author: Carerey, C. C. J.

text:
    Bergen County Circuit Court.
    MAYWOOD LAND COMPANY, APPELLANT, v. TOWNSHIP OF ROCHELLE PARK, RESPONDENT.
    Decided November 27, 1935.
    For the appellant, Joseph A. Duffy (by L. Edward Herrmann.)

    For the respondent, De Turck & West (by Edward 0. West).

   Carerey, C. C. J.

The appellant, the Maywood Land Company, as the owner of lands located in the township of Boehelle Park (more particularly described in the notice of appeal filed in this cause) appeals from assessments imposed by the governing body of said municipality and levied for the construction of a sanitary sewerage system and treatment plant in said township.

The ordinance providing for the sewerage system and treatment plant aforesaid, declares the improvements aforementioned, to be local improvements, the cost to be assessed upon the lands in the vicinity thereof benefited thereby (Cum. Supp. Comp. Stat. 1911-1924, p. 2194, § *136-2001), in the manner provided by chapter 152 of the public laws of 1917, as amended and supplemented.

The assesssment commissioners report, in the nsnal form, accompanied by a map therein referred to, certified the lands benefited by said improvement.

The appellant, served its notice of appeal upon the clerk of the township of Eochelle Park, personally. The grounds of appeal are as follows:

a. The assessment is illegal and unfair and contrary to law.

b. The assessment fails to assess against the township of Eochelle Park at large a sufficient share of the cost of the entire work.

c. The assessment lacks due regard for the rights and interest of the appellant, as well as to the value of its lands and real estate benefited.

d. The assessments are not made in proportion to the peculiar benefit, advantage or increase in value which the respective lots or parcels of land and real estate receive by reason of the aforesaid improvement.

e. The assessments exceed in amount the peculiar benefit, advantage and increase in value of the lands.

The respondent submits that the appellant has not sustained its burden of proof and the respondent further contends that the assessments are fair and just, agreeable to law and should therefore be sustained.

An assessment is ‘imposed for an improvement specially beneficial to the individual property assessed and can only be justified when proportioned to such benefits. Absence of benefit precludes assessment. Benefits to be assessed, must be direct, immediate, appreciable and certain, not contingent, remote and uncertain. Benefits to be assessed for improvements, must be such special pecuniary benefits as result to particular landowner by reason of his ownership of land affected, as distinguished from general benefits to the public at large. “Benefit” is increment of value to land affected bjr improvement. It represents the difference between the market value of the lands before the improvement and the market value of the lands immediately after the improvement.

It is easy to envision a multitude of difficulties and problems that will be encountered by commissioners—in the performalice of their duties—in making an assessment, proportioned to the property benefited. Having due regard for the limitation that a local improvement assessment is merely a charge against specific property benefited and that any cost beyond that measure must be imposed on the public at large, the action of commissioners in making assessments should be sustained, "unless very convincing evidence be adduced against it.” Jelliff v. Newark, 48 N. J. L. 101; 2 Atl. Rep. 627. The action of commissioners in making assessments of damages and benefits for improvements is judicial. The report submitted by them is considered prima facie evidence of the facts recited therein, inter alia, that the assessment made is just and fair and not in excess of the actual benefits. Hunt v. Rahway, 39 N. J. L. 646; Raymond v. Rutherford, 55 N. J. L. 441; 27 Atl. Rep. 172; Worth v. Westfield, 81 N. J. L. 301; 80 Atl. Rep. 104; Graham v. Ocean City, 98 N. J. L. 426; 119 Atl. Rep. 772. The burden rests upon the appellant to overcome this evidence. This the appellant failed to do.

This court, under the Home Hule act (article 20) (Cum. Supp. Comp. Stat. 1911-1924, pp. 2194 et seq., § *136-2001 et seg.) has the "power to * * * determine whether or not the assessment * * * appealed from * * * is a just and fair assessment * * *.” While the courts have shown a desire to sustain, if possible, acts of assessment commissioners, they have recognized the limitations imposed upon these officers in this respect, under the act. An assessment will not be set aside unless it clearly appears that an injustice has been done.

From the evidence submitted to this court during the hearing of this cause, this court is of the opinion that the appellant has failed to sustain the burden of proof that the assessments imposed were unfair and unjust. “The area of special benefit is so largely a matter of opinion, that the judgment of the commissioners [of assessment] on that subject must stand unless very convincing evidence be adduced against it.” Jelliff v. Newark, supra.

The appellant has failed in the proof required of it, to sustain its grounds of appeal. The appeal must, therefore, be dismissed.

The assessments here levied are fair and just. These assessments, from the evidence,-have due regard to the value of the lands and real estate benefited and are proportioned to the benefit peculiar to the property assessed. Having been imposed within the limits of the special benefit derived from the improvement, the assessments will not be disturbed.

The assessments appealed from are sustained. An order may be entered accordingly.


source: Caselaw Access Project

author: Perskie, J.

license: Public Domain

text:
    CLAUDE CAIOLA, PLAINTIFF-APPELLANT, v. AETNA LIFE INSURANCE COMPANY, DEFENDANT-APPELLEE.
    Submitted October term, 1935
    Decided November 26, 1935.
    Before Justices Trencilard, Heiier and Perskie.
    For the appellant, M. Melz *& David Cohn (David Cohn, of counsel).
    For the appellee, Cox & W albur g (Henry E. Walburg, of counsel).
   The opinion of the court was delivered by

Perskie, J.

On defendant’s appeal to this court we set aside the judgment in favor of the plaintiff, which was based on a directed verdict, and ordered a new trial. We held, among other things, that it was prejudicial error to exclude defendant’s offer to prove, pursuant to its answer, its alleged agreement of non-waiver with its assured. For a detailed statement of the facts of that case and onr determination thereof see opinion reported in 12 N. J. Mis. R. 484; 172 Atl. Rep. 819.

This time the plaintiff appeals from the judgment, which is based on a nonsuit, in favor of the defendant. The latter did not offer its alleged agreement of non-waiver with its assured, or any other proofs, but at the end of plaintiff’s case moved for a nonsuit, which the trial judge, who also sat at the first trial, granted. Again we think that the judgment is erroneous and must be set aside.

The proofs show that plaintiff had recovered a judgment against his employer and that execution thereon was returned unsatisfied. And, therefore, plaintiff correctly argues that it was prima facie proof of the insolvency of the judgment debtor within the meaning of the policy. Horn v. Commonwealth Casualty Co., 105 N. J. L. 616; 147 Atl. Rep. 483. It is admitted that defendant employed its own counsel, who filed the answer and defended the suit of the plaintiff against the assured.

Defendant answered both suits substantially as follows: that it was under no obligation to its assured, under its policy, for the reason that the plaintiff was illegally employed; that its policy covered only those of the assured who were legally employed; and that it defended its assured under an agreement of non-waiver between them. Defendant further conceded (under point III), that “there is in this case absolutely no evidence or proof that any non-waiver agreement had been entered into between the defendant and Patterson Batten and Loom Builders, Incorporated." The position of the defendant below was, and now is, that since the plaintiff was illegally employed, that “the question of non-waiver agreement between defendant herein and the employer of the plaintiff is entirely immaterial to the issue since even if there had been proofs in the plaintiffs case from which might be inferred a waiver on the pari of the company, no cause of action thereby accrued to the plaintiff because the policy of insurance could not be made lo cover plaintiffs accident by the doctrine of waiver or estoppel.” That it was plaintiff’s duty to establish a prima facie case within the terms of the policy, and, having failed to do so, it was not necessary for it to prove the existence of the non-waiver agreement with its assured.

Defendant urged nine grounds on its motion to nonsuit. Before us they are reduced to four. (1) That the policy of insurance issued by defendant to plaintiff’s employer did not cover injuries sustained by plaintiff for the reason that he was illegally employed; lie was under sixteen years of age (being fifteen years, eight months old), and, therefore, was prohibited, under the laws of 1904, page 155, as amended by the laws of 1923, chapter 80, page 158, from working on a metal cutting machine driven by mechanical power, such as a lathe; and that defendant’s policy covered only employes legally employed; (2) that plaintiff failed to establish a cause of action within the terms of the policy; (3) that neither the doctrine of waiver nor estoppel could be invoked against the defendant since the risk was not covered by the terms of the policy; and (4) that there was no evidence of any waiver or forfeiture.

Further reducing these points it can be said, in substance, that the defendant’s position is that plaintiff’s accident is not covered by the policy; that it is a risk of a liability not contemplated or contracted for by the parties; and that the doctrine of waiver and estoppel cannot be invoked to create a non-existing liability.

Counsel for defendant cites many adjudications of the courts of our sister states which unquestionably support the holding that although there might be a waiver of a forfeiture, or of a breach of a condition, nevertheless, neither waiver or estoppel can be invoked against the insurer for the purpose of extending the scope of the written contract between the parties beyond the question of the ordinary meaning of the language employed therein.

The problem here presented, however, is not without precedent with us. The law of our state on the application of the doctrine of waiver or estoppel against an insurer who undertakes, as did the defendant here, the defense of a claim against its assured is well settled. Such undertaking, with full knowledge of the fact, in the absence of a non-waiver agreement between the insurer and insured imposes liability on the insurer. And that liability is grounded on the doctrine of waiver or estoppel. (See cases collated in the recent opinion of our Court of Errors and Appeals, in Cook v. Preferred Accident Insurance Co., 114 N. J. L. 141; 176 Atl. Rep. 178.) And this notwithstanding that, by so doing, the scope of the undertaking between the insurer and the insured is thereby extended.

The last cited case is a striking illustration. In many respects it is quite similar to the case at bar. In that case the driving of the car was illegal; it was prohibited by statute—'(driver was under seventeen years of age)—and such driving was expressly excluded by the terms of the policy.

“The driver of the automobile * * * had no license and, admittedly, was aged sixteen years and seven months at the time of the accident, whereas the New Jersey-statute, section 10, as amended by chapter 171 (Pamph. L. 1931, p. 357; N. J. Stat. Annual 1931, p. 341, § 135-59), provides that no person shall drive an automobile unless licensed to do so and that no person under the age of seventeen years shall be so licensed, and the policy provided that This policy shall exclude any obligation of the company while any disclosed automobile is being driven * * * by any person under the age fixed by law * * ”

In the ease at bar the plaintiff was also not of age, the law made his employment illegal and the coverage of the policy was expressly limited to those legally employed. In the cited case the court in its concluding paragraph, pages 145, 146,' said:

“We consider that if the defendant knew, when it began its investigation shortly after the accident, that Miss Dunne was under the lawful age to operate an automobile, and nevertheless continued with the investigation and took charge of and conducted the preparation of the defense and likewise took charge of and conducted the trial, making no disclaimer of liability or reservation of its rights except by a dictation to the court stenographer at chambers late in the trial and without notice to or knowledge by its insured, it was estopped from setting up the fact of unlawful age as a defense in the suit. The defendant denied having that knowledge, and the question therefore became one of fact. That fact was put clearly before the jury for determination, and the jury were charged as to the legal effect of their factual decision: c * * * if you find * * * that the company * * * knew of the alleged violation * * * and notwithstanding that information proceeded to defend Mrs. Dunne and failed to disclaim * * * then it will not now be heard to set that up as a defense in the present suit * * Our view that a disputed question of fact was involved makes the ruling of the trial court denying the motions for nonsuit and direction of a verdict entirely proper.”

While the burden of; the plaintiff to establish by proper proofs his alleged cause of action never shifts, yet, on the proofs, and defendant’s own admissions of its action here, a prima facie case was established. If defendant desired the benefit of its alleged agreement of non-waiver with its assured (Neilson v. American Mutual, &c., Boston, 111 N. J. L. 345; 168 Atl. Rep. 436), it was its clear duty to “go forward” with its explanatory proof.

Under these views it becomes unnecessary to treat of the other points raised.

It was prejudicial error to nonsuit. Judgment is reversed, and a new trial granted accordingly. Costs to abide the event.


author: Jayne, S. C. 0.

text:
    GUARDIAN LIFE INSURANCE COMPANY OF AMERICA, PLAINTIFF, v. ANNIE LOWENTHAL, INDIVIDUALLY AND AS EXECUTRIX UNDER THE WILL OF HYMAN LOWENTHAL, DECEASED, DEFENDANT.
    Decided October 25, 1935.

      Por the plaintiff, Endicott & Endicott (M. Milion Singer).
    Por the defendant, Thompson ■& Hanslein (John Lloyd).

   Jayne, S. C. 0.

A motion is made in behalf of the plaintiff for a rule striking out the answer filed by the defendant in this action. The criticism of the answer is that it is sham and frivolous. Succinctly stated, the plaintiff seeks in this action to recover from the defendant the alleged deficiency due upon the bond executed on December 31st, 1926; by Hyman Lowenthal, now deceased, and by Annie Lowenthal. The complaint alleges that the mortgage accompanying the bond was foreclosed before the institution of this action.

The defendant in her representative capacity as executrix under the will of Hyman Lowenthal, deceased, avers that in the administration of the estate of the deceased obligor, she, as executrix, on February 10th, 1928, caused a rule to be issued to limit the presentation of claims by the creditors of the estate and that on August 10th, 1928, the appropriate decree was duly entered barring the creditors and that the plaintiff, the owner of the bond, failed to file with her as executrix a claim for the amount due upon the bond. At the argument of this motion, the averment of these facts was not controverted. It is contended that the answer of the executrix in this particular is frivolous. This precise question was considered by me in Cranmer v. Cole, 11 N. J. Mis. R. 578; 167 Atl. Rep. 744, and determined adversely to the contention presently made by counsel for the plaintiff.

Additionally, the answer contains the averment that in the suit to foreclose the mortgage, the plaintiff, as complainant therein, failed and neglected to make certain designated tenants of the mortgaged premises defendants in the suit with the result that the leasehold interests and estates of such tenants in the morgaged premises were liberated from the effect of the foreclosure decree. Here again, the averments of fact are not shown to be untrue. Hpon these facts rests the contention of the defendant that the plaintiff before the institution of this action failed to comply with the procedural requirements of the statute. 3 Comp. Stat., p. 3421; Pamph. L. 1933, p. 172.

It is apparent that the leases of the tenants of the mortgaged premises would not be terminated by the foreclosure of the mortgage unless such tenants were made defendants in the foreclosure suit. Walgreen Co. v. Moore, 116 N. J. Eq. 348; 173 Atl. Rep. 587. It is stated in 42 Corp. Jur. 59:

“A tenant in possession of the mortgaged premises under the mortgagor is a proper party to the foreclosure proceedings, in order that his possession may be controlled by the decree, and even a necessary party, in the sense that his rights will not be affected if he is not joined.”

In 14 A. L. R. (at p. 664), may be found the following statement of the law relating to this subject:

“Whether a lease of real estate previously mortgaged is terminated by a foreclosure action and sale is held by the majority of decisions, to depend on the joinder of the lessee as a party to the foreclosure action. Though there are some conflicting decisions, such a lease by the weight of authority is thus terminated in e,ase, and only in case, the lessee was made a party to the foreclosure suit.”

In the consideration of this motion, it must be assumed that the plaintiff in the previous foreclosure of its mortgage, failed to join the existing tenants of the mortgaged premises as parties to the foreclosure suit and that the mortgaged premises were eventually exposed for sale necessarily subject to the leasehold interests therein of the tenants.

In 42 Corp. Jur. (at p. 59) it is stated, “the failure to make the tenant a party may prevent the property from bringing the best possible price on the foreclosure sale.” It may be apprehended that interested bidders would desire to obtain immediate possession of the mortgaged premises, only to learn at the sale that the possession of the premises had already been granted to a tenant whose tenancy would not expire for several years in the future. It is also conceivable that in the present day the failure to thus terminate an advantageous lease might enhance the sale price of mortgaged premises.

It has been said that the statute requires the owner of a bond and mortgage to first exhaust his security before undertaking to sue on the bond. Mahaffey v. Evens, 115 N. J. Eq. 434; 171 Atl. Rep. 315. For a more definite understanding of what is meant by “exhausting the security,” the language employed by Mr. Justice Lloyd in his opinion in Deal Park Co. v. Bannard, 2 N. J. Mis. R. 194, is significant. In speaking of the requirements of the statute, Mr. Justice Lloyd stated, “it seems to me that nothing short of a complete exhaustion of the property and all interests therein must be had to satisfy the requirements of the statute.”

The conclusion so expressed in Deal Park Co. v. Bannard, supra, governs the determination of the present motion.

The motion to strike the answer is denied.


author: Pee Ctjeiam.

text:
    JOHN FISCHER, PROSECUTOR, v. THE BOROUGH COUNCIL OF THE BOROUGH OF SOUTH TOMS RIVER IN THE COUNTY OF OCEAN, AND J. LESTER YODER, DEFENDANTS.
    Submitted October 11, 1935
    Decided December 5, 1935.
    Before Justices Case and Bodine.
    For the prosecutor, Ira A. Schulman.

    For the defendants, Percy Gamp.

   Pee Ctjeiam.

Prosecutor was convicted of a violation of a zoning ordinance, as amended, of the -borough of South Toms Elver. The amendment places his property in a business zone, bul restricts the use thereof, so that the placing of gasoline pumps and a supply station for servicing automobiles upon the property was prohibited. Prosecutor has a boatyard between state highway hTo. 4 and Toms River. The land lies to the south of Jake’s Branch. There are gasoline stations all along the highway and a large one to the north of Jake’s Branch in an almost identical location between the river and the highway. Prosecutor’s property is admirably suited for the servicing of both boats and automobiles. Restricting the use of prosecutor’s property to the business of a boatyard, and allied purposes, is without legal basis. Obviously, the restriction was arbitrary and baseless. There are no residences in the vicinity and the ordinance complained of, in substance, says to an owner of land on one side of Jake’s Branch, “you may not service automobileswhile to the owner of land precisely situate on the other side of the branch, “you may make full use of your property to your advantage.” Such action is not lawful.

The conviction is set aside, with costs.


author: Pee Cueiam.

text:
    ANGELINA KOCH DOWNS ET AL., RELATORS, v. BOARD OF EDUCATION OF THE DISTRICT OF HOBOKEN, RESPONDENT.
    Submitted October 11, 1935
    Decided December 5, 1935.
    Before Justices Case and Bodine.

      For the relators, Arthur T. Vanderbilt.

    For the respondent, Horace L. Allen and Otmar J. Pellet.

   Pee Cueiam.

The relators are teachers of Hoboken having tenure. Seven of their number were restored to their positions November 19th, 1934, pursuant to litigation terminating in the decision of the Court of Errors and Appeals, reported in 113 N. J. L. 400. It appears that Hoboken had employed seven teachers not protected by tenure of office in the guise of economy in the place of teachers having tenure. The minutes show that the seven non-tenure teachers discharged, to comply with the order of the court, were kept in their positions and formally re-employed December 1st, 1934, as special substitute teachers. The relators now seek to have seven more of their number reinstated to take the place of the seven special substitute teachers so employed.

The Teachers5 Tenure act is not a gesture but a provision of law to protect teachers in their positions by reason of years of service. While in the interest of economy reduction in number may be made, those having tenure should have a preference in reappointment where vacancies occur. It is immaterial that the seven special substitute teachers may take the place of those who have since retired or resigned. It clearly appears from the record that the seven persons designated as special substitute teachers were actually continuously employed, the minutes notwithstanding. The action of the board was the merest subterfuge to defeat the legislative purpose, the decision of the state board of education and the courts of this state.

The teachers who have been reinstated may have waived their back pay and certain of their retirement right. We do not pass upon that point because we do not think it is before us. The circumstances surrounding their reinstatement may indicate voluntary action. Seven of those now seeking reinstatement in the place of the special substitute teachers are clearly not in laches, and are entitled to a writ directing the employment of teachers having tenure in place of substitutes now regularly employed under whatever title designated.

The writ may go, with costs.


author: Pei? Curiam.

text:
    STATE BOARD OF MEDICAL EXAMINERS OF NEW JERSEY, PLAINTIFF-RESPONDENT, v. BASCOM W. MAXWELL, DEFENDANT-PROSECUTOR.
    Submitted October 11, 1935
    Decided December 5, 1935.
    Before Justices Case and Bodine.
    For the defendant-prosecutor, William I. Garrison and II erman J. Finn.

    For the plaintiff-respondent, Robert Peacoclc.

   Pei? Curiam.

Prosecutor was convicted of a violation of an act to regulate the practice of medicine. Section 8 of Pamph. L. 1894, p. 458; 1 Comp. Stat., § 35, p. 3329, provides who shall be regarded as practitioners of medicine. The defendant did not prescribe drugs or material remedy. He sold a book entitled “Eternal Wisdom and Health.” He maintained a store in Atlantic City with seats arranged in rows. He spoke of the infinite spiritual forces which illuminate the body with the principles of truth, love and light. He preached the triumph of the mind over the ills of the body and the power of the will to drive out disease. He told his patients to sit erect, feet firmly on the floor and will themselves to feel the forces which he talked of which would drive out the ills they told him of. Obviously that which he did was not the practice of medicine, because the act mentioned above was amended (Pamph. L. 1921, pp. 702, 707; Cum. Supp. Comp. Stat. 1911-1924, pp. 1867 et seq., §§ 127-31 et seq.), so as to exempt from the provisions of section 8 those who administered to the sick or suffering by prayers or spiritual means without the use of drug or material remedy. The philosophy which the defendant sought to teach was the power of the mind over the ills of the body. He used neither drug or material remedy. He told those who came to him how to sit and think and gave them assurances of the cure of every ailment by such means. Such act clearly came within the exceptions of the 1921 amendment.

The conviction will be set aside.


author: Per Curiam.

text:
    SAM DeMARCO, PETITIONER-RESPONDENT, v. F. H. McGRAW COMPANY, RESPONDENT-PROSECUTOR.
    Submitted October 11, 1935
    Decided December 5, 1935.
    Before Justices Case and Bodine.

      For the respondent-prosecutor, McDermott, Enright & Carpenter (Carl 8. Kuehler).

    For the petitioner-respondent, Frank J. V. Gimino.

   Per Curiam.

Sam DeMarco instituted proceedings for the recovery of compensation by reason of an accident arising out of and in the course of his employment by the prosecutor. He recovered a judgment for temporary and permanent disability December '19th, 1931. This judgment was paid in full. Thereafter on November 8th, 1932, he filed a petition to recover compensation for increased disability. The bureau did not pass upon the question whether it had jurisdiction to hear the petition, but held upon the petitioner’s proofs alone that he had not made out a prima facie case. The Court of Common Pleas reversed the finding and respondent sued out a writ of certiorari to this court. The Supreme Court in DeMarco v. F. H. McGraw Co., 12 N. J. Mis. R. 496; 172 Atl. Rep. 798, reversed the pleas only to the end that the case might be remanded to the bureau for the respondent’s proof. Thereafter the bureau found that upon the proofs adduced the petitioner was not entitled to compensation for increased disability. This finding the pleas reversed. The present writ was, therefore, sued out.

It becomes necessary for us to determine only one question, and that is whether the proofs do show an increase of disability after the adjudication of December 19th, 1931. Dr. Christopher C. Beling, a physician who had examined DeMarco before the first award, testified that his disability had not increased at the time of the proceeding for an increase of compensation. He was called by the petitioner. He is a practitioner of standing and repute. He had made a very careful examination in the first place, and his conclusions are entitled to great respect since they appear to have been the result of careful study and painstaking analysis of both the subjective and objective symptoms. The family, a friend or two, and a druggist to whom the petitioner owed money, testified to the development of epileptic seizures since the award. Testimony indicates that the man was a malingerer, and it is significant that he would not submit to institutional observation.

Dr. J. Wallace Herff, who had examined the man several times and before the first hearing, testified that there was no increase of disability between the time of the award and the hearing of the application for an increase of compensation due to an increase in disability. Other medical testimony tended to establish the same fact. By the clear weight of credible evidence no increased disability was shown. It may be that the bureau award in the first instance was too low, but if, upon the proofs, such were the case the remedy was by appeal and not by petition for the recovery of increased compensation by reason of increased disability, which was not shown. The other points raised need not now be passed upon.

The judgment of the Court of Common Pleas is reversed.


author: Bobine, J.

text:
    SELINA ROBINSON, PROSECUTOR, v. GERALD B. JACKSON, RESPONDENT.
    Submitted October 11, 1935
    Decided December 5, 1935.
    Before Justices Case and Bodine.

      For the prosecutor, Nathan Babinowitz, Milton 0. Kitay and Isadore Babinowitz.

    For the respondent, Herbert C. Dolan.

   Bobine, J.

An employe seeks to review a judgment of the Court of Common Pleas reducing a bureau award of sixty-six and two-thirds per cent, of permanent disability of the left foot to twenty-five per cent. It is conceded that the proofs before the bureau showed the degree of disability for which the award was made. The court below reduced the amount awarded because the proofs before the bureau showed an unreasonable refusal of the injured person to accept proffered medical and surgical aid which, if successful, would have reduced her disability to the amount allowed.

The compensation bureau treated the case as one for compensation for the injuries sustained, and held that it could not consider the possibilities of what might be the result of a successful operation. Feldman v. Braunstein, 87 N. J. L. 20; 93 Atl. Rep. 679. The findings of disability must be as they exist at the time of the hearing. The compensation bureau deals with the situation as it existed. Simpson v. New Jersey Stone and Tile Co., 93 N. J. L. 250; 107 Atl. Rep. 36. However, the employer is not without remedy. He may under section 20 (e), Pamph. L. 1919, p. 209; Cum. Supp. Comp. Stat. 1911-1924, p. 3881, § **236-23, file a petition asking the bureau to order proper medical or surgical treatment at his expense and, in the event of refusal, to modify the award. But the statute does not preclude him, as the bureau found, from showing that a large part of the employe’s present disability is due to an unreasonable refusal to accept proffered aid. Although the employer did not proceed under section 20 (e), supra, it did offer at the hearing proofs under its answer indicating that the injured employe had refused aid which, if accepted, would have resulted in the lessening of her injuries. It is settled law that if it appears at a hearing in the bureau that the employe unreasonably refused to submit to an operation that circumstance would justify a lessening of the award, if the operation without risk of life would have minimized the effect of the injury. McNally v. Hudson and Manhattan Railroad Co., 87 N. J. L. 455; 95 Atl. Rep. 122; affirmed, 88 N. J. L. 729; 96 Atl. Rep. 293. There seems no reason for a separate hearing on the point where, as here, the pleadings raise the issue and the proofs are convincing. The bureau may not compel an employe to undergo an operation in which his life is endangered, but it is unreasonable to permit an employe to indulge a fancy to avoid medical or surgical treatment and thereby live at the expense of the employer.

The prosecutor of this writ broke her left ankle in August of 1933. She had no immediate care. Many times she was urged by the insurance carrier to go to a hospital, at its expense, for a slight operation which would benefit her. She refused to do so. There appears to be no danger to life and the refusal seems both arbitrary and unreasonable. At first, the refusal was from a groundless fear that she might lose her position and later because of her distrust of physicians. Although the employer did not proceed under the statute, the proofs before the bureau are abundant to show that but for an unreasonable refusal to accept the proffered surgical aid the woman’s injuries would be no more than the Court of Common Pleas reduced the award to. The proofs support the findings of the Court of Common Pleas.

The writ is, therefore, dismissed, with costs.


text:
    P. BRONSTEIN & COMPANY, INCORPORATED, RESPONDENT-PROSECUTOR, v. FANNIE HOFFMAN, PETITIONER-DEFENDANT.
    Submitted October 11, 1935
    Decided December 6, 1935.

      Before Justices Case and Bodine.
    Por the respondent-prosecutor, Michael N. Chanalis.

    Por the petitioner-defendant, II. David Zerman.

   Bobine, J.

The deceased employe was an officer and stockholder of P. Bronstein & Company, Incorporated, painting contractors. On October 8th, 1928, while working at his trade and in the course of his employment, he suffered an injury from which he died.

A petition for compensation was filed by the widow. The matter came before the commissioner on September 20th, 1929. All parties were represented by counsel. The commissioner was informed of the terms of a proposed settlement. Petitioner was sworn and interrogated as to her willingness to accept the settlement and the reasons for her so doing. There were disputes as to both liability and coverage. The settlement monejg more than half of the maximum recovery, was paid to the commissioner of labor to insure safety. After this hearing, a stipulation and order of discontinuance approved by the commissioner arid by all parties was filed.

On January 21st, 1933, more than three years after the hearing, a new petition was filed seeking to recover full compensation. This petition was dismissed and on appeal the bureau was reversed. Certiorari was denied because the adjudication of the Court of Common Pleas was not final. Upon rehearing in the bureau an award was made for the balance of the compensation. The pleas affirmed this award, and the case is now before us for determination as to whether the approval of the settlement by the commissioner on October 18th, 1929, after hearing, was a final determination of the claim so as to bar further proceedings. It seems that it was. It was not an agreement to compromise. It was a settlement of the cause after hearing for an amount that met both with the approval of the parties and the commissioner. The compensation as agreed to was paid. “The proceedings took the same course as is usual when a judgment is entered in a court of record for damages in an action brought in behalf of a minor.” Federated Metals Corp. v. Boyko, 11 N. J. Mis. R. 807; 168 Atl. Rep. 672.

The only thing to differentiate the present case from that ease is the circumstance that there was no medical testimony, but there could have have been none because the employe was dead, and the further circumstance that the approval was of a stipulation fixing the liability. The form is immaterial since the intent of all the parties is clear to close out the case after a hearing and with the approval by the commissioner. That such a settlement is binding seems settled by section 4, Pamph. L. 1918, p. 430; Cum. Supp. Comp. Stat. 1911-1924, p. 3890, § **236-45. It is not a case where there are no proofs and no adjudication. It is not a mere .agreement between the parties without judicial sanction.

In the instant case, there was a grave doubt at the time the case was heard as to the petitioner’s right of recovery; hence both she and the commissioner approved the settlement.

It seems, however, unnecessary in the present case to determine whether there was a final determination or an agrément for compensation only, since the statute, paragraph 21 (f), Pamph. L. 1931, p. 705; N. J. Stat. Annual 1931, p. 533, § **236-24, gives the right to seek modification to the injured party only on the ground that the incapacity has increased. The widow and children suffered the same injury at the time of the close out as now.

Thomas v. Liondale Bleach, Dye and Print Works, 10 N. J. Mis. R. 255; 159 Atl. Rep. 313; Federated Metals Corp. v. Boyko, supra; Olosh v. General Leather Co., 12 N. J. Mis. R. 165; 170 Atl. Rep. 241; Federal Leather Co. v. DeRensis, 113 N. J. L. 235; 174 Atl. Rep. 163, and Ecken v. O'Brien, 115 N. J. L. 33; 178 Atl. Rep. 373, are all cases where the injured employe sought increased compensation and are distinguishable on the basis that definite rights existed under paragraph 21 (f) of the act. No such rights are conferred upon the petitioner in this case, so that even though settlement was not a final adjudication, it was obviously a settlement approved by the bureau and binding upon the parties thereto, unless some right to reopen is given by the statute which does not seem to be the case. The right to void agreements between the parties, not approved by the commissioner, is to be found in section 20 (b), as amended. Pamph. L. 1921, p. 737.

We can see no estoppel against the prosecutor. 'It did nothing in the bureau except that which it was obliged to do under the determination of the court.

A writ will be allowed.


author: Jayne, C. C. J.

text:
    Atlantic County Circuit Court.
    CLARENCE E. KNAUER, TRUSTEE OF THE ESTATE OF WALTER RILEY, BANKRUPT, PLAINTIFF, v. CITY OF VENTNOR CITY, A MUNICIPAL CORPORATION OF THE STATE OF NEW JERSEY, DEFENDANT.
    Decided October 21, 1935.
    Por the plaintiff, John Rauffenbari.

    Por the defendant, Hiram Steelman. ■

   Jayne, C. C. J.

A motion is made in behalf of the defendant to strike out the complaint in this action. The reason assigned is that the complaint fails to allege a cause of action. Concisely stated, the complaint alleges that on January 26th, 1933, Walter Riley, while operating a motor vehicle of the police department in the pursuit of his service as a police officer, collided with and injured one Charles Krauthouse. The complaint reveals that Krauthouse prosecuted an action in the Atlantic County Circuit Court against Riley to recover compensatory damages and a verdict for Krauthouse with an award of $7,500 damages eventuated. Additionally the complaint declares that on June 22d, 1934, Riley was adjudicated a bankrupt, the plaintiff was duly appointed trustee in the bankruptcy proceedings and that Krauthouse has filed with the referee in bankruptcy proof of his judgment against the bankrupt. This introductory narrative of facts in the complaint is followed bjT the allegation that it was the duty of the defendant, Ventnor City, to cause Biley to be insured in the sum of $5,000 against any such liability resulting from his operation of a vehicle of the police department and that the defendant was remiss in the fulfillment of this duty to the detriment and loss of the bankrupt to whose rights the plaintiff in his representative capacity has succeeded. The plaintiff accordingly seeks in this action to recover $5,000 from the city.

Tn the consideration of this motion, it may be at once assumed that the liability imposed upon Biley was a consequence of his negligence for which the city, a municipal corporation, could not be held responsible under the doctrine of respondeat superior. Therefore the city was not liable to Krauthouse for the injuries he thus sustained nor was the city under any legal obligation to pay the damages awarded to him in his action against Biley.

It is argued in behalf of the plaintiff, however, that the city was under the dutj1' to afford Biley protection against such a loss by means of liability insurance in the specified amount of $5,000. To confirm this contention, counsel points to the statute of 1931 (Pamph. L. 1931, p. 202) to which reference is made in the complaint. N. J. Stat. Annual 1931, p. 292, § *136-1950A(3). The pertinent part of the statute may be exhibited as follows:

1. “Every political subdivision in this state shall cause to be insured the drivers of its motor cars, trucks and other vehicles, including the drivers of fire and police apparatus, and the drivers of such motor cars, trucks and other vehicles, including fire and police apparatus which shall be under the control of such political subdivision, against liability for damages resulting in personal injury or death or damage to property caused by reason of the operation and use of such motor cars, trucks, vehicles and other apparatus. Said insurance may be issued in the name of said political subdivision, but it shall insure the authorized drivers of said motor cars, trucks and other vehicles against liability for damages to property, in any one accident, to an extent of not less than one thousand dollars ($1,000) and against liability for injuries or death of one person, in any one accident, to an extent of not less than five thousand dollars ($5,000) and against liability for injuries or death of more than one person, in any one accident, to an extent of not less than ten thousand dollars ($10,000).”

2. “Every political subdivision shall be defined, for the purposes of this act, to include every county, city, town, township, village and borough of this state.”

It is said that the intent pf the legislature to require municipalities to procure such insurance becomes evident when the earlier legislation upon this subject (Pamph. L. 1926, p. 46; Cum. Supp. Comp. Stat. 1925-1930, pp. 1124, 1125, §§ *136-1950A(1), (2), (3) is contrasted with the statute of 1931 (supra). The legislature manifestly deemed it expedient to establish in the governmental affairs of such municipalities an administrative policy which would afford the drivers of municipally owned vehicles the designated protection by insurance against the stated liability. The adoption of such a policy was not intended solely for the benefit of the certain individuals who were to be protected by the insurance. It was undoubtedly determined that the adoption of such a policy would be in the public interest. Eecognizing. for example, that the drivers of the fire and police department vehicles were rendering a public service and in the performance of such service might incur liability for injuries to others, it was undoubtedly considered to be in the public interest to afford not only protection to such drivers against liability, but also to provide a means by which such liability might be discharged. The legislature committed the accomplishment of this protective measure to the governing bodies of the municipalities but did not prescribe any penalty for the failure of the municipal officials to comply with the directions of the statute and did not impose any liability on a municipality in the event that any such driver suffered loss in consequence of the failure of the municipal officials to comply with the terms of the statute. Assuming that the duty of the governing body of the city to insure the drivers of its vehicles was mandatory, it was nevertheless a duty of a governmental character. The neglect or failure of the governing officials to obey the mandate of the statute does not of itself create a cause of action maintainable against the municipality in behalf of one who was detrimentally circumstanced by the dereliction of the governing officials.

In this action the alleged liability of the city is predicated solely upon the failure and neglect of the city council to perform a governmental duty. No such action is maintainable unless afforded by statute. It is appropriately the function of the legislature to authorize the prosecution of a civil action against a municipality by an individual who has suffered injury in consequence of the neglect of the municipal officials to perform a public and governmental duty, if the creation of such a cause of action is deemed proper and expedient. The obligation of the municipality to perform the governmental duty may be imposed by statute but the doctrine still prevails that the neglect of a municipal corporation to perform or its negligence in the performance of a public duty imposed on it by law, is a public wrong and cannot constitute the basis of a civil action by an individual who has suffered particular damage by reason of such neglect.

Counsel have failed to invite attention to any reported case in our state in which a similar factual situation existed. The Supreme Court of Pennsylvania was concerned with an analogous case in Szilagyi v. City of Bethlehem, reported in 167 Atl. Rep. 782.

This view of the case renders it unnecessary to discuss the other reasons assigned in support of the motion.

A rule may be entered striking out the complaint.


text:
    Atlantic County Circuit Court.
    EARL H. LEEDS, PLAINTIFF, v. THE CITY OF ATLANTIC CITY, A MUNICIPAL CORPORATION, DEFENDANT.
    Decided November 27, 1935.
    Por the plaintiff, Joseph B. Kauffman.

    Por the defendant, Siracusa & Bacher.

   Jayne, C. C. J.

An examination of the complaint reveals that the plaintiff prosecutes this action to recover damages from the city of Atlantic City to compensate him for certain bodily injuries which he alleges he sustained on November 21st, 1934, while he was attending a football game in the City Convention Hall. Concisely stated, the complaint declares that the defendant arranged to exhibit this football game in its convention hall to all persons who would pay the required admission fee and that the plaintiff paid the admission fee and occupied a seat on a stand erected for the use of those who were to witness the game. Additionally it is alleged that the defendant so negligently erected and maintained the stand upon which the plaintiff was seated that it collapsed.

The answer embraces several separate defenses. The present motion is addressed to the fifth separate defense. The averment is that by virtue of chapter 460 of the laws of 1933, the defendant, as a municipal corporation, is exempt from the alleged liability. The statute is as follows:

1. “JSTo county, municipality or school district shall be liable for injury to the person from the use of any public grounds, buildings or structures, any law to the contrary notwithstanding.”

2. “This act shall take effect immediately.”

It may be incidentally observed that this statute was approved January 10th, 1934, and that the mishap to which the complaint relates occurred on November 21st, 1934. It is contended in behalf of the plaintiff that although this statute became effective prior to the occurrence in which the plaintiff was injured, the enactment does not exempt the city from liability to the plaintiff in the circumstances alleged in the complaint. Therefore the initial inquiry is, whether this statute evinces an intention of the legislature to liberate municipalities from liability for negligence such as is here alleged. In the present action the city is charged with negligence in the construction and maintenance of seats at an entertainment conducted by the city for profit in the municipal convention hall, to which the plaintiff was invited.

In recent years powers of municipal corporations have been gradually expanded and under statutory authority municipalities have been permitted to embark upon activities unrelated to strictly governmental functions and appertaining more to the social and recreational needs of the community, or to the promotion of its growth and development. Such activities transcend the scope of strictly governmental requirements. The immunity of municipal corporations from liability for the negligence of its agents and servants in the performance of governmental functions has not been correspondingly enlarged to encircle negligence in the pursuit of thp so-called private or proprietary functions. Thus our courts in recent years have been more frequently concerned with the liability of municipal corporations in tort actions. In the solution of these problems our courts have emphasized a significant distinction between negligence in the performanee of a private or proprietary function and a dereliction of duty in the exercise of a governmental function. In some cases active wrongdoing by the municipality has been a decisive circumstance. An exploration of the reported cases in many states will disclose that the courts, in the absence of a controlling statute, have undertaken to distribute such municipal activities into the mutually exclusive categories of governmental or proprietary functions. Many, if not most, of our own decisions may be found cited by me in Buffington v. County of Atlantic, 11 N. J. Mis. R. 443; 167 Atl. Rep. 527. It must be realized that a substantial body of law has now been developed by the courts, relating to the liability of municipalities in actions in tort. At the time of the enactment of this statute in 1933, it was the well established law of this state that “it is only where the business or work of the municipality is confined to the exercise of a strictly governmental function, free from any active wrongdoing, on its part, that immunity from responding in damages to persons injured through the negligence of its public officers, agents or servants, is warranted.” See Olesiewicz v. Camden, 100 N. J. L. 340; 126 Atl. Rep. 317.

Of course, it is to be presumed that the legislature was aware of this existing state of the law but even so, it is not to be inferred that the legislature intended to make an exceedingly drastic alteration in the established law unless such an intention is clearly expressed or plainly exhibited by the words of the statute. Assuredly the scope and extent of the exemption from liability intended by the legislature to be afforded such municipal corporations by the statute of 1933 is dubious. During the richer j^ears the predominate tendency in state legislatures was to transfer from the injured individual to the municipality the burden of the losses resulting from the neglect of municipal agents and servants, notably with relation to the negligent operation of school busses and other municipally owned motor vehicles. On the other hand, since 1929 statutes have been enacted in some states exempting municipalities from liability due to negligence in the management and operation of municipal airports, which is an activity uniformly held to be proprietary rather than governmental. Even a limited study of the reported cases in which the courts of other states have been concerned with legislation either restricting or enlarging the liability of municipal corporations in tort, discloses the difficulty encountered by the courts in undertaking to definitely determine the true intent of the legislature from the words used in the statute.

It is not the province of the courts to undertake to dictate to the legislature the words to be used in the enactment of statutes. It is elementary that where the words of a legislative enactment are plain and unambiguous and clearly express the intent of the legislature with respect to a subject within the constitutional sphere of legislation, the courts must be governed by the statutory enactment. It is equally true that courts cannot arbitrarily expand the scope of a statute beyond the natural and literal meaning of its words and in accordance with some conjectural notion of an unexpressed intention on the part of the legislature. Primarily, the intent of the legislature is to be harvested from the language of the statute.

In enacting the statute of 1933, what was the range or sweep of the exemption intended by the legislature? Did the legislature intend to completely eradicate the distinction between negligence of municipal agents in the performance of governmental functions and negligence in the pursuit of private or proprietary functions in its relation to the liability of such municipal corporations for injuries sustained by persons using and only when using “public grounds, buildings or structures?” Were the words “public grounds, buildings or structures” intended to embrace all buildings and grounds used by municipalities for such purposes as convention halls, theatres, radio broadcasting stations, public markets, terminals, wharves, airports, water or electric plants? Or was the word “public” intended to indicate only those buildings and grounds used for strictly public, i. e., governmental objects. Did the legislature intend to exonerate municipalities from liability to those injured by the active wrongdoing of the municipality? Did the legislature intend that municipalities should continue under existing statutory authority to engage in' such private enterprises for gain just as private corporations and nevertheless be clothed with immunity from liability, which immunity is denied to private corporations in precisely the same circumstances?

The convention hall in Atlantic City in which the plaintiff was injured is maintained and the entertainments therein are conducted under statutory authority. Pamph. L. 1929, p. 396.

It is significant that the legislature in conferring the power to maintain convention halls expressly stated its intent as follows: “It being the intent of this act that such municipality shall be enabled to operate such station or hall in the businesslike manner similar to the methods that would be employed if the station or hall was operated by a private and not a municipal corporation.”

Thus the argument of the present motion portrays a situation in which the defendant, a municipal corporation, is lawfully empowered to 'engage in a business or enterprise, for profit (or in the hope thereof) like a private corporation and yet it is contended that the legislature has by this statute of 1933 liberated the municipality from an obligation to a person wrongfully injured which, in precisely the same circumstances, the private corporation must incure and discharge.

If it may be assumed that the legislature may grant to a municipality, engaged in a private enterprise, an exemption from liability in tort which it denies to private corporations similarly engaged (a point concerning which no opinion is here expressed) yet no such intention on the part of the legislature should be merely surmised. Such an intention should be clearly evident, otherwise it should not be inferred that the legislature intended the statute to be positively repugnant and inimical to the settled law.

The conclusion is that the statute of 1933 does not absolve the defendant from liability to the plaintiff assuming the circumstances alleged in the complaint to be true.

The motion is accordingly granted.


author: Egan, Y. C.

text:
    Irving Solomon, receiver of Atlantic Importing Company, Incorporated, complainant, v. Amervoll Company, Incorporated, a corporation, defendant.
    [Decided December 16th, 1935.]

      Mr. Irving Solomon (Mr. Isadore Glauberman, of counsel), pro se.

      Mr. Harry Kaiser (Mr. Ralph II. Jacobson, of counsel), for the defendant.
   Egan, Y. C.

The receiver herein seeks to set aside a transfer of two hundred and fifty-six eases of wine, made to the defendant company on or about April 6th, 1935, and for an accounting from the defendant of any sales made by it of that merchandise. The receiver of the company was appointed by an order of this court on April 22d, 1935. He alleges that on or about April 6th, 1935, a consignment of two hundred and fifty-six cases of wine, valued at $1,128, property of the insolvent company, the Atlantic Importing Company, Incorporated, was delivered to the defendant company, and that the said defendant, without warrant or authority, paid on account thereof to Rohner-Gehrig & Company, Incorporated, custom brokers, a creditor of the Atlantic Importing Company, Incorporated, the sum of $1,191.47. It is alleged that at the time of the payment, the Atlantic Importing Company was insolvent and was in no financial position to pay the amount it owed to Rohner-Gehrig & Company, and that this was known to the defendant. The former president of the Atlantic Importing Company, Salvatore Inzinna, testified that he or no officer of the company authorized the payment by the Amervoll Company to Rohner-Gehrig & Company. He said he had a conversation with Mr. Golden, the president of the defendant Compaq, and one of its salesmen, a man named Stern, who took part in the negotiations, which it was calculated, would impute to the defendant some knowledge of the financial condition of the Atlantic Importing Company at the time of the transaction. But Golden testified that he had examined a Dun & Bradstreet report of the Atlantic Importing Company dated December 28th, 1934, which showed a sound financial condition of the Atlantic Importing Company, Incorporated, as of, or about, October 20th, 1934; and on cross-examination, he stated they were solvent b3r a very low margin. Inzinna said that at the time of his conversation, as above indicated, it was with both Stern and Golden together, and that Golden then said "we weren’t good for credit.” This alleged conversation took place approximately one and a half months previous to the order of insolvency, or sometime in the month of March, 1935. The defendant denies that it knew of the Atlantic Importing Company’s insolvency. I was not impressed by Inzinna’s attitude. He was not convincing.

It appears that the Rohner-Gehrig Company were handling the sales of the Atlantic Importing Company since December or November of 1934; that the importing company was indebted to the Harborside Warehouse, located in Jersey City, for storage charges; the importing company owed the Rohner-Gehrig Company money advanced by it for duties and storage on a shipment of wines, of which the two hundred and fifty-six cases formed a part.

Rudolph 0. Haller, vice-president of the Rohner-Gehrig Company, testified, in effect, that in the early part of April, 1935, Inzinna and a man named Sampson, whose father had shipped a consignment of wines, which included the two hundred and fifty-six cases, from Germany to the Atlantic Importing Company, came to him in his office and stated that they (the Atlantic Importing Company) would like to have a release of two hundred and fifty-six cases of wine from the warehouse, and he requested Haller to have his company advance the storage charges, and the duties imposed on the merchandise, for which they would entrust KohnerGehrig & Company with the collection of their invoice to the customers. A day or two later, or approximately April 4th, Tnzinna and Sampson told Haller that they were negotiating a deal with the Amervoll company for a part of the merchandise, and they requested him to have his company pay the storage charges so that a transfer could be effected. Haller stated that he would consent to the arrangement if the payment would be made to him for his company, since he had already advanced the moneys on account of the duties that were imposed on the merchandise, which amounted to approximately five or six hundred dollars. On or about April 8th, Sampson called on Haller and handed him a letter from the defendant company and a check for $1,103 for the two hundred and fifty-six cases of wine sold in bond to the defendant company. Haller paid the warehouse charges on the two hundred and fifty-six cases and obtained a receipt in Amervolks name and he also procured the customs transfer papers to effect a transfer of the consignment. Haller stated that he had a power of attorney from the Atlantic Importing Company to sign customs papers, and he signed all papers that were necessary to transfer the two hundred and fifty-six cases. Sampson, who handed the letter and check from Amervoll to Haller, was an employe of the Atlantic Importing Company.

At the time the transaction was effected, there was no actual suspension of business. Section 64 of the General Corporation act provides:

“Whenever any corporation shall become insolvent or shall suspend its ordinary business for want of funds to carry on the same, neither the directors nor any officer or agent of the corporation shall sell, convey, assign or transfer any of its estates, effects, choses in action, goods, chattels, rights or credits, lands or tenements; nor shall they or either of them make any such sale, conveyance, assignment or transfer in contemplation of insolvency, and every such sale, conveyance, assignment or transfer shall be utterly null and void as against creditors; provided, that a iona fide purchase for a valuable consideration, before the corporation shall have actually suspended its ordinary business, by any person without notice of such insolvency or of the sale being made in contemplation of insolvency shall not be invalidated or impeached.”

Hoover Steel Ball Co. v. Schafer Ball Bearings Co., 89 N. J. Eq. 433; 105 Atl. Rep. 500.

The evidence does not show that the defendant company had knowledge of the insolvency of the Atlantic Importing Company. Agnew v. Board of Education, 83 N. J. Eq. 49; 89 Atl. Rep. 1046; Regina v. Otto, 65 N. J. Eq. 582; 56 Atl. Rep. 715.

It was held in Glauberman v. Bergenline, 108 N. J. Eq. 531; 155 Atl. Rep. 715, that:

“A payment made by a corporation of one of its unmatured debts, about a week before its being adjudicated insolvent, will not be held to have been made in violation of the statute, in the absence of proof that, at the time of its making, the corporation had suspended its ordinary business for want of funds to carry same on, or was insolvent or had made same in contemplation of insolvency.”

In Long v. Republic, 115 N. J. Eq. 212; 169 Atl. Rep. 860, it was held:

“Payment to an ordinary creditor, without notice of insolvency, received while the company is carrying on its usual business, does not fall within the condemnation of section 64 of the General Corporation act. Were the rule otherwise, no creditor could safely accept payment of any ordinary debt unless he had first ascertained that the corporation was solvent.”

See Hoagland v. United States Trust, 110 N. J. Eq. 489; 160 Atl. Rep. 662.

In Hersh v. Levinson, 117 N. J. Eq. 131; 174 Atl. Rep. 736, Mr. Justice Heher, speaking for the court of errors and appeals, goes quite extensively into the rights of creditors and debtors under section 64 of the General Corporation act, and the principles there learnedly discussed by him have a bearing on the instant case.

Under all the circumstances, I feel the defendant company is entitled to a decree.


author: Bodine, J.

text:
    EDWIN L. R. STEWART, PROSECUTOR, v. INSURANCE FUND COMMISSIONERS OF THE CITY OF NEWARK, ANTHONY F. MINISI, MICHAEL P. DUFFY, AND PEARCE R. FRANKLIN, COMMISSIONERS, AND RICHARD O. SHAFER, RESPONDENTS.
    Submitted October 11, 1935
    Decided December 11, 1935.
    Before Justices Case and Bodinh.
    For the prosecutor, Theodore McG. Marsh.

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

   Bodine, J.

Prosecutor, Edwin L. B. Stewart, had been for a number of years secretary of the insurance fund commission of the city of Newark. The members of the city commission constituted the commission. They were elected for a term of four years and the minutes show that Mr. Stewart was selected as secretary in May of 1925 and also in 1929, for a term of four years. The minutes of the organization meeting held in May, 1933, kept by Mr. Stewart, indicate that he was not then elected secretary but was merely continued in the work. In August of 1934, one Shafer was elected secretary. To test this action certiorari was allowed.

The minutes reciting that Stewart was continued as secretary clearly indicate that there was no intention to do more than to continue him until a successor should be designated. Such action gave him neither a position or an office.

The writ will, therefore, be dismissed.


author: Pee Curiam.

text:
    MATTHEWS CONSTRUCTION COMPANY, PROSECUTOR, v. ANTONIO RANALLO, RESPONDENT.
    Submitted October 11, 1935
    Decided December 11, 1935.
    Before Justices Case and Bodine.
    Por the prosecutor, Samuel D. Lenox.

    Por the respondent, Vincent A. deBenedetto and Louis Josephson.
   Pee Curiam.

Banallo, a laborer employed by Matthews Construction Company, was engaged, on January 18th, 1934, in the course of his employment, in digging a ditch with pick and shovel. While so engaged, he bent down, endeavored to push the shovel into the earth and experienced a pain of such severity that he was unable to continue his work. He immediately notified his employer and was sent by it to a( doctor for treatment. He treated with that physician for six weeks with indifferent results and ultimately filed his petition for compensation under the Workmen’s Compensation act. The workmen’s compensation bureau found liability and ordered payment of compensation. The employer appealed to the Mercer Common Pleas where the findings and determination of the bureau were sustained.

The determination by the deputy commissioner is more informative of the proofs and contentions than it is of his factual finding; and the finding in the Common Pleas is not more definite. We understand, however, that the deputy commissioner found that the workman had a history of osteoarthritis; that on January 18th, 1934, the ailment then being dormant, the workman was in the employ of Matthews Construction Company and suffered a sprain or twisting of his back while, in the course of his work, he was shoveling dirt from a ditch; that the sprain was caused by an untoward event resulting from his physical exertions in and about his duly appointed labors, and that the sprain caused the osteoarthritis to “light up.” Upon that finding of facts the deputy commissioner found liability and the Common Pleas affirmed.

We have examined the testimony and find that it presents a very close question. However, two independent and distinct tribunals have examined the facts, one of them hearing the oral testimony and observing the witnesses and both of them coming to the same conclusion. The rule is that a conclusion so reached should not be lightly disturbed by this court upon a mere inspection of the written word where there is support in the testimony for the conclusions so reached. Pearson v. Armstrong Cork Co., 6 N. J. Mis. R. 976; 143 Atl. Rep. 449; Mountain Ice Co. v. Durkin, 6 N. J. Mis. R. 1111; 144 Atl. Rep. 6; affirmed, 105 N. J. L. 636; 147 Atl. Rep. 451. We find testimony to support the conclusion reached below, and we are of the opinion that that conclusion should stand undisturbed.

The only question argued is whether or not the Common Pleas Court was correct in deciding that the injury alleged to have been received by the workman arose as the result of an accident within the meaning of the Compensation act. A sprain such as that found to have been experienced by the workman in the instant case has been held to be an accident within the purview of the Workmen’s Compensation act (Van Meter v. E. R. Morehouse, Inc., 13 N. J. Mis. R. 558; Marotta v. Fabi, 13 Id. 690; 179 Atl. Rep. 678); and it is settled by many decisions cited in the Van Meter case that there may be a recovery for an injury caused by an accident, although there was a diseased bodily condition prior to the injury which, it may be inferred, would have remained more or less dormant if not weakened by the accident.

The foregoing leads to an affirmance of the judgment in the Common Pleas. The writ will be dismissed, with costs.


author: Boduste, J.

text:
    HENRY K. FORT, INDIVIDUALLY AND AS TRUSTEE, FRANK R. DAVIS, INDIVIDUALLY, AND FRANK R. DAVIS AND THE FIRST NATIONAL BANK OF PHILADELPHIA, EXECUTORS AND TRUSTEES, ETC., AND ELIZABETH C. BROCKLEHURST, PROSECUTORS, v. CITY OF GLOUCESTER CITY, A MUNICIPAL CORPORATION, DEFENDANT.
    Submitted October 11, 1935
    Decided December 5, 1935.
    Before Justices Case and Bodine.
    For Henry K. Fort, Bernard G. Luethy.

    For Frank B. Davis et al., Kenworthy & Clark.

    For Gloucester City, Vincent L. Gallagher.

   Boduste, J.

Prosecutor seeks to have' certain tax sales held in' 1931 by the city of Gloucester set aside. In ease No. 270/271 property described as Water street, block 124, lot 1, was sold to the municipality. In case 272/273, the property sold to the city was described as Water street, block 120, lot 1-A and block 116, lot 1-D. In case 274/275, the property was described as Water street, block 127, lots 1-2 to 31. A trustee and an 'estate being interested, there were separate rules in each ease. These rules were consolidated into the three cases before us.

The properties were not on Water street and did not border thereon. The shipyard district of the city was well known as the Water street district. The prosecutors were not misled by tlie designation nor any likely bidder because the assessment map disclosed the same description. However, this question is unnecessary oí decision, because the municipality is not required to do more in making up the tax sale list, the notice of sale or the certificate oí sale, than to describe the property by lot and block numbers in accordance with the assessment map of the municipality. Pamph. L. 1921, p. 255, § 2, amending Pamph. L. 1918, p. 883.

Prosecutors urge that the proof of the posting of the notice to be set up in five public places was not attached to the list of properties to be sold, as required by section 23, Pamph. L. 1918, p. 888. Assuming this to be so, the proofs do not show that the notices were not posted and besides under section 36 of Pamph. L. 1918, p. 892, a certificate of tax sale after two years is conclusive evidence of the fact therein recited, except when there is known fraud in connection therewith. Central Union Trust Co. v. Willat Film Corp., 99 N. J. Eq. 748. There is no suggestion of fraud. The tax sale certificate is full and complete and nothing in the absence of fraud can rebut the conclusive evidence thereof. The case of Jones v. Landis Township, 50 N. J. L. 374, was decided under an earlier statute which was silent as to the effect of recitals appearing in the certificate of tax sales.

In ease 272/273, it is argued that the bill in chancery seeks the foreclosure of the lien upon prosecutors’ land without proceeding against certain other lands. Tf it be true that the bill seeks the foreclosure of a lien upon prosecutors’ land for taxes improperly assessed, because included in the assessment were lands not then or now ovmed by the prosecutor, he has mistaken his remedy. He is in laches after all these years and may not now question the assessment.

The facts and argument in all these cases are so simliar that counsel should have, by the exercise of diligence and stipulation, saved the court’s time in examining the records. It is not known, nor do we care where the fault lies, but a useless amount of printing is to be deprecated, not only because of the needless expense to litigants, but also because the court is required to examine needless repetition of fact and law.

The writs will be dismissed, with costs.


author:
John C. Wegner,
      Referee.

text:
    New Jersey Department of Labor, Workmen’s Compensation Bureau.
    THOMAS ALKON, PETITIONER, v. SENIOR & PALMER, INCORPORATED, RESPONDENT.
    Decided December 10, 1935.
    For the petitioner, Lewis D. Busch.

    For the respondent, James J. Skeffinglon.

   A formal petition having been filed in the above matter to which an answer was thereafter filed denying the allegations contained therein and setting up the defense that the petitioner was a casual employe.

On December 4th, 1935, testimony was adduced before me and after listening to the said testimony and stipulation of facts I do find and determine as follows:

The petitioner alleges that on January 24th he was employed by the respondent and that he was to shovel snow at the Millstone Junction of the Pennsylvania Eailroad. He further testified that no one told him he was being hired to shovel snow but that he believed he was being hired as a laborer. He testified that there was an unusual snow fall on January 23d and 24th. He further testified that he did no other work but shovel snow and that he never had been employed by this respondent before. He also testified that during lunch hour he was walking around the shanty at Millstone Junction and he slipped and fell striking his head and suffering injuries thereto.

Tony Cicorillo testified that he was employed by the named respondent on January 24th and that he was hired to clear snow from the Pennsylvania tracks. He stated that he had heard that men were being hired to clear snow from the tracks and he applied for work and he was sent out, with other men of the gang, to the Millstone Junction where they were put to work clearing snow from the tracks and switches of the Pennsylvania Eailroad and at lunch time he saw the petitioner walking around the shanty slip and fall. He testified that he had never been employed by this respondent before and that there was an unusual snow fall in this vicinity on January 23d and 24th.

Mr. Booz appeared and testified for the respondent, that his concern was engaged to constructing bridges and abutments and that the active work on bridge construction had ceased about January 15th, and that at the time that this accident occurred they had only two men working for the purpose of protecting their personal property and equipment, but that they received a request from the Pennsylvania office to get together as many men as they possibly could and send them out to the Millstone Junction for the purpose of clearing the tracks and switches inasmuch as there had been an unusual snowstorm and the trains were being held up. He testified that the men were told they were being hired only for the purpose of shoveling snow and that there was no occasion for them to hire any other helpers for any other purpose inasmuch as there was no active work being done at the time.

Mr. Eichardson testified that he was the one employing men at the shanty at Bayward and Hew streets on the morning of January 24th, and that he sent them out to Millstone Junction. He stated that he told the men that they were being hired to shovel snow and that he told those who first came around to go home and get as many men as they could who wanted to earn a few dollars shoveling snow, and that he sent all of these men out to Millstone Junction to clear the snow from the tracks and switches. He further testified that none of these men were employed to do any work under the bridge construction contract.

The respondent entered into evidence the meteorological report, which showed that on the day of January 23d, and the early part of January 24th there had been an unusual snow fall. The record showing that the greatest snow fall in twentv-four hours was thirteen and four-tenths inches on ° «£> the 23d and 24th and that this was the greatest snow fall in twenty-four hours in this month since 1885.

After having had an opportunity to observe the demeanor of the various witnesses as well as considering the testimony adduced before me I am satisfied and find as a fact that this case is one that comes within the rules of law laid down in the case of Laspada v. Public Service Railway Co., 38 N. J. L. J. 102, and in the case'of Thompson v. Wagner, 139 Atl. Rep. 344, and that the petitioner was a casual employe.

Hi H« Hí ' H* ❖ Hi H«

Ordered, that the petition be and the same is hereby dismissed.

John C. Wegner,

Referee.


author:
John C. Wegneb,
      Referee.

text:
    New Jersey Department of Labor, Workmen’s Compensation Bureau.
    JULIUS GROND, PETITIONER, v. WORMANN APARTMENTS, RESPONDENT.
    Decided December 13, 1935.
    Tor the petitioner, Samuel Tarlalsky.

    Tor the respondent, Francis'X. Kenneally.

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It appearing from the pleadings filed herein and the stipulation of counsel that on June 7th, 1935, while the petitioner was in the employ of the respondent as superintendent and caretaker and while engaged in painting a ceiling in an apartment of the premises of the employer, the petitioner fell from a ladder upon which he was working and because of the said fall he damaged an artificial leg which he was wearing. It was further stipulated that there was no personal injury suffered by the petitioner, and that the artificial limb was worn prior to the alleged accident and that the only claim made by the petitioner was for the replacement of the said artificial limb for which the costs would be in the neighborhood of one hundred sixty-five ($165) dollars.

Now, therefore, considering the foregoing stipulations as to the facts, 1 do find and determine as follows:

1. That the petitioner suffered no personal injury, nor any disability either temporary or permanent in character.

2. That the only claim made is for the replacement of the damaged artificial limb.

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It is ordered, adjudged and decreed that the petition filed herein be and the same is hereby dismissed, on the ground that the claim of the petitioner for damage to his personal property is not within the meaning of the statute and therefore this bureau has no jurisdiction over the subject-matter.

John C. Wegneb,

Referee.


author: Sooy, V. C.

text:
    Mortgage Guarantee Company, a corporation of the State of Delaware, complainant, v. Atlantic City Jewish Community Center et al., defendants.
    [Decided December 6th, 1935.]

      Messrs. Bolte & Tripician, for the complainant.

      Mr. Morris Bloom, for the defendants.
   Sooy, V. C.

Defendants move to strike an amended bill to foreclose a mortgage.

Defendants had filed an answer and counter-claim to complainant’s original bill, whereupon counsel for complainant moved to strike both pleadings. The court denied the motion to strike, advising complainant that it might amend its complaint to include certain certificate holders as cestuis que trustent, either as complainants or defendants, “or so amend as to bring itself within the exceptions to the rule requiring their inclusion.”

It may be well to state that complainant, in its original bill, did not set up therein that it was foreclosing for its benefit, as well as that of certificate holders but,-instead of so doing, did not reveal the fact of its having sold participating certificates to the full amount of the principal of the mortgage.

Complainant amended its bill and has not made the cestuis que trustent parties, but has set up reasons for not so doing, which it says are sufficient to relieve it of the necessity thereof.

The amended bill discloses that the defendant originally executed and delivered the bond and- mortgage in question to complainant as mortgagee and that thereafter, complainant sold participating certificates in said bond and mortgage to sixty-four investors, to the full amount of the mortgage; that such sales to the investors took place and were consummated in the city of Baltimore, in the State of Maryland, where complainant has its principal office; that the certificates so sold to the sixty-four investors provided, in part, as follows:

“The company holds and shall continue to hold said mortgage, and the other instruments and evidences of title relating thereto, for the benefit of the purchaser and any other persons interested therein, and shall as agent for the purchaser and any other persons interested therein collect the interest and principal of said mortgage when due.
“The company upon the receipt of the interest and principal of said mortgage shall distribute the same pro rata among the persons entitled thereto. The purchaser of this certificate to be entitled to receive of said interest on said mortgage, interest at the rate of five and one-half per cent., the balance of the mortgage interest to be retained by the company in payment of its services hereunder.
“The company shall have full power to take any action it may deem necessary to enforce the provisions of said mortgage and shall have power to release the same upon payment of the mortgage debt holding the same subject to the order of the certificate owners.”

Under the certificates, the complainant guaranteed to the certificate holders the pa3nnent of principal and interest. Complainant says the authority above recited is still in effect and has not been revoked, further averring that it is by virtue of that authority that complainant has instituted the foreclosure proceedings

Defendant seems to be under the impression that the affidavits filed when complainant moved to strike defendants’ answer and counter-claim are still available to the defendant on this motion. Not so. Those affidavits spent their force on the prior motion and all the court has before it on the present motion is the bill of complaint and the averments therein contained, and the question is whether or not, on the face of the bill of complaint, there is disclosed a situation existing between complainant and cestuis que trustent which requires that complainant make them parties or whether, in the sound discretion of the court, complainant may be relieved of so doing.

As far back as Stillwell v. M’Neely, 2 N. J. Eq. 305, the court said:

“The general rule, that all persons who have an interest in the decree must be made parties, has its exceptions, and will be controlled and regulated in the discretion of the court.”

In the above ease the court, in dealing with the exceptions to the above stated rule, points out cases of inconvenience and expense by reason of the great number of parties as being one of the exceptions, but does not attempt or pretend to point out any other exception.

In Willink v. Morris Canal and Banking Co., N. J. Eq. 377, the court reiterated the general rule and invoked the exception in favor of the complainant, who was not required to join his cestuis because of inconvenience and expense of so doing, and also held:

“Nor is it necessary that the complainant should state upon the face of his bill, in order to warrant the filing of the bill in his own name, that the cestuis que trusts are so numerous that they cannot, without- great inconvenience, be brought before the court.”

But this was based on the proposition that these facts “sufficiently appears upon the face of the mortgage, as disclosed in the bill.”

These cases have been consistently followed and the court of errors and appeals, in Tyson v. Applegate, 40 N. J. Eq. 305 (at p. 311), points out the general rule, as follows:

“In proceedings upon mortgage, the general rule is that there can be no redemption or foreclosure of a mortgage unless all the persons entitled to the whole mortgage-money are before the court. So, if a mortgage has been made to a trustee in trust, all the cestuis que trusient should be made parties, as well as the trustee, to a bill to foreclose. Story Eq. Pl. § 201; 1 Dan. Ch. Pr. 213. This rule has been constantly applied in our court of chancery. Chapman v. Hunt, 1 McCart. 149; Large v. Van Doren, 1 McCart. 208; Jewell v. West Orange, 9 Stew. Eq. 403."

The court in the above case then says: “These general rules admit of exceptions arising out of the circumstances of particular cases,” and then proceeds “to select the exceptions applicable to such cases as that now before us” and, after reviewing the cases theretofore decided, the court said:

“I have not been able to find that the general rule, requiring the presence of both trustee and cestuis que trustent in proceedings for the foreclosure of a mortgage made in trust, is subject to any other exception than that applied in Willink v. Morris Canal and Banking Co., supra, and similar cases.” Citation of further authorities for the general rule and its exceptions would serve no useful purpose. They, are uniform.

Taking into consideration the allegations of the bill of complaint and common knowledge of the nature of the transaction between complainant and the sixty-four original investors to whom it sold participating certificates, does it appear that a strict adherence to the general rule, requiring these certificate holders to be made parties to the bill, would cause great inconvenience or unnecessary expense? There is, of course, no arbitrary number of parties which, when apparent, will justify the relaxing of the general rule, and each case must depend upon its own circumstances.

An inspection of the form of the participating certificates annexed to the bill of complaint shows that it is assignable and there is no provision for registration, so that the only definite knowledge complainant now has as to the present owners of said certificates is the recorded sale of each certificate, without any means of knowing what may have been done with the certificates by the purchasers thereof. The mortgage was created in October of 1927 and it is apparent that in the interval others have become interested in some of these certificates, either through purchase from the original owners or by reason of his or her death or through deposit as collateral for loans, &c., almost indefinitely. In addition to the sale of the certificates, so made through the Baltimore office of complainant company, it must be apparent that the original purchasers were in that state, so that to bring them into court, inquiry and publication would be necessary, involving a long delay and considerable expense.

In addition to this, there does not seem to be any diversity of interest as between the complainant and the certificate holders. The bill is to foreclose a mortgage, not originally a trust mortgage, but a mortgage given directly from the defendant to the complainant, to secure moneys originally advanced by the complainant to the defendant. The foreclosure is sought by reason of defaults on the part of the defendants, which they admit on this motion. The decree will fix the amount due from defendants to complainant and, unless defendant redeems its rights, will be foreclosed. Defendant does not have to see to the application of the moneys it might pay, either in satisfaction of the mortgage or decree. The original debtor and creditor are complainant and defendant and the rights of the certificate holders are under their contract with the complainant.

Finally, the certificate holders have appointed complainant their agent to collect principal and interest, to receipt therefor when and if paid and to proceed in law or equity to enforce collection if not paid, without requiring that they be made parties to any such proceedings looking toward that end. As is said by Vice-Chancellor Backes in Continental Bank and Trust Company of New York v. Fulton Realty Co., 10 N. J. Mis. R. 1105:

“That they dispensed with, why should not the court? Their absence does not render the bill defective.”

Defendant cites Continental Bank and Trust Company of New York v. Fulton Realty Co., supra, and says that the court therein, although it advised the trustees that suits might be brought in its own name, without joining the cestuis que trusteni, held:

“Upon motion in the cause by the defendant, the trustee may be directed to give notice.”

True, but the motion before me is to strike the bill of complaint and not an application by the defendant that the complainant give notice to the cestuis que trusient.

It might be pointed out that Vice-Chancellor Fielder, in First National Bank of Hoboken v. Steneck, 13 N. J. Mis. R. 4 (at p. 13); 176 Atl. Rep. 93, having relieved the trustee of making the cestuis parties, by reason of their great number and the additional expense, said that there was no committee representing the cestuis which could be made a defendant for the purpose of bringing all certificate holders before the court but, he said, “if such a committee should be formed it maj1, apply to the court, should it so desire, to be given notice of all foreclosure suits.”

Vice-Chancellor Backes, in Continental Bank and Trust Company of New York v. Fulton Realty Co., supra, also pointed out that “the trustee, for its own protection, may give them notice of the pendency of the suit and they may, on application, be allowed to intervene as parties defendants * * * or on a motion in the cause by the defendant, the trustee may be directed to give notice.”

In view of the fact that there are sixty-four certificate holders, as aforesaid, who have appointed the complainant their agent to collect the principal and interest on the bond and mortgage in question, without requiring that they be made parties to these proceedings, and in view of the fact that these certificate holders hold assignable certificates which were not required to be registered, and in view of the fact that the original sales were made in a foreign state, and of the great inconvenience, if not practical impossibility, of locating the present holders of the certificates, and the additional cost and expense of attempting to locate the present certificate holders in order to make them parties hereto, the court denies the motion to strike, leaving it open to any certificate holder or holders to make application to be joined as a party and also leaving it open to the defendant, if it so desires, to make application to the court that the complainant give such notice as may be required to participating certificate holders.

The costs of this motion will abide the final decree.


author: Egan, V. C.

text:
    James Bowen, complainant, v. Hugh I. Magee et al., defendants.
    [Decided December 19th, 1935.]

      Messrs. Melosh, Morten & Melosh, for the complainant.

      Mr. Harry Tartalshy and Messrs. Rosenberg, Boss & King, for the defendants.
   Egan, V. C.

The complainant seeks a decree to set aside, or void an alleged claim of title or interest of Joseph J. McGinley in sixty-six shares of stock in the Hudson Transit Company, a corporation. The stock was issued to Hugh I. Magee, the defendant, and stands in his name on the books of the company. The complainant recovered a judgment against Magee for $11,600.04 damages, and costs; execution was issued out of the New Jersey supreme court and returned by the sheriff of Hudson county unsatisfied. The bill herein was filed and, thereunder, an order was issued enjoining transfer by Magee of the stock held by him in the Hudson Transit Company.

On July 22d, 1934, Magee’s wife, Mary, delivered to her brother, the defendant McGinley, the sixty-six shares of stock; there was no written assignment of the stock, nor was the certificate of transfer signed by Magee to McGinley. The Hudson Transit Company became insolvent and the proceedings incident thereto were terminated and part of the assets were allocated to the stock standing in the name of Magee; the allocation consists of the money which, by order of this court made November 1st, 1935, is now on deposit with the clerk of this court.

The complainant takes the position that Magee’s stock has never been legally transferred; that it is subject to levy under the execution issued on complainant’s judgment; that the levy upon such stock on December 12th, 1934, by the sheriff of Hudson county was a valid levy under section 13 of the Uniform Stock Transfer act (P. L. 1916 ch. 191: Cum. Supp. Comp. Stat. 1911-1924. p. 693), because the transfer of the stock bjr the holder thereof had been enjoined by order of this court on July 2d, 1934.

Was there a valid assignment, or transfer, of the stock given to McGinley? Stock may be the subject of a gift, but the transfer of title thereto is effected by endorsement of the certificate of transfer, or the delivery of the certificate of stock must be accompanied by a written assignment or power to assign. Pattberg v. Gott, 102 N. J. Eq. 371; 140 Atl. Rep. 795.

The defendant contends that he held the stock as a pledge for loans advanced by him to Magee and his wife; but there was no corroborating evidence of a pledge submitted. He enumerated loans made by him to Magee and his wife in 1922, 1925, 1928 or 1929, and 1931. The reason given by McGinley why the stock had not been transferred upon the books of the company, or why a written assignment was not given, is that Magee told him it was necessary for him, Magee, to retain the stock in his own name in order to maintain, or secure, his right to operate his bus under his permit, or license; that unless he could submit some evidence of interest or title in the bus when called upon to do so, his license to operate it would be revoked. By the Uniform Stock Transfer act (1916) (P. L. 1916 ch. 191, supra), title to certificates, and the share of stock thereby represented, issued since the taking of effect of said act, can only be transferred by delivery of the certificate either endorsed or else coupled with an assignment or power of attorney as provided for by section 2 of that act. Cum. Supp. Comp. Stat. 1911-1924 p. 691 § 47-151.

The shares of stock were delivered as above stated on July 22d, 1934. The execution was issued on July 2d, 1934, some twenty days before the stock was delivered to the defendant. The defendant resides in the State of Pennsylvania and his testimony was faulty, uncertain and doubtful as to the manner and form of the delivery of the stock to him; he was not sure that he received it through the mails, or whether it was handed to him in person. Since the defendant was not within the jurisdiction of the court, and the stock allegedly was in the possession of the defendant or his wife at the time the writ of execution was issued, it, therefore, follows that the levy under the provisions of section 13 of the Uniform Stock Transfer act was sufficient and effective. Section 13 of the Uniform Stock Transfer act (P. L. 1916 p. 898, supra) reads as follows:

“No attachment or levy upon shares of stock for which a certificate is outstanding shall be valid until such certificate be actually seized by the officer making the attachment or levy, or by surrendering to the corporation which issued it, or its transfer hy the holder he enjoined.”

An order enjoining the transfer of the stock was issued as hereinabove expressed. Wallach v. Stein, 103 N. J. L. 470; 136 Atl. Rep. 209. Section 14 of the Uniform Stock Transfer act reads as follows:

“A creditor whose debtor is the owner of a certificate shall be entitled to such aid from courts of appropriate jurisdiction, by injunction and otherwise, in attaching such certificate or in satisfying the claim by means thereof as is allowed at law or in equity, in regard to property which cannot readily be attached or levied upon by ordinary legal process.”

Under the circumstances, the levy being sufficient, the complainant is entitled to the moneys, representing the value of the defendant’s stock, now on deposit with the clerk of this court. I shall advise an order to conform to the views herein announced.