author: Buchanan, Y. C.

text:
    Adolph Reichert et al., complainants, v. United Brotherhood of Carpenters and Joiners of America et al., defendants.
    [Decided February 3d, 1936.]

      Messrs. Stein, Stein Stein, for the complainants.

      Mr. Jeróme B. Epstein, for the defendants Coughlin, Meier et al.

      Mr. Louis B. Zavin, for the defendant Local 715 et al.
   Buchanan, Y. C.

The United Brotherhood of Carpenters and Joiners of America is the parent or national organization of the divers local trades unions of carpenters throughout the country. It is an unincorporated association, having its offices and officers at Indianapolis, Indiana. Its membership is composed of the various subordinate or local unions, and the individual members of such locals.

In 1933 there were six of such locals in and near the city of Elizabeth, to wit, Locals No. 167, 687 and 1724 of Elizabeth, No. 330 of Roselle, No. 320 of Westfield and No. 537 of Rahway. Because of the depression, lack of work and possibly other reasons these locals found themselves losing members and in financial and other difficulties, and Local 167 submitted to Local 687 and the others a proposal that the six locals should be consolidated into one. Local 687 rejected the proposal, (as did also the Rahway and Westfield Locals), and thereupon Local 167 submitted it to William L. Hutcheson, the general president of the national body, seeking to have the consolidation effectuated notwithstanding the objections of the other locals.

Hutcheson sent a representative, T. M. Guerin, to investigate and report back to him. Guerin had a conference with the representatives of the six locals and on Saturday, August 5th, wrote report to Hutcheson in Indianapolis, and sent a copy to the locals, recommending consolidation of the four locals, 167, 687, 1724 and 330, and their funds and assets into one consolidated local, (omitting the Rahway and West-field Locals because they were too far away from Elizabeth).

On Tuesday, August 8th, without more,—and obviously without opportunity for Local 687 to receive the copy of Guerin’s report and write Hutcheson its objections to, and its arguments against, the recommendation,—Hutcheson as general president issued an order of consolidation accordingly to be consummated September 6th.

Section 10. paragraph G, of the “Constitution and Laws” of the organization provides:

“Whenever in the judgment of the General President there be a superfluous number of Local Unions in any locality, and he should deem in his wisdom a consolidation for the best interests of the organization, locally or at large, he shall have power to order two or more of such Local Unions to consolidate and to enforce the consolidation, provided such course receives the sanction of the General Executive Board.”

Section 25, paragraph C, of the same, provides:

“A Local Union cannot withdraw from the United Brotherhood or dissolve so long as ten members in good standing object thereto, but shall consolidate with another Local Union on order of the General President with sanction of the General Executive Board or by a majority vote of each Union at a special called meeting after paying up all indebtedness to date of consolidation.”

There is no authority, other than the foregoing, for the consolidation of any locals. At the time of the issuance of the consolidation order by Hutcheson, such order had received no sanction or approval from the general executive board; nor was there any such sanction or approval at any time prior to September 15th.

On August 25th, Local 687 wrote to Hutcheson and also to the general executive board, taking exception to Hutcheson’s order and asking the board for a hearing. Under date of September 5th Hutcheson sent.a reply in which he said “You will comply with (the consolidation), after which you can present your protest to the General Executive Board.” The executive board never sent any reply to the letter to it, and gave no hearing.

On September 6th, the other three locals complied with the order of consolidation and turned over all their books, papers, moneys and other effects to the new consolidated local, Ho. 715. Local 687 did not then comply, (nor has it since complied). On September 12th, it telegraphed Hutcheson asking two weeks’ time to call a special meeting of the local in the hope that a satisfactory adjustment might be worked out. Hutcheson replied that they could have two weeks’ time “in which to affiliate with the new local, if they would forthwith turn over to the new local all the books, papers and property of local 687.”

On September 15th, the general executive board approved Hutcheson’s order of consolidation; but no notice thereof was given to, or received by, Local 687 until after the revocation of its charter.

On September 29th Hutcheson revoked the charter of Local 687 and notified them that they were no longer recognized as being a local of the Brotherhood.

Litigation immediately ensued. On September 20th, Frank Meier, a member of Local 687, filed a bill against the local and its individual officers, subsequently consolidated with the present suit; and shortly thereafter complainants, individual members of Local 687, filed their bill against the national organization, and its officers, and against certain members of Local 167. Eventually a complete new set of pleadings by all parties was filed.

The present amended bill, by complainants as members of Local 687 and on behalf of the members of that Local as a class, sets up, inter alia, the foregoing facts and prays inter alia that the national organization and Hutcheson as president, be restrained from taking away the charter of the local and from interfering with the functioning of the local as a regular local “provided it conducts itself in accordance with the Constitution and Laws of the national body;” and from demanding or enforcing the transfer of any of the property of Local 687 to any other local or individual. It also prays, as against the national body and individual members of Local 167 and other defendants, decree that the property of Local 687 is held by the present holders in trust for the benefit of the members in good standing of Local 687.

The new, consolidated Local 715 was added as a party, also a number of individual members who have transferred from Local 687 to the new local.

Allegations of favoritism and improper conduct of the organization were abandoned at the hearing.

The individual members of (former) Local 167 filed a counter-claim against complainants and individual members who were or are the officers of Local 687, and against Local 687 and others, seeking restraint against Local 687 and its officers from distributing the property of Local 687 among the individual members or transferring it to any other than the new Local 715 for the benefit of all the union carpenters and joiners of Elizabeth and vicinity. Local 715 and the added members thereof aforesaid, filed answer, in effect joining in the counter-claim, and seeking adjudication of the rights of the parties as to beneficial ownership in the property aforesaid and an accounting from the officers of Local 687.

The pleadings leave much to be desired; but it sufficiently appears from them, and from the stipulations filed by the parties, and from the briefs, that there is no substantial dispute as to the facts, and that what both sides seek is a determination, under the .admitted facts,-—■

(1) As to the “validity or legality of the suspension and revocation of the charter of Local 687, with respect to the relief sought in the way of restraint against depriving the members of Local 687 of their status and standing as union members.”

(2) As to the legal and equitable title and interests in the property of Local 687, as among the several parties.

A preliminary question is raised by the objection by the defendants, or some of them, that this court is without jurisdiction in the cause; that the national body and Hutcheson, the president, although named as defendants, have not been served with process nor subjected personally to the jurisdiction of this court; that they are non-residents and cannot be brought within such jurisdiction; that they have interests in the subject-matter of the cause and are necessary and indispensable parties to any determination herein.

This court usually acts in personam; and obviously must needs act in personam in issuing an injunction or decree that a party shall or shall not do a certain act or thing. The decree prayed in the complainants’ first cause of action, that the national body and Hutcheson as president, be enjoined and restrained “from suspending or lifting the charter of Local 687” and from “interfering with the lawful functioning of Local 687,” &c., would obviously be a personal decree, and it would be essential to the validity of any such decree that those parties should have been personally subjected to the jurisdiction of this court. Such personal jurisdiction has not been obtained in this suit, and consequently it seems clear that no valid decree enjoining those parties from the acts aforesaid can be made herein, (assuming that such decree otherwise should be made).

Service by publication has been made upon the national body and Hutcheson. Such service however, while valid and sufficient as to a proceeding in rem or quasi in rem, is not sufficient basis for a personal decree. Cf. McVoy v. Baumann, 93 N. J. Eq. 360, 117 Atl. Rep. 717; S. C. on appeal, 93 N. J. Eq. 638, 117 Atl. Rep. 725.

Restraint against “suspending the charter” would be futile. The situation is not where such suspension is threatened; the act of suspension, whether valid or not, has already taken place. That which could be done would be to enjoin persons within the jurisdiction of this court from doing acts based upon, and in furtherance of, the alleged invalid suspension. That indeed, it would appear from complainants5 brief, is what is sought by complainants. Restraint against “interfering with the lawful functioning of Local 687” would be so general and indefinite as to be meaningless and futile. The brief says restraint is sought “against depriving the members of Local 687 of their status and standing as union members.”

There might well be ground for issuance of restraint by this court against unlawful and unwarranted interference with complainants in their employment as carpenters,— against unjustified acts causing complainants to be denied, or discharged from employment as not being union men. Tn Brennan v. United Halters, 73 N. J. Law 729, 65 Atl. Rep. 165, a local union was held liable in damages for such conduct. In the instant case, however, there is nothing before this court to show that complainants5 right to employment as union men has been interfered with, or threatened, by any party to this suit or by any one else, whether within or without this state. -Nor is there anything in the proofs or admissions before the court to show that such a result is likely to ensue.

Under the “Constitution and Laws” of this union, it appears that the individuals are at one and the same time members of the union,—the national body,—and of the local. Local 687 has been suspended, or its charter revoked, and it may be assumed, unlawfully so. But it does not appear that thereby complainants, members of that local, were suspended, or lost, or will lose, their rights or standing as union members. There are clauses providing for the suspension or expulsion of members under certain circumstances, but this 'can only be done after charges have been preferred and a trial had. There is no evidence even that any such charges or trials have been threatened.

There appears therefore neither need nor justification for issuing restraint against anyone for “depriving the members of Local 687, (complainants) of their status and standing as union members,” notwithstanding that it might appear that the suspension of Local 687 was unlawful and invalid.

As to the other phase of the case,—the second cause of action,—however, no doubt is entertained either as to the jurisdiction of the court or the right of complainants to seek a determination by this court. The subject-matter of this cause of action is essentially a trust fund within this state and the jurisdiction of this court,—the funds and property collected and contributed by the members of Local 687, and the legal title and possession of which is in the officers of that local.

It is essentially a proceeding in rem or quasi in rem, and the res is within the jurisdiction. Personal service on the parties claiming an interest in the res is not necessary; substituted service,—reasonable notice to them and an opportunity for them to be heard, is sufficient, and that has been given in the present instance to those parties not brought in by actual service or appearance. This court has full power and jurisdiction to ascertain and determine the existence and character of the trust fund, the trusts upon which they are held, the persons beneficially entitled thereto, and the nature and extent of their interests, and to supervise and enforce a due administration of those trusts. The only real difficulty in the instant case is that at the present time there are not before the court sufficient proofs or facts to enable a complete determination on these points to be made.

With the validity of the order for consolidation, merely as an order affecting the organization and regulation of the members of the union in respect to the carrying on of the work in the carpenter trade, we are not here concerned. In that aspect no property rights are involved, and this tribunal is not charged with any power or duty in regard thereto.

But with regard to the order as it affects the property, and especially with regard to that part of the order (it is not clear whether there was a separate order or a part of the order of consolidation) which directs Local 687 to turn over all of its property and funds to the new consolidated Local 715, the situation is different. The exact terms of the order are not before me, but it sufficiently appears that the order comprises a direction that the funds of the several local unions be placed in one general fund as the property of the new consolidated local, and “part of the funds be used to square up the members in arrears.”

It appears that the several locals involved in the consolidation respectively had property and membership approximately as follows:

Local Funds Members Per Capita Interest

167 $6,500 325 $20

1,724 2,100 38 55

330 345 85 4

687 16,500 85 200

$25,445 533 48

Obviously the effect of the order will be to take from each member of Local 687 about three-quarters of his interest in the funds of Local 687 and give it to the members of locals 167 and 330. If the discrepancy had not been great, doubtless there might be no objection; but to take away seventy-five percent, of one man’s property and give it to others is confiscatorjr, inequitable and unlawful if done without his authorization or consent.

It does not appear from the proofs that any argument or attempt was made by the national body or its president to controvert the evident inequity and injustice of the order, in this behalf; nor has any such attempt been made by counsel for defendants. Tl^ seek to justify it on the sole ground that from a legal standpoint it had been consented to and authorized by complainants and all other members of Local 687 by virtue of the contractual agreements entered into at the time, and by the fact, of their becoming members of the national organization and of a local organized under the constitution and laws of the order.

They point to the two sections of the laws of the order quoted in the early part of these conclusions and contend that the right of the national body to order and enforce a consolidation of two or more locals necessarily includes the power and right to order and compel the transfer of the funds. They further rely on paragraph A of section 30 of those laws, which reads as follows:

“If at any time a Local Union should withdraw, lapse, dissolve, be suspended or expelled, all property, books, charter and funds held by, or in the name of, or- on behalf of said Local Union must be forwarded immediately by express to the General Secretary, to be held in safekeeping for the United Brotherhood as Trustee for the carpenters in that locality until such time as they shall reorganize.”

and paragraphs A and C of Section 58, which provide that the “General Funds or property of a Local Union” shall be used only for the purpose of the Brotherhood in the carrying on the business of the local as an organization of the Brotherhood, and shall not be divided amongst the members indi-' vidually.

In the first place it is not perceived that the provisions of section 30, paragraph A, are applicable to the instant case. Local 687 has strictly not withdrawn from the order, lapsed, dissolved, been suspended or expelled. It does not seek to divide its funds among its individual members. From that which is before the court, Local 687 has had no intent or desire to withdraw from the organization, nor to dissolve; it has not lapsed but is still a strong and functioning body. Its desire is to continue, as it has done in the past, as a local of the union; it simply does not wish to consolidate with other locals, (particularly with Local 167, with which it seems to have had some friction), and especially it does not wish to have the larger part of its property taken away and given to other locals. It has refused or failed to obey the order of consolidation, but it has not been suspended or expelled for that or any other reason. The right and power to suspend a local for violation of the laws of the order seems to reside in the “General President in conjunction with the General Vice Presidents.” I do not find any provision giving to anyone the right and power to expel a local; but if we assume that such right exists somewhere, it assuredly would not be exercisable by any less authority than the right to suspend, bib action to suspend has been taken by the general vice-presidents; the only action is by the president alone, and his act does not purport to be an expulsion or suspension as a punishment for disobedience, but he “revokes the charter” of Local 687 as, by what appears to be, an act in furtherance and enforcement of the order for consolidation and the metamorphosis of Local 687 and the other locals into the new Local 715. Furthermore, the national body (nor its president) has not appeared herein or made any claim of right or interest in or to the funds in question,” either under section 30 or any other provision; and it is stated by defendants’ counsel that the national body makes no such ciaim but that its only intent and desire is to have the funds turned over to the new consolidated Local 715.

There remain therefore only the sections relating to consolidation, for consideration as affording a possible justification for this transfer of the funds. These sections do not expressly authorize any such transfer or consolidation of the funds: there is no mention made in them of the funds or other property of the locals, but it may well be deemed that in the very nature of things some consolidation of funds and property must necessarily be contemplated as inherently incident in a consolidation of the locals, and that hence by necessary implication these sections authorize a consolidation of the funds. So much may be granted; but it by no means follows that hereby is authorized such a consolidation as is here attempted.

It may be assumed for the sake of argument that the order for consolidation of the locals, as such, insofar as concerns the regulation of the work in the carpenter trade, was duly and properly made and is valid as an exercise of an authority vested in the president and executive board by laws of the order to which complainants assented and agreed on becoming members: that it was not requisite to the validity of that order that the “sanction” of the executive board should precede or accompany the act of the president; and that complainants have no right to question that order, as such, in this court. It may further be assumed that the right to order consolidation of the locals must be deemed to include the right to order some consolidation of their funds,—a consolidation of those funds upon some fair and reasonable basis and terms; but it is deemed that it does not include the right to order consolidation of the funds in a manner which is unfair and unreasonable, such as is the case here.

In State Council, &c., v. Enterprise Council, No. 6, 75 N. J. Eq. 245, 72 Atl. Rep. 19, our court of errors and appeals had before it a case which, although differing in some particulars from those in the instant case, nevertheless involved the same essential principles and the same essential questions as the present, i. e., the right of a national or superior organization, by virtue of authority of the “laws” of the order, to effectuate a transfer of the property of the members of the subordinate bodies to others, and there held (by express approval of the determination and opinions in certain cited and quoted cases from other states) that no such right exists notwithstanding the “laws” or contract in that behalf,—(see pp. 252-254). It is there said, (p. 254), “we think it quite certain that the courts can never recognize as valid any rule or law so made” (by a national or superior organization for the government of the subordinate bodies) “the effect of which is to confiscate property or to arbitrarily take away property rights from one set of members and give them to another set; nor will the courts allow or recognize the enforcement of any such rule when its enforcement will accomplish and is designed to accomplish, such a result.”

The applicability of this language to the present circumstances is clear. If the sections of the “laws” of this brotherhood purported expressly to confer the power to order and enforce the presently attempted “consolidation” of funds, they would be to that extent held invalid; since they do not expressly so provide, no such meaning or intent is to be ascribed to them by implication.

The situation, as to the equities thereof, is much like that existing in the case of a corporation where its stockholders have authorized their board of directors to issue and sell further stock of the company at such times and in such manner and on such terms as the directors shall deem for the best interests of the company. The right and power so given to the directors cannot be exercised by them in a way which disregards the equitable rights of the existing stockholders,— among which rights is the right to have the opportunity to maintain their existing status as owners of the corporate property,—to have the opportunity to purchase shares of the new stock in proportion to their already existing holdings; this right being a corollary of the equitable right of the holder of outstanding shares of the corporate stock, such shares being actually worth, say, $200 each, that new shares shall not be issued to others for $100 each, (thereby giving to the new stockholders a portion of the property represented by his present shares) without his first having the opportunity to purchase such new shares prior to any outsider.

So in the instant case, the national body may have the right to “consolidate” the funds of Local 687, but it can do so only in such manner as shall preserve to the members of that local their existing equitable interests therein, or at least the opportunity to protect those interests. Those interests, it is true, are limited and restricted in certain respects, by the laws of the order, as to the manner and method of their enjoyment, but they nevertheless exist in, and are of considerable value and importance to, the members of Local 687. The constitution and laws clearly recognize and express that the property and funds are the property of the Local, i. e., the members of the particular local, albeit subject to certain restrictions.

Just how these interests should, or might be protected, cannot here be determined at this time. There is not before the court the necessary evidence. It appears that there are funds and property of the local of more than one kind,— severally impressed with trusts for devotion to certain different purposes, some of them of a business nature, some of the nature of insurance or fraternal beneficence, and some possibly of still other character; but as to the several amounts of such funds, or the character and terms of those purposes, the court has not been acquainted. Neither has the court the necessary information as to the details of membership, organization and operation of the union affairs, requisite to enable the formulation of an equitable plan for accomplishing the “consolidation” of the funds which would be practicable and workable under the conditions of this particular situation and these particular union organizations.

It is apparent that there would be many complications involved in the effort to evolve such a plan and that in all probability it should be referred to a master,—preferably one who is a member of, or at least thoroughly familiar with the affairs and working of some union organization of essentially similar kind,-—to take the necessary facts and evidence and report what would be in his opinion an equitable plan.

All this, of course, is predicated on the assumption herein-before stated herein, that the order of consolidation has some validity as far as concerns its effect upon the property and assets in question,—-that it would have been, or would be, valid, if it made reasonable and fair provision for preserving to the members of Local 687 their equitable rights and interests in the property; or else on the possibility that the complainants may be willing to acquiesce in the order of consolidation if such reasonable and fair provision be made. As matters stand, however, in the case before me, the issues raise the question as to whether or not the order for consolidation has any validity as affecting the assets aforesaid. Under the facts it would seem that it must be deemed utterly ineffective in that behalf, unless by some such acquiescence or consent by complainants.

To the validity of the order in question, under the cclaws” of the organization, the action of the executive board is requisite; the president has no such power without that concurrence or participation. Assuming that the “sanction” of the executive board need not accompany or precede the action of the president,—that subsequent sanction is sufficient; nevertheless it is requisite to the validity of that action by the board, that it shall have been preceded by a hearing of the parties interested therein and to be affected thereby,—-or at least an opportunity to such parties for such hearing. This is fundamental.

The facts show that no hearing was given to complainants or their local, by the executive board, nor any opportunity to be heard; notwithstanding complainants’ written request to the board for such hearing, the board never made any reply; and complainants never even had notice that the board had concurred in the order of consolidation until after the order revoking their charter. Without such hearing, the board had no jurisdiction to make the order of consolidation and the order can have no validity to affect the rights of the parties.

In such a case complainants are not required to exhaust their remedies within the organization before seeking redress in the courts. International Brotherhood, &c., Paterson v. International Brotherhood, &c., Newark, 113 N. J. Eq. 585, 168 Atl. Rep. 65; neither is such a course requisite where it would be futile,—Walsche v. Sherlock, 110 N. J. Eq. 223, 159 Atl. Rep. 661. In the instant case, under the “laws” of the organization, appeals are first to the general president, then to the general executive board, and finally to the general convention. The futility of appeal to the president and the executive board is obvious; the general convention meets only once in four years, and the president refused any stay of the consolidation.

It must be held that neither the consolidation order nor the order revoking the charter was of any force or validity to affect the rights of the complainants or the other members of Local 687 in and to the property and assets of that Local, and that the legal and equitable interests in that property remain as they were prior to such orders,—except perhaps as those interests may have been affected by the action of those members of Local 687 who, in obedience to the consolidation order, affiliated themselves with the new Local 715. No issue in regard to this latter question is before the court; and it may well be that none will arise,—that any such members who desire to return to 687 will be received back in view of the fact that they acted under compulsion of the orders of the national organization.

Those allegations of the counter-claim to the effect that complainants intended or threatened to distribute the assets to the individual members of Local 687 are found not established by the proofs, and no order for restraint in that behalf is necessary or justified.


source: Caselaw Access Project

author: Per 'Curiam.

license: Public Domain

text:
    JAMES B. H. STORMS, PROSECUTOR, v. TOWNSHIP OF WASHINGTON ET AL., RESPONDENTS.
    Submitted October 1, 1935
    Decided February 5, 1936.
    Before Brogan, Chief Justice, and Justices Lloyd and Donges.
    Bor the prosecutor, no appearance.
    Bor the respondents, Ralph W. Ghandless.

   Per 'Curiam.

Prosecutor has a rule to show cause why a writ of certiorari should not issue to review an assessment of taxes levied by respondent on property alleged to be owned by prosecutor, of approximately five acres, but erroneously assessed in the name of Ethel J. M. Kay, who owned an adjacent tract of land of approximately five and one-half acres, assessed in the name of George H. Dohlman, on which it is alleged said Ethel Kay paid taxes, which were credited on prosecutor’s assessment.

It is alleged that when the township authorities learned of the true situation, an effort was made to correct the error, but prosecutor objected and sought this writ of certiorari. Respondent also has a rule to show cause why a writ of certiorari should not issue to review the matter, and seeks to have all parties who may have any interest made parties thereto, so that the whole situation may be dealt with. Prosecutor files no brief but assents that the writ shall issue as applied for by respondent.

The respondent’s application for a writ of certiorari to review the proceedings will be granted.


author: Bodine, J.

text:
    GUSTAVE W. GEHIN, PROSECUTOR, v. BOARD OF COMMISSIONERS OF THE CITY OF NEWARK, NEW JERSEY, DEFENDANT.
    Argued January 21, 1936
    Decided February 6, 1936.
    Before Justices Case and Bodinb.
    For the prosecutor, Child, Biker, Marsh & Shipman.

    For the defendant, Frank A. Boettner and Raymond Schroeder.

   Bodine, J.

The prosecutor seeks to review the action of the board of commissioners of the city of Newark in adopting an ordinance entitled “An ordinance authorizing the issuance of $1,200,000 hospital bonds of the city of Newark,” and also an ordinance authorizing certain school bonds. Prosecutor is a freeholder and a taxpayer of the city of Newark. The federal emergency relief administration of public works was applied to for a loan to assist the city of Newark in financing the building of a fireproof hospital building, and for the construction of a school, and for the financing of changes and alterations in other buildings devoted to educational objects. The relief administration will not grant, in any case, an amount exceeding forty-five per cent, of the amount required. The total cost of the hospital building ■would be about $4,500,000. But the main hospital unit could be constructed, it was estimated, for $3,090,909, of which the relief administration was willing to grant forty-five per cent, or the sum of $1,390,909. This would leave an obligation for the city of $1,700,000. The raising of this amount of money, it is conceded, would exceed the borrowing capacity of the city as fixed by the Local Bond act. Pamph. L. 1935, p. 186. Therefore, an ordinance was adopted providing for the issuance of $1,200,000 of bonds. The validity of this ordinance is challenged.

The ordinance recited that the maximum amount of money to-be raised for the purpose, by the issuance of bonds, was the sum of $1,200,000. Section 202, subdivision (a) of the Bond act to be found in Pamph. L. 19,35, ch. 77, p. 189; Stat. Annual 1935, p. 387, § *136-4600M(202), subdiv. (a), is as follows: “An authorization of the issuance of the bonds or notes, or both, stating in brief and general terms sufficient for reasonable identification, the purpose or purposes for the financing of which the obligations are to be issued, and a statement of the maximum amount of money to be raised for the purpose, and if for several purposes the maximum amount of money for each purpose.” Prosecutor contends that a proper construction of the statute is, that it requires that the ordinance state the entire amount of money to be raised for the contemplated improvement. The city, on the other hand, contends that the requirement is that the ordinance shall state the maximum amount of money to be presently raised by the issuance of bonds or notes for the purpose described in the ordinance, and that the words “a statement of the maximum amount of money to be raised for the purpose” do not mean a statement of the total amount of money to be raised before the completion of the project.

It is pointed out that large projects, such as the municipal port terminal and the municipal city railway, have been in the past financed by a succession of bond issues, and that the practice has not resulted in the authorization of projects which have not been completed.

The sole problem is to determine the legislative meaning in requiring a statement of the maximum amount of money to be raised for the contemplated purpose. We think the words mean that the greatest amount of money to be raised for the purpose shall be stated. Otherwise, the words are meaningless. An ordinance merely authorizing $1,200,000 of hospital bonds indicates that $1,200,000 is to be presently raised, but it does not show what is the maximum amount to be raised for the indicated purpose. It is obvious that since more money must be raised to construct the hospital, the ordinance must state the greatest amount to be raised for that purpose. Otherwise, the legislative provision is put at naught. Obviously, the purpose of the enactment was to prevent the commencement of an undertaking which might not be completed because of lack of funds. The concept once prevalent that values could always be increased has long since been disproved. The legislature intended that municipalities should declare in the ordinance authorizing the issue of bonds the highest amount of money to be raised for a specific purpose. The greatest or highest amount to' be raised must necessarily mean a sum of money known to be necessary to complete. Otherwise, a dozen bond issues might be necessary and perhaps some would go beyond the limit and the project would ultimately fail after millions had been spent.

The ordinance for the issuance of the school bonds likewise seems subject to the vice that it clearly appears that the statement as to the maximum amount of money to be raised for the declared purpose is not truly stated.

The writs will be allowed.


author: Bodlne, J.

text:
    ISAAC YEDID, RELATOR, v. THE CITY OF ATLANTIC CITY, A MUNICIPAL CORPORATION, AND JOSEPH A. PAXSON, COMMISSIONER OF PARKS AND PUBLIC PROPERTY OF THE CITY OF ATLANTIC CITY, RESPONDENTS.
    Argued January 21, 1936
    Decided February 6, 1936.
    Before Justices Case and Bodine.
    Bor the relator, Harry A. Ginsburg and William H. Smathers.

    Bor the respondents, Anthony J. Siracusa, Morris Bloom, and Julius Waldman.

   Bodlne, J.

Relator seeks by mandamus to secure the right to slaughter poultry in the municipal poultry market of Atlantic City. His petition states that he has been employed to slaughter chickens by a number of persons engaged in the sale of kosher poultry. His employers do not have stores or stands in the municipal poultry market. Poultry may not be slaughtered elsewhere. The city, when it established the municipal poultry market, authorized the mayor to prepare rules and regulations providing for the control and use thereof, and for the rental and charges to be made, the rules and regulations to be first submitted for approval. Ho rules and regulations have been adopted, but the leases of the respective tenants all provide that there shall be a committee to promulgate rules and regulations controlling that part of the market devoted to the killing and sale of kosher products. The committee determined that all kosher products should be under the supervision of the Yead Ha’Kashress. .Relator seems not to have had the approval of this board.

Mandamus is a discretionary writ to issue only when the legal right is clear. It is obvious that the municipality was within its rights, when it incorporated in the leases granted to those having stores and stalls in the market, provisions providing for a committee to promulgate rules and regulations governing the killing and sale of products offered in the market. If relator conformed with these rules his right would be clear. Since he has not, his right to kill poultry in the municipal market must rest upon the right which he and all other citizens have to go to the municipal market for the purpose of slaughtering poultry. But he does not seek to enforce the right which he as an individual may have, but he seeks the right to carry on a trade or business in the municipal market. The city having leased all the available stores and stalls will not be obliged by this court to violate agreements contained in the leases which it has granted. What the relator really seeks is that this court will determine his right to carry on his business in the municipal market without showing any warrant or authority for him to do so. As an individual he does not show that he has been deprived of any rights, but as a person engaged in a trade and calling, he asserts that he must have the right to the use of- municipal property without showing any covenant, agreement or provision of law giving him the right to use the property in the carrying on of his special trade or avocation.

The rule will be dismissed, with costs.


author: Pee Curiam.

text:
    MAX L. STEGMAN, PROSECUTOR, v. CIVIL SERVICE COMMISSION ET AL., DEFENDANTS.
    Argued October 3, 1935
    Decided February 6, 1936.
    Before Brogan, Chief Justice, and Justices Lloyd and Donges.
    For the prosecutor, Spaulding Frazer.

    For the defendants, Frank A. Boettner and Jules E. Tepper.

   Pee Curiam.

Prosecutor was tried for absence without leave on 'November 17th, 18th and 19th, 1932, from his position as executive clerk in the department of parks and public property of the city of Newark. The trial took place on June 18th, 1935, before the then director of parks and public property. The delay, or the cause thereof, is not important to a determination of the case. The director found prosecutor guilty and dismissed him from his position. The civil service commission sustained the order of dismissal.

The first point urged by prosecutor is that the evidence does not support the order of the civil service commission. The statute, section 11, 1 Comp. Stat., p. 405, placing upon this court the duty of weighing the evidence and rendering such decision as seems proper according to the evidence (Gibbs v. State Board of Taxes, 101 N. J. L. 371; 129 Atl. Rep. 189; Stevens Institute v. State Board, &c., 105 N. J. L. 99; 143 Atl. Rep. 356), we have accordingly weighed the evidence and conclude that the judgment of the civil service commission thereon, that the prosecutor absented himself without permission and was guilty as charged, should be alSrmed.

The next point argued is that the prosecutor was not tried within the time contemplated by the statute. The commission found that “as a matter of fact, the appellant apparently subscribed willingly to this delay, he having made no protest to the delayed action.” We find this conclusion supported by the testimony. Indeed, counsel for prosecutor asserted at the hearing that his absence from duty after the original suspension “was not a suspension but a leave of absence, as the records will show.”

The next point is that there was an arbitrary exercise of power in ordering dismissal, because the penalty was out of proportion to the offense. If prosecutor was guilty of absence without leave, as charged, there appears no power in the civil service commission to substitute its judgment “for that of the departmental head, upon whom, in the final analysis, rests the responsibility of sedulously maintaining departmental morale and discipline and adequate standards of service.” Newark v. Civil Service Commission et al., 115 N. J. L. 26; 177 Atl. Rep. 868.

We conclude that the judgment under review is supported by the record, and the writ is discharged, with costs.


author: Per Curiam.

text:
    A. RUTH CONOVER, PLAINTIFF-RESPONDENT, v. SOLAR OIL COMPANY, DEFENDANT-APPELLANT.
    Submitted October 1, 1935
    Decided February 6, 1936.

      Before Brogan, Chief Justice, and Justices Lloyd and Donges.
    For the appellant, Beggs <& Grimshaw.

    For the respondent, Leonard G. Brown.

   Per Curiam.

This appeal brings up for review a judgment of the Orange District Court in favor of plaintiff and against defendant for $500. The court sat without a jury.

Plaintiff was lessee of premises in East Orange and on May 29th, 1934, entered into a written agreement with defendant corporation by which plaintiff agreed to permit defendant to enter into possession of the premises under plaintiff’s lease for a period of two months from June 1st, 1934, to July 31st, 1934, in consideration of the payment of $275 by defendant, which sum was paid and defendant entered into possession of the premises. The agreement provided that plaintiff assigned her lease to defendant, simultaneously with the execution of the agreement, “for a period of two months from the 1st day of June, 1934, and that defendant should “at the end of that period turn back to the party of the second part, the said gasoline station and repair shop, free and clear of all liabilities, debts and demands whatsoever, to reassign to the party of the second part, the aforesaid lease and to cancel this agreement.” The agreement also provided that defendant, at its option, could pay an additional $500 to plaintiff and continue in possession until the end of the term of the lease. The term commenced on July 15th, 1929, and ran for ten years.

It was open to the court to find that at the end of the two months period, the defendant gave no written or oral notice of intention either to continue or to vacate, and did not deliver possession to plaintiff and did not reassign the lease, but that defendant had one Boland Arrojo working for it from June to August 1st, in charge of its gas station on the premises in question, and that on August 1st, defendant entered into an arrangement with said Arrojo for the continued operation of the gas station, on a commission basis, one cent on each gallon of gasoline sold to be retained by defendant toward the payment of rent. The rent for August and September was paid by defendant to Arrojo, who gave it to the landlord. All this was without notice to or knowledge of plaintiff. The gas and electric service was, during the period from June 1st to September 35th, in the name of defendant, and its deposit with the Public Service Electric and Gas Company was used to satisfy the bill for such service. The president of defendant corporation testified that he told one of the defendant’s men, Smith: “Let Roland run the place. Mrs. Conover is not here. It is for the interest of the property as well as Mrs. Conover, so let Roland get in touch with the landlord and see if he can arrange to stop there. We would be glad to sell him gasoline.” There is no testimony of any arrangement by Roland or anyone else with either the lessor or plaintiff. It would appear that Arrojo went into possession under his arrangement with defendant.

In this factual situation, the court was justified in finding that defendant had exercised its option to continue under the agreement and in giving judgment in favor of plaintiff.

Appellant also urges that the court erred in permitting the following question propounded to plaintiff: “Under the terms of this agreement, Mrs. Conover, you were to receive a further payment of $500 in the event the Solar Oil Company continued to remain in occupancy of the gasoline station after the 1st of August, 1934?” The record discloses that the court allowed the question, but it was not pressed and was not answered.

Finding no reversible error in the record before us, the judgment is affirmed, with costs.


text:
    HARRY H. BREWER, PETITIONER-RESPONDENT, v. PENNSYLVANIA RAILROAD COMPANY, A CORPORATION, RESPONDENT-APPELLANT.
    Argued January 22, 1936
    Decided February 6, 1936.
    Before Justices Case and Bodine.
    For the respondent-appellant, Theodore Strong, Jr.

    For the petitioner-respondent, George M. Shipman, Jr.

   Bodine, J.

The respondent in this case suffered a permanent injury to an eye. He had been employed for years to repair air brakes at the Phillipsburg yard of the defendant company. He had struck a bolt in the air brake mechanism of a coal car when a particle of steel dislodged by the blow caused his injury. The car he was repairing had come into the yard the day before in a defective condition. It was taken out of the train in which it had moved in interstate commerce and was placed upon the track where crippled ears were placed for repair. The next day the petitioner was instructed to make the repairs. It was then that he suffered the injury. The car would, of course, be returned to the coal fields in another state when ready for movement. It bore a ticket to this effect.

The findings of the bureau, affirmed in the Court of Common Pleas, must have been based upon proofs indicative that the injuries were sustained in work of an intrastate character. Otherwise, jurisdiction would not have attached. We think the rulings proper. The car upon which the injured man was working, at the time of his injury, was in no sense an instrument of interstate commerce. It had been withdrawn from commerce until the repairs were made. The car would not be returned to the transportation business until it was put in order. It is not a ease where repairs were being made in order that a run in interstate commerce might be completed, but a case where there was a distinct withdrawal for the purpose of repair. The fact that the car would soon be returned for use in the business of interstate transportation is of no significance. Length of time required for repair is too elusive a circumstance upon which to predicate jurisdiction. Minneapolis and St. Louis Railway Co. v. Winters, 242 U. S. 353.

I-n Heimbach v. Lehigh Valley Railroad Co., 197 Fed. Rep. 579, an employe was making repairs to an empty car which had been placed upon the siding. Orders for its future movement had not been given. Held, that an employe injured while making repairs is not engaged in interstate commerce. We do not see how the circumstance that the company had given orders as to what should be done with this car after repairs had been made can alter the situation that the ear itself was not, at the time the injury was suffered, being used in interstate transportation. We can only conclude that the findings of the bureau and the Court of Common Pleas find support in the proofs (Hart v. Central Railroad Co., 106 N. J. L. 31; 147 Atl. Rep. 733; affirmed, 107 N. J. L. 190; 151 Atl. Rep. 906), and may not be lightly disturbed. See cases collected in Hanna v. Erie Railroad Co., 8 N. J. Mis. R. 829; 152 Atl. Rep. 179.

The writ will be dismissed, with costs.


author: Pee Ctjeiam.

text:
    BOROUGH OF WOODCLIFF LAKE, IN THE COUNTY OF BERGEN, PROSECUTOR, v. STATE BOARD OF TAX APPEALS, RESPONDENT, AND THE HACKENSACK WATER COMPANY, DEFENDANT.
    Argued January 22, 1936
    Decided February 6, 1936.
    Before Justices Case and Bodine.
    Bor the prosecutor, Donald M. Waesche.

    Bor the Hackensack Water Company, Ghandless, Weller & Selser (John E. Selser).

   Pee Ctjeiam.

We are asked to review a judgment of the state board of tax appeals settling the value of lands and improvements of the Hackensack Water Company lying within the borough of Woodeliff Lake in the county of Bergen. The Woodeliff Lake reservoir is part of the property of the Hackensack Water Company. The reservoir lies in the boroughs of Woodeliff, Hillsdale and Park Ridge.

Brom our examination of the record, we are satisfied that the state board of tax appeals properly found, on the evidence adduced, the true value of the lands and improvements situate within the borough of Woodeliff. We do not believe that the value placed upon the entire reservoir for rate making purposes was material in determining the value of lands and improvements situate within a single borough. The proofs as to the value of the lands and improvements on the taxing day seem to support the findings of the state board of tax appeals and it will, therefore, not be disturbed.

The writ will be dismissed, with costs.


author: Pee Cukiam.

text:
    FREIDA BUSCH, PLAINTIFF-APPELLANT, v. CHARLES H. JEWETT, II., ET AL., DEFENDANTS-RESPONDENTS.
    Submitted October 1, 1935
    Decided February 6, 1936.
    Before Beogan, Chide Justice, and Justices Lloyd and Donges.
    For the appellant, Morris Cohen.

    For the respondents, Pitney, Hardin •& Slcinner (by Shelton Pitney).

   Pee Cukiam.

Plaintiff-appellant brought suit to recover what she alleged was a balance of wages due her for services as a domestic in respondents’ house. She claimed that she had a contract, made in July, 1930, for wages at the rate of $80 per month, afterwards reduced, by agreement, to $75 per month, which sum was paid until July, 1932. Plaintiff testified that on or about July 4th, 1932, Mrs. Jewett told plaintiff that her husband “had suffered financial reverses and cannot pay regularly now but when things pick up we will settle;” that thereafter she received chocks for various sums covering a fifteen mouths period, amounting in all to $785. During the first ten months, from August, 1932, to and including May 1st, 1933, she received $345 and claimed the difference, at the rate of $75 per month. Plaintiff further testified that she spoke to Mr. ,Jewett some time in April, 1933, “about the money” and he replied, “I have no money now. I have given you as much as T possibly could always.” “I hope to be able to pay you again regular wages when I can.” “I will take care of this matter.” Mrs. Jewett, on July 12th, 1933, handed plaintiff a check for $40, and said, “this is to make up for the back months in which you did not get your full wages.” In October, 1933, Mrs. Jewett told plaintiff “we will have to reduce .you again to $70 a month,” and plaintiff agreed to the reduction.

Mrs. Jewett testified that she told plaintiff that her husband had suffered financial reverses; that Mr. Jewett could no longer pay plaintiff any wages, and that plaintiff could stay on, without wages, for her board and lodging as long as she desired to stay, or she could find another position whenever she wanted or was able, and that plaintiff assented to the arrangement. She testified to the conversation between plaintiff and Mr. Jewett, that Mr. Jewett said to plaintiff, “I have always given you as much as I could. I hope soon to be able to pay you regular wages again, but I can’t now. I have no money now.”

The testimony presented a question of fact and, so far as the record discloses, no questions of law were raised for the determination of the trial court.

The testimony warranted the conclusion of the trial judge, and the judgment is accordingly affirmed.


author: Porter, S. C. G.

text:
    GEORGE W. EGBERT, SUCCESSOR TO JOSEPH A. BRODERICK, AS SUPERINTENDENT OF BANKS OF THE STATE OF NEW YORK, PLAINTIFF, v. BENJAMIN ABRAMS ET AL., REFERRING IN PARTICULAR TO DEFENDANTS JOSEPH OKIN, HUGO ADERER AND ELSIE J. LISSNER, DEFENDANTS.
    Decided January 16, 1936.

      For the plaintiff, McDermott, Enright & Carpenter {Carl S. 'Kuebler, of counsel).
    For the defendant Joseph Okin, Charles S. Ohin.

    For the defendant Hugo Aderer, Aaron Marder.

    For the defendant Elsie J. Lissner, Farlcas ■& Samuels {Aaron Marder, of counsel).
   Porter, S. C. G.

The Bank of United States was closed by the superintendent of banks of the State of New York on December 11th, 1930. He kept possession of it and, subsequently, declared it insolvent and certified to that effect under the provisions of the New York law.

This suit is brought to recover from residents of New Jersey, stockholders of the bank, an assessment to the amount of their respective shares for the debts and liabilities of the bank.

The assessment was made on July 1st, 1932, against stockholders of record as of December 11th, 1930. The above named defendants, it is alleged in the complaint, were all stockholders of record on that date. Each of them have demanded particulars of the plaintiff. The information sought is as to precisely when the bank, in fact, became insolvent and who were the stockholders of record at that time. Information is also sought as to the prior owners of the said defendants’ stock.

The plaintiff’s motion is to strike the bill of particulars, contending that the same is improper, immaterial, and irrelevant to the issues of the suit. That contention, it seems to me, is sound. If the defendants desire this information in order to attack the detérmination of the superintendent of banks as to the insolvency of the bank, it is improper because the solvency question has been judicially determined and cannot again be questioned, either as to the fact or as to the precise time that it occurred. Broderick v. Adamson, 148 N. Y. Mis. 353; 265 N. Y. Supp. 804; Broderick v. American Central Corp. et al., 71 Fed. Rep. (2d) 864.

If the information is sought in order that suits may be instituted against the predecessors in title of the defendant stockholders, that also is improper. As a matter of fact, I understand that that information has been furnished the defendants, but not as a bill of particulars. Every stockholder of this bank, under the constitution and statute law of Hew York State, became liable to an assessment if the corporation became insolvent. The only exception is where a stockholder transfers his stock “in good faith” -while “the bank is solvent * * * previous to any default.” In such a case he is relieved from liability. Persons v. Gardner, 113 App. Div. 597; 98 N. Y. S. 807; affirmed, 188 N. Y. 571. That being so, every stockholder of record as of December 11th, 1930, is liable for an assessment if the bank was insolvent at that time. If it were not, in fact, insolvent at that date but became so later and, in the meanwhile, a stockholder had transferred his stock in good faith, such stockholder would be relieved from the assessment. But in the instant case, the defendants in question do not contend that the stock was, in fact, transferred by them in good faith while the bank was solvent. It is, therefore, it seems to me, immaterial and irrelevant as to precisely when the insolvency first existed, quite aside from the very practical point as to whether it be possible to ascertain when insolvency first occurred.

I do not find that Broderick v. Aaron, 268 N. Y. 260, relied upon by the defendants, rules contrary to those views, either directly or by analogy. The function of a bill of particulars is twofold; first, to ascertain the details of the scope of plaintiff’s case in order that proper answer may be made and defense prepared; and, secondly, .to limit the plaintiff in his proofs at the trial. The complaint in the instant case fully sets forth the cause of action. The injection by these defendants of the immaterial and irrelevant matter by these demands for particulars is an effort to raise other issues not germane to the issues of the complaint and, therefore, are improper.

Under date of October 3d, 1935, a memorandum was filed by me in this case, striking the answers and bill of particulars as to certain defendants and including those herein considered. As to the latter, however, no order was entered and further hearing was requested, allowed, and briefs were submitted for the reason that on the former motion this point was not specifically decided. Nevertheless, what is here said is supplemental to the said memorandum of October 3d, printed in 13 N. J. Mis. R. 795.

The bill of particulars will be struck for the above reasons.


author: Pee Cubiam.

text:
    FRANK ADAMUCCI AND JOHN ADAMUCCI, RESPONDENTS, v. PENNSYLVANIA-READING SEASHORE LINES, APPELLANT.
    Argued October 2, 1935
    Decided February 13, 1936.
    Before Bbogau, Chtee Justice, and Justices Lloyd and Doughs.
    Por the appellant, French, Richards ■& Bradley.

    Por the respondents, Edwin 0. Scovel.

   Pee Cubiam.

The appeal in this case is from a judgment in favor of the plaintiff, and the grounds urged’ for reversal are that the denial of a rule for new trial was an abuse of discretion; that illegal evidence was admitted, and that there was error in the charge of the trial judge to the jury.

Taking up the last point first, the objection to the charge and the denial of certain requests were waived inasmuch as one of the reaspns urged in the rule was that the verdict of the jury was contrary to the charge of the court, and this even though exceptions taken at the trial were reserved in the rule. Cleaves v. Yeskel, 104 N. J. L. 497; 141 Atl. Rep. 814.

We do not see our way clear to reverse the judgment on the ground that it was an abuse of discretion to dismiss the rule for new trial. This court will not substitute its own judgment for that of the trial judge to whom the law commits the right to pass upon an application for new trial, and it will not interfere with the discretion reposed in the trial judge except upon grounds which clearly demonstrate that such discretion has been so erroneously exercised as to be an abuse of the authority thus placed.

Our examination of the evidence fails to convince us that the standard exacted was not observed in the present case. The questions of fact which were urged on the rules were negligence and contributory negligence of the respective parties. The case arose out of a collision between a truck driven by one of the plaintiffs and a gas railway car of the defendant at a railway crossing. The plaintiff’s proofs were that the duty of warning was not observed by those in charge of the railway car, and the proofs on behalf of the defendant, that it was. It was urged on the rules that the testimony on behalf of the plaintiff was untrustworthy and indefinite, and that that of the defendant was so overwhelming as to be conclusive, both of the absence of negligence in the operators of the railway car and of the negligence of the plaintiff. While it is true a large number of witnesses were called to testify to the sounding of warning by the operators of the train other than that of the operators themselves, they were quite indefinite as to the time and character of such warning. On the whole case we are unable to agree that the learned trial judge was obliged in performance of his duty as a judge to grant the new trial on this ground.

The only remaining question worthy of note is the admission of a letter written by counsel for the plaintiff to a member of the bar representing counsel for the defendant. There had been furnished on demand a bill of particulars. Plaintiff’s counsel, later deeming this inadequate, had written the letter in question amplifying the information contained in this bill as to the earnings of one of the plaintiffs. This letter was written on August 7th, 1934, and counsel for the plaintiff was tendering it, possibly as such amplification or possibly in response to a demand of defendant’s counsel for the production at the trial of “books of account, letters, papers, writings, whatever in any wise relating to loss of wages, earnings, profits.” If it was the latter, obviously the plaintiff was entitled to produce it and to offer it in evidence. Decker v. George W. Smith & Co., 88 N. J. L. 630; 96 Atl. Rep. 915. We are inclined to think that it could have been produced in response to the call. It is certainly correspondence at least between representatives of the parties relating to the earnings of this plaintiff, and this being true, plaintiff’s counsel was within his rights in offering it at the trial.

The judgment is affirmed.


text:
    DAVID E. BUCKLEY, PROSECUTOR, v. BENJAMIN P. LAIDLAW, DIRECTOR OF PUBLIC AFFAIRS OF THE TOWN OF WEST ORANGE, NEW JERSEY, DEFENDANT.
    Argued January 22, 1936
    Decided February 14, 1936.

      Before Justices Case and Bodine.
    Bor the prosecutor, John J. Crawley and William J. Bernard.

    Bor the defendant, Alfred J. Grosso.

   Pee Cubiam.

The writ brings up for review the action of the director of public affairs of West Orange in removing the prosecutor, a former health officer, after a hearing on charges. He had held the office for sixteen years. West Orange is governed under the Walsh act. Bormal charges were served before the hearing and were, we think, sufficiently definite to inform the prosecutor of the accusations upon which he would be tried.

It is argued that there was a lack of jurisdiction. O’Brien v. Parnell, 12 N. J. Mis. R. 99; 169 Atl. Rep. 539, is to the contrary. Since we think the charges were sufficient there was no need to further particularize.

In the case of Woodman v. Bianchi, 13 N. J. Mis. R. 452; 177 Atl. Rep. 874, it was said: “Lastly, it is contended that the respondent having made the charges, could not be both accuser and judge. This is likewise lacking in merit. See Zeber v. Turner, 106 N. J. L. 86; 148 Atl. Rep. 894; Crane v. Jersey City, 90 N. J. L. 109; 103 Atl Rep. 678; affirmed, 92 N. J. L. 248; 103 Atl. Rep. 1051.”

The writ will be dismissed with costs.


author: Lloyd, J.

text:
    ANDREW STEBER, PLAINTIFF-RESPONDENT, v. CARMINE F. MALANKA, GERALD MALANKA AND C. F. MALANKA & SONS, INCORPORATED, DEFENDANTS-APPELLANTS. KATHERINE HAYES, BY HER NEXT FRIEND EDWARD HAYES, EDWARD HAYES, INDIVIDUALLY, KATHERINE HAYES, DONALD MACKER AND HARRY B. HOGAN, PLAINTIFFS-RESPONDENTS, v. CARMINE F. MALANKA, GERALD MALANKA AND C. F. MALANKA & SONS, INCORPORATED, DEFENDANTS-APPELLANTS.
    Submitted October 1, 1935
    Decided February 13, 1936.
    Before Beogan, Chief Justice, and Justices Lloyd and Donges.
    For the appellants, Bauer ,£ Ranker (Eznick Bogosian, on the brief).
    For the respondents, Charles A. Rooney and Feinberg & Feinbery.

   Lloyd, J.

These cases grew out of a collision between cars on Tonnele avenue in North Bergen, Hudson county. There were judgments in favor of the several plaintiffs as against two of the defendants, Carmine F. Malanka and Gerald Malanka, and these defendants appeal.

The grounds of appeal are that the court should have controlled the case by a nonsuit or direction of a verdict for the defendants because of the absence of proof of negligence in the defendants, and because of the contributory negligence of the plaintiffs; also that it should have charged certain requests which had been submitted and refused.

The defendant Carmine Malanka was the owner of a truck which at the time of the accident was being operated by her servant Gerald Malanka. In the early morning of January 11th, 1933, according to the plaintiffs’ testimony, Gerald had stopped the truck on the right hand side of the highway approximately three feet from the center of the road without exhibiting a rear red light as required by section 7, paragraph 3 of chapter 171, Pamph. L. 1931, p. 352; 1931 Stat. Annual, p. 238, § 135-56, 7, subdiv. (3). While so stopped the plaintiff’s car ran into it, causing the damage for which the respective plaintiffs were awarded judgments.

This we think constituted proof from which the defendants’ negligence could be inferred, and for which both were liable if it existed. Seibert v. Goldstein Co., 99 N. J. L. 200; 122 Atl. Rep. 821.

Contributory negligence is rested on the ground that as-a matter of law the court should have held that proceeding in the face of the lights of another car by which he was momentarily blinded and at the speed appearing in the proofs, the driver of the plaintiff’s car was guilty of negligence, without which the accident would not have occurred.

Whether the manner of driving under the proofs was that of reasonable prudence, was a matter peculiarly the province of the jury to determine, normally one does not anticipate the presence of an automobile parked near the center of the highway and especially so when there is, as here, ample space off the road (see par. 2 (a) art. VI, ch. 281, Pamph. L. 1928, p. 729; Cum. Supp. Comp. Stat., p. 1541, § 179-715R (601) (4); and whether the momentary blinding of his view should have caused the driver to do otherwise than he did is a matter about which reasonable minds might differ.

Respecting the requests for instruction to the jury, of which there were twenty-three in number, it is sufficient to say that in so far as they were proper all were charged, either directly, or in the general instruction, and that the submission of the case to the jury was without error.

The judgments are affirmed.


text:
    AUGUST MATTHEWS, PETITIONER-DEFENDANT, v. TOWNSHIP OF WOODBRIDGE, RESPONDENT-PROSECUTOR.
    Submitted January 21, 1936
    Decided February 14, 1936.
    Before Justices Case and Bodine.
    For the respondent-prosecutor, William P. Braun.

    For the petitioner-defendant, Matthew P. MeTko.

   Bodine, J.

August Matthews was a police officer assigned to night patrol duty. In the very early morning of February 6th, 1934, prior to leaving his post he experienced numbness in his fingers due to the cold. He testified that on the way home his fingers felt as if they were going to break off. He tried, as soon as possible, applications of cold water, but nevertheless his hands became swollen and turned purple. The trouble his physician diagnosed as frost bite. Gangrene set in and some amputation was made necessary. Compensation was awarded in the bureau on the theory that injuries due to frost bite were compensable. It is clear that the injury arose out of and in the course of his employment. We hold it was accidental.

In the case of George v. Edward M. Waldron, Inc., 111 N. J. L. 4; 166 Atl. Rep. 102, the Court of Errors and Appeals affirmed the Supreme Court, holding that sunstroke was compensable where the injury arose out of and in the course of the employment and where the risk was naturally connected with and reasonably incident to the work that the employe was doing, and where he was exposed to a far different risk than the public generally. In that case, the employe was obliged to labor for hours and was exposed to the heat of an exceptional summer day. In the present case, the injured employé was exposed to the cold of a winter morning. He could not seek shelter and was obliged to use his hands. He was exposed to a very different risk than the public generally, because he was obliged to remain on duty from six p. m. to four a. m. with a lunch hour between eleven and twelve midnight. The temperature chart for the period shows somewhat unusual cold at the time of injury. The circumstance that the injured man was exposed to further cold on his way to his home after the performance of his work does not alter the situation.

The bureau disregarded the proofs offered by the workman indicative of a greater disability than that testified to by the witness for the municipality. Prom our examination of the proofs, we are satisfied that the award, as made in the Court of Common Pleas, was proper.

The allowance made for medical expenses for the services of employe’s physician was justified under the proofs before the bureau.

The writ, therefore, will be dismissed, with costs.


text:
    STEFANO ALDI, RELATOR, v. JOHN J. TOOHEY, Jr., COMMISSIONER OF LABOR OF THE STATE OF NEW JERSEY, AND WILLIAM H. ALBRIGHT, TREASURER OF THE STATE OF NEW JERSEY, RESPONDENTS.
    Argued January 22, 1936
    Decided February 14, 1936.

      Before Justices Case and Bodine.
    For the relator, Henry Harris.

    For the respondents, William J. JEgan.

   Pee Curiam.

Relator seeks a writ of mandamus to compel the commissioner of labor to restore to him the compensation paid him prior to the determination in this court of the case of Addotta v. Blunt, 114 N. J. L. 85; 176 Atl. Rep. 105. That case construed chapter 81 of the Pamphlet Laws of 1923, Cum. Supp. Comp. Stat., p. 3904, § **236-92 et seq., as follows: “The phrase ‘compensation due for the two disabilities separately/ necessarily connotes that the disabilities are compensable. In other words, the seeming legislative purpose was to grant to the employe who is totally disabled by reason of the combined disabilities of two unrelated accidents, each producing disability compensable under the Workmen’s Compensation act, the compensation for total disability prescribed by the act, without imposing upon the employer a greater burden than that ordained by the statute for the disability proximately resulting from the last accident.”

In view of that decision, we can only conclude that the determination of the commissioner was proper. Relator’s ease may not be distinguished from the facts in that case simply because both accidents from which he suffered occurred in industry. The first accident was not compensable because the Workmen’s Compensation act had not then been enacted. Hence, he was entitled to nothing under the act of 1923.

A prior improper determination of a question by a public official gives rise to no rights by estoppel or otherwise.

The application will be denied.


text:
    JACQUES WOLFE & COMPANY, PROSECUTOR, v. JOHN PIPLIN, RESPONDENT.
    Submitted October term, 1935
    Decided February 17, 1936.
    Before Brogan, Chief Justice, and Justices Lloyd and Donges.
    For the prosecutor, Winne & Banta (Merritt Lane, of counsel).
    For the respondent, Aubrey J. Elias.

   Per Curiam.

The writ brings up for review a judgment of the Passaic County Common Pleas Court affirming a finding and determination in favor of the employe in a compensation ease. The petitioner was in the employ of the prosecutor as a laborer and alleges that he suffered accidental injuries on April 19th, 1933, which resulted in a hernia. His petition was filed on September 8th, 1933, and a hearing had on April 4th, and May 14th, 1934. After proofs were taken, the deputy commissioner, on June 29th, 1934, dismissed the petition because,, as he said, the petitioner “has not proved conclusively that the descent of the hernia immediately followed the cause,” which is a statutory requirement. (Section 2, paragraph 11, Workmen’s Compensation act.) Cum. Supp. Comp. Stat., 1911-24, p. 3872, § **236-11.

Subsequently, on July 23d, 1934, a new petition was filed for the employe alleging the same accident and, as a consequence, rupture of a small intestine. A hearing was had on this petition and compensation was awarded, which, on appeal, was affirmed.

The prosecutor was allowed a writ of certiorari and, in support of its argument for a reversal of the judgment, contends that the first determination of the bureau, which resulted in the dismissal of the petition, constituted a bar to the prosecution of the second petition, i. e., that the matter was res judicata. Secondly, that it was error to have reopened the case, assuming; the second petition might be considered as an application to reopen the former determination, because there was no suggestion of fraud or newly discovered evidence; and, third, that the proofs did not warrant the finding that the injury complained of was caused by the accident in question.

It is unnecessary for us to determine the first two points because our examination of the testimony convinces us that the proofs offered by the petitioner do not support the finding that the injury was the result of the accident.

Petitioner testified that on the day in question he, with other employes, was engaged in shifting some barrels that weighed perhaps seven hundred pounds and that while in the act of lifting he felt a strain in the stomach; that there was no pain at the time but, later on, while lifting a barrel weighing one hundred pounds, it slipped from his grasp and struck him in the stomach in the right abdominal region, with the result that he had great pain in the groin. Upon examination, he found that he had a “big red mark” on the abdomen. He stopped work and went home. That night he went to the hospital and the following morning was operated on for a rupture in the small intestine. In his further examination, it was developed that he felt this strain or “kink” for the first time when he was lifting the heavy barrel, again when lifting the lighter one, and again at night when he was at his home.

The medical testimony, on behalf of the petitioner, placed the injury as the result either “of a strangulation or a blow” and, in response to the question of counsel for the petitioner as to whether the rupture was the proximate result of the accident in question, the doctor replied, “I would say that it could have been.”

We are mindful of the fact that a great deal of weight must be given to the fact findings of the two tribunals which have already passed upon this matter, but even so we are unable to concur in the conclusion reached. The proofs of the petitioner were meagre and uncertain while those of the prosecutor were definite and persuasive that the rupture in the intestine was not caused by the accident that occurred. The burden of proof is of course upon the petitioner to show that his injury was caused by the accident. The medical testimony offered by him to support his contention did not, in our judgment, support it. It left the matter in the realm of doubt and speculation which is not sufficient to support the inference of liability. The petitioner must do more than show that the injury “could have been” the result of the accident.

The judgment is reversed.


author: Bkogan, Chief Justice.

text:
    THE STATE OF NEW JERSEY, DEFENDANT IN ERROR, v. JOHN FODALE, PLAINTIFF IN ERROR.
    Argued October 1, 1935
    Decided February 14, 1936.
    Before Beogan, Chief Justice, and Justices Lloyd and JDonges.
    For the defendant in error, William, A. W. Grier.

    For the plaintiff in error, Newcorn & Newcorn (William Newcorn, of counsel).
   The opinion of the court was delivered by

Bkogan, Chief Justice.

Plaintiff in error stands convicted of robbery at the Quarter Sessions Court of Salem county and brings this writ of error.

There are twenty-eight reasons for reversal filed. These, as counsel for the plaintiff in error concedes, simmer down to three main points, viz., (a) that it was error to have rejected motion to acquit at the end of the state’s case; (b) that it was error to have denied motion to acquit at the end of the entire case; (c) that plaintiff in error suffered manifest wrong and injury by the conviction.

As to the facts, it appears that on the morning of February 2d, 1934, Harold Anderson and William Waddington, employes of the Pennsgrove National Bank, called at the post office in Pennsgrove and there received three bags con-taming $130,000 in currency which had been sent by the Federal Reserve Bank to the Pennsgrove National Bank to be used for the payroll account of the DuPont Company. Anderson and Waddington received this money, as well as a bag of mail from the post office, and drove by automobile to the side entrance of the Pennsgrove National Bank on Oak street in the borough of Pennsgrove. Neither of the bank employes was armed. The automobile, having been parked, Waddington got out, took, up the bag of mail and began walking to the bank entrance, when he was stopped by a man who placed a gun against his body and took the mail bag from him after striking him across the knuckles with the gun. Anderson, the other bank employe, had remained in the automobile and was making ready to carry the money, which was in the back of the car, into the bank, when,, looking up, he saw the hold-up of Waddington. At this juncture, another individual, with a gun in his hand, stepped into the automobile with Anderson and took the money. Anderson identified the plaintiff in error as the man who held up Waddington.

From the testimony presented by the state, it appears that there were four men connected with this robbery and that two of them were in or near an automobile which they were using in the hold-up, and which was parked in front of the car that the bank messengers used. Another state witness identified the plaintiff in error as one of the group which committed the robbery but placed him in or near the automobile which the group used rather than as the individual who assaulted the bank messenger.

Indicted with the plaintiff in error was one Charles Kent, alias Carroll Johnson, who, although not identified by any witness that appeared in the case, nevertheless pleaded guilty. The court directed a severance in his case and the plaintiff in error, John Fodale, alias John Farley, was tried alone.

As to the first point that it was error for the court to reject motion to acquit at the end of the state’s case, it is argued that the testimony of the state’s witness, Anderson, the bank messenger who remained in the car, was that the plaintiff in error was the man who robbed Waddington of the mail bag and therefore he was guiltless of the robbery of the money. This argument has no substance whatever. There was evidence that the plaintiff in error took the bags of currency from the bank’s automobile and carried it to the car of the group in question.

Taking counsel’s argument in its most favorable light, namely, that according to the testimony of Anderson, Fodale held up the bank messenger, Waddington, and robbed him of the mail bag; of the witness Morrow, that plaintiff in error was in the car used by the robbers to later effect their escape, while the actual robbery was being done; or the witness Childs, who identified Fodale as the man who actually robbed Anderson of the money and carried it to the other car, it was clearly for the jury to find from the evidence presented by the state, if the jury believed that testimony, as apparently it did, that the plaintiff in error was an actor in the commission of the crime.

It is next argued that the court should have directed an acquittal at the end of the entire case. Here counsel argues that Kent admitted the robbery and testified that Fodale was in no way connected with it; that Fodale testified he was not implicated in the robbery but that in fact he was in his boarding house in Camden, asleep, at the time, and that therefore as a matter of law a reasonable doubt existed and the defendant should have been acquitted by a direction of the court. This argument completely disregards the positive identification of Fodale as an actual participant in the crime. Add to this the fact that the jury may not have believed Kent’s’ story. It had the right to reject it as apparently it did. The witness was admittedly a twice-convicted criminal and it is not strange that his testimony was not favorably received by the jury. After all, the selection and rejection of testimony as to its credibility is primarily the function of the jury and on the stand Kent answered what questions he pleased and refused to answer those that didn’t suit him, his motive clearly being to exculpate Fodale by saying that he was not implicated in and had nothing whatever to do with the robbery, regardless of .the fact that Kent and some other unnamed man came to the room in the boarding house occupied by Fodale, during the night, and there divided the money. At the time of the arrest of plaintiff in error and Kent, a sum in excess of $36,000 in cash was found in their possession. Kent of course said the suitcase containing the money was his, but all this was for the jury.

The third ground argued is that there was manifest error and injury in the entire proceeding. Counsel for plaintiff in error starts argument on this point by stating, “This takes in everything.” He proceeds, “Note the dozens of leading questions which were asked by the prosecutor.” None of them is pointed out by stating them in the brief in question and answer form and by reference to book and page. One question is pointed out as leading but the record shows no objection. It is also argued that a mistrial was asked for and refused because state troopers were posted around the court house, with machine guns, &c. There is nothing in the record to show that that was so and the court denied the motion on the ground that the facts stated, in urging the motion, were not true.

It is further urged that plaintiff in error suffered wrong and injury in that the court rejected certain requests to charge. It is not indicated in the brief which were refused. No definite argument is made on the point and we therefore must needs consider the point as abandoned.

Judgment of conviction is affirmed.


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

text:
    LAWYERS AND HOME-MAKERS BUILDING AND LOAN ASSOCIATION, A CORPORATION, PLAINTIFF, v. LOUIS KOHN AND MORRIS OSTERWEIL, DEFENDANTS.
    Decided February 6, 1936.
    For the plaintiff, Israel B. Greene.

    For the defendants, Gansler <& Feinberg.

   Smith, J. L., S. C. C.

This comes on a motion to strike out the complaint filed by the plaintiff on the ground that it is prematurely brought.

The complaint is allegedly based upon a contract of guaranty entered into by the defendants, guaranteeing payment of the principal and interest due and to become due, upon a mortgage held by the plaintiff. As it appears from the complaint, the plaintiff, or its predecessor, loaned $16,000 to Samuel Herman and Herbert Herman, on October 1st, 1925, which loan is evidenced by a bond of that date, and secured by a mortgage given by them on premises known as 423-5 Page avenue, Lyndhurst, New Jersey. The said property was thereafter sold to the defendant Kohn. On or about December 10th, 1931, after the purchase of the property by Louis Kohn, the said mortgage was recast by the plaintiff company, the defendant Kohn subscribing to forty-eight shares of the plaintiff company, and agreeing to pay the recast amount, namely: $9,600, at a monthly rate of $48 per month, and interest, also $48 per month, in all $96 per month, and placing the forty-eight shares as further collateral for the payment; as a part of the agreement to recast as above noted, the two defendants “guaranteed” the payment of the principal and interest due and to become due, on the said mortgage and bond.

This action is brought by the plaintiff, upon this alleged contract to guarantee without first foreclosing the mortgage, pursuant to 3 Comp. Stat., p. 3421, ¶ 48, and amendments thereto.

Plaintiff contends that this is an absolute contract of guarantee for payment, as distinguished from a guarantee of collection, and that in the case of Pfeifer v. Crossley, 91 N. J. L. 433, it is held that no foreclosure is necessary prior to this action.

The plaintiff further quotes from 28 C. J. 979, as follows:

“Where the guarantee is an absolute one and the creditor has also other security, he need not proceed against the security, but may at once sue the guarantor on the default of the principal debtor.”'

Upon examination of the quotation from Corp. Jur., and authorities cited therein, as well as the case of Pfeifer v. Crossley, supra, it is to be found that in all these cases, the guarantor was not the obligor of the debt, but the original creditor, who, upon assignment of his bond and mortgage, guarantees payment of the amount. In these cases the courts have made the distinction between a guarantee of payment and a guarantee of collection; however, as to the defendant Kohn, that distinction is not material, for, in this case, the alleged guarantee is made not by the original creditor assignor, but by the obligor, Kohn, who, under the same instrument, has agreed to pay the mortgage on a monthly basis. In other words, the obligation,, or the debt, entered into by Kohn, by this so-called contract of guarantee, is identical with the original obligation entered into in the recasting of the mortgage.

The situation then comes within the meaning of the statute relied upon by the defendant, namely 3 Comp. Stat., p. 3421, ¶ 48, providing that in all cases where a bond and mortgage has been given for the same debt, all proceedings to collect the said debt shall be first to foreclose the mortgage, &c. The obligation entered into by the defendant Kohn, under the alleged contract of guarantee, is the same as the obligation in the recast.

In Taylor v. Van Nimwagen, 86 N. J. L. 80, the court held:

“That it is the identity of the debt, rather than that of the instrument representing it, that supplies the test, whether or not the statute applies.”

To the same effect, is Knight v. Cape May Sand Co., 83 N. J. L. 597.

The above reasonings, however, do not apply to the defendant Morris Osterweil, who has entered into a separate and independent obligation in this contract to guarantee, which on its face is absolute, guaranteeing the payment of the principal and interest, and as to him, the plaintiff is under no obligation to first foreclose the mortgage. Pfeifer v. Crossley, supra.

Therefore the motion to strike the complaint will be granted as to the defendant Kohn and will be denied as to the defendant Morris Osterweil.

An order will be signed accordingly.


author: Pee Cueiam.

text:
    BETTY STYLES, PLAINTIFF, v. PUBLIC SERVICE CO-ORDINATED TRANSPORT, DEFENDANT.
    Submitted October 1, 1935
    Decided February 19, 1936.
    Before Beogan, Chief Justice, and Justices Lloyd and Donges.
    Por the rule, Henry H. Fryling, William H. Speer and Carl T. Freggens.

      Contra, Sidney Kitay, David Cohn and John J. Breslin, Jr.

   Pee Cueiam.

Plaintiff has a verdict in a suit against defendant for damages for injuries alleged to have been sustained through the negligence of the operator of defendant’s bus.'

Application was made to the trial judge for a rule to show cause why the verdict should not be set aside on the grounds that it is contrary to the weight of the evidence and is excessive. That application was denied.

Upon application to this court, a rule to show cause why a new trial should not be allowed on the grounds that the verdict was against the weight of the evidence, and that the damages were excessive was allowed.

Upon examination of the evidence, we conclude that the verdict in this case is so clearly against the weight of the evidence on the question of defendant’s negligence that a new trial should be ordered.

The rule to show cause is made absolute.


author: Buci-ianan, Vice-Okdinary.

text:
    Harriet Grace Chase et al., executors, appellants, v. J. H. Thayer Martin, State Tax Commissioner, respondent. In the Matter of the Estate of Daniel C. Chase, Deceased.
    [Decided February 21st, 1936.]

      Mr. Thomas H. Hagerty, for the appellants.

      Mr. David T. Wileniz, attorney-general, and. Mr. William A. Moore, for the respondent.
   Buci-ianan, Vice-Okdinary.

The appeal in this case challenges the correctness of the taxes assessed and levied by the Commissioner, in two particulars.

The first is in respect to the inclusion by the Commissioner of the value of certain transfers inter vivos, as a part of the taxable estate. The position of appellants on this point is conceded by the respondent, who by his brief consents that the record be remitted for correction of the tax in this regard. Accordingly, it need not here be further considered.

The remaining issue involves the correctness of the tax assessed in respect of the provisions in the will of decedent for the purchase of a burial plot, erection of a monument and perpetual care and maintenance for the plot and monument. The will directed the executors to expend the aggregate sum of $81,000 for these purposes. Because of, or in accordance with, agreement between the residuary beneficiaries and the executors, the latter in fact expended only the sum of $8,300 for the purposes aforesaid. That sum was allowed by the Commissioner as a reasonable sum in that behalf, and was included in the “reasonable sum” allowed by him for funeral expenses, and thereby exempted from taxation. The balance ($72,700) of the $81,000 above mentioned, was taxed by the Commissioner at the rate of eight percent.

The sole contention of the appellants is that this balance or excess should not have been taxed at eight percent, but should have been taxed at lesser rates in accordance with the graduated schedule in the statute, as being property passing to the widow and children of the decedent, (the residuary beneficiaries under the will).

The statute in force on February 14th, 1934, the date of decedent’s death,— (P. L. 1909, C. 228,4 N. J. Comp. Stat. p. ,5301, § 537, § 1 (4), as amended by P. L. 1,931, C. SOS, N. J. Stat. Annual 1931, p. 485, § 208-537, 1 sub. 5), provides by subsection fifth of section one thereof that the taxes imposed shall be at certain rates on the value of the property transferred by the will, and that in determining that value, there shall be allowed as a deduction “a reasonable sum for funeral expenses.” The expense for burial plot, monument, and perpetual care is properly included within the term “funeral expenses” as used in the statute,—In re Gilchrist, 110 N. J. Eq. 666, 128 Atl. Rep. 876,—but the statute limits the allowance or deduction in that behalf to a reasonable amount.

What constitutes a reasonable amount in that regard is to be determined by the Commissioner. Cf. In re Hack, 105 N. J. Eq. 334 at 336, 147 Atl. Rep. 860; In re Gilchrist, supra.

In the instant case, the Commissioner has determined and fixed the reasonable amount to be allowed in this behalf at the sum of $8,300. The appellants in nowise contest this action by the Commissioner, but on the contrary agree therein.

The will, as heretofore stated, directs the expenditure of $81,000 for the purposes aforesaid. So much of the sum so provided by the will as is in excess of the reasonable allowance, is taxable, and is taxable at the rate of eight percent. Bank of Montclair v. McCutcheon, 110 N. J. Eq. 539, 160 Atl. Rep. 631.

The appellants seek to differentiate the present case from the case last cited on the ground that in the instant case the executors have not expended the excess amount and that the same will not be expended,—the interested parties having agreed that the executors should expend only the said amount of $8,300; that as the result thereof the shares of the residuary beneficiaries named in the will are thereby increased by the amount of this excess; that the amount of this excess is therefore included in the transfer to the widow and daughters and shall be taxed only at the rates applicable to transfers to widow and daughters and not the eight percent rate; that the transfer of this excess to the widow and daughters is therefore under and by virtue of the will and not by transfers among the beneficiaries subsequent to the operation of the will.

This contention is clearly fallacious. The direction of the will is for the expenditure of the $81,000. This was a perfectly valid provision for the decedent to make by his will, irrespective of whether or not it was inappropriately large, or even wasteful, in comparison with the amount of decedent’s estate. Detwiller v. Hartman, 37 N. J. Eq. 347. (The decedent’s net estate in the present instance was some $435,000.) The present will, including the provisions thereof with reference to the burial plot, monument and perpetual care, was duly probated as a valid will. Those provisions have in nowise been adjudicated invalid by any other proceeding, and must of course here be held valid. The result and effect of these provisions is a testamentary transfer to some person or persons not named by the testator, but left to the selection of the executors. Bank of Montclair v. McCutcheon, supra. As such a testamentary transfer, the taxable value thereof is not affected by the fact that less than the specified amount is actually expended by the executors in that behalf,—unless the diminished expenditure is occasioned by the insufficiency of the actual net assets in the decedent’s estate. Where the diminished expenditure is the result of acts of the beneficiaries, it can have no more effect upon the taxability of the testamentary transfer than would be the case in regard to legacies provided by the will, when the legatees agree amongst themselves upon a distribution other than that specified by the terms of the will.

Such agreements have no bearing or effect upon the assessment and levy of inheritance tax on the testamentary transfers. In re Gould’s Estate, 105 N. J. Eq. 598, 148 Atl. Rep. 731, affirmed 108 N. J. L. 197, 154 Atl. Rep. 632; In re O’Neill, 111 N. J. Eq. 378, 162 Atl. Rep. 425.

In the instant case the reason why the additional $72,700 was not expended as the testator directed, was not because of any direction or authorization in the will, but because of the agreement of the residuary beneficiaries. Such agreement is not valid to effectuate any change in the taxability of the estate; whether or not it is otherwise valid is of no materiality here.

If the converse of the situation be considered, the necessity of this result will be even more apparent. Suppose the testator had directed the expenditure of only $100 and the residuary beneficiaries had agreed and directed the executors to expend the sum of $8,700. The difference between the $100 and the $8,700 would not have been taxable at the eight percent rate, but would have been taxable only in accordance with the provisions of the will as transfers to the residuary beneficiaries.

The levy and assessment of tax in respect to this portion of the estate was correct and will be affirmed.