source: Caselaw Access Project

author: Kreamer, Commissioner.

license: Public Domain

text:
    Division of Tax Appeals.
    CITY OF NEWARK, PETITIONER, v. NEWARK AND ESSEX BUILDING CORPORATION, RESPONDENT.
    Decided March 25, 1947.
    Eor the petitioner, Vincent J. Gasale.

    Eor the respondent, Rilcer, Marsh & Scheerer (hy Theodore McG. Marsh and Marry Schaffer).

   Kreamer, Commissioner.

These are appeals hy the City of Newark .from judgments of the Essex County Board of Taxation granting reductions on land and building for the years 1943, 1944 and 1945. The subject property is located at 736-752 Broad Street and is more specifically designated as Block 145, Lot 1. Erected thereon is a thirty-six story store and office building. The property lies on the east side of Broad Street between Clinton and Commerce Streets. The frontage on Broad Street consists of 187.55 feet. It has side line depths along Clinton Street of 191.50 feet and along Commerce Street of 189.13 feet. The rear line is 176.52 feet.

The city by these appeals seeks the restoration of the original assessment for land and building. In each of the cases the assessment was the same. The County Board judgments granting reductions were the same for 1943 and 1944. The judgment for 1945 differed slightly. The figures are as follows:

19J/A-19U 19Jf5
County County
Assessment Board Board
Land ............ $1,751,300 $1,315,000 $1,315,000
Improvements ..... 4,200,000 3,700,000 4,000,000
$5,951,300 $5,015,000 $5,315,000

The respondent accepted the reductions granted by the County Board and filed no appeals for further reductions except in the 1945 case and this appeal was withdrawn by respondent at the hearing.

In each of the appeals John A. Linnett and Morris Goldfarb appeared for the city and Eranklin Hannoch and George Goldstein for the respondent, all witnesses testifying as to valuation.

The experts maintained their respective valuations on the land, exclusive of improvement, for each of the years 1943, 1944 and 1945, thus indicating no change in value thereon. Consequently their testimony with respect to land valuation and the final determination of value by this body as to land may be applied to all three cases.

Mr. Goldfarb and Mr. Linnett, for the city, testified to a value of $1,525,000 and $1,561,000, respectively, for the land, where as Mr. Hannoch and Mr. Goldstein, for the respondent, testified to a value of $1,315,000. The difference between the estimates on behalf of the city and the respondent resulted mainly from the application of a $6,000 per unit foot value by the city and a $5,000 per unit foot basis by the respondent with respect to the Broad Street frontage.

There was introduced into evidence in the 1943 ease a certified copy of a judgment of the Mew Jersey Supreme Court in connection with the 1942 appeal of the taxpayer. This judgment was rendered April 11th, 1945, in the matter of Newark and Essex Building Corp. v. The City of Newark et al., and recited that on January 4th, 1944, the State Board of Tax Appeals entered a judgment reducing the assessment, allocating $1,560,500 to land and $4,200,000 to building. The Supreme Court modified the determination of the State Board of Tax Appeals and entered a judgment which allocated $1,527,000 to land and $3,200,000 to building. See Newark and Essex Building Corp. v. City of Newark et al., 132 N. J. L. 574; 41 Atl. Rep. (2d) 894.

Both Mr. Goldstein and Mr. Hannoch testified in the certiorari proceedings before the Supreme Court in the 1942 case. The reported opinion of that tribunal, which may be found at the foregoing citation, reveals that the court based the decision on the testimony of Mr. Hannoch, stating: “All the facts considered, we can only conclude that the assessment should be reduced to comply with the views expressed by Mr. Hannoch.”

Mr. Hannoeh’s present estimate of land value, however, differs from the valuation given by him in 1942 case. In that case Mr. Hannoch testified to a valuation of $1,527,000 for the land whereas his estimate in the 1943 case is $1,315,000, a decline of over $200,000 in the opinion of this witness. The principal reason for this was that in the 1942 case Mr. Hannoch ascribed $6,000 as the unit foot valuation for the Broad Street frontage, whereas in the appeals now pending he ascribes a valuation of $5,000 per unit foot for the same frontage. This despite the fact that both Mr. Hannoeh and Mr. Goldstein have testified that no physical or economic change in the subject property took place between the assessing date for 1942 and the assessing date for 1943 such as would justify any change in valuation.

What may be accomplished by a manipulation of figures has already been commented upon by the courts. Haworth v. State Board, 127 N. J. L. 67; 21 Atl. Rep. (2d) 309; City of Plainfield v. State Board, 19 N. J. Mis. R. 313; 19 Atl. Rep. (2d) 195. We shall proceed first to examine the testimony of the experts for the respondent and ascertain whether there is anything to be found therein to justify the change in the basis of their valuation of the land for these two years.

The factors which, according to the witness Eannoch prompted him to change his land valuation from $6,000 per unit foot on Broad Street in 1942 to $5,000 in 1943, may be summarized as follows:

(1) That the $6,000 unit figure used in the 1942 case was “more or less arbitrarily set;” that since the time of Ms previous testimony this Division had rendered a judgment with respect to other property in a different block on Broad Street at $5,000 per unit foot. The witness further stated that in coming to his conclusion he had sought to make his present valuation uniform with the base set in that decision;

(2) that the market value of the land had declined to $5,000 per unit foot “by reason of the improvement that’s on it;”

(3) that where a building thirty-six stories in height improves a plot of land of this size there is a much greater ratio as between building and land value than a ratio of two to one; and

(4) that there was a sale of comparable property which indicated a $5,000 per' unit foot valuation.

With reference to the first factor it is interesting to note that in his testimony before this Division and before the Supreme Court in the 1942 case this witness made no statement that his $6,000 unit foot valuation was “arbitrarily set.” , In his deposition before the Supreme Court the witness stated that his estimate of the land value was “based on my physical estimate of the land value of $6,000 per front foot for 189. feet of frontage on Broad Street.” As to the judgment which purportedly entered into his calculations, the witness admitted on cross examination that he had ar- ' rived at his present opinion of value before the rendering of the determination and, therefore, it could not have influenced him. Mr; Hannoch admitted that as of the assessing date a hypothetical buyer could not divine what this Division’s judgment was going to be.

As to the second factor we are at a loss to understand the process of reasoning which caused the witness to conclude that the market value of the property had declined from $6,000 to $5,000 per unit foot by reason of the “improvement that’s on it.” The same improvement in the same economic and physical condition as of the assessing date for 1943 existed as of the assessing date for 1942. In both years the witness’ front foot valuation on Broad Street was to a depth -of 100 feet. In both years the witness gave the same valuations for the Commerce Street and Clinton Street frontages. The effect of the testimony of this witness, therefore, is that the Broad Street frontage for a depth of 100 feet declined in valuation while the rear 90 feet frontages on Clinton and Commerce Streets, respectively, remained constant. This despite the fact that the entire area is one parcel used for one purpose and has not changed in size or economic circumstance during the year. In this connection it is interesting to contrast the testimony of Mr. Hannoch to that of his colleague, Mr. Goldstein. As indicated, this witness also testified in the 1942 case and ascribed. a unit valuation on Broad Street of $6,000 to a depth of 100 feet and changed to his present unit valuation of $5,000 in 1943. He, however, increases his valuation for the side street frontages over his 1942 figure and asks this body to believe that the rear portion of the plot actually increased in value while the Broad Street frontage decreased in value. The postulation of either witness would be incredible if standing alone, but is absurd when compared each with the other.

Nor are we impressed with Mr. Hannoch’s theory of proportion of much greater than two to one of building value over land, since it does not apply with equal force to his 1942 valuation. In the former year his building valuation exceeded the ratio of two to one over the land valuation by a bare $146,000, whereas in 1943 the excess was more than $840,000.

The record with respect to the sale of comparable property reveals no factors which are of assistance in interpreting the alleged sale in terms o£ comparison to any reasonable degree of similarity with the property under review. Colonial Life Insurance Company of America v. State Board of Tax Appeals, 126 N. J. L. 197; 18 Atl. Rep. (2d) 559; New York Bay Railroad Co. v. Kelly, State Tax Commissioner, 22 N. J. Mis. R. 204; 37 Atl. Rep. (2d) 624. No satisfactory testimony was given as to the date of the sale, the surrounding circumstances, the identity of the buyers or sellers, the location or size of the property, or whether it was a sale of land only, or land and improvements.

It will not be necessary to review in detail the testimony of Mr. Goldstein since it is subject to many of the same criticisms enumerated herein with respect to the testimony of Mr. Hannoeh. For the reasons stated, we are not impressed with the testimony of either of these witnesses who in a previous year “testified to an entirely different basis of valuation.” Public Service Electric and Gas Co. v. Township of Raritan, New Jersey Tax Reports 1912-1934, p. 622. In the case of Hoboken Land Improvement Co. v. City of Hoboken, New Jersey Tax Reports 1934-1939, p. 150, it was said:

“As is usual in the testimony of experts, widely divergent views of values were presented on behalf of the parties litigant. It is well settled that testimony as to value, even that of experts does not differ in principle from evidence on other questions. The opinions are not conclusive and the Board must consider all other facts in evidence and determine their weight and value by common sense' and knowledge of the subject. * * * State of New Jersey v. United New Jersey Railroad and Canal Co., 55 N. J. L. J. 129; 26 Atl. Rep. 135; affirmed, 11 N. J. Mis. R. 694; 167 Atl. Rep. 880.

“Little weight can be given to the testimony of some of the experts for respondent, as their conduct on the witness stand exhibited prejudice and partisanship, and they were evasive and reluctant to explain how they determined the sound values of the properties on the assessment dates. Furthermore, in appearing before the Board in other eases, some of these experts have testified to values contradictory to those previously placed on the same property, as of the same date. The Board therefore must evaluate the testimony of these witnesses with due regard to the impressions which they made while testifying.”

See, also, Aeolian Co. v. Borough of Garwood, New Jersey Tax Reports 1912-1934, p. 611; State of New Jersey v. United New Jersey Railroad and Canal Co., 71 Atl. Rep. 228; 55 N. J. L. J. 21; 26 Atl. Rep. 135; affirmed, 11 N. J. Mis. R. 694; 167 Atl. Rep. 880.

As to the building, all experts viewed the subject property as investment property and arrived at their opinions of value from the capitalization approach in all three cases.

We will first analyze the testimony in the 1943 case.

Income from the building is derived from three main sources, namely, the stores, the bank and the offices. The bank tenant, known as the National Newark and Essex Banking Co., occupies two floors of the property under lease from the respondent. Some attempt seems to have, been made by appellant to throw doubt upon the validity of the rental paid by this tenant, but since both experts for the appellant considered the rental paid as fair and so treated it in their calculations, we must conclude that the- lease was hona fide.

Mr. Linnett for the city took the actual gross income of $896,586.34, deducted operating expense and charges, and arrived at a net income figure. Mr. Linnett in his calculation used a risk rate factor of four per cent., and a depreciation factor of .909 and reached a value for the building in the sum of $4,195,900.

Mr. Goldfarb in his capitalization approach differed from his colleague, Mr. Linnett, although they both arrived at comparable results. Instead of using the actual gross income he stabilized the rental for stores and offices and thus arrived at an effective gross income of $1,000,721 after deductions for vacancies. This witness employed a risk rate of six per cent, and reached a capital value of $4,313,000 for the building.

Mr. Hannoch, for the respondent, used the same gross income figure of $896,586 as did Mr. Linnett, and after deducting operating and maintenance expenses there was left a net income, also comparable to Mr. Linnett’s. Mr. Hannoch applied a risk rate of five per cent, and a depreciation factor of two per cent, and arrived at a value for the building of $3,470,512.

Mr. Goldstein’s testimony for the respondent was in all respects similar to that of his colleague except that he used a risk rate of six per cent, and arrived at a valuation for the building of $3,107,000.

There remains to be considered the effect of the judgment of the Supreme Court in the 1942 case, a certified copy of which was submitted in evidence by the respondent in the 1943 case now being considered. This judgment, as shown, reduced the assessment to $1,527,000 for the land and $3,200,000 for the building.

The record of this judgment could not have been, nor was it introduced under any theory that it conclusively determines the assessment for 1943. It was held in United New Jersey Railroad, &c., v. State Board, 101 N. J. L. 303; 128 Atl. Rep. 427:

“Bach annual assessment of property for taxation is a separate entity, distinct from the assessment of the previous or subsequent years.”

Also, in City of Hoboken v. Hoboken Land and Improvement Co., New Jersey Tax Reports 1934-1939, p. 557, it was said:

“A judgment of valuation of real estate for taxation fox one year is not res adjudicata as to an assessment for a following year. * * * The judgments for prior years may be considered but are not conclusive.”’

However, the introduction of the judgment was proper as part of the tax history of the subject property, and as such was a “circumstance to be considered in the resolution of the question of valuation.” Colonial Life Insurance Company of America v. State Board of Tax Appeals, 126 N. J. L. 126; 18 Atl. Rep. (2d) 625.

It has been repeatedly held by this body and the higher tribunals that where the evidence adduced indicates no change in the condition of the property either physically or economically such as would justify an increase in valuation, judgments of prior years are most persuasive and will be followed. In Carteret Academy v. City of Orange, New Jersey Tax Reports 1912-1934, p. 364, a previous assessment against the same property had been sustained by the courts. The State Board held:

“Ho change had taken place * * * between the previous assessment and. that of October 1st, 1922, and there is no reason why the assessment of this last mentioned date should be disturbed.”

In Skouras Theatre Corp. v. State Board of Tax Appeals, 123 N. J. L. 52; 8 Atl. Rep. (2d) 72, the assessment for the year 1936 was involved which had been increased above the 1935 figure. On certiorari the Supreme Court stated:

“There is nothing in the record to justify the increase in assessment. One of the witnesses, called for the city, said there was no increase in value between 1935 and 1936. Ho proof is needed, however, on the point.

“After a careful review of all the proofs, we are satisfied that the judgment of the State Board of Tax Appeals should be reversed, and it should enter judgment reducing the 1936 tax assessment to the same figure which it fixed in 1935; that is, land, $177,100, building, $60,000, total, $237,100.”

In Haworth v. State Board of Tax Appeals, 127 N. J. L. 67; 21 Atl. Rep. (2d) 309, the Supreme Court in reviewing judgments of the State Board for the years 1938 and 1939, sta ted:

“A consideration of the tax history of this case (Koch v. Jersey City, 118 N. J. L. 85, 88; 191 Atl. Rep. 558; affirmed, 119 N. J. L. 432; 197 Atl. Rep. 275), clearly indicates the weakness of the borough’s present appeal. Prom 1927 through 1936 the borough assessed these lands at $200,000. In 1937, the assessed value was fixed at $250,000 and this value was approved by this court in Hackensack Water Co. v. State Board of Tax Appeals, supra [122 N. J. L. 596; 7 Atl. Rep. (2d) 628], Mr. Pricker testified to the effect that there has been no essential change in the condition of the land and. that the trend of value of real estate, at the time of the assessments in question, was downward. Under such circumstance, the borough’s argument for an increase in the assessed value of the land bears little weight.”

In Hackensack Water Co. v. State Board of Tax Appeals, 129 N. J. L. 535; 30 Atl. Rep. (2d) 400, the Supreme Court again confirmed the same doctrine, holding:

“The tax history in this case, the absence of testimony to justify an increase, coupled with the quality of the testimony of Mr. Pricker, is persuasive, in our opinion, that the State Board of Tax Appeals erred in fixing the true value of the property on the assessing date.”

See, also, Camden County Realty Co. v. State Board, 131 N. J. L. 132; 35 Atl. Rep. (2d) 221.

The record demonstrates to our satisfaction that there has been no physical or economic change in the land between the assessing dates for the years 1942 and 1943. As already indicated, both witnesses for the respondent testified to that effect, and counsel have assumed that position in their brief. The petitioner has not produced any satisfactory evidence to the contrary.

We are convinced, therefore, that under the circumstances of this case we are hound to follow the judgment of the Supreme Court in the 1942 ease in arriving at our determination of the value of the land in the 1943 appeal now under consideration.

Counsel for the respondent, although acknowledging that the judgment of the previous year should be followed, yet argues that the figure presently placed upon the land by respondent’s experts should be adhered to. This contention is based upon the theory that the judgment of the Supreme Court fixing the assessment for the year 1942 is not separable as to land and building but is effective only in its totality. From this premise it is urged that since the total figure of the 1943 judgment of the County .Board with which the respondent was satisfied and from which it did not appeal exceeds the total figure of the 1942 Supreme Court judgment, the County Board judgment should not be disturbed either as to land or building. The same process of reasoning is made to justify Mr. Hannoch’s changed 1943 valuation, which while lower in 1943 as to the land, yet in its totality compares with the 1942 valuation. The argument, if sound, would prevent this body from separately increasing the assessment figure placed upon the land by 'the County Board to conform with the 1942 judgment on the land.

It is incumbent upon us to examine into the respondent’s theory of total valuation and determine whether it has any basis in law.

The following are the sections of our Tax Act applicable to the problem:

“54:4-23:—The assessor shall ascertain the names of the owners of all real property situate in his taxing district, and, after examination and inquiry, determine the full' and fair value of each parcel of real property situate in the taxing district at such price as, in his judgment, it would sell for at a fair and Iona 'fide sale by private contract on 'October first next preceding the date on which the assessor shall complete his assessments, as hereinafter required.

“54:4-24:—The assessor shall make a list in tabular form of the names of the owners, and set down in proper columns opposite each name the description and area of each parcel sufficient to ascertain its location and extent and the value of each parcel as determined by him. Property held in trust shall be assessed in the name of one or more of the trustees as such, separately from his individual assessment. If the name of the owner of a parcel shall be unknown, it shall be so entered in the list of names, and where an owner is not known to reside in the taxing district the list shall describe him as nonresident.”

“54:4^26:—In listing the names of owners and properties the assessor shall follow such forms and methods as may be prescribed by the state tax commissioner, who may by rule direct the assessor in a taxing district to determine the true value of each parcel of real estate assessed by him without the building and improvements and to note the same on the list, and to determine and note separately the true value of every building and other structure on each parcel, and add and carry out the result as the assessed value of the parcel, and in such case the receipt given for the payment of the tax shall contain the separate valuations. The commissioner may by rule direct the assessor in a taxing district to enter on his list separately the number of acres of arable land, of meadow pasture land, of woodland, and of uncultivated upland and swamp land in each parcel as near as can be.”

Particular notice is commanded by the directive in R. S. 54:4-26; N. J. S. A. 54:4—26, to the assessors of a taxing district, under an existing rule of the State Tax Commissioner, to list separately the value of the parcel without the improvement, and the value of the improvement, and “then to add and carry out the result as the assessed value of the parcel ” (Italics supplied.)

All of the foregoing sections were at one time included in the same section known as section 401 of article 4 of the General Tax Act and, of course, are in pari materia and must ba read together. They were first construed by the Supreme Court in City of Newark v. Timer, 12 N. J. Mis. R. 125; 170 Atl. Rep. 37. In that case the taxpayer appealed to the County Board from the valuation of the building only, and obtained a reduction. The city appealed to the State Board and sought the restoration of the assessment on the building. At the hearing before the State Board the city attempted to introduce testimony as to the true value of the premises as a whole. This was objected to on the ground that the only issue was the value of the building. The State Board sustained the objection, affirmed the action of the County Board, and dismissed the appeal. The Supreme Court on certiorari affirmed the judgment of dismissal, stating:

“Article 4, section 7, paragraph 12, of our State Constitution, provides that 'property shall-be assessed for taxes under general laws, and by uniform rules, according to its true value.’

“Section 202 * * * of the General Tax Act * * * ■provides: 'All property * * * shall be subject to taxation annually * * * at its true value * * * and shall be valued by the assessor * * *.’

Section 401 of article 4 of the General Tax Act as amended Pamph. L. 1927, p. 576; Comp. Stat. Supp., § 208-66d (401) [N.J. S. A. 54:4-23; 54:4-24; 54:4-26], provides: .‘The assessor shall * * * determine the full and fair value of each parcel * * * and said assessor shall make a list. * * * In listing the names of owners and properties the assessors shall follow such forms and methods * * * prescribed by the State Board * * * said board may by rule direct the assessor to determine the true value of each parcel of real estate * * * without the buildings and improvements and to note the same on the list, and to determine and note separately the true value of every building and other structure on each parcel, and add * * * the same as the assessed vaule of the parcel. * * *’

“The State Board did by rule direct the division * * * and, pursuant to such direction, the city of Newark did (note values separately). * * * One of the objects sought * * * by the statute and * * * rule was to make it more readily appear that there had been a compliance with the constitutional requirement of taxation Ty uniform rules. -■S t|! *5

“But it is quite apparent that at least one object of the statute and rule was to clarify and simplify appeals before the county and state boards. If, as in the instant case, the property owner is satisfied with the asesssment against his land, but feels that the assessments against the improvements thereon is too high, he is not compelled to appeal from the assessment against the land, but does appeal from the assessment upon the improvement. In this way the issues before the appellate body are much confined.

“In the present instance * * * the sole question was the propriety of the assessment on the improvements. * * *

“As was stated by the State Board * * * the board’s jurisdiction was limited to the issue presented by the petition of appeal, and the proof was necessarily confined to that issue. * * *

“Since, then, the sole question * * * was the true value of the improvement, it was not erroneous to exclude testimony as to the value of the land and building in one lump sum. * * *”

The case of Koch v. Jersey City, 118 N. J. L. 85; 191 Atl. Rep. 558; affirmed, 119 N. J. L. 432; 197 Atl. Rep. 275, was a decision by our Supreme Court construing the Timer case. Here the taxpayer appealed to the State Board on land and building. At the hearing the taxpayer called an export who placed a value on land only. This was objected to on the ground that any valuation should be in “a lump sum for the whole.” The taxpayer claimed the right to produce evidence separately as to land and then as to the improvement or vice versa. The State Board excluded any separation of items and dismissed the appeal. The Supreme Court reversed the State Board on certiorari, stating:

"The plain implication of the decision (Newark v. Timer) is that appeals may he taken separately on land and buildings and each of the two items considered on its merits. (Italics supplied.) In fact, this was done in the present eases, and as we understand the matter, on the printed forms supplied by the board, which append footnotes in fine print, giving instructions about filling blanks, &c. Continuing with lot 22 E as a sample case, we find the petition states, following the form, the city valuation to be, land $4,700; improvements $4,100, personal, blank, total, $8,800; and asks that it be reduced to land $3,250, improvement $2,500, personal, blank, total $5,750. The records in the other cases are the same in form, with different amounts. They show, therefore, in each case (except a vacant lot), an appeal on land valuation, and an appeal on improvement valuation, either or both affecting the resultant total. If appellants are allowed, as we think they should be, and as the Timer ease intimates, to appeal land and building valuations separately on the record, they must be allowed to prove their challenges separately. It may be that where both are challenged in one appeal testimony as to total value is permissible. This seems to be assumed in the Timer case, but the . point is not now before us and we do not pass on it. We hold, however, that it was error to exclude the testimony as to separate land valuation, and for this the judgment of the State Board must be set aside and the cases remanded for further hearing in consonance with these views.”

A very recent pronouncement on the subject to the same effect may be found in Griffith v. Newark, 125 N. J. L. 57; 13 Atl. Rep. (2d) 860. In this case the taxpayer appealed on land and building and the assessments were affirmed by the County Board. The State Board reduced the valuation on land and building, but the taxpayer sought further reductions on certiorari. The taxpayer produced witnesses who testified -to the value of the land and other witnesses as to the building. Taxpayer’s witnesses also testified separately as to the entire value of land and building together. The latter valuation was lower than the figure obtained by adding the land and building valuations and it was this figure that the taxpayer contended should be adopted. The court said:

“While admitting that evidence of the separate values of land and building is proper, prosecutor argues that standing alone this should be given no probative force as opposed to testimony of the entire value of the property in its then condition as a business venture. However, the method of arriving at a valuation by separate assessments of land and building has long been approved. Koch v. Jersey City, 118 N. J. L. 85; 191 Atl. Rep. 558; affirmed, 119 N. J. L. 432; 197 Atl. Rep. 275. The statute requires the valuation to be apportioned between land and improvements.”

It is difficult to conceive what comfort respondent may receive from an analysis of Colonial Life Insurance Company of America v. Jersey City, 18 N. J. Mis. R. 60; 11 Atl. Rep. (2d) 14, a case, relied upon by it. Whatever was said concerning the summation of separate valuations for land and building was qualified by the reference to the “superior authority” of the Koch case. In any event, the board was directing its remarks to the probative value of proof and can in nowise be considered as authority on the question of .separability of an assessment finally arrived at by a court of law.

It is at once apparent from the principle enunciated in the Timer, Koch and Griffith decisions that: (1) separate ap-peals may bo taken on land or building and (2) where appeals on land and building are taken by a single petition, the assessments may be challenged separately and values proven separately. The respondent’s contention, therefore, that the 1942 judgment is not separable as to land and building, is not well taken. For to say on the one hand that separate appeals and separate challenges of land and building valuations are proper, and on the other hand to deny the separability of valuations when finally determined, is to arrive at discordant conclusions. We conceive that the respondent is bound to the figure of valuation set by the 1942 judgment as to the land. As to the building, the figure determined upon by the County Board, although higher than the 1942 judgment, cannot be disturbed since no appeal is pending by the taxpayer which can accomplish this result. All that is before us is the appeal by the city to restore the separate assessments on land and building.

In the 1944 and 1945 cases a stipulation was entered into between counsel that so much of the testimony that pertained to the witnesses’ methods of valuation, questions on cross-examination and answers to such questions, objections made by counsel for both parties and the rulings of the panel would apply to the record of the testimony of the witnesses in these cases, without being repeated in full. Excepted from the stipulation was the valuation arrived at by each witness and the figures used for that valuation. Also excepted from the stipulation was the exhibit submitted in the 1943 appeal, this exhibit being the certified copy of the 1942 Supreme Court judgment.

In the 1944 ease Mr. Linnett again took the actual gross income which for this year amounted too $947,932.65, from which he deducted operating expense and charges. By the use of the same risk rate factor of four per cent, that was used in 1943, and a depreciation factor of .954, this witness’ valuation for the building was capitalized at $4,466,900.

Mr. Goldfarb, as he did in the 1943 appeal, stabilized the income in the 1944 and arrived at an effective gross income of $1,086,412. Using the same risk rate of six per cent, as he previously had, he reached a reflected value of $4,848,000 on the building.

Mr. Hannoch, in his capitalization approach in the 1944 case considered the same income as did Mr. Linnett, namely, $947,932. Deducting expenses and charges gave him a net income in substantially the same amount that Mr. Linnett considered. Mr. Hannoch took the same risk rate of five per cent, as in the 1943 case, and a depreciation rate of two per cent, and arrived at a value for the building as of October 1st, 1943, in the sum of $3,788,170.

As in the 1943 case Mr. Goldstein’s testimony was in all substantial respects similar to Mr. Hannoch’s, except that he used a risk rate' of six per cent, and arrived at a value for the building of $3,404,500.

In the 1945 case Mr. Linnett took the actual gross income of $1,011,762.41 and after deducting expenses and charges and arriving at a net income figure, he then took all the other factors into consideration including a risk rate of four per cent, as ho did in the prior year-s, and arrived at a valuation for the building in the sum of $5,336,170.53, which he rounded out to the figure of $5,236,200.

Mr. Goldi'arb, as he did in the 1943 and 1944 appeals, stabilized the income and arrived at an effective gross income for the entire property in the sum of $1,172,104. Using the same method of calculation as in prior years and the same type of risk rate of six per cent, this witness’ capitalized value for the building was $5,512,000.

For 1915 Mr. Hannoeh considered the same income as did Mr. Linnett, namely $1,011,762. For this year, in his capitalization approach, this witness took a risk rate of six per cent, for land and building instead of the five per cent, rate that he had used in the 1943 and 1944 eases. By reason of the procedure followed by him, the witness arrived at a value of the building as of October 1st, 1944, in the sum of $4,000,000.

Mr. Goldstein also took the gross income of $1,011,762 and his testimony was in all respects similar to that of his colleague, Mr. Hannoeh, in the 1945 case. He set the value of the building at $4,014,700, a figure comparable to the value set by Mr. Hannoeh.

It should be observed that Mr. Hannoeh and Mr. Goldstein for the respondent and Mr. Linnett for the petitioner testified to the same gross income figures for the three years under appeal, i. e., $896,586 for 1943, $947,932 for 1944, and $1,011,762 for 1945. It should also be observed that each witness increased his valuation on the building in 1944 above his 1943 valuation in comparable amounts. Mr. Linnett testified to an increase of $271,000, Mr. Goldstein $297,000, and Mr. Hannoeh $318,000.

In 1945 Mr. Linnett and Mr. Goldstein more or less agreed as to the amount of increase in value on the building above their 1944 valuations, Mr. Linnett testifying to an increase of $770,000 and Mr. Goldstein to an increase of $610,000. Mr. Hannoch however, falls far below the level of increase-of any of the witnesses. His increase over his 1944 building valuation amounted to only $212,000. The principal reason for this, the statistics reveal, is that in 1943.and 1944 Mr. Hannoch used a risk rate of five per cent, whereas in 1945-he used a risk rate of six per cent. Thus he arrived at a disproportionately lower figure of increase than that of the-other experts who used the same risk rate for all three years.

Mr. Hannoch ascribes the following reasons for the increase in risk rate in the 1945 case:

(1) that as of October 1st, 1944, the building had become fully occupied and there was not the opportunity-for renting at increased rentals and therefore the gross income had' become constant;

(2) that in October, 1944, we were in a highly speculative-real estate market where the risk involved in the purchase-of property was greater than it was in the preceding year;

(3) that with regard to office space throughout the city,, conditions were better with regard to occupancy as of October 1st, 1944, than they were as of the two prior years; that the amount paid for' office rent per square foot was higher than in prior years; and

(4) that the sale of the Griffith Building at Ho. 605 Broad Street on October 17th, 1944, and the Globe Building at Ho. 20 Washington Place on September 18th, 1945, indicated a return of nine per cent! Both buildings were a number of blocks north of the subject property.

We are not persuaded by any of the foregoing factors. The-fact that the building was fully occupied as of the assessing date would not in‘our opinion have the effect of increasing the risk rate. The complete occupancy of the building and the improved economic condition would, to our mind, have the effect of decreasing the risk that would be encountered rather than increasing it. As to the assertion that the income-had become constant by reason of complete occupancy, Mr, Hannoch admitted that he had made no analysis of the leases and therefore did not know (a) what proportion of the building was leased, (b) the status of the leases in existence or (e) whether the rental was “going to be frozen for three years, or maybe only three months or maybe one month.” Mr. Hannoch further admitted, that he did not have any of this information at the time he arrived at his opinion of value.

Also, there was no proof that the alleged speculative market asserted to have only begun in October, 1944, would adversely affect the stability of investment in the sub jeer property.

As to the sales of the other properties we do not consider either of them as at all comparable. Thus the particular sales referred to cannot be used as guide posts in setting the risk rate. The improvement under appeal is the most modern •office building of its kind in Newark and constructed strictly for income purposes. It has been judicially determined that the Griffith building was constructed by the owner “as sort •of monument to himself” where the “income is assuredly not the sole test of value,” Griffith v. City of Newark, 125 N. J. L. 57; 13 Atl. Rep. (2d) 860. Additionally, no factors were given by the witness nor, from our own personal inspection, could have been given, as to either sale which would indicate the comparability of the improvement involved therein with that of the subject property.

We are thus driven to the conclusion that there was no justification for an increase in the risk rate for 1945 as testified to by Mr. Hannoch. All the other experts employed a ■constant factor. We hesitate to say that Mr. Hannoeh’s failure to do likewise was grounded in a desire to influence his result. Yet we feel that, together with the unjustified change in the basis of his land valuation already commented upon it is illustrative of the general unreliability of this witness’ testimony. See Public Service Electric and Gas Co. v. Township of Raritan, supra; Hoboken Land Improvement Co. v. City of Hoboken, supra.

In view of all of the foregoing and upon an actual inspection of the subject property, we have arrived at the following •determination:

1942

The judgment of the Essex County Board of Taxation is modified as to the land, and the assessment restored to the extent of $1,525,000; as to the improvement, the petition of the city is dismissed and the judgment below reducing the valuation to $3,700,000 is accordingly affirmed.

1944 and 1945

The judgments of the Essex County Board of Taxation are modified as to land and improvement, and the assessments restored to the extent reflected in the following figures:

1944
Land ..... $1,525,000
Improvement 3,800,000
$5,325,000
1942
Land ..... $1,525,000
Improvement 4,200,000
$5,725,000


author: Drewen, C. P. J.

text:
    Hudson County Court of Common Pleas.
    GEORGE DORIAN, PETITIONER-APPELLEE, v. FEDERAL SHIPBUILDING AND DRY DOCK COMPANY, RESPONDENT-APPELLANT.
    Decided April 7, 1947.
    Bor the petitioner-appellee, Isaac W. Seiler (Aaron Gordon, of counsel).
    Bor the respondent-appellant, Slrylcer, Tams & Horner (Andrew Lawrie, of counsel).
   Drewen, C. P. J.

The petitioner was an employee of' respondent company at its Kearny shipyard. He is now totally and permanently disabled by a hemiplegia, or “cerebral lesion” as the medical experts state it. The accident alleged to have resulted in this condition occurred, it is claimed, on January 17th, 1944. The original claim petition was not filed until March 26th, 1945, and it describes the accident in these words: “I was knocked down by the crowd of the day crew which was going off duty as I was going on. My right hand was badly cut and bruised and I was severely shocked and was confined to St. Francis Hospital until April 10th, 1944.” In the claim petition permanent injury is alleged to-have resulted as follows: “My nervous system has been completely shattered; my right hand has been permanently injured. I have lost my power of speech.”

The character and extent of the disability are not in dispute. The single question to be determined is that of causal relation between petitioner’s present state and the accident alleged. The only testimony of the accidental happening is-that of petitioner himself. There is no direct evidence that anyone else saw it. The narration of the accident and the sequel as he gives it is as follows: He was knocked down, he says, sustaining a bruise in the bone of the right shin and on the arm, also a cut on the back of the hand; and his ‘diead was injured.” When he was knocked down he stayed there a minute or two, then “some other fellows” helped him get up. While on the ground he “didn’t feel very good * * * the eye and the head were injured * * While down for a minute or two he was dazed; when helped up he “stood there for a little while * * * -^g nervous * * * then went to the shop.” From there he went to his foreman to-get a ticket to the first aid. At the first aid station he saw a nurse and says he “told her that I had a hand' injury and the head injury.” At the first aid station, he says, “they just fixed up my hand * * * they gave me a card to get me flash glasses.” On leaving the first aid station he went back to work and remained at work throughout his regular time, plus four hours of overtime. That night he felt “very funny.” The head and the hand and the leg hurt him. When he-touched his eye, the right one, it hurt. It was swollen, and there were two big bruises on the right shin. And the Tight hand was cut on the side of it. His head was “bruised, .swelled.” The swelling was on the right side of the forehead, just above the right eye. There was nothing else that gave him any trouble that night. That night his head hurt him all over, but the bruise was just across the eyebrow. After completing his overtime work on the morning of January 18th he went directly by bus, tube and subway to his home in Brooklyn, reaching there about 5:30 A. m. He went promptly to bed and upon retiring felt bad all over, his tiead, arm and leg. He arose at 12 noon on the 18th. He left his home in time to report for work on his regular shift from 4 p. M. to 12 midnight. His right arm was bothering him. It hurt him. When ho boarded the bus in Jersey City for the last stage of his trip to the shipyard, he “got the feeling in my arm;” he could not move it one way or the other. This ■occurred between the time he boarded the bus in Jersey City and the time he left it at the shipyard in Kearny. Upon arriving at his work place in the yard someone took him to the first aid station, whence he was removed, after a time, to St. Francis Hospital. He remained in the hospital for about three months, until April 10th. Thus does petitioner describe the accident, the injury and its sequel. As to the accident, there is no testimony but his own, unless we add that of his wife regarding her having seen a lump over petitioner’s right eye upon his return home, and to which further reference shall presently be made.

The issue here centers in the question whether the injury inflicted by the fall included an injury or trauma to the head. Petitioner’s wife testifies that upon her husband’s return from work in the early morning of January 18th his hand was bandaged and that she noticed also a swelling over the right eye. In another place she describes it as “just a bump.” She adds that there was no cut, no discoloration, no evidence ■of treatment. She gives the proportions of the bump or swelling as about one-half inch in length and one-quarter inch high. When she saw her husband at the hospital on the morning of January 19th she did not notice the bump. As already indicated, this testimony of the wife, together with that of petitioner, is all that the record tells of the accident itself. It is the uncontradicted medical proof in the case that an evidence of trauma like that just described would develop within one hour after a blow sufficient to cause it and would remain six or seven days.

It so happens that the medical controversy on the vital question of causal relation between the disability and the accident is resolved into the simple issue of fact as to whether the petitioner’s fall did actually include a head trauma, or anything more than the abrasion on the back of the hand. This simplification comes about in the manner following. The medical experts called by petitioner testified to causal relationship upon a strict hypothesis that included the as-1sumption of traumatic injury to the head, while the medical experts called by respondent testified to the absence of such relationship upon a hypothesis that excluded such injury. The former experts, however, upon being finally required to state their opinion upon a contrary hypothesis, that is one excluding an assumption of head trauma, declared that upon that basis they could find no causal relation between the claimed accident and the disability; and the experts called by respondent expressed the opposite reversal of opinion upon a corresponding change in the hypothesis submitted to them. Thus it is that all controversy centers in the presence or absence of head trauma, one result of this being that without head trauma there can be no causal relation, in the agreed opinion of the doctors. It must be apparent, however, that even without this ultimate explicit medical assent, the inflicting of head trauma must still be regarded as the major question, for the reason that the expert opinion of causal relation rested throughout upon an assumption of that factor, just as the contrary opinion rested upon its omission.

It is respondent’s contention in this respect that there was no head trauma, and that all averments of that kind now made are entirely the result of afterthought. Eespondent contends that, notwithstanding the testimony of petitioner and such corroboration as his wife may be said to afford, the instances of petitioner’s failure to report any injury to his head on occasions when he was required to describe the accident and to state such injury had there been one, plus the instances of the failure of disinterested persons to observe on petitioner’s head or face any external evidence of trauma, even under such circumstances that they would quite certainly have done so had the evidence been present, are so numerous and consistent as to establish preponderating proof against the claim.

Prom the determination and finding of' fact below we learn that the deputy commissioner, having found this “to be a very difficult ease to decide, * * * concluded to give the benefit of the doubt, in favor of the petitioner and make an award.” What the doubt was or upon what appraisals of proof it was resolved does not appear, except only in so far as it is said that the Bureau had before it “the positive testimony of petitioner, corroborated by his wife, of the trauma, while the proof of the respondent was negative, namely, that no evidence of injury to the head was found and that no history was noted.” Defensive proof cannot be rightly dismissed because it is negative. The normal, ordinary thesis of defense in cases of every kind is negative, and while proof may be negative in form its cogency and consequence may well be clearly positive. Whether petitioner’s burden is expressed as the greater weight of the credible evidence or as a preponderance of probabilities, the result is the same in that it remains for him to establish the prevailing proof. On which side is the preponderating proof here to be found? The problem is that of weighing evidence by a determination of the credible and the probable. The task is to search out the dynamics of the proof and rest the decision where they carry it. If the process appears too meticulous and overlong, it is so out of deference to grievous matter.

The principle by which in the main the test must be made is set forth in Wigmore (3d ed.), § 1042, as follows:

“A failure to assert a fact when it would have been natural to assert it amounts in effect to an assertion of the nonexistence of the fact. This is conceded as a general principle of evidence. There may be explanations indicating that the person had in truth no belief of that tenor, but the conduct is prima facie an inconsistency. There are several common classes of cases:

“(1) Omissions in legal proceedings to assert what would, naturally have been asserted under the circumstances;

“(2) Omissions to assert anything or to speak with such detail or positiveness, when formerly (previously) narrating, on the stand or elsewhere, the matter now dealt with.”

Numerous authorities that support this text present a wide variety of instances in which the principle is shown to have been applied; among them is the case of State v. Rosa, 71 N. J. L. 316; 58 Atl. Rep. 1010. In'the latter case one who had testified in a former trial wherein the same or similar facts were at issue was confronted with his failure to state in his testimony on' the prior occasion certain relevant details which he included in his testimony on the later occasion. The witness attempted to explain the omission by saying that he forgot to tell, and that on the prior occasion he had not been- questioned on the point. Mr. Justice Dixon said for the Court of Errors and Appeals: “The circumstances of the case render it probable that this same scene was the subject of the former examination, and his declaration that when previously testifying he forgot to tell about it implies that there was a proper opportunity for telling it if it had been present in his mind.”

The principle of law thus exemplified is clearly applicable here, and it falls within both of the classifications that Wig-more presents. In the first of these is the failure of petitioner to include a head injury in the filed compensation claim, and in the second is the failure to tell of a head injury to the doctors, the nurse or to the foreman, Simonetti, when there was every reason and complete occasion for his doing so. Supplementing these omissions is the evidence adduced by respondent of the observed non-existence of the lump on petitioner’s forehead spoken of in the testimony of petitioner’s wife.

The person who first saw petitioner immediately following the claimed accident on January 17th is the witness Anna M. G-arley, a nurse. At the time of the hearing she had had twelve years’ experience as' a registered nurse and had been employed in that capacity at respondent’s plant, though at the time of the hearing she had been out of respondent’s employment for a considerable period. The card record of her interview with petitioner is in her handwriting. She had it before her while testifying. In response to her inquiry for the nature and cause of his trouble petitioner stated to Miss G-arley “I slipped and fell, striking my right hand.” The nurse found an abrasion on the back of the right hand and the right third finger, and of which she made notation. She says he did not tell her of any injury to his head and that she saw no evidence of such injury. She cleansed the wounds on petitioner’s hand and applied dressings thereto. On the same visit to the nurse petitioner told her also of a welding flash experience during the prior evening and which necessitated treatment for irritation of the eyes. The nurse examined petitioner’s eyes and observed a welding flash irritation in both, a common occurrence in shipyards of which the witness had treated many eases. In the course of her examination of petitioner’s eyes she noticed nothing abnormal about his forehead or face. A note was written on the card by the witness calling for flash glasses for petitioner. Three times in all during the same evening petitioner, pursuant' to the nurse’s direction, called on her for the administration of eye drops. On none of these occasions was any evidence of trauma or injury to the head noticed, nor was there any complaint thereof. Witness did not recall that petitioner said anything about his head hurting, nor about headaches, nor dizziness, nor nausea, nor that he gave any history that he was unconscious or dazed at the time of the injury to his hand. At no time did the witness see anything to indicate a swelling on the forehead over the right eye, or elsewhere. Her testimony is that if she had seen a swelling, or more specifically one of the kind described by petitioner’s wife, it would have been of importance to her. She would have written it in her findings as recorded, and had there been such a swelling the witness would have referred petitioner to the plant doctor at once. The placing of flash drops in the eye required that witness look down over the patient’s head. This at no time revealed a swelling on the forehead. The reason that no external evidence of head injury is recorded on the nurse’s card is that nothing of the kind was found. Witness says that she would have been especially interested in an external evidence of trauma like a lump or bruise in view of the fact that petitioner did report a fall.

It is a fair inference that had petitioner at the time of his visit or visits to the nurse borne on his forehead over the right eye the sign of external injury said to have been noticed by his wife when he returned home, it would with reasonable certainty have been noticed by the trained and observing eye of the nurse, and that it would have been recorded by her as a result of the reported fall, just as the injury to the hand was recorded.

It must be remarked here that petitioner’s testimony that he told the nurse he “had the head injury and the hand injury” and his wife’s testimony concerning a lump on petitioner’s forehead, viewed with the contrary testimony of the witness G-arley, presents a factual .issue within the compass of the testimony cited. It is one, however, that in the opinion of this court presents no difficulty. The factors which resolve this issue are the disparity between the interest on the one side and the disinterest on the other; the corroboration of the Garley testimony that inheres in the particularity and circumstance attending her dealings with petitioner, such as the duty attaching to her to ascertain and record reported or observable injuries, the setting of herself to make written memoranda of details, the absence from such memoranda of the details here in question, the undisputed fact that she treated all injuries other than that in question, plus the admitted fact that there was no treatment of the one here in question; the fact that her testimony of petitioner’s failure to report a head injury or to exhibit external evidence thereof is corroborated by petitioner’s like failure in numerous other instances, the testimony of his failure in all such instances being in nowise contradicted by petitioner, nor by his wife when the latter was in position to do so if she could. There is thus disposed of the only testimonial conflict which the record presents.

Counsel endeavors to impair the effect of the Garley testimony by quoting from it that she “could not remember every detail of over two years.” These words occur in an answer elicited by a series of questions concerned with whether she was relying on her memory or on the written record. The answer in full is: “I am relying mostly on1 the record. I cannot remember every detail of over two years ago, sir. I don’t believe anybody can, minute details, anyway.” And equivocation is imputed to the witness’ response that she did "'not recall.” Wherever such responses occur they are preceded by unequivocally negative answers on the point involved. Changes like this in the form of answer, brought about by mere stress of repetition in the questioning, do not have the character to change the meaning of testimony or lessen its weight.

Following his alleged fall, petitioner, as already mentioned, completed his 4 to 12 shift on that day and worked in addition four hours overtime. It was during the late afternoon of the day following, while riding in a bus from Jersey City to respondent’s plant, that he experienced the onset of paralysis. Upon his arrival at the plant the first person to see him and observe his condition was the witness Simonetti, petitioner’s foreman. There appears to be no reason to doubt Simonetti’s complete disinterest. On the date of the hearing he was no longer in respondent’s employ, and he had refused to testify voluntarily in the ease, as the evidence shows. Process of subpoena was required to bring him into court. Concerning the events of the 18th, the day following the accident, this witness says that petitioner reported for work a little late. He noticed that his eyes were glazed and that he had difficulty in speaking. Witness thought petitioner was nnder the influence of liquor and smelled the latter’s breath to resolve his doubt. The result being negative, he pressed petitioner to explain his difficulty. The witness was then made to realize that petitioner was' finding it difficult to move his arm and fingers. “So,” as the witness states it, “between the condition of his hand and the look on his face I thought there was something seriously wrong with him, so I escorted him over to the first aid and that was the last I seen of him that night.” The testimony of this witness is especially important for what it tells of his experience with petitioner on the prior afternoon of January 17th, immediately following the reported fall and petitioner’s consequent visit to the nurse. Petitioner reported late and the witness asked him where he had been, receiving the response that he (petitioner) had been to the first aid because he had fallen on the way into the shipyard, explaining further that he had stopped for treatment on the way to his work and that he had also been treated at the first aid for a flash. He told the witness that he had fallen “on his hand,” and his hand was bandaged; also advising the witness that he had to go back to the first aid that night for further flash treatments every three hours. The witness does not recall any statement by petitioner in his account of the fall that he had injured any part of his body except his hand, and he does not think that any such statement was made. He noticed nothing wrong with petitioner except for the bandage on his right hand.

In the appraisal of Simonetti’s testimony there are three definite ponderables that-favor credence. The first is the man’s palpable freedom from bias. The second is his inquiring frame of mind on both occasions when petitioner’s state concerned him. He was apprehensive; he looked for a reason for petitioner’s conduct and demeanor. He observed nothing unusual about petitioner’s forehead, notwithstanding it was (on the afternoon of the 18th), “the look on his face” that made the witness think “there was something seriously wrong with him.” Why would he not notice the lump on the forehead if it were there? If petitioner’s wife noticed it, why didn’t Simonetti notice it also, under what would appear to be more conducive circumstances? The third consideration prompting belief in the truth and accuracy of this testimony is the fact that it remains uncontradicted.

On January 18th, following the paralysis and after the witness Simonetti had brought petitioner to the first aid station, the first physician to see petitioner was Dr. Obester. It was to him that the patient was referred by the nurse already mentioned. The doctor saw him between 5 and 7 p. m. A card record was made at the time in the doctor’s handwriting. Petitioner then complained of weakness of right side and right hand. Dr. Obester made a physical examination and noted his findings on the card. These were a flattening out of the right side of the face, speech impediment (with a notation of witness’ comment that “this just came on suddenly”), lip lag on right side. The doctor recorded also his own suspicion of cerebral involvement. He suggested immediate transfer to a hospital because of his belief that a cerebral hemorrhage was impending. Dr. Obester’s examination of petitioner included also the latter’s eyes. No abnormal condition in or about the eyes was found. If so, it would have been noted on the card. All objective findings were recorded. There was no evidence of injury to the head and no swelling found on the forehead. Such a condition would have been noted'on the card and the patient treated accordingly. Moreover, the witness says evidence of that kind would have been regarded as very important, being indicative of head injury. The only history given by petitioner to the witness was that he fell and hurt his hand. Dr. Obester further testifies that where, as here, there is a lip lag, it is his usual course to determine, if possible, whether the patient has had a head injury. Upon cross-examination petitioner’s counsel made particular effort to induce from Dr. Obester the concession that what the doctor had testified about his making special inquiry of defendant concerning a head injury was mere matter of assumption. This brought the following response: “I know I asked him because that is my usual procedure and has been since medical school. Ever since I left the Navy. I interned in the Navy three years and we were always taught to ask that.” Thereupon the witness amplified his testimony by giving the reasons why he asked petitioner about head injury in a ease of apparent cerebral involvement. The witness explained further that in the term head injury he specifically includes injury to the forehead, injury that could have caused a swelling over the right eye; that he did not confine his examination of the head to areas surrounding the eye but that he examined the entire head. The testimony of Dr. Obester remains uncontradicted.

On November 25th, 1944, there being still no claim pending, petitioner was examined by Dr. Christopher C. Beling, a neuropsychiatrist of forty-four years experience in that specialty. Acting jointly with Dr. Beling in the examination was Dr. Kinley, also a specialist. These physicians examined petitioner at the instance of respondent in order to ascertain the nature and extent of the disability. Petitioner’s wife was present throughout. History and background were taken as part of the examination. Petitioner told these doctors, as he had previously told Simonetti and the others, that he had been knocked down at the yard by the men coming off duty while he was reporting for duty; that he fell on his right arm and hand and sustained superficial abrasions. He told them further that the next day his right hand was dead; that he reported to the plant nurse and was' thereafter taken to St. Brands Hospital at Jersey City where he remained for about three months. It is the testimony of Dr. Beling that petitioner said nothing about a head injury “as far as I can recall.” The doctor adds that such a detail would have been matter of importance; that he would “naturally” have been interested to know whether petitioner had a head injury or not. He says that he got no history like that of any injury to the forehead resulting in a swelling; that petitioner said nothing about a swelling over the right eye and neither did petitioner’s wife. The witness would have written down any mention of other injury besides the abrasion on the hand. Specifically the doctor testified, “In every case I ask them sufficient questions to elicit head injuries.” In all respects this testimony remains uncontradicted.

In the course of his testimony on the point now considered occurs the statement by Dr. Beling that “It is a well known fact that patients generally speak of the things that hurt them most at the time.” In petitioner’s brief effort is made to exaggerate the effect of this. We have no means of knowing what, if anything, did hurt petitioner most at the time of the doctor’s interview and examination on November 25th, 1944. Such description as there is of petitioner’s pains is confined to January 17th and 18th, ten months earlier, and at that it is very general. In spite of what counsel urges, it is not possible to regard the statement of Dr. Beling as anything more than medical obiter dictum.

On his cross-examination Dr. Beling was confronted with some texts published years ago under his authorship. It was disclosed to have been the doctor’s view, at least at the time of the writings in question, that a head trauma, no more than slight, might be sufficient to cause brain injury. No such inquiry is presently relevant. It is not the contemplation of any head injury at all, however conjectured and however slight, that will aid in solving our problem. It must be an injury recognizable as that whose external evidence petitioner and his wife describe.

In one or more important respects it is necessary that Dr. Beling’s testimony be read and considered with that of Dr. Kinley, the two having interviewed and examined petitioner together. By way of criticism of the Beling testimony it is argued for petitioner: “Why was Dr. Beling testifying from memory? * * * He should have had his records complete and in court.” We presume this reference is to the memorandum of the examination and interview made at the time. The fact is that such memorandum was made not by Dr. Beling but by Dr. Kinley, and that it was placed at counsel’s disposal and used by him in Dr. Kinley’s cross-examination. Dr. Kinley corroborates Dr. Beling in all respects and provides some additional detail. He testifies that the history was given by both petitioner and petitioner’s wife. In the history petitioner describes his work and mentions spark burns of the first and second fingers of both hands that occurred to him in April, 1943. And the doctor’s record shows that petitioner ascribed to these burns some relationship with his paralysis. The witness says further that it was a significant feature of the history that it contained no mention of head injury. Petitioner by way of describing the accident told the two doctors that on January 17th, 1944, he was knocked down and fell on his right hand and arm. There was no mention made by petitioner or his wife of either a head injury or a swelling. Witness says he is as positive of this as he “can reasonably be;” that he does not have it in his notes and does not recall having heard it, and that he ■would have certainly have it in his notes had it been mentioned. He states that at the time of the examination he was naturally concerned with the question of head injury. Dr. Kinky’s card record was made contemporaneously with the examination, and his testimony remains uneontradieted by petitioner and by his wife.

Upon his admission to the hospital petitioner was the patient of Dr. Brozdowski, then medical director of respondent company. It was Dr. Brozdowski who took from petitioner the history of the case at the hospital. The history given was that of a fall and an injury to the right hand with gradual loss of sensation in the right arm beginning on the evening following the fall. Petitioner did not tell the witness of an injury to the head. Examination made by the witness revealed no evidence of trauma or head injury. Dr. Brozdowski was especially interested in the matter of head injury because upon the presence or absence of such injury depended whether the patient would remain on his service at the hospital or be transferred to the medical service under the charge of Dr. Herradora. It was for the very reason that there was no history or evidence of head injury that the patient was transferred as stated. Witness says he did not ask the patient specifically whether he struck his head, because there was no indication of head injury. Petitioner did, however, mention the injury to his right hand. The witness says that as a physician he had no suspicion of a traumatic cause of the condition. In the giving of his testimony Dr. Brozdowski relies entirely on the record, which was made and kept in the manner he describes at length. The testimony of Dr. Brozdowski remains uncontradicted.

Petitioner placed in evidence as part of his case the complete hospital record covering the entire period of petitioner’s stay. This record is voluminous. It contains a running day to day record and a series of histories given' by petitioner from time to time to different physicians. On cross-examination Dr. Stockfisch, petitioner’s expert, was confronted with this record and from him the admission was elicited that it contains no history of swelling on any part of the patient’s head or face, nor of any head trauma, though it contains histoiies taken from petitioner on different occasions by Dr. Mndroch and Dr. Sokal.

With further reference to the hospital record, connsel seeks to weaken its prestige by pointing out alleged omissions. He says, for example, that it contains no mention of a bandage on the right hand nor of the flash conjunctivitis. There is no evidence that either of these things existed at any time covered by the record and positive evidence that they did not.

Petitioner’s counsel charges respondent with failure to call Dr. Herradora, to whose service at the hospital the patient was transferred, as already stated, from that of Dr. Brozdowsld. It must be remembered that the definitive hospital record was placed in evidence by petitioner, including as it does the recorded case of petitioner as Dr. Herxadora’s patient. Why then is it that respondent should have called Dr.. Herradora? If in this regard petitioner has in mind the eliciting from the doctor of testimony relative to causal relation, it need only be said that all technical inquiry of that kind has been resolved, as already shown, into the factual question of the happening of head trauma in the accident. If, on the other hand, petitioner has in mind the eliciting from Dr. Herradora of testimony having to do with a history of head trauma, it need only be said that the hospital record, as introduced by petitioner, speaks for itself.

Moreover, Dr. Herradora was not respondent’s physician or witness, and the burden of proof is not upon respondent. It is argued for petitioner that “Dr. Herradora’s testimony would obviously have damaged the appellant’s case.” That would be an excellent reason for his being called by petitioner.

Respondent, on the other hand, charges petitioner with the failure to call Dr. Philip Smith of Hew York City, who, from the time of petitioner’s hospital discharge (April, 1944, nearly a year before the filing of the claim), until and including the time of the hearing, was petitioner’s attending physician. Respondent’s argument, in effect, is that very probably in the natural course of things Dr. Smith obtained from petitioner, preliminary to his care and treatment of him, a history of symptoms and everts antecedent to the onset of the patient’s condition, and that failure to call the doctor under these circumstances induces an inference unfavorable to petitioner on the present issue. Nelson v. Public Service Corp. (Supreme Court), 5 N. J. Mis. R. 73; 135 Atl. Rep. 467; State v. Codington, 80 N. J. L. 496; 78 Atl. Rep. 743; State v. Callahan, 76 N. J. L. 426; 69 Atl. Rep. 957. The failure to call Dr. Smith cannot, in the opinion of this court, operate against petitioner without a showing that the doctor did actually obtain a history, and of that there is no evidence one way or the other. We are not permitted to assume that he did.

Another factor in the proof, under the principle first above set forth, is the failure of petitioner and his wife alike to include in the statement of facts made by them to petitioner’s attorney, when the claim was prepared for filing, any reference to. a head injury or evidence thereof. The claim petition was drawn, signed and sworn to on March 26th, 1945. Petitioner’s' wife was present with her husband in the attorney’s office at the time and was with him when he told his attorney “the facts concerning the accident.” She says that her husband read the contents of the claim petition and, having done so, signed it. If the head injury had been in the mind of either of them at the time it is inconceivable that they would have failed to mention it. The importance of a head injury renders their failure the more remarkable in view of the nature of the claim for a disability described as a “completely shattered nervous system” and the loss of the power of speech. The omission is remarkable also because of the specific reference in the claim petition to the “badly cut and bruised” right hand.

Counsel for petitioner appends to his brief a copy of letter written by him to respondent’s counsel confirming a prior conversation with reference to a proposal by the former that the claim petition be amended to include an allegation of injury to the head. This letter is dated March 16th, 1946, two years and two months after the accident. ÜSTine days later the hearing was begun and the claim petition was then amended in keeping with the import of the letter, on application in open court. The failure of both petitioner and his wife to tell counsel about a head injury, including also their failure to tell him about the evidence thereof which the wife says she observed in the form of a lump, remains unexplained.

By the finding of this court on all the proofs submitted it is established that petitioner was continuously unmindful of having sustained a head injury for a period of two years lacking one month following the accident, and until December 16th, 1945, when he was examined on behalf of respondent by the psychoneurological specialist Dr. Grossman at his (petitioner’s) home and in the presence of petitioner’s attorney. To state it another way, throughout the period indicated the behavior of petitioner (and that of his wife, as well) concerning the present claim is seen to be in perfect consonance with the non-existence of head trauma at all times.

The terminal limit of the period aforementioned is fixed as the date of Dr. Grossman’s examination because it is infer-able that as of that date there emerged for the first time an awareness on petitioner’s side that there was inflicted by the accident, in addition to the abrasions of the hand, an injury to the head. The inference arises from the effort of petitioner’s counsel to show on his cross-examination of Dr. Gross-man the history given the doctor when petitioner was examined by him in counsel’s presence, as already mentioned. Upon objection the inquiry was forbidden, and in petitioner’s brief respondent’s counsel is taken to task for failing to elicit from its examining doctor the history given him on this particular occasion. With the propriety of the objection itself and the ruling thereon no fault is found; but aside from the technical correctness of the exclusion this court is free to assume for present purposes that in the history obtained by Dr. Grossman a head injury was mentioned, and if so, to observe that it is the first and only time such mention appears throughout the entire period following the accident nearly two years before.

As already stated, Dr. Grossman’s examination was made on December 16th, 1945, and when petitioner’s negating silence ended on that occasion—and still pursuing the inference that it did—petitioner’s medical hypothesis of causal relation, with its inclusion of head trauma as a basic factor, had then already been formulated. The only psyehoneurological specialist testifying for petitioner -made Ms examination of the patient some two weeks prior. The inclusion of head trauma in any history given in the course of Dr. Gross-man’s examination but emphasizes its omission from all that had gone before.

Counsel argues that petitioner’s speech impairment should be taken as explaining the omissions thus far dealt with, and the deputy commissioner makes a similar observation in the determination.below, basing it on petitioner’s manner of testifying before him. It is not to be supposed that counsel will deny that sometime prior to the hearing petitioner did tell him of a head injury, with consequent amendment of the claim petition, though probably at such a time as to be ineffectual under all the facts and circumstances of the case. Nor can it be denied that on all occasions petitioner was well able to tell about his hand injury. Why then was he not equally able on some of these occasions at least to tell also of a head injury ? It certainly does not appear from the hospital record ■that the patient experienced difficulty in telling the doctors all that he had it in mind to tell them about his fall and the injury sustained. If he was able to tell all that the hospital record shows, what is the reason for his failure to include in it mention of an injury to his head ?

Furthermore, petitioner’s speech defect does not in the least explain the joint failure of himself and wife to give to Drs. Beling and 'Kinley the full history that is now so vital to the medical theory of the claim; and it does not explain the wife’s failure in the first instance to give it to the attorney at the time the claim petition was drawn. Whatever excuses- one might wish to make on the score of speech impairment, to what are we to ascribe the persistent failure of the lump, the outward evidence of crucial injury, to manifest itself to all disinterested persons who should have and could have seen it were it there?

All authorities cited in petitioner’s brief have been carefully examined and are found not to’ apply to the present situation. The attention of this court is directed, for one thing, to that class of workmen’s compensation decisions that turn on a posk-lioc-ergo-propUr-hoc principle and derive ’ a reasonable sanction from what some of them speak of as “the common experience of mankind.” e. g. Cavanagh v. Murphy Varnish Co., 130 N. J. L. 107; 31 Atl. Rep. (2d) 759; Sorge v. D. R. Clothing Co. (Supreme Court, No. 216, May term, 1945, not reported). This ease belongs in no such category. To hold otherwise the court would have to say that the time relation here between the claimed accident and the experience of petitioner while on his way to the plant ihe following day was such as to integrate the disability with the accident and to establish ipso facto causal relation between ihe two, from which holding it would necessarily follow that the matter of head trauma, with the external evidence thereof, can be of no consequence to the issue; notwithstanding the fact that trauma, and therefore its external evidence, according to petitioner’s own experts, is a prerequisite to the establishment of the claim medically. Petitioner’s Dr. Stoekfisch says that apart from an hypothesis of head trauma he would have to look for “some other cause” of the disability; and petitioner’s Dr. Meehan testified that it is “essentially correct” to say that causal relation in the ease is predicated on the truth of what the hypothesis assumes.

Certainly it is not any and every accident that could account for claimant’s condition. Petitioner’s experts admit as much, as we have just seen. And the question of what happened to petitioner in the accident sub judice is the nub of the controversy. To deal with the problem otherwise is xxnavoidably to beg the question, as for example when the deputy commissioner says in his findings of fact: “* * * there has been no convincing evidence presented to show the cause for this disability outside of trauma.” Outside of what trauma? Whether or not there was trauma of a kind capable of causing the disability was the question that awaited decision. The quoted sxcerpt from the deputy commissioner’s findings indicates either a decision of the case upon a begging of the question or a mitigating of petitioner’s burden of showing affirmatively that the disability was caused by the accident.

In the light of the rule of evidence set forth at the outset the proofs adduced by respondent so completely countervail those of petitioner that this court cannot say, more especially in the total absence of rebuttal where rebuttal in the way oi extenuation or denial is so loudly called for, that petitioner’s required burden has been carried. Carr v. Federal Shipbuilding Co., 133 N. J. L. 564; 45 Atl. Rep. (2d) 597.

The claim petition is dismissed.


author: Conklin, Commissioner.

text:
    Division of Tax Appeals.
    ERIE RAILROAD SYSTEM, PETITIONER, v. FRANK E. WALSH, DIRECTOR OF THE DIVISION OF TAXATION, RESPONDENT. CITY OF JERSEY CITY, PETITIONER, v. FRANK E. WALSH, DIRECTOR OF THE DIVISION OF TAXATION AND ERIE RAILROAD SYSTEM, ERIE RAILROAD COMPANY, RESPONDENTS. CITY OF HOBOKEN, PETITIONER, v. ERIE RAILROAD SYSTEM, RESPONDENT.
    Decided April 22, 1947.
    Por the petitioner Erie Railroad System, Collins & Gorlin (Raymond Lamb, of counsel).
    Eor the City of Jersey City, Charles A. Rooney (Joseph C. Clavin, of counsel).
    Eor the City of Hoboken, John J. Fallon (Franlc P, McCarthy, of counsel).
    Eor the State of New Jersey, Walter D. Van Riper, Attorney-General, and Benjamin C. Van Tine and Benjamin Taul, Deputy Attornevs-General.
   Conklin, Commissioner.

These appeals by complaints filed by the Erie Railroad System; which comprises all of the Erie Railroad Companies, by the City of Jersey City, and the City of Hoboken, bring before us for our consideration the property assessments for the year 1945 made by the Director of the Division of Taxation under R. S. 54:29A-1, et seq.; N. J. S. A. 54:29A-1, et seq. The same questions are raised by both the municipalities and the railroad as were raised in the cases of Pitney v. Walsh, 25 N. J. Mis. R. 196; 51 Atl. Rep. (2d) 871; Delaware, Lackawanna and Western Railroad Co. v. Walsh, 25 N. J. Mis. R. 212; 52 Atl. Rep. (2d) , but with one difference, that being the appeal by the railroad from the assessment made on the floating equipment under the provisions of R. S. 54:29A-12; N. J. S. A. 54:29A-12.

As in the two previous cases the railroad complains of the assessment on main stem and second class lands as being in excess of true value, erroneous and arbitrary; that of the third class property the floating equipment registered in the Port of New. York did not have a sit-ws in New Jersey for taxation; that the power of taxation resides only in the government which renders protection to the property; that the assessment on the aforesaid third class property is unconstitutional. The same question is raised as in the two previous cases as to the assessment of grade crossing eliminations in Glass No. 1 property. The City of Jersey City seeks an increase in the assessments as made and likewise1 the City of Hoboken seeks an increase for that portion of the railroad property in Hoboken.

We think it unnecessary to recapitulate the reasons and rules of law as set forth in our two previous opinions filed in the cases of Pitney v. Walsh, and Delaware, Lackawanna and Western Railroad v. Walsh, supra, except to state that for the same reasons as they’ apply to the facts before us the appeals by the Erie Eailroad System, the City of Jersey City, and the City of Hoboken should be dismissed.

Under the Railroad Tax Law of 1941, chapter 391 of the laws of 1941, R. S. 54:29A-9; N. J. S. A. 54:39A-9, it is provided:

“Tangible personal property which is used or kept but a .part of the time in this State by any railroad shall be assessed such proportionate part of its value as the time it is used or kept in this State during the calendar year preceding bears to the whole year.”

The Director of Taxation did assess the floating equipment belonging to the Erie Eailroad System and the Erie Eailroad System asks that this Division set aside the said assessment for the reasons hereinbefore stated.

It has been repeatedly held by this Division that it does not have the right to determine the constitutionality of any act of the legislature, and this Division must affirm the assessment for it is without the power to declare the act to be unconstitutional. We have so held in the case of the City of Newark v. Mutual Benefit Life Insurance Co., 1934-1939 New Jersey Tax Reports 440, wherein it is said:

“As this board is a quasi-judicial body, it has no power to pass upon constitutional questions of law but must interpret the statutes as they are written.”

And in the case of Schwartz v. Essex County Board of Taxation, 129 N. J. L. 129; 28 Atl. Rep. (2d) 482, the Supreme Court has also held that this Division of Tax Appeals is such a body as cannot determine the constitutionality of an act of the legislature. On page 132 of 129 N. J. L., on page 484 of 28 Atl. Rep. (2d), it is said:

“It is indisputable that the determination of the constitutionality of an act of the legislature rests with a judicial body; not with a quasi-judicial body such as the State Board of Tax Appeals. The final responsibility to pass upon the constitutionality of a given piece of legislation rests in the courts and it is given the duty of the various state agencies and administrative bodies to accept a legislative act as constitutional until such time as it has been declared to be unconstitutional by a qualified judicial body.”

Dor this reason the appeal of the Erie Bailroad System from the assessment on its floating equipment is hereby dismissed.

Judgments have been entered in accordance with the foregoing conclusions.


text:
    Division of Tax Appeals.
    DELAWARE, LACKAWANNA AND WESTERN RAILROAD COMPANY, PETITIONER, v. FRANK E. WALSH, DIRECTOR OF THE DIVISION OF TAXATION, RESPONDENT. THE CITY OF JERSEY CITY, PETITIONER, v. FRANK E. WALSH, DIRECTOR OF THE DIVISION OF TAXATION, AND DELAWARE, LACKAWANNA AND WESTERN RAILROAD SYSTEM, DELAWARE, LACKAWANNA AND WESTERN RAILROAD COMPANY, MORRIS AND ESSEX RAILROAD COMPANY, RESPONDENTS.
    Decided April 22, 1947.
    For the petitioners Delaware, Lackawanna and Western Railroad System, Delaware, Lackawanna and Western Railroad Company and Morris and Essex Railroad Company, John A. Laird and Maximilian M. Stallman.

    For the City of Jersey City, Charles A. Rooney (Joseph C. Glavim, of counsel). •
    For the City of Hoboken, Uranic P. McCaHhy.

    For the State of Hew Jersey, Walter D. Van Riper, Attorney-General, and Benjamin C. Van Tine and Benjamin Taub, Deputy Attorneys-General.
   Conklin, Commissioner.

These complaints bring np for our consideration the assessments on property of the Delaware, Lackawanna and Western Eailroad System, Delaware, Lackawanna and Western Eailroad Company, and the Morris and Essex Eailroad Company, hereinafter referred to as the railroad, as made by the Director of the Division of Taxation for the year 1945 under R. S. 54:29A-1, et seq.; N. J. S. A. 54:29A-1, et seq. The railroad complains that the assessments of second class lands and the structures thereon are excessive and not at true value; that the main stem land has been assessed in excess of true value; that the Director in fixing his value used as basis the clearing, grubbing, and graduation as a norm or standard and in so doing departed from his statutory duty; that the overhead bridges conducting highway traffic were improperly assessed against the railroad; and that grade crossing eliminations were also improperly assessed.

The City of Jersey City by its complaint alleges that the valuations of the railroad property within the City of Jersey City are too low. The City of Hoboken did not file a complaint, but attempts to sustain the assessments as made by the Director of Taxation.

The Attorney-General contests the actions brought by both the City of Jersey City and the railroad, and seeks to sustain the Director in all his findings.

This Division, in the opinion filed February 11th, 1947, in the matter of Pitney v. Walsh, 25 N. J. Mis. R. 196; 51 Atl. Rep. (2d) 871, sustained the Director of Taxation in his .findings of value in his assessment of the property of the Central Eailroad.

The second class lands of the railroad appealing in this case are in the terminal area of Jersey City and Hoboken. They comprise an area bounded on the north by Observer Highway, on the east by Henderson Street, Jersey City and Hoboken, on the South by the Holland Tunnel, and on the west by the Hudson Eiver. The dividing line of Hoboken and Jersey City runs diagonally through this assemblage of railroad yards in a general northwesterly and southeasterly direction, from near the intersection of Henderson Street and Observer Highway to the extreme end oí Pier No. 4. Included is the eastern terminus of a national railroad which enjoys direct service to New York City, both by ferry and by another railroad known as the Hudson and Manhattan, and which carries passenger traffic under the river directly to the city.

As to the proofs offered on the second class lands and structures, we find that the valuations of the Director of Taxation are proper and that no palpable error in his valuations has been disclosed by the testimony offered either by the railroad or by Jersey City. As in the Central Railroad case, supra, there was no testimony of the sale of any land in railroad use and the sales testified to were not comparable, either because of location, size, or other special circumstance, State v. State Board of Tax Appeals, 134 N. J. L. 34; 45 Atl. Rep. (2d) 599.

In valuing the main stem or first class lands, the Director found his values so as to include an increment of value by reason of clearing, grubbing, and graduation, which was clearly within his province, and the argument that the Director departed from his statutory duty in so doing is tenuous. In State Board of Assessors v. Central Railroad, 48 N. J. L. 146 (at p. 278); 4 Atl. Rep. 578, the Court of Errors and Appeals stated that the true value, for purposes of taxation, of railroad cuts and embankments and canal locks is not their cost but what they are worth in connection with the works of which they form a part. This theory was also followed by Chief Justice Beasley in his opinion delivered for the Supreme Court in the case of the Central Railroad Co. v. State Board of Assessors, 49 N. J. L. 1 (at p. 5); 7 Atl. Rep. 306 (at p. 308), wherein he stated:

“The problem is not what land for agricultural or building purposes is worth, but what a narrow strip of land with valuable easements next to it adapted to railroad use will bring on the market. That such strip of land, to be applied in such a manner, cannot be bought at the price that the adjacent lands sell for by the acre is at once obvious.”

The method used by the Director, wherein he gives consideration to the physical conditions at the time of assessment, has had the approval of the Hew Jersey courts and the federal courts. Central Railroad v. Thayer Martin, 114 N. J. L. 69; 175 Atl. Rep. 637; Lehigh Valley Railroad Company of New Jersey v. Martin (3d Cir.), 100 Fed. Rep. (2d) 139; Central Railroad Company of New Jersey v. Martin (3d Cir.), 115 Id. 968.

As to the overhead highway bridges, counsel for the railroad stated in his oral argument that this question had been dealt with by the Supreme Court (apparently referring to State v. State Board, supra) although he was not in agreement with the legal conclusions of the court. We shall follow its ruling as long as same remains law.

Likewise on the grade crossing eliminations the Supreme Court has spoken, and has ruled, by which ruling we are bound.

Lor these reasons we feel that the complaints of the Delaware, Lackawanna and Western Kailroad Company and the City of Jersey City should be dismissed.

Judgments have been entered in accordance with the foregoing conclusions.