Ct. 1859); McCoy v. Overseer of Poor of Newton, 37 N. J. L. 133 (Sup. Ct. 1874). Later revisions of the statute in 1874 (Rev. 1709-1877, p. 70) and 1898 (P. L. 1898, c. 241, p. 959), continued both provisions which were codified in the Revision of 1937 as R. S. 9 :17 — 2. The requirement, implicit in the earlier statutes, that the mother be living in either such municipality of the county at the time the proceeding was brought before a magistrate of the county, was made explicit in the 1874 Revision in the wording authorizing the bringing of the action by the overseer of the poor of either such municipality “where such woman may be,” and in the 1937 Revision, and present text, “where the woman is.”

The cases under the statute prior to its 1949 amendment emphasized that its purpose was to protect the municipality where the child was born, or was about to be born, or had its legal settlement (which at birth becomes the same as that of the mother, Rev. 1821, p. 30; and see R. S. 44:8a-13), against the .cost of maintaining the child. Hence, the jurisdictional requirement that the mother be living in such municipality when the overseer initiated proceedings. “The act is for the protection of taxpayers and people of the municipality and not for the benefit of the mother, as it may become the duty of the municipality to care for the mother during her confinement and to care for and maintain the child if the mother and father fail to provide for and tnaintain it.” Kaufman v. Smathers, 111 N. J. L. 52 (E. & A. 1933); Tuohy v. Boynton, 5 N. J. Super. 265 (App. Div. 1949). If the mother desires to bring her own suit against the reputed father fox support of herself and the infant, she may do so under other statutes; see, for example, R. S. 9:16-3 and R. S. 9:18-14, as amended by P. L. 1946, p. 268, § 2. Tuohy v. Boynton, supra; Cortese v. Cortese, 10 N. J. Super. 152 (App. Div. 1950).

Municipalities, however, no longer have the ultimate burden of the expense of maintaining illegitimate children. Chapter 5 of Title. 30 of the Revised Statutes, which is derived from P. L. 1936, o. 33, p. 74, vests the care and general supervision of such children, among others, in the Slate Hoard of Children’s Guardians, now the State Hoard of Child Welfare, (/’. L. 1947. c. 257, p. 938, § 1), and provides that the cost of assistance granted under that statute on behalf of any child shall be shared, where the child is living with its mother, in the proportions of three-fourths bv the Siato and one-fourth by the county in which the child is resident. R. S. 30 :5-7 and 8.

The Legislature enacted chapter 141 of the Laws of 1949 in apparent recognition that the laying of this financial burden upon the State and counties required that a state agency be empowered to maintain proceedings to establish responsibility on the part of natural fathers of illegitimate children, and thus to conserve public funds. The amendment accordingly authorizes the State Board of Child Welfare, in addition to the named overseers, also to initiate such proceedings against reputed fathers, revising the requirement that the child “is or is likely to become chargeable to a municipality” to read, consistent with the change, “is or is likely to become a public charge.”

The 1949 amendment did not, however, alter or repeal the jurisdictional provisions that the proceeding, to be valid, must be brought in a magistrate’s court of the county, in a municipality of which the mother is living at the time the proceeding is initiated, which municipality, also, is either that where the child is born, or is likely to be born, or that of the mother’s legal settlement. It will be noted that the question of jurisdiction is not affected by any consideration of the residence of the reputed father. The statute, however, expressly provides a method for service of the warrant upon the reputed father in any county where he may be found. R. S. 9 :17 — 5.

Reversed. No costs.


author: Proctor, J. A. D.

text:
    PHILLIP SARACCO, PLAINTIFF-APPELLANT, v. SAMUEL LYTTLE, ET AL., DEFENDANTS-RESPONDENTS.
    Superior Court of New Jersey Appellate Division
    Argued December 18, 1950 —
    Decided January 18, 1951.

      Before Judges Freund, Proctor and Rogers.

      Mr. Charles C. Carroll argued the cause for the appellant (Mr. Dominic Cavaliere, attorney).

      Mr. Charles C. Stalter, attorney for and of counsel with defendants-respondents, argued the cause.
   The opinion of the court was delivered by

Proctor, J. A. D.

The plaintiff’s suit was against defendant, Samuel Lyttle, as owner, and defendant, Dominick Padula, as driver of an automobile which collided with the automobile of the plaintiff. At the end of the entire case the court granted defendant Lyttle’s motion for judgment and sent the case against defendant Padula to the jury. The jury returned a verdict in favor of the plaintiff against Padula. The plaintiff appeals from the judgment entered in favor of the defendant Lyttle.

On July 23, 1949, at 4:35 p. m., Lyttle parked his car, unlocked and with the key in the ignition switch, on a public street in a residential area in front of the home of the Padula family. He entered the Padula home for a brief visit and while there fell asleep. Co-defendant, Dominick Padula, age 17, came home and on seeing the car unlocked, started it and drove off. After travelling several blocks he collided with plaintiff’s vehicle. Lyttle was unaware that his car had been taken until he was informed of it five or ten minutes after the collision.

It is the plaintiff’s contention that the question of Lyttle’s negligence should have been submitted to the jury.

The applicable test in the present situation is that set forth in Barbanes v. Brown, 110 N. J. L. 6, 7 (Sup. Ct. 1932) :

“The general rule is that a person who leaves an automobile in a public street unattended is under a duty to exercise such care in doing so as a person of ordinary prudence would exercise in the circumstances ; and failure to exercise such care, whereby the machine by force of gravity, or by some other cause reasonably to be anticipated or guarded against, gets under way and inflicts injury, renders such person liable therefor in an action for damages.”

No claim was made that Lyttle violated any provision of a statute or ordinance. See Note, 158 A. L. R. 1374.

Under the facts of the present case, it was not reasonably to be anticipated that an intermeddler would not only drive the car away but also would later negligently operate it. The leaving of the automobile unlocked afforded an opportunity for the unlawful taking by Padula, but this was merely a circumstance and not the proximate cause of the collision. Kesponsibility for an accident cannot attach to one unless Ms act or failure to act was the proximate cause of the injury. The proximate cause of the collision was the unskillful handling of the car by Padula. The negligence of the inter-meddler, in driving into the vehicle of plaintiff, was an intervening efficient cause interrupting the chain of causation between defendant Lyttle’s act in leaving his key in the ignition switch (whether or not such act in itself constitutes negligence) and the damage to the plaintiff. See Restatement, Torts, §§ 447, 448; Cuff v. The Newark and New York Railroad Company, 35 N. J. L. 17 (Sup. Ct. 1870) ; affirmed, 35 N. J. L. 574 (E. & A. 1871) ; Morril v. Morril, 104 N. J. L. 557 (E. & A. 1928); Breker v. Lakewood Water Co., 12 N. J. Misc. 721 (Sup. Ct. 1934); Anderson v. Theisen, 43 N. W. 2d 272 (Sup. Ct. Minn. 1950), and cases cited therein.

The cases cited by plaintiff are distinguishable in that they involve circumstances likely to cause harm other than merely leaving a vehicle unlocked. In Barbanes v. Brown, supra, defendant parked his car on a hill. In his absence, two small mischievous children, whom he had left in the front seat, meddled with the controls, causing the car to roll down the hill and strike the plaintiff. In Lomano v. Ideal Towel Supply Co., 25 N. J. Misc. 163 (Dist. Ct. 1947), a truck was parked in front of its owner’s place of business, unattended, with the key in the ignition.. The driver of the truck admitted that two ten-year-old boys entered the truck, started it up, causing the truck to go backwards and damage the plaintiff’s car. He also admitted that there were other occasions prior to this incident when trucks of the defendant, parked in the immediate area of the defendant’s premises, were tampered with by children while the trucks were left unattended. In Reti v. Vaniska, Inc., 8 N. J. Super. 375 (App. Div. 1950), the driver left a taxicab with the key in the ignition. While it was unattended, a drunken man drove it off and it collided with the plaintiff’s car. The trial court granted a dismissal of defendant’s motion when plaintiff offered to prove only the above facts in his opening to the jury. The Appellate Division reversed because of a misunderstanding on the part of plaintiff’s counsel, but it clearly indicated that the facts stated did not by themselves make out a prima facie case.

We conclude that the trial judge was not in error in granting defendant Lyttle’s motion for dismissal.

Judgment affirmed.


author: Colie, J. S. C.

text:
    MARYLAND CASUALTY CO., A CORPORATION, PLAINTIFF, v. HANSEN-JENSEN, INC., A CORPORATION, DEFENDANT.
    Superior Court of New Jersey Law Division
    Decided January 20, 1951.

      Mr. Newton H. Porter, Jr., for the plaintiff (Messrs. Porter & Hobart, attorneys).

      Mr. John F. Ryan for the defendant (Messrs. Ryan & Saros, attorneys).
   Colie, J. S. C.

This matter comes before the court on a stipulation of facts between counsel and on briefs for determination by the court, sitting without a jury. In January, 1941, Levy Bros, of Elizabeth, N. J., Inc., entered into a written contract with Hansen-Jensen, Inc., under which the latter was to make alterations and repairs to the building of the former. Hansen-Jensen, Inc., agreed to furnish Levy Bros, with a contractor’s performance bond and to that end executed an application for such bond to be written by Maryland Casualty Co., the present plaintiff, and on the basis of the aforesaid application, the contractor’s performance bond was written by Maryland Casualty Co. In 1942 Levy Bros, brought suit against Hansen-Jensen, Inc., and Maryland Casualty Co. for damages allegedly arising from the improper performance of the work called for under the contract between Levy Bros, and Hensen-Jensen, Inc. The trial of the. above suit resulted in a judgment in favor of Hansen-Jensen, Inc., and Maryland Casualty Co. in the suit of Levy Bros, and a judgment against Levy Bros, on the counterclaim filed by Hansen-Jensen, Inc.

Maryland Casualty Co. retained Joseph Conlt of the firm of Coult, Satz, Morse & Conlt to protect its interests in that suit, and at the conclusion of the litigation Mr. Coult’s firm rendered a bill of $1,809.75 to Maryland Casualty Co., whereupon Maryland Casualty Co. made demand upon the present defendant to pay the amount of the bill to it. The defendant, Hansen-Jensen, Inc., refused to do so and the present suit was instituted by Maryland Casualty Co. to recover that amount. The claim is-based upon the terms of the indemnity agreement which is part of the application for the contractor’s performance bond, written by the Maryland Casualty Co. The application was signed by an authorized representative of the defendant and so far as pertinent, reads as follows:

“Second : The undei-iigned will at all times indemnify and keep indemnified the Compan t, and hold and save it harmless from and against any and all liar.ility for damages, loss, costs, charges and expenses of whatever kind or nature (including counsel and attorney’s fees), which the Company shall or may, at any time, sustain or incur by reason or in consequei.ee of having executed the bond(s) herein applied for, * * *; and will pay over, reimburse and make good to the Company * * * all money which the Company * * * shall pay or cause to be paid, or become liable to pay, by reason of the execution of any such instruments, or in connection with any litigation, investigation or other matters connected therewith * *
“Third. The undersigned does hereby further agree to indemnify the said The Maryland Casualty Company against any suit or claim brought or instituted against said Companv, whether such suit or claim be rightfully or wrongfully brought or instituted, and in case suit shall be brought upon said bond(s) the Surety shall be at liberty to employ an attorney of its own selection to appear and defend the suit in its behalf at the expense of the undersigned.”

There are no disputed facts and the question before the court is one of interpretation of the indemnity agreement as set forth in the second and third clauses thereof. The briefs submitted herein cite no case either in New Jersey or elsewhere which involves the interpretation of a contract of indemnity in the precise language of the contract now under consideration, and because of that fact, the court is of the opinion that no one of the cited cases is controlling.

When the complaint in Levy Bros, against Hensen-J ensen, Inc., and Maryland Casualty Co. was served upon the latter, it wrote Hansen-Jensen, Inc., on July 7, 1941, that in accordance with the indemnity agreement to save Maryland Casualty Co. harmless “We hereby tender to you the defense of this action on behalf of Maryland Casualty Company and shall look to you to save us harmless from any loss, cost or expense of whatsoever nature, including legal fees,” to which Hansen-Jensen, Inc., replied that “In the event that the above matter is taken to court, we will provide your company with our legal talent at our cost.” Thereafter, on July 16, 1941, Maryland Casualty Co. wrote to Mr. J. E. Dailey, an attorney of Hansen-Jensen, Inc.’s selection, as follows: “You are hereby authorized to appear on behalf of the Maryland Casualty Company, in the above captioned case and protect our interests. It is, of course, understood that you will look to Hansen-Jensen, Inc., our principal, for payment of your legal services rendered in this case.” Prom July, 1941, until February 11, 1947, when the 13-day trial of the suit of Levy Bros. v. Hansen-Jensen, Inc., et al., ended, Mr. Joseph Coult and Mr. J. P. Dailey cooperated in conferences with reference to the preparation of the pleadings, in preparation for trial and in the trial itself.

An examination of the second clause quoted above indicates it to be in broad language, and by its terms Hansen-Jensen, Inc., is under an absolute liability to reimburse the Maryland Casualty Co. for all “damage, loss, costs, charges and expenses of whatsoever kind and nature * * * by reason of or in consequence of having executed the bond(s) herein applied for * * This broad and sweeping language would obligate the defendant herein to reimburse the plaintiff for all expense paid or incurred, providing only that said amount had a reasonable connection with the legal consequences arising out of the execution of the contractor’s performance bond. The third paragraph by its terms is an agreement “further * * * to indemnify.” The use of the language “further * * * to indemnify” would seem, at first blush, to create a greater liability upon the present defendant than that already imposed under the second clause but it does not in anywise broaden the extent of the indemnification provided for in the second clause above quoted. In the third clause appears the language “and in ease suit shall be brought upon said bond(s) the Surety shall be at liberty to employ an attorney of its own selection to appear and defend the suit in its behalf at the expense of the undersigned.”

This language can only mean that Maryland Casualty Co. as surety had the right to employ counsel of its own selection to appear in the case as attorney of record for it and to defend its interests, if it desired so to do. Exhibit P-2 annexed to the stipulation of facts is a letter written by A. J. Sanders, Supervisor, on the stationery of Maryand Casualty Co., addressed to J. E. Dailey, in which Maryland Casualty Co. authorized Mr. Dailey to appear on behalf of it and protect its interests, on the understanding that he was to look to Hansen-Jensen, Inc., for payment of his bill for legal services. Erom the date of that letter until the termination of the suit of Levy Bros, against Hansen-Jensen, Inc., and Maryland Casualty Co., six and a half years later, Mr. Dailey conducted the litigation, assisted by Mr. Coult, with no suggestion of a repudiation of the statement contained in that letter authorizing him to appear on behalf of the Maryland Casualty Co.

In determining the meaning of a written contract, it is essential to ascertain the intent of the parties and once that intent has been found, to so interpret the contract as to effectuate the intent, and a sound and practical guide is to ascertain the meaning which the parties by their conduct have given to the contract and to construe it in accordance therewith. Independent Directory Corp. v. Sherman Industrial Electronics Co., 6 N. J. Super. 32 (App. Div. 1949). The fact that Mr. Dailey in July, 1941, was authorized to appear on behalf of Maryland Casualty Co. to protect its interests, coupled with the fact that for six and a half years thereafter the interests of the Maryland Casualty Co. were represented by him as its attorney of record is indicative, indeed dispositive, in the court’s mind as to the meaning that the Maryland Casualty Co. placed upon the third clause in the indemnity agreement. In authorizing Mr. Dailey to appear and defend the suit, Maryland Casualty Co. as surety exercised the privilege accorded to it under the third clause “to employ an attorney of its own selection to appear and defend the suit in its behalf at the expense of the undersigned” (Hansen-Jensen, Inc.).

In accordance with the views hereinabove expressed, judgment is entered in favor of the defendant and against the plaintiff.


author: Smalley, J. S. C.

text:
    JAMES A. HESTER, PLAINTIFF, v. SPENCER MILLER, Jr., INDIVIDUALLY AND AS STATE HIGHWAY COMMISSIONER, DEFENDANT.
    Superior Court of New Jersey Law Division
    Decided January 20, 1951.

      Mr. George H. Bohlinger, Jr., attorney for the plaintiff.

      Mr. Theodore D. Parsons, Attorney General of New Jersey (Mr. Sackett M. Dickinson, Assistant Deputy Attorney General, appearing), attorney for the defendant.
   Smalley, J. S. C.

This matter comes on before this court on a stipulation of facts, the affidavit of the Acting State Highway Engineer and the correspondence between the parties, attached to and made a part of the stipulation.

The question raised relates to the power of the State Highway Commissioner to acquire lands for purposes other than those mentioned with particularity in the provisions of the Highway Act, and is in lieu of prerogative writ.

The pertinent facts as stipulated are as follows:

“1. On or about March 14, 1949, the plaintiff, James A. Hester, was the owner of a tract of land located on Parkway Avenue in Ewing Township consisting of approximately thirty acres. Plaintiff’s land is separated from lands owned by the State of New Jersey, used by the State Highway Department and known as Eernwood Service Station, by a twenty foot strip of land owned by a third party which has also been under occupancy by the Department and is now under formal contract of sale to the Department since October 5, 1950. This suit is brought concerning a part of plaintiff’s land consisting of 11.4 acres and is that part of plaintiff’s land in closest proximity to lands owned by the State of New Jersey. The portion of land in question is more particularly described in the petition in condemnation to, which reference is hereinafter made.
“2. Ransford J. Abbott is now State Highway Commissioner and is substituted as defendant for Spencer Miller, Jr., as State Highway Commissioner. No stipulation is made with regard to Ransford J. Abbott individually as a defendant. Plaintiff does not stipulate to dismiss as against Spencer Miller individually.
“3. On or about March 15, 1949, the State Highway Commissioner, through his agents and servants, entered into and took possession of 11.4 acres of plaintiff’s land as above described, ever since which time plaintiff has been deprived of the use thereof.
“4. The correspondence between the parties and their attorneys, copies of which are attached hereto, are made a part of this stipulation.
“5. Defendants now assert that the lands in question were ■taken for the purposes stated in the affidavit of Edward W.' Kilpatrick, dated October 13, 1949, filed in this cause in the Chancery Division, and a copy of which is attached hereto for more Teady reference.
“6. On March 23, 1949, the State Highway Commissioner took the following action as recorded in the minutes of the meeting of the Commissioner and his staff as follows:
“ ‘Right of Way — Fernwood Station
“‘(Item 78) The Commissioner approved plans showing property to he acquired on Lower Ferry Road and Parkway Avenue (or Scotch Road) for highway purposes incidental to the construction of the new State Highway Office Building at Fernwood, and authorized acquisition of the properties as indicated thereon to be acquired for highway purposes. The Commissioner further authorized the transfer of $30,000.00 from the Right of Way Account of Route 54, Section (Route 43) to Second Avenue, (Hammonton), to cover the cost.’
“7. On August 17, 1949, the State Highway Commissioner took the following action as recorded in the minutes of the meeting of the Commissioner and his staff as follows:
‘Right of Way — Fernwood Station
“‘(Item 12-A) The Commissioner directed that condemnation proceedings be instituted for acquisition of the property of James A. Hester, Parcel 4, required for highway purposes on Parkway Avenue or Scotch Road for the Fernwood Station of the State Highway Department.’
“8. On or about November 7, 1949, the State Highway Commissioner made application to the Honorable Ealph J. Smalley, Judge of the Superior Court of New Jersey, and filed his petition entitled
“ ‘In the matter of the petition of the State Highway Commissioner of the State of New Jersey for condemnation of the lands of James A. Hester, unmarried,’
and on the twenty-first day of April, 1950, the Honorable Ealph J. Smalley entered an order appointing commissioners in said proceeding but no date has yet been fixed for a hearing. Said petition and order are incorporated by reference in this stipulation.”

The affidavit of the Acting State Highway Engineer recites for what purposes the defendant seeks to acquire plaintiff’s land by condemnation.

There are three questions requiring determination:

1. The right of the State Highway Commissioner to condemn the lands for the purposes stated.

2. Whether plaintiff has been, by his actions, estopped from denying defendant’s right to condemnation.

3. The personal responsibility of the defendant as charged in the complaint.

That this court may take cognizance of this suit notwithstanding the appointment of commissioners on condemnation on the 21st day of x\pril, 1950, has been settled in Bergen County Sewer Authority v. Borough of Little Ferry, 5 N. J. 548 (1950).

It is fundamental that the plaintiff shall be secure in his property and that it may not be taken from him without due process of law, and no authorities need be cited to substantiate this right guaranteed under the Constitution of both the United States and New Jersey.

I do not understand that the defendant contends that there is any specific provision in the statutes authorizing the defendant to take lands for the purposes as outlined in the affidavit of the Acting Highway Engineer, which is as follows:

“State of New Jersey 'j “County of Mercer f ss
“EDWARD W. KILPATRICK, of full (sic), being duly sworn according to law upon his oath deposes and says:
“1. I am the Acting State Highway Engineer of the New Jersey State Highway Department, and by reason of my duties am familiar with the various projects in which the New Jersey State Highway Department is engaged.
“2. The New Jersey State Highway Department on March 23, 1949 determined to acquire for State Highway purposes a tract of land situate in the Township of Ewing, County of Mercer and State of New Jersey, on Parkway Avenue in said Township, consisting of approximately 11.4 acres (being part of a 30 acre tract), owned, of record, by James A. Hester.
“3. The acquisition of this particular parcel of land was made immediately necessary because a large tract of land formerly devoted to nursery purposes for the raising of shrubs and trees used in connection with State Highway beautification, drainage, landscaping and other purposes, was taken over by the State of New Jersey for the erection of an office building. It then became necessary to acquire immediately another tract of land adjacent to the Eernwood Station of the State Highway Department for several reasons.
“4. It was necessary to dig up and transplant the trees and shrubs which were being grown and cultivated upon the tract of land hereinabove referred to, which was now intended to be used for office building purposes. It was both necessary and desirable for this purpose to acquire a tract of land located as close as possible within the immediate vicinity of the tract of land from which the trees and shrubbery were being moved.
“5. It was also necessary to acquire a tract of land closely adjacent to the Eernwood Station of the New Jersey State Highway Department because the services of servants and agents of the Department were more readily utilizable in close proximity to the Eernwood Station, where these agents and servants are normally stationed.
“6. It is also readily apparent that within the near future it shall or may become necessary to erect additional service buildings to be used in connection with the activities of the New Jersey State Highway Department, and for that purpose the aforesaid lands are most convenient and desirable.
“7. The agents and servants of the New Jersey State Highway Department have entered into negotiations with the said James A. Hester for the purpose of arriving at a fair and reasonable market value to be paid for the acquisition by the State of New Jersey of the said lands. The said James A. Hester has refused to accept the amount offered him by the State of New Jersey as representing the reasonable market value of the said lands.
“8. The appropriate agents and servants of the New Jersey State Highway Department have been instructed to prepare pleadings in condemnation proceedings looking to the acquisition of the said lands through such proceedings, and the establishment thereby of the fair market value to be paid to said James A. Hester. The condemnation pleadings are now in the process of preparation, and will be ready to be filed immediately upon the determination of the present proceedings between James A. Hester and Spencer Miller, Jr., State High-way Commissioner.
“Sworn and subscribed to Edward W. Kilpatrick before me this 33th day of October, 1949. “s. Kennel h D. Rice”

The oral argument had and the briefs filed by the defendant emphasizes that the lands in question are to be used for the erection of service buildings, garages, repair shops, storage sheds and buildings of a like nature.

The affidavit of the Acting Highway Engineer emphasizes the necessity to dig up and transplant trees and shrubs as more particularly set forth in the fourth paragraph of his affidavit, while the sixth paragraph recites only the possibility of the necessity to erect these additional service buildings. It is therefore fair to say that this situation was the motivating factor in the institution of the condemnation proceedings of plaintiff’s land.

iYdmitting that there is no express or specific power to take lands for these purposes, it is apparent that if the defendant is to succeed in this suit, the powers and authority to take lands for these purposes must be spelled out by implication. No quarrel can be had with the position that the State Highway Commissioner, when acting in his capacity as Commissioner, is an alter ego of the State. Strobel Steel Construction Co. v. State Highway Commissioner, 120 N. J. L. 298 (E. & A. 1938).

However, I am unable to find any authority which gives to the defendant the right to condemn land for the maintenance of nurseries and for the possibility of the necessity of erecting additional service buildings. If such authority exists, it must therefore be found in the implied authority conferred upon the defendant.

In Newark v. Civil Service Commissioner, 115 N. J. L. 26 (Sup. Ct. 1935), there is found the rule regarding the general doctrine of implied powers of state departments.

“This body (Civil Service Commission) is a creature of the statute; its powers are special and limited; and it can exercise only such authority as is legally conferred by express provisions of law, or such as is by fair implication and intendment incident to and included in the authority expressly conferred for the purpose of carrying out and accomplishing the objects for which the commission was created. Any reasonable doubt of the existence of any particular power in the commission should be resolved against the exercise of such authority.”

Agaiu, the court in Tanis v. County, 126 N. J. L. 303 (E. & A. 1941) adopted the above quoted language as its own expression.

A review of the authority heretofore granted to the defendant discloses that whenever it was found necessary to grant to the Highway Commissioner authority other than what might be characterized as strictly highway activities, the Legislature did then enact into law specifically the necessary authority to accomplish these purposes.

It will be unnecessary to review here the various statutes so enacted to accomplish these aforesaid activities, yet they do reflect the intention of the Legislature, and, again in Newark v. Civil Service Commission (supra), the court said:

“If, in a subsequent clause of the same act, provisions are introduced which show the sense in which the legislature employed doubtful phrases previously used, that sense is to be adopted in construing those phrases. Consequently, if a subsequent act on the same subject affords complete demonstration of the legislative sense of its own language, the rule which has been stated, requiring that the subsequent should be incorporated in the foregoing act, is a direction to courts in expounding the provisions of the law.”

The defendant’s alleged power of eminent domain .-applies to the furtherance, of the objects and purposes for which the Department was created, and does not extend beyond the direct furtherance of those purposes.

It may be that defendant’s problem is one for the Legislature but it would indeed be only by the stretch of an overactive imagination that would lead to a conclusion that would spell out implied authority and authorize the defendant’s right to condemn plaintiff’s land for a nursery for growing stock and for the further possible necessity of accommodation of the Department’s personnel and equipment.

It would be of some comfort if authority on all fours might be cited to substantiate this view-point, but I am unable to find aid from such source.

As to the second question, whether the plaintiff by his action has been estopped from denying defendant’s right to condemn, it would appear from the exhibits and the oral argument that the defendant does not seriously advance this argument and it has no merit.

As to the third question, I again doubt that plaintiff seriously advances the claim of personal liability of the defendant, Spencer Miller, or the substituted defendant, Hans-ford J. Abbott. There is no personal liability in such an action against the Commissioner individually acting in' the performance of a public duty where there is no fraud or malice. Here, none is contended or proven. Johnson v. Marsh, 82 N. J. L. 4 (Sup. Ct. 1912); Valentine v. Englewood, 76 N. J. L. 509 (E. & A. 1908), at p. 515.

For the foregoing reasons, there will be judgment in favor of the plaintiff and against the defendant in his official capacity as Highway Commissioner only.

There may be judgment, however, for the defendant individually and against the plaintiff of a no cause of action.

A form of judgment on notice may be submitted in conformity with these conclusions.


text:
    JOAN A. STRECKER, AN INFANT, BY HER GUARDIAN AD LITEM, NEVILLE STRECKER, AND NEVILLE STRECKER AND EDITH STRECKER, INDIVIDUALLY, ET AL., PLAINTIFFS, v. JAMES W. DEVINE, DEFENDANT.
    Superior Court of New Jersey Law Division
    Decided January 9, 1951.

      Mr. George F. Lahey, Jr. (Messrs. Lahey & Gockeler, attorneys), argued for the motion.

      Mr. Sidney M. Schreiber (Messrs. McKeown, Schreiber & Lancaster, attorneys), argued for the countermotion.
   Colie, J. S. C.

The plaintiffs in this suit seek damages from the defendant who is charged with the negligent operation of an automobile owned by Zurich Insurance Company. The Zurich is not a defendant.

In preparation for trial, the plaintiffs took the depositions of Raymond J. Walker and Millard Welch, both employees of the Zurich. The examination of deponent, Walker, had not progressed far when he was asked what the conditions were under which Devine, the defendant, was furnished with the automobile. The witness refused to answer on the advice of his personal counsel, his counsel stating the reason for so advising the witness was that the matter sought to be elicited by the question was not relevant to the subject matter of the pending action. Somewhat later the witness was asked whether Devine, the defendant, while in the employ of Zurich and prior to 1950, the date of the accident out of which this suit arose, had any automobile accidents or motor vehicle violations. The questions were objected to (1) as immaterial and (2) because the questions would not be permitted at the trial. The witness was instructed not to answer. Subsequent to the accident out of which the present suit arose, the defendant was interviewed and his statements taken by stenographers. The witness was asked the names of the stenographers but refused to answer on the advice of counsel for the reason that the statement “was an investigation in anticipation of litigation and in preparation for trial.” Although under subpoena to bring with him “copies of any and all statements or transcripts of records obtained from James Devine, with respect to the automobile accident in which James Devine was involved on January 27, 1950,” the witness, acting upon the advice of his attorney, did not do so.

Rule 3 :30-4 providing for termination or limitation of an examination, may be invoked by any party or by a witness under examination but only “* * * upon a showing that the examination is being conducted in bad faith or in such manner as unreasonably to annoy, embarrass or oppress the deponent or party * * *.” The defendant, Devine, is not the moving party and there is no showing that he or either of the witnesses, Walker or Welch, would be annojred, embarrassed or oppressed in answering the questions put to them nor is there anything before the court to suggest that the examination was being conducted in bad faith. Under the circumstances, the motion to terminate or limit the examination is denied.

As to the cross-motion to compel the witnesses to answer or bo held in contempt of court, it becomes necessary to examine Rule 3 :26-2, dealing with the scope of examination. With the promulgation of Rule 3 :26 — 2 the permissible scope of examination of a witness on depositions was greatly broadened. A witness “may be examined regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action * * * including the existence, description, nature, custody, condition and location of any books, documents, or other tangible things and the identity and location of persons having knowledge of relevant facts. It is not ground for objection that the testimony will be inadmissible at the trial if the testimony sought appears reasonably calculated to lead to the discovery of admissible evidence.” To be particularly noted is the language “relevant to the subject matter involved in the pending action.” This is broad language. It does not confine the inquiry to matter relevant to the issues in the pending litigation. The limitation is to matters relevant to the subject m,aMer involved. One of the matters relevant to the subject matter, as distinguished from the issues, in the pending litigation may well be the credibility of a witness whose deposition is being taken. The responses to questions as to prior accidents or prior violations of the Motor Vehicle Act, while not relevant to the issue in the pending suit, i. e., the negligence of Devine, may be relevant to the subject matter in that they may bear upon the credibility of Devine or may furnish material for his later cross-examination. In interpreting Rules 3 :26-2 and 3 :30-4 regard must be had to the provision of Rule 3 :26-2 that “It is not ground for objection that the testimony will be inadmissible at the trial if the testimony sought appears reasonably calculated to lead to the discovery of admissible evidence.” Ordinarily, relevancy should not be passed upon in advance of trial but rather should await the event of trial.

Hearing in mind that the purpose of the examination of the witnesses, Walker and Welch, is for the purpose of discovery, not necessarily for use in toto at.the trial, the..questions asked of them are proper and should he answered.-,.

There remains for consideration the question of whether the statements taken from defendant, Devine, fall within-the protection of that part of Rule 3:26-2 providing that “The-deponent shall not be required to produce or submit for inspection any writing obtained or prepared by the adverse party, his attorney, surety, indemnitor, or agent in anticipation of litigation and in preparation for trial * * The adverse parties in the present litigation are the plaintiffs and the defendant. The statements, production of which was sought by subpoena, were not obtained or prepared by any one within the five enumerated categories of adverse party, attorney, surety, indemnitor or agent. Since these are the only categories protected by the rule, it follows that they must be produced or submitted for inspection, if called for by a proper subpoena issued in accordance with Rules 3:45-l and 2.

An order may be presented in conformity herewith.


author: Daniel J. Brennan, J. S. C.

text:
    ROSINA GIORDANO, PLAINTIFF, v. CITY COMMISSION OF THE CITY OF NEWARK, A MUNICIPAL CORPORATION OF THE STATE OF NEW JERSEY, WILLIAM SCHORN, ZONING ENFORCEMENT OFFICER OF THE CITY OF NEWARK, UNITED AMERICANS CLUB, UNITED AMERICANS CLUB HOLDING COMPANY, INC., PASQUALE PANACCIONE AND JOSEPH MANGANI, TRADING AS PANACCIONE & MANGANI, DEFENDANTS.
    Superior Court of New Jersey Law Division
    Decided January 16, 1951.

      Mr. Carl F. Nitto, attorney for plaintiff.

      Mr. Charles Handler, Corporation Counsel of the City of Newark (Mr. Joseph A. Ward, of counsel), attorney for defendants City Commission of the City of Newark and William Schorn, Zoning Enforcement Officer of the City of Newark.

      Mr. Mario V. Farco, attorney for United Americans Club and United Americans Holding Company, Inc.

      Mr. Joseph A. Rotonda, attorney for Joseph Mangani.
   Daniel J. Brennan, J. S. C.

This is a proceeding in lieu of prerogative writ.

It appears that some time prior to April 13, 1948, United Americans Club applied to the Building Inspector of the City of Newark for a permit to erect a building at 235 Clifton Avenue in the City of Newark. The permit was issued in due course. Construction began on the building and in the course of construction it was discovered that the building was being erected beyond the setback line fixed in the zoning ordinance of the City of Newark. The club then made application to the zoning board of adjustment for a variance which was granted on April 13, 1948, and approved by the city commission by resolution adopted and passed on April 21, 1948.

Writ of certiorari in the cause was issued on May 26, 1948, by the old Supreme Court- but the cause was thereafter transferred to the Appellate Division of the new Superior Court. On March 15, 1949, the Appellate Division of the Superior Court set aside the resolution of the board of commissioners and the determination of the board of adjustment, vide Giordano v. City Commission of the City of Newark, 2 N. J. Super. 45 (App. Div. 1949), and did issue mandate accordingly. From the judgment of the Appellate Division the defendants appealed and on June 30, 1949, the action of the Appellate Division was affirmed by the Supreme Court, vide Giordano v. City Commission of the City of Newark, 2 N. J. 585 (1949), and its mandate entered thereon.

Plaintiff in the complaint here demands that the defendants be directed, commanded and enjoined to enforce the judgments and mandates aforesaid and to compel the United Americans Club to move the building back to conform with the build-back line and to enforce a penalty if the said United Americans Club fails to do so within a reasonable time, and demands costs of suit. She seeks this relief by a summary judgment under Rule 3:81-4.

The defendants City Commission of the City of Newark, William Schorn, Zoning Enforcement Officer of the City of Newark, United Americans Club and United Americans Club Holding Company, Inc., deny any liability on their part and seek summary judgment by appropriate motion.

The defendants United Americans Club and United Americans Club Holding Company, Inc., by way of answer deny any liability to the plaintiff on their behalf and by cross-claim attack such part of the zoning ordinance of the City of Newark as provides for setback of the premises in question.

An answer and cross-claim was filed on behalf of defendants Pasquale Panaccione and Joseph Mangani trading as Panaecione & Mangani which, by order entered on January 9, 1951, was withdrawn by reason of the fact that it was filed by inadvertence.

Defendant Joseph Mangani filed an answer denying any liability on his part and by way of separate defense asserted that he performed work and labor on said premises as one of several contractors acting in compliance with permit issued by tlie City of Newark authorizing him to proceed with the work and upon orders of United Americans Holding Company. It is admitted this defendant did not otherwise participate in these proceedings.

The fundamental question for resolution is whether or not this court has the right to order the authorities of the City of Newark, here made parties defendant, to enforce the judgments and mandates aforesaid, and to compel the United Americans Club to conform with the build-hack line, and to enforce a penalty if the United Americans Club fails to do so within a reasonable time. The pertinent part of the mandate of the Appellate Division after opinion reads as follows:

“* * * Ordered and adjudged that the resolution of the Board of Commissioners and the determination of the Board of Adjustment of the City of Newark is in all things reversed, set aside and for nothing holden, with costs; * * * and that the record and proceedings be remitted to the said Board of Commissioners and Board of Adjustment of the City of Newark to be there proceeded with in accordance with the rules and practice relating to that court, consistent with the opinion of this Court.”

The mandate on affirmance, issued out of the present Supreme Court, provides as follows:

“This cause having been duly argued before this Court by Mr. Joseph A. Ward, counsel for appellants, the City Commission of the City of Newark, et al., and Mr. Lawrence Friedman, counsel for appellants, United Americans Clubs, et al., and Mr. Nicholas Conover English, counsel for the respondent, and the Court having considered the same.
“It is hereupon ordered and adjudged that the judgment of the said Superior Court — Appellate Division is affirmed with costs; and it is further ordered that this mandate shall issue ten days hereafter, unless an application for rehearing shall have been granted or is pending, or unless otherwise ordered by this Court, and that the record be remitted to the Superior Court — Appellate Division to be there proceeded with in accordance with the rules and practice relating to that court, consistent with the opinion of this Court.”

There is in my judgment no power resident in this court in the instant case to direct the appropriate authorities of the City of Newark to enforce its zoning ordinance or to compel the United Americans Club to move the building back to conform with the build-back line or to enforce a penalty in the event of its failure so to do.

In Lanni v. Bayonne, 7 N. J. Super. 169 (App. Div. 1950), the Appellate Division of the Superior Court held as follows:

“The general rule is that the enforcement of ordinances is a governmental function and, in the absence of a statute imposing liability, a municipality is not liable for failure to enforce ordinances which have been enacted.” Citing 6 McQuillin Municipal Corporations (2d ed. 1936), § 2802; 63 C. J. S., Municipal Corporations, § 769; 38 Am. Jur., Municipal Corporations, § 603. See 46 A. L. R. 1434; 161 A. L. R. 1404. In Ventnor City v. Fulmer, 92 N. J. Eq. 478 (Ch. 1921), the court (Learning, V. C.) held that there was no authority in the court for the enforcement of an ordinance of a municipality by process of injunction, and this on the application of the municipality so to do. This case was affirmed in a per curiam opinion by our then Court of Errors and Appeals in 93 N. J. Eq. 660 (1922). In Massaro v. Cigolini, 1 N. J. Super. 484 (Ch. Div. 1948), in an opinion by Donges, J. S. C., there was a holding to the like effect. Vide also Borough of Wallington v. Tube Reducing Co., 136 N. J. Eq. 518 (Ch. 1945).

There is nothing in the mandate of either the Appellate Division of the Superior Court or of the Supreme Court containing any direction from which this court can derive any authority to grant the relief that the plaintiff seeks.

The motion of the defendants City Commission of the City of Newark, William Schorn, Zoning Enforcement Officer of the City of Newark, United Americans Club and United Americans Club Holding Company, Inc., for summary judgment is granted. The motion of the plaintiff, Eosina Giordano, for summary judgment is denied.

The cross-claim of the defendants United Americans Club and United Americans Club Holding Company, Inc., is dismissed in the light of the opinion in the Superior Court as well as the Supreme Court, sufra.

This determination is dispositive of the issues as to the parties litigant except Joseph Mangani who, although served with notice of the respective motions, did not participate in the arguments before this court. In the light of the disposition herein reflected the complaint of the plaintiff as it refers to this defendant is dismissed of the court’s own motion.

There will be no costs to any party as against the other on the motions and cross-claim.

Submit order accordingly.


author: Lance, J. C. C.

text:
    VALERIE TRIPUS, AN INFANT BY HER GUARDIAN AD LITEM, JOHN TRIPUS, AND JOHN TRIPUS, INDIVIDUALLY, PLAINTIFFS, v. DOROTHY PETERSON AND FLEMINGTON-RARITAN BOARD OF EDUCATION, DEFENDANTS.
    Hunterdon County Court Law Division
    Decided December 22, 1950.

      Mr. Clyde C. Jefferson, for the motion.

      Mr. Myron L. Levy, contra.

   Lance, J. C. C.

This is a motion by one of the defendants, the Flemington-Raritan Board of Education, to dismiss the complaint on the ground that it fails to state a cause of action against it.

Valerie Tripus, by her guardian ad litem John Tripus, and John Tripus, her father in his individual capacity, bring suit against Dorothy Peterson, a physical education teacher, and the Flemington-Earitan Board of Education which operates the high school in which the infant plaintiff was a pupil at the time of her alleged inj ury. The complaint states that the infant plaintiff sustained injury when performing a headstand while in attendance at a physical education class under the supervision of its teacher, Dorothy Peterson.

The complaint contains six counts, each of which demands damages against both defendants. Judgment will be entered dismissing the Elemington-Earitan Board of Education as a party. Precedent exists in this State to support this decision in so far as the first, second, fifth and sixth counts are concerned.

However, the third and fourth counts charge liability against the board of education by reason of R. S. 18:5-50.4.

Did the passage of R. S. 18:5 — 50.4 fasten liability upon a board of education where none existed before? This statute, •passed in 1938, reads as follows:

“It shall be the duty of each board of education in any school district to save harmless and protect all teachers and members of supervisory and administrative staff from financial loss arising out of any claim, demand, suit or judgment by reason of alleged negligence or other act resulting in accidental bodily injury to any person within or without the school building; provided, such teacher or member of the supervisory or administrative staff at the time of the accident or injury was acting in the discharge of his duties within the scope of his employment and/or under the direction of said Board of Education; and said board of education may arrange for and maintain appropriate insurance with any company created by or under the laws of this State, or in any insurance company authorized by law to transact business in this State, or such board may elect to act as self-insurers to maintain the aforesaid protection.”

Cursory examinations of the statute law of the American states fail to disclose similar legislation except in Connecticut (where the enactment has not yet been construed) and in New York.

R. S. 18:5-50.4 was copied from section 569-a of the Education Law of New York. The wording is almost identical. The New York courts have held that their statute does not create in the injured party a cause of action against the board of education. Massimilian v. Board of Education of School Dist. of City of Niagara Falls, 261 App. Div. 428, 25 N. Y. S. 2d 978 (1941). The court there said in 1941, at page 981:

“We are led to the conclusion that the Legislature intended to and did use language that put into effect protection of the teacher and other employee actor, and not language intended to protect and give a cause of action to the injured person. Section 569-a of the Education law is clearly a statute for the benefit of the employee and the pleading of the same and the proof of it on trial may prejudice the defendants herein. The second cause of action in each complaint and the allegations thereof should be stricken from the complaint.”

It is to be noted that the New Jersey statute was enacted in 1938 and that the New York legislation was not construed by its courts until 1941. A statute adopted from another state will be presumed to have been adopted with the construction previously placed on it by the courts of that state. Rutkowsky v. Bozza, 77 N. J. L. 724 (E. & A. 1909). However, construction in another state after its adoption is not of such conclusive effect. Gilman v. Central Vermont Railroad Co., 93 Vt. 340, 107 A. 122, 16 A. L. R. 1102. Nevertheless, judicial interpretation by a sister state of an identical statute should be given careful consideration, despite the fact that our statute was enacted three years before the New York courts spoke.

It was not the intent of our Legislature to create a new cause of action in favor of an injured party by the passage of R. S. 18 :5-50.4. It is merely a statute of indemnification. The Elemington-Raritan Board of Education will be dismissed as a party in this action.