author: Hartshorne, C. P. J.

text:
    Essex County Court of Common Pleas.
    RAYMOND-COMMERCE CORPORATION, A CORPORATION, PLAINTIFF, v. BARNETT WARNER, DEFENDANT.
    Decided December 13, 1938.
    For the defendant, Meyer M. Semel.

    For the third party, George H. Rosenstein.

   Hartshorne, C. P. J.

Plaintiff sues defendant for rent due under a lease. Defendant answers, setting up as a separate defense, that he was in charge of the headquarters of the New Jersey Institute of Wine and Spirit Distributors, Inc., as their executive secretary, such headquarters being the premises covered by the above lease, and that such lease was entered into by defendant with plaintiff at the direction of the Institute. He further alleges that the Institute wrongfully discharged him as its executive secretary, refusing to pay his salary, which helped defendant pay the rent to plaintiff. Defendant accordingly asks that the Institute be made a party defendant to the action on the lease.

But there is no allegation that plaintiff knew of these dealings between defendant and the Institute, or in anywise accepted the Institute as a tenant, either in lieu of defendant or jointly with defendant. In this action on the lease, the Institute is, therefore, liable to plaintiff, if at all, solely as an undisclosed principal. It is well settled that the party dealing with an agent, who acts for an undisclosed principal, can, after he knows the facts, elect whether to hold the one or the other, but he cannot hold both. Yates v. Repetto (Court of Errors and Appeals), 65 N. J. L. 294; 47 Atl. Rep. 632.

Since the Institute is not mentioned in the lease, the basis of the action, the Institute cannot be held liable thereon till plaintiff so elects. This election has not been made. At defendant’s instance, plaintiff has merely consented to defendant’s application for leave to add the Institute. Hence, the Institute is not a party to the controversy over the performance of the lease. It is only concerned, so far, with the entirely different question of its responsibility to pay defendant his salary as its executive secretary, this question apparently hinging on the propriety of its discharge of defendant, a matter with which plaintiff obviously has no concern.

Defendant, nevertheless, contends that he has the right to join defendant, not for the purpose of counter-claim or set-off, but under two statutes, the first, section 6 of the Practice act of 1912 (Pamph. L. 1912, ch. 231), the second, a practice provision enacted in 3933 (Pamph. L. 1933, ch. 283), both now embodied in the Revised Statutes as R. S. 2:27-25 and R. S. 2 :27-29, respectively:

“Subject to rules, any person may be made a defendant, who jointly, severalty or in the alternative is alleged to have or claim any interest in the controversy or any part thereof adverse to the plaintiff, or whom it is necessary to make a party for the complete determination or settlement of any question involved.”
“Where in an action at law sounding in contract, any party thereto alleges, and it appears that some other person not then a party to the action is liable for the claim made against such party in the action, the court may on application of such party in the action, make an order adding such other person as a party defendant in the action * *

The question, essentially, is this: Gan defendant, under either of such statutes, join a third party, with whom defendant has a controversy, arising in part originally from the controversy between plaintiff and defendant, but with which third party, plaintiff now has no controversy ? Or are such statutes intended to permit a defendant to join only such third parties as are directly involved in the existing controversy between plaintiff and defendant? The present situation falls in the first class. A simple example of the second class would be the application by the defendant, an endorser on a note, to join the maker, who had been omitted by plaintiff.

No previous decision in point construing the 1933 statute has been found. But in view of its enactment shortly after the decision of Second National Bank and Trust Co. v. Pittenger, 11 N. J. Mis. R. 321; 165 Atl. Rep. 634, it seems probable that it was enacted as a result of the note situation, similar to that above alluded to, which was dealt with in such case. Note that in the 1912 statute, the third party must have an interest “adverse to the plaintiff” in the controversy, i. e., the controversy between plaintiff and defendant, or the addition of the third party must be necessary “for the complete determination or settlement of any question involved,” presumably in such controversy between plaintiff and defendant. Clearly, the Institute in the instant case has no such interest, for it is no party to the lease, and is not now held thereon as an undisclosed principal. Similarly, in the 1933 statute, the third party must be “liable for the claim made against” the defendant applying for the joinder. But the claim made against defendant is on the lease, and, as seen above, the Institute under the present circumstances is not liable on the lease.

In addition, the above appears consonant with the intent of the Practice act as a whole. For the first of the above-quoted provisions was originally a part of section 6 of the Practice act of 1912. While such provisions refer to the joinder of additional parties, the balance of such section refers to the similar joinder of separate causes of action: “The plaintiff may join separate causes of action against several defendants if the causes of action have a common question of law or fact and arose out of the same transaction or series of transactions.” R. S. 2:27-38. See, also, R. S. 2:2|'/-24, as to the voluntary joinder of parties. As to the intent of these provisions, rule 13, as enacted with the Practice act in 1912, is illuminating. This provides:

“The transactions referred to in sections four and six of the Practice act (1912) include any transactions which grew out of the subject-matter in regard to which the controversy has arisen; as, for instance, the failure of a bailee to use the goods bailed for the purpose agreed, and also an injury to them by his fault or neglect; the breach of a covenant for quiet enjoyment, by the entry of the lessor, and also a trespass to goods committed in the course of the entry; or several torts committed simultaneously, as a battery accompanied by slander.”

While this merely explanatory rule no longer appears in our Supreme Court rules, doubtless as unnecessary, it is indicative of the intent of the statute itself as originally enacted and still in existence. On this point, prior decisions are few. But in Murphy v. Patten, 35 N. J. L. J. 338, even where plaintiff claimed the third-party defendant was liable to him, as is not so in the case at bar, his joinder was sustained only on the condition that the controversy grew out of the same transaction, and that there was a common question of law or fact. And in First National Bank v. Merchants Trust, 6 N. J. Mis. R. 31; 140 Atl. Rep. 582, the 1912 act was clearly construed more narrowly than as contended for by defendant here. Furthermore, it is well known that these provisions of the 1912 Practice act were based upon the similar provisions of the English and Connecticut rules. As to their meaning, the following cases are illustrative:

The owners and tenants of two adjoining houses may join in one action for damages for a common nuisance or other injury to their respective properties, if caused by the same acts of the same persons. House Property Co. v. Horse Nail Co., 20 Ch. Div. 190. If a committee of persons be libelled collectively as a body, they may all join in one action. Booth v. Briscoe, 2 Q. B. D. 496. Persons separately induced to take debentures on the faith of untrue statements contained in the same prospectus may join as plaintiffs. Brincobier v. Wood (1899), 1 Ch. Div. 393. But, if A defames B on one occasion, and defames 0 on another, B and C cannot join in one action against A, even though the charges be “historically” connected; for each slander is a separate “transaction.” Sandes v. Wildsmith (1893), 1 Q. B. 771. And when a plaintiff sues in his personal capacity, and seeks other relief on behalf of himself and ail other shareholders in a company, he cannot join these causes of action, unless they show, not only a common question of law or fact, but also that they arise out of the same transaction. Stroud v. Lawson (1898), 2 Q. B. 44.

In none of these cases do we find that the court has permitted the addition of an issue, not involved in the original cause of action. In short, the test as to the propriety of the joinder of causes of action is whether the law, or the evidence of the facts, will be the same, or so nearly the same, in the two cases as to admit of a just and convenient joint trial. Hartshorne C. H. Practice Act 1912, p. 10. And while the joinder of causes of action is a different matter than the joinder of parties, so that the specific principles governing the two are not identic, the general purpose, to obtain a just and convenient trial, applies to both. B. S. 2:27-31. More specifically, the purpose of the above provisions, as to joinder of third-party defendants, is to permit a complete determination of the original controversy which plaintiff has submitted to the court for decision, not to inject a new controversy, with which plaintiff is not concerned, into plaintiff’s cause of action.

Defendant’s motion will be denied.


source: Caselaw Access Project

author: John C. Wegner, Referee.

license: Public Domain

text:
    New Jersey Department of Labor, Workmen’s Compensation Bureau.
    FRANK ROMANOWSKI, PETITIONER, v. WALLINGTON HOUSE WRECKING COMPANY, RESPONDENT.
    Decided December 16, 1938.
    For the petitioner, Joseph F. A. BubacTey.

    For the respondent, Albert E. Schober.

   In the ease sub judice permanent disability is alleged as a result of accident of March 25th, 1937, while petitioner was employed by respondent as a house wrecker. It is alleged he fell two stories fracturing the seventh and nineteenth ribs. He was compensated for temporary compensation for three and one-seventh weeks and a permanency of two per cent, of total.

Fie alleges that permanency allowed was not adequate to compensate him for permanency that resulted.

On February 1st before the cause could be heard on its merits petitioner died. Action is now being brought by petitioner’s wife acting in the capacity of administrator.

Petitioner died as the result of coronary thrombosis a.nd coronary sclerosis. In nay opinion there was no relationship between death and accident.

Petitioner did suffer from a pre-existing anamoly of the chest of long duration.

As to the disability. Examination by Dr. Koppel of petitioner reflected a total disability of fifteen per cent, of total. Dr. Wilner and Dr. Harryman were of the opinion that five per cent, of total was adequate.

Section 11 (z) provides that where a person dies from any cause other than the accident during the period of payments for permanent injury, the remaining payments shall be paid to such of his dependents as are included in the provisions of the act.

There are no provisions for payments of compensation where petitioner is still under temporary or where temporary has been decided.

In this instance a different problem presents itself.

Temporary payments were over. Permanent had been paid on the basis of two per cent, of total. The respondent’s doctors estimated a disability in excess of that amount as did the petitioner’s doctors.

In my opinion where permanency has been determined prior to petitioner’s death from causes other than the accident and that amount has not been paid or an amount less than that determined has been paid this bureau is authorized to determine what amount should have been paid before petitioner’s death.

I am, therefore, awarding compensation as follows: Temporary disability, as paid. Permanent disability, fifteen per cent, total or seventy-five weeks at $10 per week. (Credit to be given for two per cent, originally paid.)

* ❖ * i\i * * *

John C. Wegner, Referee.


author: Flannagan, C. P. J.

text:
    DONATO De LUCA, ADMINISTRATOR OF THE ESTATE OF DECIO De LUOA, AND DONATO De LUCA, ADMINISTRATOR AD RESPONDENDUM OF THE ESTATE OF DECIO De LUCA, PLAINTIFF, v. LYMAN L. BODMAN, DEFENDANT.
    Decided June 23, 1938.
    For the plaintiff, Ferdinand D. Masucci.

    For the defendant, Franklin J. Marryott.

   Flannagan, C. P. J.

This is a motion to strike the first count of the plaintiff’s complaint.

The first count alleges a cause of action by Donato De Luca as general administrator of the estate of Deeio De Luca, deceased, for pain and suffering, medical expenses, and loss of earnings suffered by deceased during the period between the time of an accident and his death, which accident, it alleges, was due to the negligence of defendant and caused such pain, suffering, &c., as well as said death.

The accident is alleged to have occurred February 19th, T938, and the death February 22d, 1938, so that the accident and death occurred after the Revised Statutes of 1937 went into effect (December 20th, 1937).

The ground of the motion is that the Revised Statutes failed to provide that causes of action for tortious injuries to the person should survive the death of the injured person as was done by the Compiled Statutes (2 Comp. Stat., p. 2260), and that therefore the Revised Statutes of 1937 operated to repeal 2 Comp. Stat., p. 2260, and hence the common law rule that such causes of action do not survive applies to the cause of action alleged in the first count.

There was a statute passed subsequent to the enactment of the Revised Statutes (chapter 29, laws 1938), which preserves the right of action for tortious personal injuries, and it is said that the omission to provide for the survivorship of such a right of action was an oversight on the part of the revisers and that this said act of 1938 was passed to correct this mistake. Be that as it may, the act of 1938 did not go into effect until March 18th, 1938, hence, the Revised Statutes as originally enacted were in effect at the time of the death of the said deceased, and this “corrective statute” has no bearing on the present case.

The preparation of the Revised Statutes was authorized by the legislature by chapter 73, laws 1925, and it is urged that the language of that act gave no power to the revision commission to change prevailing statutes where the construction thereof had been established by judicial decision, and that the then prevailing statute, 2 Comp. Stat., p. 2260, preserving survivorship of a right of action for tortious personal injury having received judicial construction it still remained in force.

It is obvious that the revisers had no power to change any existing statute law and that their power was limited to making a report to a subsequent legislature. It is of no great consequence what limitations, restrictions, or instructions the 1925 legislature imposed upon the revisers. These instructions or restrictions had no binding effect upon a subsequent legislature and the fact remains that the revisers presented a “Revision” to the legislature of 1937 together with a bill which provided that “the revision * * * presented to the legislature by the commission * * * is hereby adopted as all the public statute law of the State of New Jersey of a general nature,” and that the legislature of 1937 enacted this bill and that it became the law upon approval by the governor. (Chapter 188, laws 1937, approved December 2d, 1937.)

It is difficult to conclude that a provision that the revision is to be taken as embodying “all the public statute law of the state” is intended to mean that there is public statute law of the state to be found elsewhere.

I conclude that the Revised Statutes of 1937 having failed to provide for survivorship of plaintiff’s alleged cause of action for tortious injuries to plaintiff’s testator, that such action did not survive and that the motion must be granted.


text:
    STATE OF NEW JERSEY, v. MEYER C. ELLENSTEIN, AND TWENTY-FIVE OTHERS, DEFENDANTS.
    Decided December 19, 1938.
   Flannagan, C. P. J.

Application is made in behalf of the state for a struck jury, but it seems to me the present statute is most difficult of administration in cases of criminal conspiracy or other lesser crimes.

There.are definite provisions for obtaining a struck jury under the head “Criminal Causes” for cases of murder, arson, atrocious assault and battery, sodomy, burglary, manslaughter, rape or robbery (R. S. 2:93-12 et seq.), but in cases of other crimes, such as conspiracy, the jury must be obtained in the same manner as in case of struck juries in civil causes. R. S. 2:93-12 et seq.

Turning to the provisions for the drawing of struck juries in civil causes (R. S. 2:93-7 et seq.) we are met with a number of questionable situations. At the very outset, we find that the sheriff is required to deliver to the justice or judge “a book containing ■ the names of the several persons in his county qualified to serve as jurors, with their places of abode.”

There has never been a book of just that description kept by the sheriff of Essex county. There is a population of approximately a million people in this county. This provision has been brought down from 1877 and, at the present time, such, a book would seem to contemplate a content of several hundred thousand names. The statute provides that the justice or judge shall “select and transcribe from the book” mentioned a list of the names and abodes of persons, and that from this list the jury shall be drawn. Some substitute for such a book would have to be used. Whether the use of the registration books would satisfy the provisions of the statute is not known. The registration books contain many names of persons who are not qualified to serve or are exempt as jurors by reason of age and for other reasons, but these books seem the nearest available approximation to the book referred to in the statute.

Assuming that the situation just referred to is by some expedient met successfully, and that the justice or judge proceeds to the next step, then he must select in the presence of the parties, from the number of names in the “book,” forty-eight names who, under the provisions of the statute must be those “whom he considers to be the most impartial and indifferent between the parties and best qualified as to talents, knowledge, integrity, firmness and independence of sentiment to try the cause.” These names being selected from the qualified jurors, the statute contemplates the attendance before the justice or judge of the parties litigant and thereupon each party “shall” strike names alternately from the names selected by the judge until each party has stricken twelve names, whereupon, “the remaining twenty-four * * * shall be the jury to be returned to try the cause.”

The statute provides that in the event either party is “absent” the justice or judge “shall” strike for him, but the statute makes no provision for the situation where a party is present and deems his interests best served by failing or refusing to strike, or for the situation where there are several defendants, all being present, and some desire to strike a certain name and others oppose doing so, or where there are several defendants and some are absent and some present. In such a situation more than twenty-four names would remain on the list of those selected by the judge and the declaration of the statute that “twenty-four * * * shall be the jury to be returned” would not be complied with.

Assuming, however, that these eventualities did not occur and that each side struck twelve names, leaving twenty-four of the names selected by the justice or judge, and that the sheriff succeeded in finding and producing all of the twenty-four persons remaining on the list, no unforeseen eventualities intervening, none being absent from their homes or unable to attend, we come to the next step, viz., peremptory challenges allowed in a criminal trial, under the criminal law, where a struck jury is ordered, each party being allowed five.

If these challenges are exercised there would remain upon the list, of selections made by the justice or judge fourteen names.

The law contemplates, in the discretion of the trial judge, fourteen jurymen where a protracted trial is likely, two of whom are denominated alternate jurors. R. S. 2:91a-1 et seq. The trial of the-instant case is contemplated to be long protracted, and if fourteen jurors are to be used we are now reduced to the fourteen. •

This leaves no margin for challenges for cause discovered before or after the striking, or revealed, for the first time, at the trial, before the swearing in, if such challenges be permissible and-interposed.

The selection of the jury is the foundation upon which the entire fabric of proof must rest. If the foundation is legally defective the whole trial is illegal, and, in the event of conviction, must come to naught, no matter what the evidence may be. The trial will necessarily involve a great expenditure of time and money on the part of the state as well as the respective defendants.

The statute is full of legal pitfalls, and I do not feel that the court would be justified in sanctioning a resort to a struck jury where a simple alternative to accomplish the state’s purpose, viz., to avoid possible bias of a local common jury, is open under the provisions of the statute for a foreign jury.

I do not wish to be understood as holding that these pitfalls cannot be successfully avoided in a conspiracy case, but in the public interest it doeá not seem to me they should be risked, at least when an alternative remains open reasonably approximating the ends sought by the state.

Other objections have been raised by the defendants, but in view of the conclusion reached it is not necessary to discuss them.

I conclude, on the whole, that the application should be denied.


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

text:
    WILLIAM R. WHITE, AS SUPERINTENDENT OF BANKS OF THE STATE OF NEW YORK, PLAINTIFF, v. HERMAN LISKOVSKY ET AL., REFERRING IN PARTICULAR TO DEFENDANT, MINNIE KULLER, DEFENDANTS.
    Decided December 30, 1938.
    For the plaintiff, McDermott, Enright Carpenter.

    For the defendants, David Bayarsky.

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

The plaintiff moves to strike the answer filed upon the ground that it sets forth no legal defense. The sole issue raised and argued, is whether or not the plaintiff is barred by the statute of limitations. The Times Square Trust Company was closed by the superintendent of banks on August 5th, 1931. As of May 25th, 1932, the superintendent of banks made a determination that an assessment against stockholders would he necessary. On August 4th, 1932, he made a demand upon each of the stockholders for the payment of twenty ($20) dollars, the par value, as an assessment upon each share of stock held by the stockholder. It was demanded that the payment be made on or before the 6th day of September, 1932. This suit was instituted on. August 12th, 1938, and service was made on this defendant on August 22d, 1938.

The gist of the defendant’s argument is that the stockholders’ obligation came into existence on August 4th, 1932, and that the six-year period of the statute commenced from that date and expired on August 4th, 1938. The difficulty with the position is that the statute runs not from the date an obligation comes into existence, but from the day the cause of action "has accrued.”

The cause of action accrued, that is, the debt became sueablo, not on the date the obligation was announced, but on and after the date when, according to the term of the notice, the assessment became due and “payable.”

Section 80 of the New York -Banking law further provides that interest on the unpaid assessment shall run “From the date when such assessment was, by the terms of such notice, due and payable.”

Assuming that the assessment in question was “due” on August 4th, 1932, by the terms of the notice, it was not “payable.”

As stated in Casperson v. McNeill, 110 N. J. Eq. 369; 160 Atl. Rep. 380:

“* * * the word ‘due/ as applied to a debt or obligation to pay money, does not always mean that the money is then immediately payable. It is sometimes used to express the mere state of indebtedness, and then is equivalent to ‘owed’ or ‘owing5; and sometimes it is used to express the fact that the debt has become payable * *

No matter which meaning we give the word “due” it is clear that the obligation was not enforceable of payment before September 6th, 1932; the stockholder was given until that date within which to pay. No action could have been maintained before September 6th, 1932.

In addition, it will be observed that the cause of action accrued in the State of New York, and under the law of that state, the cause of action did not accrue until default was made on the last day fixed for payment, viz.: September 6th, 1932. Meeker v. Ormon Really Corp., 163 N. Y. Misc. 702.

It follows then, that no action would lie on the assessment until the time fixed by the superintendent of the banks; the right of action did not accrue, therefore, until September 6th, 1932, and the action brought on August 12th, 1938, was within the period designated by our statute of limitations.

An order will be entered accordingly.


text:
    FIDELITY UNION TRUST COMPANY, A CORPORATION OF THE STATE OF NEW JERSEY, AS TRUSTEE, ETC., PLAINTIFF, v. LOUIS PAVLOVSKY, IDA JACOBS AND DOROTHY PAVLOVSKY, AS EXECUTORS OF THE LAST WILL AND TESTAMENT OF PETER PAVLOVSKY, DECEASED, ET AL., DEFENDANTS.
    Decided December 30, 1938.
    For the plaintiff, Hood, Laferty tS Campbell.

    For the defendants, Morris Margaretten.

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

This comes on a motion to strike several defenses raised in a suit for deficiency arising out of the foreclosure of a mortgage. The suit is against many defendants, including the executors and devisees of the original mortgagor, Peter Pavlovsky, and is composed of five counts. The answer is filed in behalf of the executors and devisees under the will of the said Peter Pavlovsky, and relates to the first and second counts of the complaint only.

The defenses which the plaintiff moves to strike are the second, third, fourth, fifth and seventh defenses to the first count, and the second, third, fourth and fifth defenses to the second count.

The first count is against the executors- of Peter Pavlovsky; the second count is against the devisees and legatees under the will of Peter Pavlovsky.

The various defenses and the motion directed to them will be taken in their logical order.

A. The second defense to the first and second counts sets forth that the plaintiff had failed to join as a party defendant in its foreclosure suit, one Miller Marine Company, a monthly tenant.

The plaintiff maintains that this defense is insufficient in law in that the said Miller Marine Company is estopped from denying that it was properly joined as a party defendant. Plaintiff endeavors to sustain this contention, not by facts appearing on the face of the defendants’ pleadings; nor by refuting or denying the facts averred in the defense, but by the affirmative allegation of additional facts. In fact, plaintiff admits that Miller Marine Company, a corporation, occupying the premises as a monthly tenant, was not, as such, made a party defendant in the foreclpsure suit, and argues that by reason of certain alleged circumstances, the Miller Marine Company is barred from claiming any interest in the premises, and that, therefore, • there was a complete sale of the premises by the sheriff. Such additional facts raise a new issue, and should be pleaded, affirmatively by way of reply.

For the purposes of the present motion, the validity of the defense must be determined by what appears on the face of the answer. Milberg v. Keuth, 98 N. J. L. 779; 121 Atl. Rep. 713. The defense as pleaded, comes directly within the rule stated in A merican-Italian Building and Loan Association of Elizabeth v. Liotla, 117 N. J. L. 467; 189 Atl. Rep. 118, namely, that failure to join a monthly tenant as party defendant in the foreclosure suit constitutes a valid defense to the deficiency suit on the bond. It appears, therefore, that the defense as pleaded, is not insufficient in law.

Plaintiff’s contention that the defense is sham is likewise untenable, for it is not denied that the Miller Marine Company, a corporation, was a monthly tenant of the foreclosed premises and that it was not made a party defendant in the foreclosure suit.

As stated in Jaeger v. Naef, 112 N. J. L. 417; 171 Atl. Rep. 166, a motion to strike a pleading as frivolous, sham or false, will not be granted unless it appears to be clearly and palpably so, and the power should be cautiously exercised. The duty of the court is to determine whether an issue of fact is presented, and not to try the issue.

Plaintiff contends that the Miller Marine Company is estopped from asserting any claim as tenant. As stated above, this is a matter for affirmative pleading. The alleged estoppel, however, is not set forth against the present answering defendant. It is not even suggested that these defendants, or their ancestor who executed the bond, are to be estopped from denying that the Miller Marine Company was properly joined as party defendant in the foreclosure suit. In the case of Fidelity Union Trust Co. v. Chausmer, 120 N. J. L. 208; 198 Atl. Rep. 828, relied upon by the plaintiff, it was the acts and conduct of the defendant herself that was held to estop her from asserting that a monthly tenant had not been joined as party defendant in the foreclosure action. That is not the situation here.

Plaintiff further contends that by force of section 58 of the Chancery act (R. S. 2:29-27), the Miller Marine Company is bound by the foreclosure proceedings. The act in question applies to persons claiming an interest in the foreclosed premises through any instrument which could be recorded, and has not been recorded. Plaintiff’s position is that, because the Miller Marine Company had not filed its certificate of incorporation with the secretary of state, it comes under the section cited. In answer to this contention, it is sufficient to note that the Miller Marine Company did not claim any interest in the foreclosed premises through its certificate of incorporation; and further, its certificate of incorporation was recorded with the county clerk, although not filed with the secretary of state.

It follows, therefore, that the second separate defense to the first and second counts sets forth a valid defense.

B. The gist of the third defense to the first and second counts, is that a sale of the foreclosed premises, subject to taxes, which were due but not yet a lien, constituted a failure to exhaust the security, i. e., a failure to make a complete sale. The plaintiff maintains this defense is sham and insufficient in law.

According to defendants’ affidavits, the sale was made “subject- to the following liens and encumbrances: (a) unpaid taxes, water rents, assessments and other municipal liens of every kind and nature, if any.” It is difficult to conceive how this provision prevented the complete exhaustion of the mortgagee’s entire security; how it lessened the salability or the value of the property sold. Whether the taxes were, as yet, a lien or not, a purchaser would have to buy the property subject to such taxes. As for defendants’ statement, made in their answering brief, that the amount of such taxes and liens was not announced at the sale; no such failure is set forth in the defense.

It appears then, that the third separate defense is insufficient in law and will be striken.

C. The fourth separate defense to the first count is a bare denial of indebtedness by the executors; the first count of the complaint being against the named defendants as executors of Peter Pavlovsky.

It is held in Hess v. Bugbee, 13 N. J. Mis. R. 358; 178 Atl. Rep. 626, that failure to present claims to the executors of the estate of the mortgagor, prevents a recovery on the bond in a suit against the executors.

The fourth defense as pleaded, may be vague and subject to attack on that ground; but it cannot be said that it is sham; or that it is insufficient in law. The motion to strike the fourth defense to the first count, will, therefore, be denied.

D. The fourth separate defense to the second count is likewise a bare denial, by the devisees, that their ancestor, Peter Pavlovsky, was indebted to the plaintiff. If, as contended by the defendants under the second defense, a proper and complete sale of the foreclosed premises was not had, by reason of the failure to join the Miller Marine Company as party defendant in the foreclosure suit, then it follows that Peter Pavlovsky was not liable for deficiency on the bond, and therefore the devisees are not liable.

This separate defense, then, is a conclusion based upon the other separate defenses, and stands or falls with them.

The motion to strike the fourth separate defense to the second count will be denied.

E. It is contended by the defendants, under tbe fifth and seventh separate defenses to the first and second count, that on December 38th, 1937, the Fidelity Union Title and Mortgage Guaranty Company had no authority to grant an extension for payment of the mortgage, in return for which extension Peter Pavlovsky, ancestor of the defendants, and Bessie Pavlovsky, his wife, executed a covenant with the said guaranty company to pay the principal and interest on the bond and mortgage; and that therefore,, the covenant of Peter Pavlovsky was without consideration. It is agreed that the original bond and mortgage were executed by Peter Pavlovsky to the guaranty company on December 13th, 1934. On the following dajq the bond and mortgage were assigned by the guaranty company to the Fidelity Union Trust Company, as trustee, under the will of one William Bunkle, subject to the terms of a guaranty policy issued by the guaranty company to the trustee. By the terms of the said guaranty policy, the guaranty company was reserved certain rights pertaining to the bond and mortgage. On December 38th, 1937, while the bond and mortgage-was still in the ownership of the trust company, the guaranty company granted the extension in question and Peter Pavlovsky and Bessie Pavlovsky, his wife, covenanted to pay the bond and mortgage.

It is stated by the plaintiff in its affidavit, that on January 6th, 1931, the trustee reassigned the bond and mortgage, together with the extension agreement, to the guaranty company. Defendants deny, by their affidavit, that the extension agreement was included or even referred to, in the reassignment.

It appears, then, that if the extension agreement was without authority, ratification by reassignment raises a- disputed issue of fact.

The authority to grant the extension is sought to be based upon the following excerpt from the guaranty policy:

“By the acceptance of this guaranty the Company is made irrevocably the agent of the assured until the bond and mortgage be paid, with the exclusive right, but at. its own expense, to sue for and receive the proceeds of any policy of title insurance and of any policy of fire or other insurance covering the mortgaged premises, to collect the interest on the bond and mortgage hereby gauaranteed and to exercise every mortgagee’s option or privilege in said bond and mortgage or either of them contained; and the assured agrees, until the breach or termination of this guaranty, to refrain from exercising any such option or privilege and from collecting any part of said proceeds of title insurance and of fire or other insurance and of said interest and principal secured by said bond and mortgage except through the Company, and to permit the Company to retain out of the said proceeds so much as may remain after paying to the assured whatever may be due the assured for principal and interest.”

This clause gave no authority to the guaranty company to extend the time for payment. The agreement not to collect the principal and interest except through the guaranty company, did not give the guaranty company the power to extend time of payment. The agreement, on the part of the assignee, to refrain from collecting the interest and principal was limited to “until the breach or termination of this guaranty.” It will be noted that the clause in question, in so far as it applies, makes the guaranty company “irrevocably the agent of the assured;” that is, if the guaranty company, as agent had the authority to extend the time for payment, it was beyond the power of the assignee to revoke that power. The granting of such an extension by the guaranty company, would then become a matter of right and not merely one of authority.

If the guaranty company were given the right to extend the maturity of the bond and mortgage, it could forever prevent breach of the guaranty by merely paying the interest and continually extending the time for payment of the principal; that is, it could, by its own act, forever prevent the assignee from collecting the principal of the bond.

It follows then, that the irrevocable agency to grant an extension of the time for payment of principal, cannot reasonably be read into the policy.

It is apparent then, that the title company could not extend the mortgage as a matter of right.

The motion to strike the fi Eth and seventh defenses Will be denied.

An order will be entered accordingly.


text:
    New Jersey Department of Labor, Workmen’s Compensation Bureau.
    ERMINE CALICCHIO, PETITIONER, v. JERSEY CITY STOCK YARDS COMPANY, RESPONDENT.
    Decided December 16, 1938.
    For the petitioner, Milton, McNulty <& Augelli.

    For the respondent, John L. Ridley.

   H< Hi ❖ ❖ H« v H«

In the case sub judice it is alleged that decedent met with an accident arising out of and in the course of his employment and subsequently died from a disease known as pemphigus.

Respondent denies the allegations relative to the causal relationship between the accident and the subsequent developments.

Pemphigus is a term applied to a group of relapsing bullous affections.sometimes associated with constitutional symptoms. The patients have an offensive penetrating odor. The bullas develop from apparently normal skin or mucous membrane and are distributed in an irregular- manner. The following types are recognized — -pemphigus acutus, pemphigus 'chronicus, pemphigus foliaeeüs and pemphigus vegetans. The affections comprehended by the terms pemphigus were formerly of greater number because several disease entities have been identified and otherwise classified in recent years.

Etiology. — The occurrence of pemphigus acutus after vaccination and in those who handle animal products suggests that this group of cases is caused by infection. The course of chronic pemphigus also points to an infection. Urbach and Wolf ram claimed that numerous successful transmissions of infection from human to animal and passage through animals made with filtrates of fluid from bullae, blood serum and brain tissue point to an invisible, filtrable virus as the cause of the pemphigus. The blood serum of patients with pemphigus is said to contain antibodies specific to the antigen present in the blisters of patients as well as in the brains of infected animals. Dahldorf and others have not been able to duplicate their findings in either rabbits or monkeys. However, by irradiating mice prior to cerebral inoculation with blister fluid, Grace has isolated a virus that is probably the etiological agent.

Petitioner who is the widow of decedent stated that petitioner was employed by respondent for sixteen years. His employment had been regular and he seldom lost any time. He worked as a laborer in and about the respondent’s plant and one day each week worked as a janitor. It was stipulated that petitioner’s wages were $26.15 per week. On February 22d, 1937, he ran a rusty nail in his hand. He lost no time from work on account of same. He was treated by the company doctor. About one month or six weeks after this accident the wound healed and about fifteen or twenty days after, petitioner noticed sores on decedent’s face, arms, back and chest. Same would not go away and decedent went to doctors but petitioner did not know whom. He was also treated by a dentist for his mouth. The condition persisted, decedent gradually became worse and under date of November 29th, 1937, he was admitted to the Jersey City Medical Center. He was treated at this institution until January 17th, 1938, when he died.

Decedent’s son, William, also testified and corroborated the testimony of the mother relative to the blisters or blebs on petitioner’s body. He testified he had been away but on his return in April he first noticed the condition of his father. He further testified as to subsequent appearance of blebs in mouth, the removal of a tooth by Dr. DeSevo, further treatment by Dr. Weinberg. On Thanksgiving Day decedent was very ill and Dr. Boberts was first called then Dr. Cohen who sent his father to Medical Center.

Dr. Bector testified for the petitioner and described the disease, its modus opemndi, and subsequent effect.

Dr. A. T. Brennan, who specializes in dermatology, testified that pemphigus could follow an open wound such as sustained by decedent on February 22d, 1937. He further testified it was common among butchers where live or dead stock was handled.

Dr. O. Allan Bose, who treated petitioner at Jersey City Medical Center, described decedent’s condition upon entering the hospital, his subsequent loss of weight, condition of body and the progress of blebs. His diagnosis of pemphigus was confirmed by his superior, Dr. Purdy.

Dr. Koppel, in anwer to a hypothetical question, testified that pemphigus would follow an abrasion or open wound.

Dr. James, a dermatologist, who testified for the respondent, was of the opinion that there was no relationship between abrasion and the pemphigus. He claims that incubation was rapid and time was a factor where trauma was the cause. Dr. Purdy, dermatologist, Jersey City Medical Center, also was of the same opinion as Dr. James.

Dr. P. S. Andreoria testified for the petitioner, describing the condition of the mouth and the appearance of the blebs.

Dr. Talty testified for respondent as to treating decedent for a puncture wound February 22d, 1937, described the wound, stated there was no pus but a watery discharge. There was no swelling and wound closed. He discharged him as cured.

I have carefully considered the facts as presented as well as the testimony of the various medical experts and treating physicians and have come to the conclusion that the wound sustained by decedent on February 22d, 1937, could be the proximate cause of the resultant pemphigus.

I am, therefore, awarding compensation in favor of the petitioner who is the only dependent.

*******

John C. Wegner,

Referee.


author: Kóseberry, D. C. J.

text:
    First Judicial District Court, Warren County.
    RAYMOND RAUB, PLAINTIFF, v. LESLIE KINNEY, DEFENDANT.
    Decided December 28, 1938.
    For the plaintiff, John H. Pursel.

    For the defendant, Alfred W. Seiss.

   Kóseberry, D. C. J.

This case having been heard before this court to recover two penalties, one for the running at large off the premises of the defendant, being the owner and keeper of a colored hull with horns and on the premises of the plaintiff on or about September 8th, 1938, under the provisions of Devised Statutes of New Jersey, 1937. R. S. 4:21-12. The penalty is $100. Also to recover a like penalty for another bnll without horns, owned and kept by the defendant off his premises and fonnd upon the premises of the plaintiff under the same statute.

The common law requires every person to keep his cattle on his own land and not to trespass on the lands of other persons. Damages alone being the limit of compensation.

As farm lands became more cultivated and the produce more valuable, the legislature passed a law to provide the maintenance of boundary fences between adjoining owners of cultivated lands if the owners could not agree upon a division of boundary fencing. The statute in the present case is a penal statute and must be strictly construed. The plaintiff must clearly bring his case within the statute to recover. The statute applies to bulls running at large and not cows. Much stress is laid on, when a calf becomes a bull. A male calf passes from a calf to bull, while a female calf becomes in turn a heifer and then a cow.

From the evidence in this cause as submitted before me and from the facts, it is my judgment that the colored bull with horns was a bull within the statute, owned and kept by the defendant and was suffered to run at large off the premises of the defendant and found upon the premises of the plaintiff in violation of the provision of the Revised Statutes, 1937 (R. S. 4:21-12) by which a penalty of $100 was incurred under the statute.

It is hereby ordered on this 28th day of December, 1938, that a judgment of $100 and costs of suit be entered in favor of the plaintiff and against the defendant on the penalty on the first count in the complaint, and that a judgment of no cause for action be entered in favor of the defendant and against the plaintiff on the second count in the complaint.


author: Fallon, V. O.

text:
    DiomiRa A. Nocenti, otherwise Ruberti, petitioner, v. Joseph P. Ruberti, defendant.
    [Decided October 6th, 1933.]

      (Released by court for publication January 6th, 1939.)

      Messrs. Carey ■& Lane, for the petitioner and exceptant.
   Fallon, V. O.

This matter is before the court on exceptions to special master’s report pursuant to rule 113. I have concluded, as a result of my consideration of the matter sub judice, that the exceptions to the special master’s report should be sustained, and that the prayer of the petitioner that the marriage between her and the defendant be decreed null and void for the cause set forth in the petition should be granted. I will advise a decree accordingly. The proofs in the case satisfactorily manifest, in my judgment, that the defendant induced the petitioner to marry him upon the promise and agreement that within a year thereafter he would marry her according to the rites of the Roman Catholic Church of which both petitioner and defendant are communicants. I deem it unnecessary for the purpose of the matter sub judice to comment upon the proofs herein, or the report of the special master with reference thereto other than to say that it appears that the petitioner and the defendant went through a civil marriage ceremony on May 11th, 1930, which was performed by a justice of the peace with the understanding and on the express promise of the defendant that he would subsequently have a religious marriage ceremony performed according to the rites of the Eoman Catholic Church of which both the petitioner and the defendant are communicants. There is ample corroboration in the proofs to satisfy me that the defendant prevailed upon petitioner to go through a civil marriage ceremony with him upon his promise that he and the petitioner would subsequently be married according to the rites of the church of which both are communicants. The proofs manifest that notwithstanding her entreaty that he comply with his promise in such respect, he refused so to do. The parties did not publicly announce their marriage, nor did they make same known to their friends or acquaintances. In Cox v. Cox, 110 Atl. Rep. 924, Vice-Chancellor Stevenson held that an unconsummated marriage, which is effected by fraud of any kind whatsoever which would render a contract voidable, is voidable at the option of the injured party, if promptly disaffirmed before any change of status has occurred. No change of status has occurred in the matter sub judice. "Where, as in the case sub judice, a man as an inducement for a woman to enter into a civil marriage ceremony with him, which for reasons of their own they wished to keep secret for a time, promised he would thereafter go through a religious marriage ceremony with her according to the rites of the Eoman Catholic Church of which both were communicants, his subsequent refusal to have such religious ceremony performed was fraud upon her for which this court should decree annulment of the marriage, upon her prayer therefor, and particularly where as in the instant case the marriage was not consummated. It is manifest from the proofs herein that if it were not for the aforesaid representation made by the defendant to the petitioner that if she consented to have a civil marriage ceremony performed that a religious marriage ceremony would follow, she would not have entered into marriage with him. It is a general rule that every misrepresentation of a material fact, made with the intention to induce another to enter into an agreement, and without which such other would not have done so, justifies the court in annulling the agreement. Ysern v. Horter, 91 N. J. Eq. 189 (at pp. 192, 193); 110 Atl. Rep. 31. In Bolmer v. Edsall, 90 N. J. Eq. 299 (at p. 300); 106 Atl. Rep. 646, it was held that since the status of marriage is conferred by contract, and since for voiding contracts equity has jurisdiction over all questions of fraud, this court, in an appropriate case, would pronounce such marriage void. See Carris v. Carris, 24 N. J. Eq. 516. See, also, Vanderbilt v. Mitchell, 72 N. J. Eq. 910 (at p. 918); 67 Atl. Rep. 97. In Bolmer v. Edsall, supra, it was held that the court of chancery under its general power to annul fraudulent contracts, has jurisdiction to annul a contract of marriage for sufficient fraud. What is sufficient fraud must be considered and determined in each particular case. I am of the opinion that in the ease sub judice there is manifest sufficient fraud to warrant the annulment of the unconsummated marriage .of the petitioner and defendant herein, and that such annulment will not be “against sound considerations of public policy.” See Ysern v. Horter, supra (at p. 204). A number of New York cases, although based upon code provisions, have held that where a wife consented to enter' into a civil marriage ceremony on the husband’s promise to subsequently have a Hebrew religious ceremony performed, and the husband thereafter absolutely refused to do so the wife was entitled to a decree annulling the marriage, it appearing that she had never cohabited with the husband. Watkins v. Watkins, 107 App. Div. 489; 189 N. Y. Supp. 860; Rubinson v. Rubinson, 181 N. Y. Supp. 28; Rozsa v. Rozsa, 191 N. Y. Supp. 868. Such cases clearly indicate the tendency to relieve an innocent party from marriage contracts induced by fraudulent representations. In my judgment the rule of law as stated in such cases is applicable and should be applied to the case sub judice. It appears to me from the proofs herein that the petitioner would not have consented to the marriage ceremony conducted by a justice of the peace if she had known that a material representation, entering into the reason for her consent therefor, that is, a religious ceremony to follow the civil ceremony, was untrue, and I know of no good reason for excepting a marriage contract from the general rule. In Watkins v. Watkins, 189 N. Y. Supp. 860 (at p. 863), the court said: “Here the marriage has not been consummated, and I see no reason why it should not be annulled, and, if that relief be not afforded, plaintiff will be obliged to waive her religious scruples and consummate the marriage without the promised religious ceremonial marriage, or remain bound to the defendant and deprived of the free right she had to marry according to her religion or to remain single. - Where the marriage has not been consummated, it has been held that it “is so inchoate and incomplete that the status of the parties is similar to that of parties to an executory contract, and it may be annulled without violating any considerations of public policy.” Citing DiLorenzo v. DiLorenzo, 75 N. Y. Supp. 878, .cited with approval in Svenson v. Svenson, 178 N. Y. 54; 70 N. E. Rep. 120. In Ysern v. Horter, supra (at p. 202), Vice-Chancellor Stevenson quoted from Nels. D. & § 605 as follows: “Before consummation, the parties stand upon almost the same footing as the parties to an ordinary fraud. * * * Where there has been no consummation, any fraud which would be sufficient to annul a contract should in reason lie sufficient to annul a marriage ceremony. No satisfactory reason of the law will justify the courts in declaring valid such a contract of marriage when tainted with fraud or duress, where the only effect will be the punishment of the innocent and the confiscation of his or her property by the deception. If the marriage is declared valid, it will exist in name only, preventing both parties from marrying again and bringing the marriage relation into disrepute. Every reason for relief from fraud is applicable here, where a denial of relief is fraught with evil consequences much greater than those flowing from ordinary contracts.” Such I consider to be particularly applicable to the case sub judice.


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

text:
    823 BROAD STREET, A CORPORATION, v. MANNY MARCUS AND MAX GOLDMAN.
    Decided January 9, 1939.
    For the plaintiff, Milton M. Unger and Lum, Tamblyn & Fairlie (by Ralph E. Lum and J. Raymond Berry, of counsel).
   Joseph L. Smith, C. O. J.

This is a motion for a direction of a verdict of guilty of trespass in favor of the plaintiff and against the two defendants in this ejectment suit, wherein the plaintiff is the owner of property commonly known as 823 Broad street, Newark, New Jersey, and seeks the ejectment of the two defendants who have maintained and are at present maintaining a newsstand on the sidewalk directly in front of the said premises.

There has been introduced in the case testimony and documentary evidence and historical evidence which tends to show the history of the State of New Jersey, particularly of the northern part of New Jersey and bearing specifically upon the founding of the city of Newark by a group of New Englanders under the leadership of Bobert Treat; through negotiations and arrangements with Phillip Carteret, then governor of New Jersey, for a settlement on the western bank of the Passaic river; their negotiations with the Hackensack Indians and their acquisition from the Indians of a bill of sale covering premises now comprising the city of Newark; their settlement upon the premises and the obtaining of patents from Governor Carteret and his successors, and those administering his estate.

Prom all of this it appears that the premises in question were originally a part of a lot set aside as burial ground.

The present plaintiff acquired its title to premises No. 823 Broad street, Newark, New Jersey, directly from Helen Grand. This deed from the said Grand to the plaintiff, describes the property as beginning at the intersection of .the westerly line of Broad street with the southerly line of Branford Place; in other words, the description covers up to the building line of the two streets, Broad street and Branford Place. The evidence shows, without dispute, an unbroken chain of title of record beginning in 1811 to date. Nowhere in the chain of title, either in conveyances of record since 1811, or prior thereto, a.s shown by historical research, is there any express reservation or exception from conveyance of the property from the building line to the middle of the highway, namely, Broad street, and it is a well established rule that when, in a conveyance of land, the premises are described as beginning at a point in the side of a street, and as running thence along such side,.the street, to its center, will he held by legal presumption to be embraced, and under ordinary conditions nothing short of express words of exclusion will prevent the street in front of the premises conveyed from passing. This was the rule laid down in 1877 by Chief Justice Beasley, in Salter v. Jonas, 39 N. J. L. 469. In that ease, as in the present, the lot in question was described as running along the side line of the street. Holding that half of the street passed with the lot that was thus bounded on its side, Chief Justice Beasley adopted the reasoning of previous cases, that the paramount intent of the parties as disclosed from the whole scope of the conveyance, and the nature of the property granted, should be the controlling rule.

The late Chief Justice further said (at p. 472):

“And this doctrine, although it cannot he said to be sustained by the greatest number of decisions, is, I think, the one that ought to be adopted in this state. In our practice, in the conveyance of lots bounded by streets, the prevailing belief is, that the street to its center is conveyed with the lot. Among the mass of the people it is undoubtedly supposed that the street belongs, as an appurtenance, to the contiguous property, and that the title to the latter carries with it a title to the former. This belief is so natural that it would not be easily eradicated. As a general practice, it would seem preposterous to sever the ownership to these several parcels of property. Under ordinary circumstances, the thread of land constituting the street is of great value to the contiguous lots, and it is of no value separated from them. It would rarely occur that the vendee of a city lot would be willing to take it separated in ownership from the street, and it would as rarely occur that a vendor would desire to make such severance. In my own experience, I have never known such an intention to exist, and it is safe to say that whenever it does exist, the conditions of the case are peculiar.
“And it is the very general notion that these two parcels of property are inseparably united, and pass as a whole by force of an ordinary conveyance, that accounts for the absence of any settled formula in general use for the description of city lots in a transfer of their title. Upon an examination of such conveyances, it would, I am satisfied, be disclosed, but the utmost laxity in this respect prevails. The property conveyed is indiscriminately described as going to the street and running along it, or as going to one side of such street and thence running along such side. Such discriminations are not intentional, the purpose being to convey all the interest that the seller has in the property and in its belongings, and the mode of accomplishing this purpose is not the subject of attention, the street lot, as I have said, being regarded as a mere adjunct of the property sold, and worthless for any other use.”

Similarly in Hinchman et al. v. The Paterson Horse Railroad Co., 17 N. J. Eq. 75, Chancellor Green, in 1864 held that:

“The established inference of law is, that a conveyance of land bounded on a public highway carries with it the fee to the center of the road, as part and parcel of the grant; and the grantee has the exclusive right to the. soil subject to the right-of-way.”

The decision of the court in Starr v. Camden and Atlantic Railroad Co. (1854), 24 N. J. L. 592, is to the same effect.

It is also the established law that the effect of the dedication of a portion of property as a street gives to the public merely an easement, that is, the right of passage and the owner still has all rights of ownership which are not inconsistent with the public right of passage. Laurel Garden Corp. v. New Jersey Bell Telephone Co., 109 N. J. L. 171; 160 Atl. Rep. 549.

This public easement, or right of passage, may vary in its extent from time to time and under various circumstances. Originally, no doubt such right of passage was confined to walking or riding, horseback or by such other means as was common, but to-day under our present circumstances, this right of easement has been extended to cover sewers, drains, gas and water pipes, telephone and telegraph wires, under and above ground, trolley and railroad tracks, &c. State v. Laverack, 34 N. J. L, 201; Nicoll v. Telephone Co., 62 Id. 733; 42 Atl. Rep. 583.

However, under no circumstances can the maintenance and operation of a newsstand on the sidewalk in front of the property of the plaintiff, be considered to be an exercise of public easement or public right of passage over the property of the plaintiff dedicated to the use of the public.

. The court, therefore, directs the jury to bring in a verdict of guilty against the defendants and for possession in favor of the plaintiff of the premises described in the complaint, with nominal damages as requested for the plaintiff in the sum of six cents.


author: Jayne, S. C. C.

text:
    ROSE SASLOW, ADMINISTRATRIX OF THE ESTATE OF MORRIS SASLOW, DECEASED, AND ROSE SASLOW, ADMINISTRATRIX AD PROSEQUENDUM OF MORRIS SASLOW, DECEASED, PLAINTIFF, v. ANTHONY A. PREVITI, DEFENDANT.
    Decided January 14, 1939.
    For the plaintiff, Samuel Baclcer.

    For the defendant, Bolte & Miller.

   Jayne, S. C. C.

This motion is addressed to the first count of the complaint. Some introductory statement is essential to display the point in controversy.

The complaint relates the occurrence, on February 6th, 1938, of a mishap in which one Morris .Saslow sustained certain bodily injuries from which he died on February 9th, 1938. The plaintiff has been duly appointed general administratrix of the estate of the deceased and also administratrix ad prosequendum. In the first count of the complaint the plaintiff, as general administratrix, seeks to recover damages from the defendant for moneys necessarily expended for the medical care and treatment of the injured intestate between the date of the accident and the date of his death. The second count pertains to her alleged cause of action as administratrix ad prosequendum. Such actions have, of course, been held to be maintainable under the authority of the Death act of March 3d, 1848, and the act of March 15th, 1855. Soden v. Trenton, &c., Traction Corp., 101 N. J. L. 393; 127 Atl. Rep. 558.

The basic reason asserted in support of the present motion is that at the time of the occurrence of .this accident and at the time of the institution of this action, there was no statute of our state authorizing executors and administrators to sue for any trespass done to the person of their testator or intestate.

Executors and administrators were afforded a right of action against the trespasser for any trespass done to the person of their testator or intestate by the fourth section of the act of 1855 (2 Comp. Stat., p. 2260) by which it was ordained that: “Executors and administrators may have an action for any trespass done to the person or property, real or personal, of their testator or intestate against the trespasser or trespassers, and recover their damages in like manner as their testator or intestate would have had if he or she was living.”

On December 20th, 1937, a revision, consolidation and compilation of the public acts of our state was adopted by the legislature. Pamph. L. 1937, ch. 188, p. 832. In this Revision of 1937, as then adopted, section 2:26-9 was written as follows: “Executors and administrators may have an action for any trespass done to the property, real or personal, of their testator or intestate against the trespasser, and recover their damages as their testator or intestate could if he was living.”

It is therefore observed that in revising the fourth section of the act of March 15th, 1855, the word “person,” among others, was deleted.

Recognizing the harsh rule at common law actio personalis moritur cum persona, the remedial character of the act of March 15th, 1855, the long established practice thereunder, the construction placed upon the sections of the act by our courts, and the instructions given to the revision commissioners by chapter 73 of the laws of 1925, it may be confidently surmised that the words “person or” were omitted in section 2:26-9 of the Revision of 1937 accidentally or inadvertently. This inference seems also to be reinforced by the fact that the right of action against the executors or administrators of a testator or intestate who, in his lifetime, shall have committed a trespass to the person of another, was not withdrawn. R. S. 1937, 2:26-10. Moreover, the pertinent omission in section 2:26-9 was supplied by the legislature at its next succeeding session. Pamph. L. 1938, ch. 29, p. 103.

It is suggested that notwithstanding the adoption of the revision, the section of the former statute (2 Comp. Stat., p. 2260, § 4) continued in force. It is true that repeal by implication is not favored and such is less readily implied in the ease of a revision or compilation than in the case of a subsequent statute which appears to embrace the subject-matter of the earlier act. Usually a revision of the statutes simply iterates the former declaration of legislative will.

It is to be noticed, however, that the Revised Statutes (1937) were adopted “as all the public statute law of the State of New Jersey of a general nature.” See section 1, chapter 188, Pamph. L. 1937. Mr. Justice Perskie in the recent case of Brower v. Township of Franklin, 119 N. J. L. 417, 423; 197 Atl. Rep. 367, held that an act (Pamph. L. 1928, p. 325) which was not included within the Revised Statutes of 1937 was consequently no longer a part of the public law of this state.

Moreover, the change in the language of the section with which we are here concerned altered its substance. Such a change in a statute, especially after it has had a settled judicial construction, would ordinarily give rise to the implication that the alteration was purposeful. If in a revision there are omissions, it is not ordinarily for the court to say whether those omissions are by accident or design. Still less should a court assume an omission to be accidental and then insert by construction what may have been omitted by design.

Lastly, it is recommended that the first count of the complaint be sustained by a judicial construction of section 2:26-9 of the Revision, as adopted, notwithstanding the plain and ordinary signification of the words used. There must, of course, be some occasion and reason for the judicial construction of a statute. It is a familiar rule that the intention of the legislature is to be harvested by the courts from the words employed in the statute and where there is no ambiguity and the meaning is clear, there is no room for judicial construction. Douglass v. Freeholders, &c., 38 N. J. L. 214; McGowan v. Metropolitan Life Insurance Co., 57 Id. 390; 30 Atl. Rep. 433; affirmed, 60 N. J. L. 198; 38 Atl. Rep. 671; Herod v. Mutual Chemical Company of America, 115 N. J. L. 369; 180 Atl. Rep. 432; Ott v. Braddock, 119 N. J. L. 507; 197 Atl. Rep. 271.

The language of section 2:26-9 as embodied in the Kevision is perfectly comprehensible. There is nothing in its language to warrant the inference that the legislature intended to invest executors and administrators with the right to prosecute an action for a trespass done to the person of their testator or intestate. To interpolate the desired words into the section would amount to the introduction of an entirely supplementary thought. The courts of our state are not clothed with the power to supervise legislation (Douglass v. Freeholders, &c., supra) and the power to construe does not embrace the power to legislate. Courts have, of course, supplied apparent omissions in statutes. In such instances, the intent and the evident will of the legislature were apparent and were utterly defeated by the omission. The general rule is that where words have been omitted from a statute by inadvertence, or through clerical error,- and the intent of the legislature is clearly ascertainable from the context, the court will insert the words necessary to carry out that manifest intent. Citations upholding the right of the court to make such interpolations may be found collected in 3 A. L. R. 404. See Iadone v. State, 1 N. J. Mis. R. 281. In the construction of statutes, words should never be supplied except to effectuate a meaning clearly shown by the other parts of the statute and to undertake to augment the substance of a statute as here desired would be an abortive act of legislation rather than a proper exercise of the power of judicial construction. Orvil v. Woodclif, 61 N. J. L. 107.

If the omission in our statute occurred by accident, it belongs to the legislature to supply it. This has now been, done.

The motion is accordingly granted.


author: McGrath, C. P. J.

text:
    Union County Orphans Court.
    IN THE MATTER OF THE ESTATE OF EUSTACE MORTON CUNNINGHAM, DECEASED.
    Decided January 9, 1939.
    Administrator, pro se, Harry Silverstein.

   McGrath, C. P. J.

The question has arisen in this estate as to whether, where a decedent leaves less than $200, the money should be applied to his reasonable funeral expenses, or whether the widow can claim the money under the statute which provides an exemption to the value of $200 “against all creditors, and before any distribution or other disposition thereof.” In other words, in such a case, is the decedent to be left to be buried in a pauper’s grave at the expense of the public, or at -the expense of some unsuspecting undertaker, while the widow takes the money by virtue of the statute? This proposition is repugnant to natural decency as well as natural justice and the court should not adopt any such construction of the statute unless it is very plain that the legislature intended such a situation. Statutes in derogation of common law should be construed strictly, and in view of the nature of funeral bills and the attitude of the common law toward them, it seems consistent with common sense to hold that when the legislature used the words “all creditors,” it did not intend to include those who perform the last funeral rites for the decedent. See Sullivan v. Horner, 41 N. J. Eq. 299; 7 Atl. Rep. 411; Young v. Conover, 120 N. J. L. 267; 199 Atl. Rep. 390; Schouler’s Wills, Executors and Adminis trators (6th ed.), §§ 2750, 2585. At common law funeral bills were not regarded as debts but as a charge upon the estate, and this attitude is also expresséd in the time honored phrase, which has been employed in wills from time immemorial : “I direct that all my just debts and funeral expenses be paid.”

There was no such exemption at common law and the statute granting an exemption “against all creditors” must be construed in the light of the nature of a funeral bill as regarded by the common law. I therefore conclude that the statutory exemption in this case was not intended to apply against the reasonable funeral bills of the decedent.


author: BoniNE, J.

text:
    MICHAEL WILLIAM BENESH, PROSECUTOR, v. WALTER A. WOLF, RECORDER OF THE TOWNSHIP OF LODI, AND TOWNSHIP OF LODI, RESPONDENTS.
    Decided June 26, 1934.

      (Released for publication January 27, 1939.)

    For the prosecutor, Wolber, Gilhoo'ly <& Yauch.

    For the respondents, Ghandless, Weller <& Selser.

   BoniNE, J.

The conviction will be set aside for the reasons stated by Mr. Justice Heher in Lynch v. Long Branch, 111 N. J. L. 148.

The argument was made that the ordinance under which the conviction was had was not for revenue purposes. If not, then the ordinance was clearly beyond the legislative grant for the reasons stated by Mr. Justice Dixon in Cary v. North Plainfield, 49 N. J. L. 110, and continuously followed in this state. Modern business cannot be transacted by procuring licenses in every municipality where a delivery wagon may call. Until the legislature clearly expresses a purpose to authorize such municipal action, it does not exist.


author: Brown, C. O. J.

text:
    Hudson County Circuit Court.
    PATRICK CONNELLY, INC., A CORPORATION OF NEW JERSEY, PLAINTIFF, v. HUGH MONTAGUE & SON CO., INC., A CORPORATION OF NEW JERSEY, AND CITY OF BAYONNE, A MUNICIPAL CORPORATION OF THE STATE OF NEW JERSEY, DEFENDANTS.
    Decided January 30, 1939.
    Por the plaintiff, David M. Klausner.

    Por the defendant, Alfred Brenner.

   Brown, C. O. J.

The defendant city of Bayonne moves to strike the complaint in the above entitled cause on the ground that the Court of Chancery has exclusive jurisdiction to determine the matters alleged in the complaint and that this court is without jurisdiction. In its complaint the plaintiff alleges that on June 29th, 1938, the defendant Hugh Montague & Son Co., Inc., as a general contractor, entered into a contract with the city of Bayonne for the construction of a transit shed at the Bayonne terminal. On June 17th, 1938, the plaintiff, as a subcontractor, entered into a contract with the defendant general contractor for piling work to be furnished under the terms of the contract with the city. The plaintiff alleges it furnished some or the material and performed part of the work and was prevented by the general contractor from finishing the remainder. Damages are claimed for the work done and the losses incurred by the alleged interruption of the work by the general contractor. On Juiy 28th, 1938, the plaintiff served and filed with the city in accordance with the provisions of the Municipal Mechanics’ Lieu law (R. 8. 2:60-180), a notice of lien claim upon the funds held by the city. On August 15th, 1938, the general contractor and the Maryland Casualty Company entered into a bond with the city according to the provisions of R. S. 2:60-186, which bond was approved by the chief law officer and the financial officer of the city with whom it was filed. In the bond was recited the filing of the notice of the plaintiff’s lien claim with the city and the bond contained the following condition:

“How, Therefore, the condition of the above obligation is such that if the said Hugh Montague & Son Co., Inc., shall pay such sum as may be decreed to be due Patrick Connelly, Inc., under said claim, then this obligation shall be void, otherwise to remain in full force and virtue.”

The complaint alleges that after the filing of the bond the city paid to the general contractor the funds upon which the plaintiff had filed a notice of lien claim and that the city “is therefore indebted to the plaintiff in the sum of $5,24.4.71” for which the plaintiff brings its suit. Under R. S. 2 :60-184 of the Municipal Mechanics’ Lien law the lien, when filed in accordance with that law, becomes “an absolute lien to the full value of the labor performed or materials furnished” upon the moneys duo or to grow due under the contract made by the city with the general contractor and in the control of the city. By section 2:60-186, of the same act, it is provided in part: “The funds to which a lien has attached * * * may bo released and paid to the contractor by the financial officer of the public agency upon the filing with such officer of a bond in double the sums of all claims filed under the provisions of this article against the contractor or the funds due or to grow due thereunder, and conditioned for the payment of such sum as may he decreed to be due under such claim.” This section of the Municipal Mechanics’ Lien law plainly releases the moneys to which the lien was attached upon the filing of the bond. It does not discharge the lien. It authorizes the city to release the moneys due or to grow due to the general contractor upon the filing of the bond. The lien continues for procedural as well as all other purposes. The act also provides for the enforcement of the lien and the manner in which it may be discharged. Section 2:60-206 of the act provides in detail how the lien may be discharged and nowhere does the act provide for a discharge of the lien by the filing of a bond under section 2:60-186. It may be discharged by a certificate to that effect from the claimant; by lapse of time unless further time is allowed by an order of the Court of Chancery; by satisfaction of a decree in an action to enforce the lien or claim or by final decree of the Court of Chancery in an action to enforce the lien. The law courts are not mentioned in the Municipal Mechanics’ Lien act as a forum through which a discharge of the lien may be effected. The Court of Chancery is specifically granted jurisdiction by the act to discharge both the ‘lien” or “claim” and the act evidently contemplates the-distinction as it refers to both lien and claim. The plaintiff’s lien claim is allowed because of the statute. ' Such suits as the statute contemplates are unknown to the common law. Likewise the'remedy, if it exists, must be found within the provisions of the statute.

The only personal action provided for by the statute is section 2:60-183 which gives the creditor a right of action against the person liable for the debt. In the case sub judice the plaintiff made its contract with the defendant general contractor. There was no privity of contract between the city of Bayonne and the plaintiff. The bond that was filed was made by the general contractor and a surety to the city and not by the city to the plaintiff. In all other cases the statute provides for the enforcement of a lien claim in the Court of Chancery. Section 2:60-194 provides not only that the lien claim against the fund in the hands of the public agency may be enforced but also “actions to determine or terminate said liens may be brought in said court by the contractor, subcontractor or public agency.” Section 2:60-201 provides in part that “The Court of Chancery shall determine the validity of the liens of the complainants and defendants and of all other liens which may be filed * * * and the amount due from the public agency to the contractor under the contract and from the contractor or subcontractor to the respective claimants.” The Court of Chancery, by the expressed direction of the Municipal Mechanics’ Lien law, is the exclusive forum provided for the determination of the validity of all lien claims and the amount due thereon, whether from- the public agency to the general contractor or from such contractor to the subcontractor or other claimants. The only exception to this exclusive jurisdiction is in the case of a right of action in a creditor against the person liable for the debt. In the instant case that would be the plaintiff’s action against the defendant general contractor. A question of jurisdiction in many respects similar to the one raised by the motion in this case was before the Court of Errors and Appeals in Delafield Construction Co. v. Sayre, 60 N. J. L. 449; 38 Atl. Rep. 666. There was involved in that decision the question of jurisdiction arising out of the “Municipal Lien act” of 1892. 3 Comp.. Stat., p. 3315. It was held in that case the remedy came completely within the functions of the Court of Chancery. Evidently the act of 1892 was the forerunner of the present Municipal Mechanics’ Lien law which is known as chapter 280, Pamph. L. 1918, p. 1041. The short title of which appears in the R. S. 2:60-180. A comparison of the act of 1892 with the Eevision of 1918 clearly indicates that the later act is more definite in its provisions in easting jurisdiction in the Court of Chancery than the act of 1892, which was the subject of construction in the Delafield ease. A single item of comparison illustrates this conclusion. In the 1892 act (3 Comp. Stat., p. 3319, § 41) it was provided that “Any claimant who has filed the notice mentioned in the second section of this act may enforce his claim against the said fund therein designated and against the person or persons liable to the debt by a civil action; actions to determine or terminate said liens may be commenced by the contractor or said city, town, township or other municipality in any court of competent jurisdiction.” The Kevision of 1918 of the New Jersey Municipal Mechanics’ Lien law eliminates the reference to actions being brought “in any court of competent jurisdiction” and directs that the validity of all lien claims and the amount due shall be determined in the Court of Chancery. It is interesting to note that in the .case of Delafield Construction Co. v. Sayre, supra, and also in Agnew Co. v. Paterson Board of Education, 83 N. J. L. 49; 89 Atl. Rep. 1046, it is stated that the New Jersey Municipal Mechanics’ Lien law is patterned after a Mechanics’ Lien law of the State of New York. In referring to the Mechanics’ Lien law of the State of New York it appears that upon filing a bond with the municipality the lien in the words of the New York statute is “discharged” while the Municipal Mechanics’ Lien law of New Jersey provides that the funds are “released” and no mention is made of the lien being “discharged.” notwithstanding the New York statute provides expressly that the lien is discharged upon the filing of the bond proceedings to enforce the lien claim remain the same as if the claim were not discharged by the filing of the bond. In the case of Harley v. Plant et al., 210 N. Y. 405; 104 N. E. Rep. 946, the New York Court of Appeals held as follows (at p. 947) :

“The lienor may, however, have and prosecute his action to enforce or establish the lien, whether the undertaking discharging it be filed before or after the action is commenced, making the necessary parties only defendants, and the judgment therein establishing that the lien, when discharged by the undertaking, was valid and enforceable in a fixed amount is conclusive as an adjudication in an action upon the undertaking against the sureties, although they were not parties to the former action. The undertaking does not' change the relation or rights of 'the parties otherwise than substituting its obligations for the fund subject to the lien, and it was not within the legislative purpose in permitting the substitution to deteriorate the lienor’s rights. The condition of the undertaking must be construed to be that the obligors will pay any judgment which may be recovered in an action to enforce the lien, prosecuted in accordance with the sections of the Lien law relating to it, under which the sureties in the substituted undertaking are not necessary parties to the action.”

The conclusion stated in the ease of the B. & S. Construction Co. v. Angelo Paino Construction Co., 10 N. J. Mis. R. 107; 157 Atl. Rep. 886, that an action may be brought on a municipal lien claim against a municipality is obiter dictum as that question was not before the court for determination. The court in that case evidently was referring to cases arising out of a Mechanics’ Lien law but not to cases pertaining to the Municipal Mechanics’ Lien law. The decision in Heller v. Plainfield, 119 N. J. L. 37; 194 Atl. Rep. 260, has no application to the issue here presented. In the Heller case the question of jurisdiction was not an issue before the court'for determination. The action in that case was predicated upon an alleged illegal or erroneous act on the part of the municipality in not properly approving a bond as to form and sufficiency.

The motion to strike the complaint as to defendant city of Bayonne will be granted and the ease may proceed as to the remaining defendant. The court of its own motion is empowered to strike a complaint if it fails to show a cause of action. Mt. Pleasant Cemetery Co. v. Erie Railroad Co., 74 N. J. L. 100; 65 Atl. Rep. 192; Philadelphia Savings Fund Society v. Frank Disston et al., 16 N. J. Mis. R. (at p. 133) ; 198 Atl. Rep. 212, and cases therein cited. In this case the complaint, in so far as the defendant city of Bayonne is concerned, fails to allege a cause of action. The complaint will be stricken on this further ground as to that defendant.


author: Beown, C. C. J.

text:
    Hudson County Circuit Court.
    IN THE MATTER OF AN APPLICATION TO HAVE THE NAMES OF THOMAS F. SULLIVAN AND EIGHTEEN OTHER PERSONS STRICKEN FROM THE PERMANENT REGISTER OF VOTERS OF HUDSON COUNTY.
    Decided February 15, 1939.
    Por the petitioner- and for the superintendent of elections, Julius Seiden and Harry Bloch.

    Por the commissioner of registration, Benjamin Bowden.

    Por the respondents, James F. McGovern.

   Beown, C. C. J.


text:
    New Jersey Department of Labor, Workmen’s Compensation Bureau.
    PETER GELEWSKI, BY HIS NEXT FRIEND, STELLA GELEWSKI, PETITIONER, v. RUDY CUDILE AND CHARLES CUDILE, TRADING AS HASBROUCK HEIGHTS DAIRY, AND INDIVIDUALLY, AND LLOYD BUNTING, RESPONDENTS.
    Decided January 11, 1939.
    For the petitioner, Patten & Amlicke.

    For the respondent, Wall, Haight, Carey <& Haripence (by Charles J. Gormley).

   It appearing to the court that a petition was filed in behalf of Peter Gelewski, a minor, on October 27th, 1938, for an injury that is alleged to have been received by the said Peter Gelewski on February 9th, 1936, and that the respondents have pleaded that this court is without jurisdiction to hear and determine the cause, that the petition was not filed within the statutory time, and that the statute of limitations had run against the said cause of action.

The Compensation act (R. S. 1937, 34:15-1 et seq.) is in derogation of the common law, and I am of the opinion that all such statutes must be strictly construed. In the said act, commonly known as the Compensation act, there is provision for prosecution of a minor’s claim by a next friend or other representative, and there is further provision that all employment by minors shall be considered to be governed by article 2 (R. S. 1937, 34:15-7 et seq.) of the said act unless notice to the contrary is received, and that the said act provides that petitions for claims shall be filed within two years of the date of the said alleged accident or the date of the last payment made by agreement. R. S. 1937, 34:15-51.

And it further appearing that this petition has been filed actually more than two years after the said accident, and that no payment has been made by the respondents, or either of them, to the petitioner,

It is, on this 11th day of January, 1939, on application of Charles J. Gormley for Wall, Haight, Carey & Hartpenee, attorneys for respondent, ordered that the petition filed herein be and the same hereby is dismissed.

John C. Wegner,

Referee.


text:
    New Jersey Department of Labor, Workmen’s Compensation Bureau.
    ANITA STRAHLENDORFF, PETITIONER, v. BOARD OF EDUCATION OF TOWNSHIP OF RIDGEFIELD PARK, RESPONDENT.
    Decided February 28, 1939.
    For the petitioner, Abram A. Lebson.

    For the respondent, Cox & Walburg.

   ❖ * * ❖ ❖ íjí #

1. The petitioner testified that she was a French teacher working at the Bidgefield Park school. On January 25th, 1938, somewhere around twelve-forty-five she fell on the sidewalk in front of the school steps. She testified that she had gone to lunch and upon her return from lunch had not yet reported to the school or entered the school building. She testified as to certain rules and regulations and requirements of teachers having to do with their responsibility for the conduct of school children going to and from school. She was presented with certain photographs but did not care to identify any of them as indicating the corner or place where the accident occurred. She further seemed to be unable to state what caused her to fall, that is whether it was by reason of the curb or sidewalk or the condition of the place where she was walking. It appears that the sidewalk in front of the school was concrete and except for that portion directly in front of the steps, has a grass plot on either side; a section of grass being between the inside edge of the walk and the school building and the outside edge of the walk and the curb. She was presented with a statement which she admitted she signed and read and it appears at the time she made the statement she said she tripped on the sidewalk or curb at the southeast corner of Bergen avenue and Hobart street. At that time she stated that she was returning to the high school coming back from lunch when this occurred.

2. Certain exhibits were placed in evidence and the testimony of Mr. Theall, who interviewed the petitioner, was taken and two photographs were identified. This witness also testified that the southeast corner was across the street from the ' location of the school and that with respect to that corner where the school was located the distance from the steps of the school to the corner curb was a distance of approximately eighteen feet.

3. After consideration of the testimony adduced before me, having in mind the testimony of the petitioner and the previous statement made by her and having a chance to consider the manner in which her testimony was given, it is my opinion that we are dealing here with a case involving an injury occurring on a public sidewalk and occurring at. a time when the party involved was not in the course of her employment. In my opinion the petitioner was still in the act of returning from her lunch to go to the school where she was a French teacher. For some unknown reason she fell at or in close proximity to a corner near the school but upon the public sidewalk. In my opinion her accident was a result of a risk to which the public generally was subjected and not one to which she was peculiarly subjected as an employe of the Board of Education and I so find as a fact.

It is, therefore, * * * ordered, that the petition herein be dismissed and judgment entered in favor of the respondent.

John O. Wegner,

Deputy Commissioner.