text:
    MAUDE HARRINGTON, PETITIONER-RESPONDENT, v. MARIAN GARRISON ET AL., RESPONDENTS-PROSECUTORS.
    Argued May 2, 1933
    Decided September 7, 1933.
    Before Justices Case, Bodine and Donges.
    Por the petitioner-respondent, James J. STceffington.

    Por the respondents-prosecutors, Wall, Haight, Carey & Hartpence (Albert C. Wall, of counsel).
   Per Curiam.

The writ of certiorari brings up the record in a workmen’s compensation matter wherein the award to the employe was affirmed by the Essex Common Pleas on appeal. The single point argued by the prosecutor is that the workmen’s compensation bureau is without jurisdiction for the reason, as alleged, that the employment was casual, and therefore not such as to come within the purview of the statute.

Maude Harrington was skilled as a household worker in the various duties that are incident to a home, including serving, sewing, cooking and cleaning. There were several families, including Mrs. Garrison’s, amongst which, as required, she divided her time. She had worked for Mrs. Garrison over a period of ten years, with the understanding, as she testifies, that she should have three days’ service each week, the particular days of the week not being specified but being such as Mrs. Garrison, according to various domestic needs and engagements, should summon her for. Mrs. Garrison testified that there was no agreement, and that the service rendered was not so considerable but that Miss Harrington, subject to earlier engagements elsewhere, came on call. In response to the question, “do you know whether or not she worked for you at least one day a week while you were home?” Mrs. Garrison answered, “yes, I am sure she did work one day a week.” The compensation was at the rate of fifty cents per hour, paid, according to Miss Harrington, either weekly or every two weeks, or, on occasion, otherwise depending upon Miss Harrington’s need of money. There is no dispute concerning the injuries, which occurred Monday, April 21st, 1930, at the Garrison home, to which Miss Harrington had been summoned by a telephone message sent sometime after her departure from her labors at the house on the preceding Friday evening. It is significant both as to the proportion of the week given to Mrs. Garrison’s service and as to the expectancy of both employer and employe that the service, though in broken periods, would be continued, that Miss Harrington had worked at the Garrison home at least two full days during the week that preceded the injury, and though she had then quit the premises without any naming of the day for her next attendance, she neither asked for nor was offered her pay for the service rendered during that week; the more significant because, according to the testimony, illustrative of the ordinary and long-enduring relations that existed between the parties.

The prosecutor contends that the employment was casual and relies upon Forrester v. Eckerson, 107 N. J. L. 156; 151 Atl. Rep. 639, and Pamph. L. 1919, ch. 93. We find ourselves in disagreement with her conception of the citations and with her conclusion of law. Pamph. L. 1919, ch. 93, provides:

“Employe is synonymous -with servant, and includes all natural persons who perform service for another for financial consideration, exclusive of casual employment, which shall be defined, if in connection with the employer’s business, as employment the occasion for which arises by chance or is purely accidental; or if not in connection with any business of the employer, as employment not regular, periodic or recurring.”

It is not argued that the employment was by chance or accidental, but it is said that it was not in connection with any business of the prosecutor and that it was neither regular, periodic nor recurring. Without attempting to determine whether Mrs. Garrison’s status as a housewife was a business within the meaning of the statute, we state our conclusion that the employment was at least “recurring.” That the employment was such was the view of both the deputy commissioner and the Common Pleas judge, and we concur. The circumtsances are wholly unlike those in Forrester v. Eckerson, supra; and yet the application of the principle stated in that case causes no difficulty in this. Por, as Judge Hartshorne said in the opinion below, “clearly there was a basic agreement.” Miss Harrington was in effect a part-time servant in the prosecutor’s employ, and her service had at least this degree of regularity, that the employment was for a part of every week that the Garrisons were at home over a long period of years and for a minimum of one day in each of those weeks. In this long repetition of weekly service, in the acceptance of it as a regularly recurring fact and in the mutual expectation of continuation, we find a condition utterly at variance with the common understanding of, as well as with the statutory definition of, a casual employment.

Judgment below will be affirmed, with costs.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    RAYMOND STINES, PROSECUTOR, v. THE BOARD OF COMMISSIONERS OF THE BOROUGH OF BELMAR, RESPONDENT.
    Submitted May 12, 1933
    Decided September 7, 1933.
    Before Justices Case, Bodine and Donges.
    For the prosecutor, Quinn, Parsons & Doremus.

    For the respondent, Joseph Silverstein.

   Per Curiam.

The writ brings up a resolution passed by the board of commissioners of the borough of Belmar suspending the prosecutor from the police department of the borough.

The proofs show that Stines was employed continuously from 1926 to date of the passage of the resolution under review, July 19th, 1932, as patrolman on part time with a compensation of $166.66 per month. The employment was neither temporary nor to meet an emergency nor, so far as disclosed by the testimony, for parts of years. The employment was on ñxed salary, from which uniform deductions for pension charges were made and for service as a regular patrolman but on shortened hours. The borough of Belmar is under commission form of government, and the mayor is the director of public safety and public affairs. On July 17th, 1932, the mayor suspended Stines for alleged intoxication, and on July 19th, without the preferment of written charges and without public examination or trial of any character, the board of commissioners passed the resolution under review, the essential part of which is:

“Be it resolved that the action and proceedings of the mayor in dismissing the said Raymond Stines as a patrolman of the borough of Belmar on July 17th, 1932, for the reasons aforesaid, be confirmed, ratified and approved.” Thence forward Stines was refused opportunity to serve as a police officer.

Only two defenses are interposed by the respondent. The first of these is that Stines was guilty of laches in seeking the writ of certiorari, and on this point it is said in the respondent’s brief that said proceedings were instituted in the month of November, more than four months after the passage of the resolution dismissing. No proof of that statement is cited from the record, nor do we find such. The affidavit supporting the petition by which the proceedings looking toward the allowance of the writ were instituted was sworn to on September 8th, 1932, about seven weeks after the passage of the resolution. We consider that under the circumstances of the case that interval was not such as to support a charge of laches.

The second defense is that a part-time officer may be dismissed at any time without cause. Pamph. L. 1917, ch. 152, art. 16, § 5 (the Home Rule act) provides:

“No person, whether officer or employe, in any such police department, shall be removed from office or employment therein, except after just cause, as hereinabove provided, and then only after written charges or charge of the cause or causes of complaint shall have been preferred against such officer, or employe, signed by the person or persons making such charge or charges and filed in the office of the municipal officer, officers or board having charge of the department in which the complaint arises, and after the charge or charges shall have been publicly examined into by the appropriate board .or authority upon reasonable notice to the person charged; it being the intent of this act to give every person against whom a charge or charges for any cause may be preferred under this act, a fair trial upon said charge or charges, and every reasonable opportunity to make his defense, if any he has or chooses to make; and the officer, board or authority having power to hear and determine such charge or charges shall have power to issue writs of subpoena to compel the attendance of witnesses.”

We are constrained to the conclusion that Stines was an employe in the police department; that he was removed without written charges or trial, and that the fact that he was serving on shortened hours does not bring him within any of the exceptions to the statutory requirements. His employment was that of patrolman, uninterrupted for a period of more than seven years. There is no suggestion that the position was abolished or that the discharge was for reasons of economy. Fitchett v. Turner, 7 N. J. Mis. R. 1014; 147 Atl. Rep. 740.

The dismissal was not accomplished in accordance with the statute. The resolution will be set aside, with costs.


author: Eldredge, C. C. J.

text:
    F. A. NORTH COMPANY, A CORPORATION, PLAINTIFF, v. GEORGE H. BEEBE, DEFENDANT.
    Decided September 9, 1933.
    Before Henry H. Eldredge, Circuit Court judge.
    For the plaintiff, Waddington & Mathews.

    For the defendant, Martin J. Greenblatl.

   Eldredge, C. C. J.

This is a motion to strike an answer to a complaint filed by the plaintiff against the defendant to recover the sum of $338, due on a contract in writing for the sale of a piano by the plaintiff to the defendant.

The defendant, by way of answer, says that “the said piano was warranted at the said time and place to be a new and unused piano and that it would render reasonable and proper service.”

The amended answer then sets up three special defenses: (1) a repetition of the above recital from the answer; (2) that no bench was delivered with the piano, and (3) that because of failure to deliver the bench the contract was rescinded.

The second and third special defenses may stand. The written contract provides for the delivery of a bench. This delivery is both affirmed and denied by affidavits, hence a jury question is raised.

The first special defense and that portion of the answer above quoted may be stricken. The contract entered into is in writing and contains no warranties. The defense therefore attempted to be set up cannot stand.

In the opinion of the court, the case is governed by McCabe v. Standard Motors Construction Co., 106 N. J. L. 227; 58 Atl. Rep. 412. Like the contract in that case, the present contract contains a similar exclusive clause as follows:

“All previous or alleged contemporaneous communications between the parties hereto, either verbal or written, contrary to or in anywise differing from the provisions of this lease, are hereby withdrawn and annulled, and no future modification of this agreement of lease shall be binding upon the parties hereto, or either of them, unless such modification shall be in writing signed by them, and it is expressly agreed that the only evidence admissible in any court of the State of New Jersey or elsewhere of such modification shall be such writing so signed as aforesaid.”

Like the court in the McCabe case, we are of the opinion that the written instrument constituted the sole agreement between the parties unless modified in writing. This being so, neither an implied nor an express warranty would have any place or effect in the ease, for by the very terms of the contract such a warranty, if ever made, would be canceled.


text:
    MASONIC TEMPLE ASSOCIATION, OF ELIZABETH, A CORPORATION, PLAINTIFF-APPELLANT, v. ERNEST E. KISTNER, DEFENDANT-APPELLEE.
    Argued January 17, 1933
    Decided September 15, 1933.
    Before Justices Bodine and Donges.
    Por the plaintiff-appellant, Winard & Winard (Herman Winard).

    Por the defendant-appellee, Alfred F. Orsini (John M. Kerner).

   Per Curiam.

Suit was brought upon an agreement to subscribe to a building fund to erect a masonic temple in Elizabeth. The subscription was to be paid in twenty-five equal monthly installments. The agreement was dated October 18th, 1922, and the suit was not brought until November 17th, 1930. The court rightly held the action, except as to the last installment, barred by the statute of limitations. Comp. Stat., p. 3162.

The statute reads as follows: “All actions of debt, founded upon any lending or contract without specialty, * * *

shall be commenced and sued within six years next after the cause of such actions shall have accrued, and not after.”

The appellant’s argument is based on the proposition that an action of debt will not lie at common law for a particular installment until all installments are due. 18 Corp. Jur. 8, § 13. The fact is, however, that the statute begins to run against each installment as it falls due. 37 C. J. 854, § 217. Although a common law action in debt might not lie for the recovery of each installment an action in assumpsit would lie. The action as now brought under the Practice act of 1912 is an action at law and such action could have been brought for each of the installments as they fell due. Such being the law, the statute has run against each of the installments due more than siz years before the action was brought. Berry v. Doremus, 30 N. J. L. 399.

The judgment is affirmed.


text:
    IRENE G. KING, PETITIONER-RESPONDENT, v. CAMDEN PAVING COMPANY, RESPONDENT-PROSECUTOR.
    Submitted May 12, 1933
    Decided September 15, 1933.
    Before Justices Case, Bodine and Donges.
    For the prosecutor, Starr, Summerill & Lloyd.

    For the respondent, Rudolph S. Ayres.

   Per Curiam.

This writ of certiorari brings up for review a judgment of the Camden Common Pleas affirming an award of compensation in the workmen’s compensation bureau to the respondent.

It appears that respondent’s deceased husband, William King, was superintendent for prosecutor in the work of road construction. On August 12th, 1929, he was engaged in work in connection with a road near Palmyra, New Jersey. One John Pratt was engaged by prosecutor on a contract basis to remove certain tree stumps. He presented a bill for $35 which decedent approved for payment on said date. Subsequently, however, in the course of a telephone conversation with prosecutor’s bookkeeper, King told her the work had not been properly completed and she should make payment of only $20 on account. Pratt appeared at the office and asked for payment. The bookkeeper offered him $20 and explained the circumstances. Pratt refused the $20 and demanded payment in full. When this was refused, he said, “I will get mine” and walked from the office. He sought King at the place of work and shot and killed him.

The only question here presented is whether or not there was an accident arising out of the employment.

Appellant relies upon Hully v. Moosbrugger, 88 N. J. L. 161; 95 Atl. Rep. 1007, where an employe was injured in the course of skylarknig with fellow-workmen; Mountain Ice Co. v. McNeil, 91 N. J. L. 528; 103 Atl. Rep. 184, where one employe assaulted another; Schmoll v. Weisbrod, &c., Co., 89 N. J. L. 150; 97 Atl. Rep. 723, where an employe was assaulted apparently without reason while delivering beer; and other cases of like import.

However, there is a clear distinction in the instant case, because here the dispute which resulted in King’s death arose out of the performance by him of one of the duties imposed upon him by his employment. Approval of Pratt’s work and payment therefor was part of his job. An accident incidental to the performance of this work arose out of the employment. A case bearing more resemblance to the situation here presented than those relied upon by the appellant is that of Emerich v. Slavonian Roman Greek Catholic Union, 93 N. J. L. 282; 108 Atl. Rep. 223, where the employe was a bartender and was killed by a patron in an argument arising over the collection of money for drinks sold. In Nevich v. Delaware, Lackawanna and Western Railroad Co., 90 N. J. L. 228; 100 Atl. Rep. 234, where an employe was assaulted by strangers in attempting to recover a water barrel which they had removed from its usual place, it was held that there was an accident arising out of the employment.

Complaint is made that such an accident as occurred was not one which might have been contemplated by a reasonable person, when entering the employment, as incidental to it. We believe, however, as was said by Mr. Justice Trenchard in Emerich v. Slavonian Roman Greek Catholic Union, supra, that it was “a risk reasonably incident to the performance of the work, and if not an ordinary risk directly connected with the employment, certainly it was an extraordinary risk indirectly connected with the employment, owing to the special nature of the employment.” As stated above, the controlling feature is the fact that the accident arose directly out of the performance by decedent of one of the things for which he was employed. Barrese v. Standard Silk Dyeing Co., 10 N. J. Mis. R. 1290; affirmed, 110 N. J. L. 565; 166 Atl. Rep. 179.

The judgment is affirmed and the writ dismissed, with costs.


text:
    FRANK A. McBRIDE COMPANY, INCORPORATED, PROSECUTOR, v. JOHN KUEHN, RESPONDENT.
    Submitted May 12, 1933
    Decided September 15, 1933.
    Before Justices Case, Bodine and Donges.

      For the prosecutor, Edwin Joseph O’Brien.

    For the respondent, Nathan Babinowitz.

   Per Curiam.

This writ of certiorari brings up for review a judgment of the Passaic County Court of Common Pleas affirming an award made by the workmen’s compensation bureau in favor of respondent.

The respondent, John Kuehn, was employed by the prosecutor, Frank A. McBride Company, Incorporated, as a steamfitter. On October 20th, 1930, at two i>. M., he was at work on the third floor of a building and was being assisted by two helpers. They were lifting a heavy section of pipe from the second floor. The helpers let go of the pipe and respondent was forced to support its entire weight of some two hundred and sixty pounds. As he did so he had a sharp pain in the abdomen. He called to his assistants to seize the pipe which they did. He suffered great pain and was forced to lean over a railing and rest for fifteen minutes, after which he resumed light work for the balance of the afternoon but was unable to perform his regular duties or complete the work he had been doing. That evening, while seated in his home, he coughed and felt a pain in the abdomen. Hpon examination, he discovered a protrusion which turned out to be a ventral hernia. He reported the condition to his superior at eight o’clock the next morning and was sent to a doctor, whom he saw around one-thirty o’clock. He continued under a physician’s care, without working, until February 11th, 1931, when an operation was performed by the physician of the employer’s insurance carrier. He filed a petition for compensation which was resisted.

The pertinent part of the statute is as follows:

“Where there is a real traumatic hernia resulting from the application of force directly to the abdominal wall, either puncturing or tearing the wall, compensation will be allowed. All other cases will be considered as either congenital or of slow development and not compensable being a disease rather than an accidental injury; unless conclusive proof is offered that the hernia was immediately caused by such sudden effort or severe strain that, first, the descent of the hernia immediately followed the cause; second, that there was severe pain in the hernial region; third, that there was such prostration that the employe was compelled to cease work immediately; fourth, that the above facts were of such severity that the same was noticed by the claimant and communicated to the employer within twenty-four hours after the occurrence of the hernia; fifth, that there was such physical distress that the attendance of a licensed physician was required within twenty-four hours after the occurrence of the hernia.”

1. The first point is that there was no hernia “from the application of force directly to the abdominal wall,” as first above mentioned. This is true and respondent does not claim otherwise, but relies upon compliance with the five conditions enumerated later in the section.

2. That there was no immediate descent. There seems to have been some question raised at the hearing as to whether proof of immediate descent was necessary in a ventral hernia or only in an inguinal hernia. It is not necessary to go into this question inasmuch as the proofs show an immediate descent within the rule laid down in Borodaef v. Province Line Dairy, Inc., 109 N. J. L. 25; affirmed, 110 Id. 20; 160 Atl. Rep. 153. In that case the descent was noticed the morning after the strain, eighteen hours later, and it was held that the phrase “immediately following the cause” meant “soon enough and in such manner as to make it appear clear that the descent was the effect of the strain and pain complained of which forced cessation of work.” The instant case comes within that rule, since the protrusion was noticed some five or siz hours after the accident.

3. That there was no such prostration that the employe was compelled to cease work immediately. The facts do not sustain this contention. It was testified that respondent called for help in holding the pipe; that he was in intense pain; that he had to rest; that he had to cease the work he had been doing and perform only light tasks the balance of the day. He was forced to cease work in the sense meant by the statute.

The other provisions of the statute were admittedly fully met. There is no claim made here by the prosecutor, either in its expert testimony or in the argument of counsel, that the hernia was not in fact caused by the strain of lifting the heavy pipe. Eeliance is had solely upon the claim that the two features of the statute above dealt with were not strictly complied with.

4. That the amount of the award is excessive and not in compliance with the statute. The award is in compliance with the law.

The judgment is affirmed and the writ dismissed, with costs.


text:
    CHARLES ORTH, PROSECUTOR, v. CITY OF HACKENSACK, RESPONDENT.
    Argued May 3, 1933
    Decided September 15, 1933.
    Before Justices Case, Bodine and Donges.
    For the prosecutor, James De Turch.

    For the respondent, Walter G. Winne.

   Per Curiam.

This is an application for a writ of certiorari to review an item in the 1933 budget of the city of Hackensack. The prosecutor is a member of the Hackensack Improvement Commission, the governing body of the municipality.

The item under attack is “reserve against uncollected taxes $200,400.” The first ground is that this item violates that section of the Budget act which provides that the amount to be raised shall be stated, the appropriations itemized and the several items set forth accurately according to the respective and particular objects, departments or sub-departments for which the respective amounts are to be expended. Reliance is had upon Mackey v. Belvidere, 101 N. J. L. 250; 128 Atl. Rep. 859, where the appropriation held invalid was “preservation of life and property $12,150.” In that.case Mr. Justice Trenchard held that the item in the budget gave the taxpayers no information as to how the money was to be spent and that there was nothing in the return to the writ which clarified it. In the instant case there seems little doubt of the purpose of the item.

Hnless the merits of the application are clear, the court ought not exercise the prerogative writ of certiorari to throw confusion into the financial affairs of the city. Hourigan v. North Bergen, 11 N. J. Mis. R. 194; 165 Atl. Rep. 74. We conclude the rights of the prosecutor are not clear in this case.

The rule to show cause is discharged.


text:
    JOHN S. KETANER, PROSECUTOR, v. FRANK G. LOTT, RECORDER, ET AL., RESPONDENTS.
    Submitted May 12, 1933
    Decided September 15, 1933.

      Before Justices Case, Bodine and Donges.
    Por the prosecutor, John G. Flanigan.

    Por the respondents, no appearance.
   Per Curiam.

This writ brings up the conviction of the prosecutor for a violation of an ordinance of the borough of Flemington. The ordinance in question provides:

“It shall be unlawful for any person * * * to hawk or peddle in or around any streets of the borough of Fleming-ton, fish, fowl, fruit, &e., from wagons, carts, automobiles or any other vehicles * * * from house to house, or to carry on or conduct the business of hawking or peddling without first obtaining a license * *

The fee provided for such a license was $100 a year.

The evidence of the violation was the testimony of John II. Lea, a state trooper, to the effect that he had seen prosecutor deliver a loaf of bread to a woman in Flemington and collect money for it. Prosecutor drives a bakery wagon for the General Baking Company, which operates from its Trenton bakery in many small towns in that section of the state. The evidence was that this company had sixty or seventy customers in Flemington. The particular woman who bought the loaf in question had been served for a year or more. The evidence on behalf of the prosecutor was that he had delivered the bread against an order previously given.

In Hewson v. Englewood, 55 N. J. L. 522; 27 Atl. Rep. 904, it was held that the custom of soliciting orders, delivering against those orders, and soliciting further orders while making deliveries from a grocery wagon did not constitute hawking or peddling so as to violate an ordinance regulating those practices. The proven acts in the instant case, tested by that rule, do not constitute a violation of the ordinance.

It is not necessary to consider the other points raised.

The judgment is reversed.


text:
    ERNEST SCHACHT ET AL., PROSECUTORS, v. CITY OF PASSAIC, DEFENDANT.
    Submitted May 12, 1933
    Decided September 15, 1933.
    Before Justices Case, Bodine and Donges.
    Bor the prosecutor, Greenburg & Wilinslcy and William N. Gurtman.

    Bor the defendant, Thomas E. Duffy.

   Per Curiam.

This writ of certiorari seeks to review certain assessments levied against properties of the prosecutors for the widening of Broadway, in the city of Passaic.

The ordinance providing for the widening between Gregory avenue and Paulison avenue was introduced April 3d, 1928, and adopted April 24th, 1928. The ordinance providing for the widening between Lafayette avenue and Linden street was adopted March 19th, 1929. The funds were appropriated by ordinances in September and November, 1930. Notices of intention in each case were duly served on the prosecutors, setting times and places for the hearing of persons whose property was to he affected. In 1931 proceedings were commenced for the levying of assessments on properties benefited, and on March 8th, 1932, the assessment report was confirmed by the governing body.

Prosecutors urge three reasons for setting aside the assessments. First, that the city of Passaic is estopped, both in fact and in law, from assessing the prosecutors. It appears that portions of prosecutors’ properties were taken for the project and damages were fixed and paid to them by the city. The contention under this point is that the benefits should have been determined at the time the damages were paid and these items balanced against each other so far as possible, and that the failure of the city to follow this procedure estops it from subsequently assessing the benefits. The Court of Errors and Appeals held to the contrary in Gross v. Hague, 99 N. J. L. 457; 123 Atl. Rep. 744, and that disposes of the first point.

Second, that the notice of intention in each instance throughout these proceedings did not inform the prosecutors of the fact that the same was to be a local improvement. The notices did not state that the improvements were to be local. The ordinances provided that the cost of the improvements was to be “assessed in accordance with the laws governing said city.” In Burstiner v. East Orange, 100 N. J. L. 385; 127 Atl. Rep. 243, the Court of Errors and Appeals held a notice similar in form to those in the instant case to be insufficient because it did not give notice to property owners that the work was to be done as a local improvement for which assessments might be made against abutting property owners, and that case is relied upon by the prosecutors herein. However, since that decision chapter 244 of the laws of 1928 has been enacted. That statute was approved April 3d, 1928, and became effective immediately, which was the date of the introduction of the first of the ordinances concerned in this case. It therefore applies to the case. It provided that when a municipality widens a street “such proceeding shall be deemed to be a local improvement, and assessments for benefits may be made immediately thereupon, * * * after hearings are held, upon notice in the same way and manner as provided for in article 20 of the act to which this act is a supplement * * We conclude that, since the improvement was a local one by the terms of the statute, the notices of intention apprised the prosecutors that an improvement was in contemplation for which an assessment would he levied against properties benefited thereby; and that the notices satisfied the statutory requirements for notice.

Third, that the governing body of the city of Passaic did represent and promise the prosecutors at an official hearing that the costs and expenses of said improvement would be a general improvement, and would not be assessed against the property owners as a local improvement. Several of the prosecutors testified they were told at one of the hearings by the then mayor that their properties would not be assessed for the widening. The former mayor and two members of the governing body at that time corroborate this. Others present testified to being unaware of any such statement. The official records of the city show no action upon such matter. Without deciding the factual question of whether or not such a representation was made by individual members of the governing body, we think the city could not be bound by any such oral statement. Municipalities must act by ordinance or resolution. Article 20 of the act, which concerns improvements, says: “Whenever any ordinance shall be passed by the governing body of any municipality for making any improvement or performing any work, all further acts and proceedings which it may be necessary for said governing body to take to carry out said improvement or work to completion, and all orders relating thereto, may be by resolution.” We conclude that the city could not be bound by the representations alleged to have been made at the hearing and that the prosecutors were not justified in relying upon such oral statements. They could have pressed their objections and sought official action in the manner provided by law.

It is not necessary to consider the question of laches. The writ is dismissed, with costs.


text:
    THE PROVIDENT INSTITUTION FOR SAVINGS, RELATOR, v. JOHN D. CASTLES, BUILDING INSPECTOR, ET AL., RESPONDENTS.
    Submitted May 12, 1933
    Decided September 15, 1933.
    Before Justices Case, Bodine and Donges.
    For the relator, Thomas McNulty.

    For the respondents, Arthur B. Archibald.

   Per Curiam.

This is an application for a writ of mandamus to compel the issuance of a permit by the building inspector of the town of Kearny for the repair of a store budding in that municipality. The building has been in existence for a number of years and is at present, as shown by the photographs, in such a condition of disrepair that it may not be used. The evidence is to the effect that the permit was refused solely upon the ground that the district in which the building is located is now a residence zone. The desire of the relator was to put the building in such condition that it might be rented for use as a store. No radical changes or alterations in the building were contemplated.

In Durbin Lumber Co. v. Fitzimmons, 106 N. J. L. 183; 147 Atl. Rep. 555, it was held that a non-conforming use instituted prior to the passage of the constitutional amendment permitting zoning, which has been actively and constantly maintained, is entitled to be continued. . In tbe instant case, the building has not always been occupied but it had always existed as a store property.

The enabling act, chapter 274, laws of 1928, provides that any non-éonforming use or structure existing at the time of the passage of an ordinance may be continued upon the lot or in the building so occupied, and any such structure may be restored or repaired in the event of partial destruction thereof. The evidence, particularly the photographs, indicates a partial destruction such as to make the building in its present condition unfit for the non-conforming use to which it was devoted at the passage of the zoning ordinance.

We are of the opinion that the relator was entitled to put the building in condition for the previously existing nonconforming use.

It is urged that the refusal of the permit was justified because of failure to file a proper plan. But there was testimony that a plan was tendered, and the defendant admitted in his testimony that no plan was usually required for repairs of this kind.

It is also argued that relator should first have appealed to the board of adjustment and is not entitled to mandamus without having first taken such an appeal. That is the ordinary course, but it is not necessary where the facts and the right are clear. Conaway v. Atlantic City, 107 N. J. L. 407; 154 Atl. Rep. 6.

The facts are all fully presented and the right of the relator is clear. A peremptory writ will be allowed.


text:
    ARTHUR T. VANDERBILT, TRUSTEE, ETC., PROSECUTOR, v. TOWN OF BELLEVILLE, RESPONDENT.
    Argued May 3, 1933
    Decided September 15, 1933.
    Before Justices Case, Bodine and Donges.
    For the prosecutor, Jerome C. Eisenberg.

    For the respondent, Lawrence E. Keenan.

   Per Curiam.

This writ brings up assessments levied against six properties owned by prosecutor in the town of Belleville, which assessments were for a sewer system constructed in said town under an ordinance.

The prosecutor, trustee in liquidation of Lincoln Mortgage and Title Guaranty Company, acquired the properties after foreclosure of mortgages held by that company.

The ordinance under which this improvement was made, as a local improvement, was enacted in 1913. The work was done in eleven sections. Some of the sewers were laid as early as 1915 and have been in use since that time, but not until 1924 were they connected to the lines of the Passaic Valley Sewage Commission, having emptied into the Passaic river before that time. Some of the work was not completed until 1931.

The properties in question are located in sections 1, 4 and 11 of said assessment.

It appears that the sewers in section 1 were laid and constructed during the years 1920, 1921 and 1922; in section 4, some of the sewers were laid in the year 1915, and others were laid from time to time until the year 1927; all of the sewers in section 11 were laid and constructed between the years 1927 and 1931. The sewers laid in the various sections prior to 1924 were not connected with the Passaic Valley Sewerage System, in accordance with the plan of said improvement, until 1924. The last of the work in completing the improvement provided in the ordinance of June 18th, 1913, was done in 1931.

The ordinance provided:

“That the said sanitary sewer system may be built and constructed as a whole or in sections as the council may from time to time determine and after the completion of the system or any section thereof, the cost shall be ascertained and determined by the commissioners of assessment and such cost and expense shall so far as the same can be, be assessed upon the lands and real estate specially benefited by the improvement * *

The assessments for benefits were made in 1932 after all the work had been completed.

The contention of the prosecutor is that an assessment such as the one herein made must be made within a reasonable time after the work is done and that it was not so made in this case. We are of opinion that, by the terms of the ordinance, the governing body might treat the improvement as a unit and withhold the levying of assessments until after the completion of the entire project. Prosecutor cites no ease in this state which puts any time limit on assessments for benefits. Courts in other jurisdictions have held that this is a matter for legislative action and the courts will not impose a limit where the legislature does not. City of Auburn v. Paul (Me.), 93 Atl. Rep. 289; Bradley v. Greenwich (Law Reports), 3 Q. B. Div. 388; Fairbanks v. Fitchburg, 132 Mass. 42.

Prosecutor and his predecessors in title stood by while the work was being performed and accepted the benefits of it. They knew, or should have known, that the work was- done as a local improvement for which assessments would be levied. They knew, or should have known, that the work was done as might be made after the completion of the entire project. The assessments were made with reasonable promptness after the completion of the work provided to be done by the ordinance.

It is argued that the assessment is particularly burdensome to owners who have acquired their property in recent years, and that they have no legal remedy whereby they may recover proportionate shares from prior owners, it being difficult to enforce covenants in warranty deeds. This does not seem to be sufficient reason for setting the assessments aside.

The writ is dismissed.


text:
    ELMER E. COYTE ET AL., PROSECUTORS, v. A. GRACE KING, CLERK, ETC., DEFENDANT.
    Submitted May 12, 1933
    Decided September 15, 1933.
    Before Justices Case, Bodine and Donges.
    For the prosecutors, Lester C. Leonard.

    For the defendant, James D. Carton, Jr., and William, J. O’Hagan.

   Per Curiam.

This writ of certiorari seeks to set aside the “conduct of the defendant in failing to call the special election,” an election sought to be held to permit the voters of Asbury Park to decide whether or not they wished to adopt the city manager form of government.

It appears that on February 21st, 1933, there were filed with the city clerk, A. Grace King, petitions asking such an election signed by one thousand four hundred and sixty-six names. Fifteen per cent, of those who voted at the preceding assembly election are required. The number required in As-bury Park was one thousand one hundred and nine, so that three hundred and fifty-seven names more than were needed appeared on the petitions. The clerk took no action on the petition and seventeen days later, on March 11th, a rule to show cause for certiorari was obtained, and upon the return of the rule on March 14th, Mr. Justice Bodine allowed the writ.

The contention of the prosecutors is that the failure of the clerk to call the election amounts to a determination by her that the petitions were insufficient and a refusal to act. Her position was at the time the depositions were taken that she had not yet made up her mind and had taken no action reviewable by certiorari.

1. The first question is whether certiorari is the proper remedy. Defendant claims she has not taken action as yet and the proper procedure would be mandamus to compel a decision and then certiorari to review it if it be unfavorable. In view of the limitation of time within which the election •must be held, the conduct of the clerk has been such as to amount to a refusal to call the election, which refusal would be based upon a determination that the petitions were not adequate. It has been held that the clerk performs a judicial and not a ministerial function in passing upon petitions for elections and in deciding whether or not to call such an election. Baker v. Reeves, 9 N. J. Mis. R. 1303; 157 Atl. Rep. 174; Balm v. Cape May, 101 N. J. L. 400; 127 Atl. Rep. 923. The day on which the rule to show cause in this case was returnable was the last day under the statute on which persons might apply for watchers for the election, if one was to be held. There is in effect such a determination as may be reviewed by certiorari.

2. As to the 'facts developed by the depositions, it 'appears that the prosecutors offered the testimony of a Dr. Bryan who told of filing the petitions and testified as to certain signatures thereon having been procured by him and made in his presence. Prosecutors rested and the defendant offered the testimony of various witnesses to the effect that they had been tricked into signing by false statements of the solicitors as to the purport of the petition. Handwriting experts testified that certain signatures were forgeries. The clerk testified to irregularities and one Robert Bartley, city water superintendent, gave evidence that he had checked the petitions against the poll and registry books to ascertain whether the signers were qualified voters.

The net result of the check-up seems to have been that one signer was not a citizen; seven signers gave addresses which they did not occupy; fifty-one names were undecipherable; sixty-six were testified to be forgeries; nine hundred and twenty-seven names, according to Bartley, did not appear in the registry and poll books. It is the propriety of striking off or disregarding these last mentioned nine hundred and twenty-seven names that is challenged here, because if the action of the clerk with respect to the other names, alleged to be forgeries, &c., be correct, there were still sufficient to require an election if the nine hundred and twenty-seven be proper signatures.

Bartley read a list of names which he said he could not find in the voting books. Hpon cross-examination, however, some interesting information as to the methods he employed in checking the lists was developed. On page 358 of the record, for instance he discusses the case of one Groce. On the registry and poll lists appeared the name of Louis P. Groce, 930 Summerfield avenue. On the petition appeared the name of a Louis Groce, at the same address, but Bartley said the middle initial of the signature looked like an R to him, rather than a P, and therefore he could not count this name. Another instance: the name of Dr. W. W. Beveridge, 1000 Grand avenue, appeared on the petition. In the registry book was a William W. Beveridge, same address, and in the poll book a Dr. Wm. W. Beveridge. So this name was stricken off. Prank H. Cole, 610 Eighth avenue, signed the petition. In the voting books his name was Prank Cole, same address, with no middle initial. This invalidated the signature, according to Bartley.

This witness said: “I am not dealing with individuals in checking these signatures; I am dealing with signatures.” He said if his own name were concerned and it appeared Robert Bartley in one place and abbreviated Robt. Bartley in another, it would not count. These tests, he testified, he applied throughout.

These facts lead to the conclusion that the evidence of this witness as a challenge to the qualification of any of the signatures or petitions is utterly worthless and should be entirely disregarded.

In rebuttal the prosecutors produced the solicitors who secured the signatures to the petitions, and they testified that the signatures were genuine (except in a few admitted cases where someone else wrote the names, allegedly with the permission of the individual), that they had been signed in their presence, and that each person had had explained to him the nature of the petition, and there was no misrepresentation or fraud employed.

There was an attempt to have certain persons withdraw their names from the petitions by written instructions to the clerk, but this practice is prohibited by Balm v. Cape May, supra, and there is now no serious effort to give effect to these withdrawals.

In this state of the proofs, the clerk was in error in refusing to call an election. Prosecutors have made out a prima facie case showing the filing of petitions with sufficient signatures to require an election. The attempt to justify her refusal because of the invalidity of certain signatures fails because of lack of proof. The testimony of the solicitors as to the genuineness of the petitions is sufficient to at least put the burden on the clerk to justify her refusal to accept the petitions for their face value. She has failed to show sufficient irregularities to take the number of signatures below the required fifteen per cent.

The prosecutors are entitled to judgment that the clerk has in effect determined not to call an election because of the insufficiency of the petitions, and that this determination is erroneous and should be set aside.


text:
    HELEN W. CHALMERS, PROSECUTRIX, v. STATE BOARD OF EDUCATION, DEFENDANT.
    Submitted May 12, 1933
    Decided September 15, 1933.
    Before Justices Case, Bodine and Donges.
    For the prosecutrix, Kass & Kass.

    For the defendant, Sorg, Duncan é Baüey.

   Per Curiam.

This writ brings up a decision of the state board of education holding that prosecutrix was not entitled to the protection of the Teachers’ Tenure of Office act.

The prosecutrix was engaged by the board of education of the township of Earitan in Middlesex county, to teach in Oak Tree public school, by a contract in writing, dated June 28th, 1928, for a period of ten months from September 14th, 1928; by a contract, dated July 29th, 1930 (obviously an error and should be 1929), from September 1st, 1929, to June 30th, 1930; by a contract, dated May 7th, 1930, from September 1st, 1930, to June 30th, 1931; and by a contract, dated June" 24th, 1931, from September 1st, 1931, to June 30th, 1932.

On April 29th, 1931, the local board adopted a resolution that, thereafter, no married teacher should be allowed to acquire tenure unless they were self-supporting. Prosecutrix was therefore notified that she would not be re-employed, because to do so would bring her within the provisions of the statute referred to, and that, therefore, her services would not be needed by that board after the expiration of her then existing contract. The prosecutrix thereupon offered to waive her right to acquire tenure. Subsequently, prosecutrix, on May 20th, 1931, tendered her resignation in writing, to be effective June 18th, 1931. The resignation was received by the supervising principal, and by him submitted to the local board of education, some weeks prior to the date when it was to take effect. The proofs are uncontradicted that it was acted upon by the board at a regular meeting and that it was duly accepted, although the clerk of the board made no entry of such action in the minutes. The word “Accepted” was noted on the resignation, when the board acted upon it. The testimony was that the prosecutrix was desirous of resigning in order that she should not be subject to the provisions of the resolution of the board that married women should not acquire tenure.

In this situation, and on June 24th, 1931, the fourth contract was entered into. Under it, prosecutrix taught until the close of the school year in June, 1932. On June 1st, 1932, she was notified that her services would not be needed after June 30th, 1932. She appealed to the commissioner of education, who decided in her favor. Whereupon the local board appealed to the state board of education, which reversed the finding of the commissioner of education.

Four reasons for reversal are written down by prosecutrix. These are—

1. “The state board of education erred in finding that the resignation of the prosecutrix had been accepted.”

2. “The state board of education erred in holding that ‘the commissioner deemed the resignation of respondent to be ineffective because she did not know of its acceptance by the board * * */”

3. “The state board of education erred in holding that the prosecutrix Tiad not served for the period necessary to confer the right to tenure upon her under the statute/ because tenure under the statute does not depend upon a contract but upon service and the prosecutrix having rendered the statutory service is entitled to tenure protection by virtue of operation of law.”

4. “Any resignation offered by the prosecutrix, or any notice terminating service served by the Earitan township board of education, was part of a scheme to evade the operation of the Teachers’ Tenure of Service act, and was not operative because evasion of the Teachers’ Tenure of Service act is against public policy.”

Both the commissioner of education and the state board of education appear to have believed that the determination of the matter rested upon the effect of the letter of resignation sent by prosecutrix to the local board.

In its finding, the state board well states the situation as follows:

“The commissioner of education, in his opinion, says: ‘This case rests upon the effect of appellant’s letter of resignation, the action of the board in relation to it, and her subsequent re-employment of June 24th.’ Evidently he considered that upon the acceptance of the resignation an interruption would be created in the continuous service required by the Tenure act, and thus the benefit of previous service by respondent lost to her. Fountain v. Board of Education of Madison Township, 1928, School Law Dec. on page 180. We agree with him that to acquire protection under the Tenure act there must have been a continuous, uninterrupted service of a period of three years, and a re-employment immediately thereafter. The Tenure act provides:

“ ‘The service of all teachers * * * shall be during good behavior and efficiency, after the expiration of a period of employment of three consecutive years in that district unless a shorter period is fixed by the employing board.’ Pamph. L. 1909, ch. 243.

“The commissioner deemed the resignation of respondent to be ineffective because she did not know of its acceptance by the board, and moreover, he says, ‘the president and district clerk, who had full knoweldge of the matter, signed the warrant for the entire month’s salary, and the supervising principal, who was aware of her continued service, handed to her a warrant which he knew included payment for the time after which her resignation was intended to take effect, and further, that the board was charged with a knowledge of its own minutes and the official acts of its officers and it cannot therefore disavow the acceptance of appellant’s services for the full period of the third contract and payments therefor.’ ”

“We do not.agree with the commissioner in his view that respondent did not know of the acceptance by the board of her resignation. That method of avoiding the acquisition by her of tenure was her own suggestion. The language of her letter of May 1st, where she inquires if cre-employing’ would make it possible for her to receive consideration, can mean nothing else. She must have meant a re-employing after an interruption of her present service before the end of the school year, otherwise her language would be without sense. Both she and the board believed that if she were re-employed after full performance of her contract ending on June 30th, she would come under tenure protection. The sequence of events negatives such lack of knowledge. She was notified on April 30th, 1931, she would not be re-employed after June 30th. On May 1st she wrote, asking if waiving tenure or re-employment would make it possible she be considered for next year. On May 18th the board adopted the resolution to re-employ her for the next school year, provided she waive tenure rights. On May 20th she wrote her resignation, which was received by the supervising principal on May 26th, and by him presented to the board early in June, and by it accepted. We are not so credulous as to believe respondent was ignorant of any step in a matter which concerned her so vitally, and that the course that was followed was not fully concurred in by her.

“The absence of a record of the receipt and action of the board upon the resignation does not preclude oral evidence of the board’s acts in reference thereto. The School law. prescribes that the secretary shall record the proceedings of the board and its committees, but that requirement does not preclude other evidence of the acts of a board. Where the minutes contain no reference to such acts, the testimony of those who participated in them is original evidence and should be given consideration, if it is clear and certain. Here we have the positive statement of the supervising principal that he submitted the resignation to the board, and that it was, by it accepted. That he at the time of its acceptance noted the fact on the resignation itself. Messrs. Van Duyn, Kirkpatrick and Troger, members of the board, testify positively the board received the resignation and accepted it. Mr. Troger further testified to the effect the resignation was part of a plan entered into with respondent to avoid the acquisition of tenure. No member of the board was produced to deny it had acted upon respondent’s resignation. Nor, in our opinion, is it of any effect that formal notice of the acceptance of the resignation was not given. The resignation became effective according to its terms, when it was accepted. Reeves v. Ferguson, 31 N. J. L. 107; Whitney v. Van Buskirk, 40 Id. 463. The fact that respondent returned to the school on June 19th, the day following that upon which her resignation became effective, did not, in our opinion, operate to annul the acceptance of the resignation. All that was done on that day was the promotion of the pupils. What respondent did was voluntary. There is nothing in the evidence to show the board knew anything about it. The payment to respondent of a full month’s salary for June did not affect the resignation. Respondent had performed all the service that a teacher was called upon to give when her resignation became effective. Teaching sessions ended for the month on that day.

“The payment was probably binding on the board and could not be disavowed, but it is untenable to hold the board was thereby bound to regard respondent as being in its employ, notwithstanding the resignation and its acceptance. On what theory could it bo so held ? There is no estoppel. Respondent was not misled in any way to her damage. At most, the officers of the board paid to respondent as salary a small sum in excess of what she was entitled to. The board had no knowledge of it and cannot be held to have ratified or to be under an obligation to disavow the payment.

“An interruption of the service of respondent in the disv triet of appellant board having been created by the petitioner’s action and her resignation, she had not served for the period necessary to confer the right to tenure upon her under the statute.”

We agree with the conclusion of the state board of education that the prosecutrix tendered her resignation before the expiration of the three-year period; that such resignation was duly accepted; and that she did not have “a period of employment of three consecutive years in that district.”

There remains to be considered only the fourth point urged by prosecutrix, namely, that the conduct of the parties was illegal and against public policy and, therefore, there was no interruption of the service of prosecutrix.

It is clear that prosecutrix obtained no tenure rights until "after the expiration of a period of employment of three consecutive years.” Therefore, having, by her own act, terminated the service before she became entitled to such rights, we are not dealing with a situation where an effort is made to avoid recognition of an existing right. It was within the competence of either party to terminate the service before the right had been acquired, and prosecutrix concedes this would be lawful. This is what was done in the instant case.

The statutory right of tenure never having been acquired, the objection of the prosecutrix is without merit. Carroll v. State Board of Education, 8 N. J. Mis. R. 859; 152 Atl. Rep. 339.

The writ will be dismissed, with costs, and the judgment under review affirmed.


text:
    EDMUND WILSON, ATTORNEY-GENERAL, INFORMANT, v. MORRIS RAILROAD COMPANY, RESPONDENT.
    Argued February term, 1912
    Decided June 4, 1912
    Before Justices Bebgen, Voobhees and Kaliscxi.
    For the informant, Robert E. McQarter, Edward K. Mills, Kinsley Twining and Arthur F. Egner.

    For the respondent, Alan E. Strong.

   Per Curiam.

The defendant company was organized under the General Eailroad act, and its route, as described in its articles of incorporation, filled in a gap existing between two termini of the railroad of the Morristown Traction Company, a distance of a trifle over two miles. It is admitted that the route of the defendant company is substantially that which was abandoned by the traction company, between its termini at Morristown and Summit, for the reason that it could not obtain the requisite municipal consents from the township of Morris, town of Morristown and township of Florham Park, through which the traction company had intended to build a street railway connecting the aforesaid termini, and it is not denied that the defendant company intends, among other things, to carry passengers between the two termini of the traction company’s line.

The attorney-general filed this information in the nature of quo warranto, questioning the right of the defendant to exercise its franchise conferred by the act under which it is incorporated, upon the ground that the defendant company had been, and was proposing, to exercise its franchises in fraud of the Railroad act. The respondent, by its pleas, denied the facts set forth in the information, and the issue thus presented was resolved by a jury in favor of the respondent. On the application of the informant a rule to show cause why the verdict should not be set aside was allowed which it is now moved be made absolute, for which a number of reasons are urged, the most important of which is that the verdict is against the weight of the evidence.

The trial court submitted to the jury the question of fact whether the railroad company was organized as a Iona fide and independent concern, distinct from the traction company for the purpose of running a railroad under the general railroad law, or whether it was a creature of the traction company organized by that company for the purpose of evading the requirements of the traction law and to enable it to build its uncompleted link without municipal consent, and he instructed the jury that if they found the latter proposition to be true the informant was entitled to the verdict. There are a great many circumstances from which an inference may well be drawn that this railroad company was organized through the procurement and by the agency of the traction company for the purpose of acquiring the right of way which they had been unable to acquire under the traction company charter, and in support of this the informant urges that the original traction route covered the route of the new railroad company, and that it was its manifest intention to complete its entire line; that it commenced condemnation proceedings for that purpose which failed; that it abandoned a portion of its right of way immediately previous to its absorption by the railroad company, and that the incorporators of the railroad company were persons without the means to build the railroad. There are other facts which tend to bear out the claim of the informant. Against this was the denial of every one of the incorporators under oath that the railroad company was organized as the agent of the traction company, and they also testified that finding it was impossible for the traction company to secure the municipal consent they considered it a good business enterprise to build a railroad between the two termini of the traction company. Whether that was good business judgment is not important in the consideration of this question, for if they had a lawful right to build the road, the success or non-success of the venture would not affect the tona fides of the enterprise. The case was very carefully tried and the questions at issue submitted to the jury with extreme particularity by the trial court. It was a question of fact, and the testimony was not so preponderating in favor of the informant as to justify this court in holding that the verdict was against the weight of the evidence. The informant devotes a considerable portion of his brief to the discussion of the right of the attorney-general to file this information, but as the respondent does not question that right, it is not necessary for us to pass upon it.

The informant also urges that the trial court erred in refusing to correct the effect of an alleged misstatement of fact and law made by counsel in opening respondent’s case. When the attention of the judge was called to the matter he replied that he had heard no misstatement of fact, and he saw no objection in counsel putting to the jury what he thought the law was. An examination of the record seems to show that counsel was stating what he expected to prove, but in any event, reading all that was said by court and counsel on both sides, the jury could not have been influenced or misled by what took place.

Another point made by the informant is that evidence was improperly excluded. This is based upon an offer to show that Mr. King, counsel of the traction company, had said that if the borough of Chatham did not give the traction company a franchise they intended to incorporate under the General Railroad act. As the present company had not then been organized, it would not be bound by what Mr. King said another company proposed to do, and its exclusion was not error.

The exceptions taken to the charge of the court have no legal foundation. They were mere expressions of opinion or comments on the evidence.

The rule should be discharged, and it is so ordered.


author: Ackerson, S. C. C.

text:
    DUNCAN BUILDING AND LOAN ASSOCIATION, A DULY ORGANIZED CORPORATION IN THE STATE OF NEW JERSEY, PLAINTIFF, v. GLENS FALLS INSURANCE COMPANY OF GLENS FALLS, NEW YORK, AND CASIMIRO FERRO AND LUCIA FERRO, HIS WIFE, DEFENDANTS. DUNCAN BUILDING AND LOAN ASSOCIATION, A DULY ORGANIZED CORPORATION IN THE STATE OF NEW JERSEY, PLAINTIFF, v. THE LIVERPOOL, LONDON AND GLOBE INSURANCE COMPANY, LIMITED, OF LIVERPOOL, ENGLAND, AND CASIMIRO FERRO AND LUCIA FERRO, HIS WIFE, DEFENDANTS. DUNCAN BUILDING AND LOAN ASSOCIATION, A DULY ORGANIZED CORPORATION IN THE STATE OF NEW JERSEY, PLAINTIFF, v. THE MECHANICS INSURANCE COMPANY OF PHILADELPHIA AND CASIMIRO FERRO AND LUCIA FERRO, HIS WIFE, DEFENDANTS.
    Decided September 15, 1933.
    For the plaintiff, Henry Bwald.

    For the defendants, Lum, Tamblyn <& Colyer.

   Ackerson, S. C. C.

This is a motion by the defendant insurance company in each of five cases, to be permitted to amend its answer by adding thereto a new defense setting up a right in such insurance company to pro rate the other policies of insurance held by the plaintiff and covering its interest as mortgagee in the insured premises, so that the defendant will only be liable to contribute a proportion of plaintiff’s loss to be based upon the total amount of insurance held by the plaintiff to protect such interest. The motion is resisted by the plaintiff on the ground that the contract between the plaintiff and each of the insurance companies contains no such agreement.

It is fundamental that in the absence of some contractual provision, each insurer, where several policies are involved, is liable to the insured for the full loss up to the amount of insurance named in the particular policy. The insured is, of course, entitled to but one indemnity, but he may nevertheless look for that indemnity to any one or more of his policies in the absence of any stipulation for pro rating. 26 C. J. 361, § 462.

Bach of the five policies here involved is in the standard form and contains the usual pro rating clause providing, inter alia, that the- insured shall not be liable for a greater proportion of any loss than the amount insured shall bear to the whole insurance, whether valid or not, &c. The plaintiff’s interest as mortgagee is protected in each policy by the addition thereto of a standard mortgagee clause in the body of which no reference whatever is made to contribution or pro rating.

Therefore the question presented for solution is whether the pro rating clause contained in the body of the original contract of insurance between the insurer and the mortgagor or owner of the insured premises is to be read into and become a part of the separate contract existing between the insurer and the mortgagee by reason of the aforesaid mortgagee clause.

It is well settled that where several policies cover the same property, some of which are held by a mortgagee to protect his interest and others covering only the interest of the mortgagor or even the interest of the mortgagee, but without the latter’s knowledge or consent, the mortgagee is not obliged to pro rate the policies so hold by him upon his interest with those taken out by the owner of the premises or others without the mortgagee’s knowledge or consent. Eddy v. London Assurance Corp., 143 N. Y. 311; Reed v. Firemen’s Insurance Co., 81 N. J. L. 523; 80 Atl. Rep. 462; Hastings v. Westchester Fire Insurance Co., 73 N. Y. 141. In these cases, however, it was unnecessary for the court to go further to justify the conclusion reached than to rely upon the provision contained in all standard mortgagee clauses which reads as follows:

“This insurance, as to the interest of the mortgagee [or trustee] only therein, shall not be invalidated by any act or neglect of the mortgagor or owner of the within described property,” &c.

In the instant case, however, it will be noticed that all five policies insure the interest of the mortgagee by virtue of the mortgagee clauses attached thereto, and that they must have been taken out with its approval, for it is now suing thereon. Under such circumstances, therefore, is the pro rating clause contained in the body of the insurance policy to become a part of the separate contract between the insurer and the present plaintiff as mortgagee? In the case of Reed v. Firemen’s Insurance Co., supra, our Court of Errors and Appeals, speaking through Mr. Justice Voorhees, said:

“The policy furnishes the terms of the contract between the owner and the insurer, the mortgagee clause is the contract between the insurer and the mortgagee, quite separate from the policy, yet engrafted upon it, and to be understood by reference to the policy which renders it certain and complete.

“The policy, therefore, may be looked at for the purpose of showing what the mortgagee contract refers to and establishes, which is quite different, however, from examining the policy for the purpose of defeating the engrafted contract.

“The Court of Appeals of New York, in Eddy v. London Assurance Corp., 143 N. Y. 311, referring to the mortgagee clause, says, The controlling idea was a separate insurance of the mortgagee, freed from the conditions attached to the insurance of the owner, and not to be impaired or weakened by any act or neglect of such owner * * * by taking the insurance in the manner the mortgagee herein did, instead of taking out a separate policy, all the provisions in the policy which from their nature would properly apply to the case of an insurance of the mortgagee’s interest would be regarded as forming part of the contract with him, while those provision^ which antagonize or impair the force of the particular and specific provisions contained the clause providing for the insurance of the mortgagee must be regarded as ineffective and inapplicable to the case of the mortgagee.’ ”

Since the pro rating clause contained in the body of the policy is not expressly included in the language of the mortgagee clause attached to the policy it can only become a part of the latter by implication, and if we look for a basis for such an implication we would be, in the language of the case just quoted “examining the policy for the purpose of defeating the engrafted contract,” for the provision for pro.rating would defeat in part the full indemnity expressly provided for the mortgagee clause and would “antagonize and impair the force of the particular and specific provisions” contained therein.

The following language from the opinion in the ease of Palmer v. McFadden, 86 N. J. Eq. 377 (at p. 383); 98 Atl. Rep. 462, seems pertinent:

“The insurer by its contention is asking the court, in effect, to add a provision to the contract of insurance, which it neglected to impose when the mortgagee clause was attached to the policy * * * that is, it asks that a contribution clause be read into the mortgagee clause, limiting its liability thereunder as a similar clause limits its liability to the owner under the policy.

“It is a matter of common knowledge that insurance companies issue the standard form of mortgagée clause both with and without the clause for full contribution from other insurers; and limiting liability thereby. In the present case, the Niagara Tire Insurance Company saw fit to issue and to attach to complainant’s policy the mortgagee clause, without the provision for contribution by other insurers; and without limiting thereby its liabilty for a greater proportion of any loss or damage sustained than the amount of its policy bore to the whole amount of insurance upon the property, whether such insurance was issued to or held by the owner or mortgagee, and it now asks the court by its contention to supply this omission from the mortgagee clause under the consideration.”

The Court of Errors and Appeals, although reversing the final result reached in the last mentioned case nevertheless, holds with the vice-chancellor on the point above quoted. See Palmer v. Niagara Fire Insurance Co., 87 N. J. Eq. 347 (at p. 349).

In support of the position thus taken, reference may also be had to 7 Couch’s Encycl. Ins. L. 6178, ¶ 1852, and to the case of Reed v. St. Paul Fire and Marine Insurance Co., 67 Pa. Sup. Ct. 110, which is directly in point.

Furthermore, the standard mortgagee clause in question contains the usual subrogation provision which reads as follows:

“Whenever this company shall pay the mortgagee (or trustee) any sum for loss or damage under this policy and shall claim that, as to the mortgagor or owner, no liability therefore existed, this company shall, to the extent of such payment be thereupon legally subrogated to all the rights of the party to whom such payment shall be made, under all securities held as collateral to the mortgage debt, or may at its option pay to the mortgagee (or trustee) the whole principal due or to grow due on the mortgage with interest, and shall thereupon receive a full assignment and transfer of the mortgage and all such other securities; but no subrogation shall impair the right of the mortgagee (or trustee) to recover the full amount of their claim.”

The defendant insurance company is protected by this provision, for, upon the payment of the loss in the case sub judice, it claims that it is not liable therefor, on any part thereof, to the mortgagor or owner, it may to that extent be subrogated to the mortgage security, and assert the mortgagee’s right under the mortgage debt to that extent, or pay the full amount of the mortgage debt and receive an assignment of the mortgagee’s collateral.

In the case of Hastings v. Westchester Fire Insurance Co., supra, the court, in dealing with this angle of the case, said:

“There are, moreover, strong reasons for claiming that the insertion of the clause, in regard to subrogation, is evidence of an intention that the plaintiff should be exonerated from the application of the provision in the policy as to other insurance, and that the defendant should be protected by subrogation. By the latter provision, whenever the defendant paid the mortgagee any sum for loss, and claimed that as to the mortgagor or owner no liability existed, therefore, the right to be subrogated was complete. If the full amount of the policy had been paid, and it exceeded the liability of the defendant to the owner, as was the fact, if the right to contribution existed, then the defendant was fully protected by the mortgagee clause. Such rights would not have existed if the plaintiffs were within the provision as to other insurance, and hence it follows that it was the intention of the parties to restrict its operation and to provide against its effect by a full and sufficient stipulation entered into for that express purpose. The contract is complete placing such an interpretation upon its provisions, and a contrary one would be adverse to its plain meaning and import.”

This was the view taken by the trial court in the case of Power Building and Loan Association v. Ajax Fire Insurance Co., 10 N. J. Mis. R. 272; 158 Atl. Rep. 739. Although this case was reversed upon another point the Court of Errors and Appeals held with the trial judge on the point in question. 110 N. J. L. 256; 164 Atl. Rep. 410.

On the argument of these motions, by agreement of counsel, the original policies here involved with the mortgagee clauses attached, were submitted to the court for use in reaching a conclusion, and the caption printed at the top of each mortgagee clause clearly reveals the intention of the parties with respect to the question raised by the proposed amendment of the answer. This caption reads as follows:

“Standard mortgagee clause without contribution.”

If any doubt otherwise existed as to the intention of the parties that the plaintiff should not be required to pro rate its policies, it would seem to be entirely dissipated by the explicit language contained in the above quoted caption. Since there is nothing whatever in the body of the mortgageej clause upon the subject of pro rating or contribution, the foregoing caption precludes any such operation arising by implication. Reed v. St. Paul Fire and Marine Insurance Co., supra.

I have therefore reached the conclusion that the defendants’ motion in each of the above entitled cases should be denied, without costs.


text:
    GIANT TIGER CORPORATION AND MORTIMER KRINZMAN, PROSECUTORS, v. THE BOARD OF COMMISSIONERS OF THE CITY OF TRENTON, DEFENDANT.
    Submitted May 12, 1933
    Decided September 27, 1933.
    Before Justices Case, Bodikte and Donges.
    For the prosecutors, A lex Budson and Henry M. Hartman.

    For the defendant, Gibarles F. Bird.

   Per Curiam.

The writ brings up for review an ordinance of the city of Trenton providing for a license fee for certain food markets. The pertinent provisions of the ordinance, so far as this case is concerned, are as follows: “1. That no person, firm, partnership or corporation shall engage in the business of operating, conducting or maintaining a food market within any building or structure, within the limits of the city of Trenton, and renting or leasing more than four concessions in any such building or structure to persons, natural or artificial, io carry on various hinds and types of businesses therein, without having first obtained a license therefor. The license fee shall be the sum of one hundred ($100) dollars per year for each and every concession and/or department rented, leased or operated in any such building or structure, such fee being imposed for the purpose of revenue. * * * 3. That this ordinance shall not be held to apply to any market conducted solely for the sale of food, products, cut flowers, potted plants, plants, shrubs, trees and seeds, nor to any open-air market.”

The ordinance in question was adopted pursuant to legislative grant. Pamph. L. 1917, pp. 321, 358, as amended Pamph. L. 1918, p. 958. The statute (Pamph. L. 1917, p. 359) authorized the municipality to impose a license fee for revenue. The legislature has such power and the municipality may act thereunder. Morgan v. Orange, 50 N. J. L. 389, 391.

There is always a presumption in favor of the validity of a duly adopted ordinance which includes a presumption in favor of its reasonableness. Wagman v. Trenton, 102 N. J. L. 492; 134 Atl. Rep. 115. The only real question in this case is whether the third section of the ordinance exempting certain markets has invalidated the whole.

We think not. The distinction is between food markets where other articles are sold and food markets selling food, flowers, seeds and plants exclusively. The only open air market in the city is owned by the municipality. The imposition of a license fee for revenue upon such a market would be an absurdity. It would seem that the municipality might, in the exercise of a sound discretion, impose a license fee for revenue upon a food market where a general merchandising business was also conducted, and at the same time not impose a license fee upon the operation of a food market confining its business to the sale of food, flowers, seeds and plants. The character of the business conducted in the different markets is entirely distinct. In the market affected by the ordinance in question everything may be sold, obviously to the advantage of the owner. In the market not affected by the ordinance merely food is sold, a commodity in which there is but a small margin of profit to the retailer.

A municipality is not obliged to require a licensee fee from food markets and because it does exact a license fee from a food market where general merchandise is sold neither seems to us unreasonable, arbitrary or discriminatory, but on the contrary a wise use of the power granted. Under the ordinance those who conduct a market for the sale of food and merchandise are all subject to payment of the license fee. The proprietor of such a market may escape by closing out the merchandise. The holder of a license for the sale of beer might as well complain of an ordinance excluding from its operation the vendor of soft drinks. There is nothing unreasonable in treating different businesses in different ways, and that is all that the ordinance in question accomplishes.

The other grounds urged are without merit. The writ will be dismissed, with costs.


author: Perskie, J.

text:
    FRANK HAVILAND, PROSECUTOR, v. LESTER G. EGAN, RECORDER, ETC., DEFENDANT.
    Decided September 20, 1933.

      Before Justice Perskie, at chambers, pursuant to statute.
    Por the prosecutor, Mattach & Lautman.

    Por the defendant, Frederick S. Wach.

   Perskie, J.

This matter comes before me on the return of a writ of certiorari to review a conviction of the prosecutor by the recorder of the borough of Point Pleasant, New Jersey. The conviction was based on a complaint of License Inspector Charles P. More, of said borough, and was in the form following :

“That on the 22d day of May, 1933, at the Borough of Point Pleasant Beach, the county and state aforesaid, one Prank Haviland, of 1807 South Belmar, New Jersey, did on the 22d day of May, solicit and canvas for the laundry business, all of which is in violation of Borough Ordinance 8-5-A — Section 1, of the Borough of Point Pleasant Beach, New Jersey, wherefore he prays that the said Prank Haviland may be apprehended and held to answer the said complaint and dealt with as law and justice may require.”

The record submitted does not contain the ordinance in question. Defendants, however, admit that section 1 of the ordinance involved is correctly quoted in brief submitted for the prosecutor. The pertinent portions of said section are as follows:

“It shall be unlawful for any person or persons * * * to conduct a business of or act as * * * ‘Traveling Laundry’ without having first obtained a license from the license inspector of the Borough of Point Pleasant Beach to do so.”

The testimony before the recorder was taken stenographieally and. is returned with the writ. The facts appear to be that Prank Haviland was employed by Morey LaRue Laundry Company, whose plant and home office is at Elizabeth, New Jersey. Prosecutor collected laundry in the borough of customers of Morey LaRue Laundry Company, transported it to Elizabeth, where it was washed and prepared and thereafter delivered to its customers in the borough. The Morey LaRue Laundry Company maintains no plant or office in the borough.

The prosecutor has filed ten reasons why the conviction should be set aside. They are grouped in three classifications. First, the complaint does not properly charge prosecutor with the violation of an ordinance, because the title of the ordinance was not set forth in the complaint. Second, there was no evidence to support the conviction. Thirdly, that the borough of Point Pleasant Beach is without power to require license from person or persons or corporations whose place of business is established outside the municipality. I think that these objections are well taken.

The complaint charges the prosecutor with soliciting and canvassing for the laundry business, whereas the ordinance is directed against "conducting a business of or acting as a traveling laundry.” The difference, if any, between soliciting and canvassing for laundry and conducting a traveling laundry is not disclosed by the record. Counsel for the borough, however, in his memorandum concedes that the complaint is defective in this respect. Properly so. All acts necessary to constitute a violation under the ordinance should be so stated. Apter v. City of Newark, 6 N. J. Mis. R. 554; 142 Atl. Rep. 310. The complaint should state with legal certainty the offense alleged and must state the particular ordinance which has been violated by the defendant. Cohn v. Union City, 105 N. J. L. 515; 146 Atl. Rep. 652. Nothing is presumed or intended in favor of a validity of a complaint or of a conviction had thereon, the ordinance being penal and the proceeding summary. Owens v. City of Camden, 6 N. J. Mis. R. 279; 141 Atl. Rep. 24.

Assuming without deciding that soliciting and canvassing for the laundry business and conducting a business of or acting as a traveling laundry is one and the same thing, it is contended that this and all other defects were waived by the appearance and trial without objection by the prosecutor. This is not so. True it is that when one entered a general appearance and proceeds with trial without objection to the complaint he waives all technical objections which he might have otherwise raised. He does not, however, waive an objection, if it be a valid one, that the complaint sets forth no offense. See State v. Johnson, 91 N. J. L. 611; 104 Atl. Rep. 593; State v. Lamb, 81 N. J. L. 234; 80 Atl. Rep. 111.

Prosecutor also contends that the proof taken at the hearing did not reveal a violation of the ordinances. The only testimony submitted by the borough was that Haviland was seen “delivering and soliciting laundry,” and that “he received and delivered laundry,” in the borough, with the explanation that by “soliciting” the witness meant delivery. At this stage of the hearing, counsel for Haviland moved for a dismissal, which was denied. This I think was error. The proof recited does not justify a conviction under the ordinance before the court for the same reason that the complaint does not charge an offense. Receiving and delivering laundry is not a violation of the ordinance.

The final point, the gravamen of the objections, made by the prosecutor is that the borough did not have the power to pass an ordinance compelling a person resident in another municipality and without a place of business in the borough to obtain a license in order to do business in the borough. This question has been before the court on numerous occasions, the last of which was in Lynch v. City of Long Branch, 111 N. J. L. 148; 167 Atl. Rep. 664. The ordinance in the latter case made it unlawful for anyone to engage in or carry on any business, trade or calling within the municipality without first obtaining a license. The accused conducted a laundry business in Asbury Park but also served in the city of Long Branch. After conviction he obtained a writ of certiorari and the conviction was set aside. Mr. Justice Heher, in a well considered opinion, held that the situs of the business is the proper place for the levying of the tax, citing Cary v. North Plainfield, 49 N. J. L. 110, and numerous other cases. The principle may also be found in Wilkinson-Gaddis Co. v. The Borough of Neptune City, 85 Id. 21; 88 Atl. Rep. 819 (ordinance requiring license fee for every wagon, truck, &c., used in the municipality, held invalid); and Kip v. City of Paterson, 26 N. J. L. 298 (ordinance requiring all persons selling and delivering hay and produce in city limits, held unreasonable and illegal). See, also, Castles Ice Cream Com pany of Perth Amboy v. Borough of Highlands, It N. J. Mis. R. 415; 146 Atl. Rep. 37. As prosecutor did not have or maintain a place of business in the borough he was not obliged to obtain a license. Lynch v. City of Long Branch, supra. The conviction must be set aside, with costs.


text:
    ALABAMA MARBLE COMPANY, A CORPORATION, PLAINTIFF, v. HARLEIGH MEMORIAL, INCORPORTED, A CORPORATION, DEFENDANT.
    Decided September 28, 1933.
    Before Henry H. Eldredge, Circuit Court judge.
    Eor the plaintiff, Riggins ds Davis.

    For the defendant, Starr, Summerill & Lloyd.

   Eldredge, C. C. J.

Suit is brought by the plaintiff in the above entitled ease upon a contract entered into between the plaintiff and the defendant for the furnishing of marble and the erection of a mausoleum in Harleigh cemetery, the contract price of which was $73,600, to which is to be added an item for extras of $2,600.68, or a total sum of $76,200.68. On account of this amount there has been paid $40,458.10 and a credit of $3,649.58 given, leaving a balance alleged to be due of $32,093 (stated as $32,003 in the plaintiff’s complaint).

The plaintiff seeks to recover the amount in question and in its complaint sets up four separate counts. The first recites two certificates given by the architects, provided for in the contract, approving of payments of $18,375.75. The second count asks for the amount claimed under the first count and the sum of $13,627.25, or a total of $32,003. The third count seeks to recover on a quantum meruit and alleges $32,003 due; and the fourth count claims the sum of $25,000, represented by two promissory notes, one for $15,000 and one for $10,000, dated May 8th, 1931, the former due in six months and the latter in eight months from date, and a balance of $7,003, making a total of $32,003 alleged to be due.

To these four counts the defendant makes answer denying that there is any sum due the plaintiff, and then sets up fourteen separate defenses, which need not be here stated in full. The defense generally alleges that the labor performed and the material furnished by the defendant was not in accordance with the terms of the contract, and that either there is nothing due the plaintiff, or at least much less due it than is claimed in this suit.

The affidavits filed on the motion admittedly raise a question as to what amount, if any, is due the plaintiff, so that the sum of $13,627.25 asked for in the second count and the whole sum of $32,003 sought to be recovered in the third count, and the sum of $7,003 claimed in the fourth count seem to the court to be fully answered by the defendant.

This court upon affidavits merely will not determine what amount is due the plaintiff on a quantum meruit, nor will it determine what amount should be deducted from the whole sum claimed because of alleged defects in material and workmanship. The only question, then, to be determined by the court is whether or not, under the proof as disclosed by the affidavits, this court may render judgment for a part of the claim and permit counsel to go to trial for the balance.

Eule 82 of the Supreme Court provides: “If it appear that such defense applies only to part of the plaintiff’s claim or that any part is admitted, the plaintiff may have final judgment forthwith for so much of Ms claim as the defense does not apply to or as is admitted, subject to such terms as may be deemed just.”

It is to be noted that no part of the present claim is admitted, nor is there any part of the claim to which the defense does not apply. Counsel for the plaintiff, however, contends that the amount asked under the first count, namely, $18,375.75, alleged to have been certified by the architects as due the plaintiff, cannot be defended nor can the sum of $25,000, represented by the two promissory notes mentioned in the fourth count.

With respect to the first item mentioned, the defendant contends and supports its contention by affidavits, that those certificates were never delivered to the plaintiff that it might obtain payment thereon, but that they wore merely delivered to William C. Jones, representing the Harleigh Memorial, Incorporated, for his approval. Mr. Jones, in his affidavit, further contends that the first .certificate sent in for $13,375.75, was never approved and that at his suggestion the second certificate for $5,000 was made, which was to be a substitute for the larger one because of the fact that the larger amount was not, at the time it was executed, due.

In this connection it is to be noted that while the contract dated August 1st, 1929, refers to Lovell & Lovell as “architect and superintendent,” and provides that payment shall be made when the work is done to “the full and complete satisfaction of said Lovell & Lovell, the architect and superintendent,” nevertheless the defense alleges a subsequent agreement whereby Jones was substituted as superintendent and that under the terms of the proposal of March 21st, 1929, the work was to be done to the satisfaction of the superintendent. Jones’ contention being that he was the superintendent and the work required to be done to his satisfaction, and the architect’s certificates being turned over to Jones instead of being given to the plaintiff, certainly raises a jury question as to the circumstances surrounding their delivery.

The second item of $25,000 involves a matter of pleading as well as one of merit. Counsel for the defendant alleges that the two notes in question were accepted by the plaintiff in payment of that amount, and counsel for the plaintiff is willing to concede that to be true. As the proof stands at the present time, had there been a separate suit brought on these notes or had a separate count been added to the complaint, we think, without actually deciding the question, that the plaintiff would have been entitled to recover that amount. There appears to the court to be no legal defense set up in the affidavits to these two notes which could be proven at the trial. “Evidence of a parole contemporaneous agreement that a promissory note should not be paid in whole or in part is not admissible. The general rule applicable to promissory notes is that evidence is not admissible to vary the contract between the parties, and this is true whether the evidence be of a contemporaneous agreement or of any other character.” Middleton v. Griffith, 57 N. J. L. 442; 31 Atl. Rep. 405.

The difficulty with the fourth count lies in the fact that the whole sum of $32,003 is sought to be recovered, and the notes appear to the court to be mentioned merely as an admission on the part of the defendant that such an amouut is due. If, as counsel for both sides now contend, these notes were accepted as payment of the sum of $25,000, then there is only $7,003 due under the contract, and suit should be brought on the notes to recover their amount. If they were not accepted as payment, then they will be merely evidence of an admission on the part of the defendant that that amount is due under the contract upon which suit is brought.

What counsel is really asking this court to do is to fix a partial amount due under the contract, which, for the purposes of this motion, was not fully performed, or to fix an amount that should be deducted from the contract prices because of defects, which again, for the purposes of this motion, must be admitted to exist.

No sum is admitted to be due under the pleadings, nor can the court, after a full consideration of the proof presented, determine as a matter of law what either amount should be.

The motion to strike will be denied.


text:
    FEDERATED METALS CORPORATION, PROSECUTOR, v. FRED BOYKO, RESPONDENT.
    Argued May 2, 1933
    Decided August 29, 1933.
    Before Justices Case, Bodine and Donges.
    Bor the prosecutor, Edwin Joseph O’Brien.

    Bor the respondent, David RosJcein.

   Per Curiam.

The writ brings up a judgment reversing the workmen’s compensation bureau in dismissing a petition seeking compensation for increased disability. The original claim was filed July 18th, 1931. Claimant sought compensation for lead poisoning — an occupational disease. The order entered contains the following recital: “After considerable discussion between the parties it was finally agreed that the case should be compromised as a complete and final disposition of the same on the following basis.” After testimony was offered, a judgment was entered. Within a year, a new petition was filed for the purpose of reopening the case and granting an award for increased disability. The bureau held this petition should be dismissed and the Common Pleas held it should be considered. If there was a final adjudication on the merits and payment of the judgment, the action of the bureau was proper. Herbert v. Newark Hardware Co., 107 N. J. L. 24 ; 151 Atl. Rep. 502. On the other hand, if there was a mere agreement of compromise, approved by the burean, the action of the Common Pleas was proper. Thomas v. Liondale Bleach, Dye and Print Works, 10 N. J. Mis. R. 255; 159 Atl. Rep. 313; affirmed, 110 N. J. L. 27; 164 Atl. Rep. 11; Palm Construction Co. v. Bahr, 10 N. J. Mis. R. 756; 160 Atl. Rep, 886.

The case seems to us to be controlled by the case of Herbert v. Newark Hardware Co., supra. There was a hearing on the original claim. The petitioner took the stand, was sworn and examined before a deputy commissioner; medical testimony was offered; findings were made, and a rule for judgment entered. The proceedings took the same course as is usual when a judgment is entered in a court of record for damages in an action brought in behalf of a minor. To permit such a record to be disturbed, merely because of alleged newly discovered evidence, would tend to disturb the settled practice.

Section 11 of the Workmen’s Compensation Procedure act, as amended (Pamph. L. 1921, p. 731), in part provides: “The judgment of the said bureau shall be final and conclusive between the parties and shall bar any subsequent action or proceeding, unless reopened by the said bureau or appealed as hereinafter provided.”

The statutory provisions are all analyzed at length by Mr. Justice Parker in Herbert v. Newark Hardware Co., supra. It was there held: “That the payment of the previous judgment was not such a .‘last payment of compensation’ in the intendment of the statute, as would support an application to ‘review the award’ within a year after such payment of the judgment.

We think a judgment entered in a proceeding in the bureau after hearing is a final judgment, and a final disposition of the case even though the parties agree to the award as made.

The judgment below is reversed.