author: Newman, A. M.

text:
    Carl K. Ancrum, petitioner, v. Evelyn E. Ancrum, defendant.
    [Decided June 9th, 1931.]

      Messrs. Sandmeyer & Meisner, for the petitioner.

      Mr. Charles Becker, for the defendant.
   Newman, A. M.

The petition in this case is filed to declare a marriage null and void on the ground that the defendant at the time of her marriage to the petitioner was already married to one Isaac Journeyman, who at the time of the petitioner’s marriage to the defendant, was living, and from whom the defendant had not been divorced. It appears from the evidence that on the 24th day of July, 1925, a marriage ceremony between the petitioner and the defendant was performed and that the petitioner did not then know that the defendant had a husband living from whom she had not been •divorced.

If these facts standing alone were proved, 1 would have to advise a decree in accordance with the prayer of the petition. Tyll v. Keller, 94 N. J. Eq. 426; Vanaman v. Vanaman, 103 N. J. Eq. 400. But it appears by very clear and convineing evidence that sometime during the year 1927 the petitioner learned of the fact of the prior marriage of the defendant to one Isaac Journeyman; that he made an investigation of the facts and satisfied himself of the invalidity of his marriage to the defendant and discussed the matter with Isaac Journeyman, who informed him of the prior marriage- and gave him the place, date and circumstances connected therewith. Upon learning these facts, the petitioner, after going to New Haven to procure the record of the prior marriage, then separated himself from the defendant for a period' of about one month, but in the same year, 1927, he resumed marital relations with the defendant and continued to live-with her “on and off,” to use his own expression, until 1930,. when the defendant started proceedings against him for nonsupport and he then separated himself from her and commenced these proceedings to annual the marriage.

The petitioner asserts that his reason, or rather excuse, for-resuming marital relations with the defendant and continuing-them for a period of three years, which of course were adulterous and criminal under the conditions then existing, was-the fact that the defendant informed him that her marriage-to Isaac Journejunan was invalid since Isaac Journeyman-had another wife living at the time of his marriage to the-defendant, and that she, the defendant, desired to submit' proof of this fact to the petitioner. Upon her assertions and assurance that she would submit such proof (although this-is emphatically denied by the defendant) the petitioner continued to live with her in this illegal and improper relationship for a period of nearly three years. I place very little-credence upon this testimony respecting his reason for continuing this improper relationship.

Counsel for the defendant interposes a defense that' amounts to a condonation. I might say here that the doctrine-of condonation can have no application to this case as forgiveness cannot validate an illegal marriage. Millar v. Millarr (Cal.), 167 Pac. Rep. 394; L. R. A. 1918-B 415.

However, I am confronted with this question:

Is the statute conferring upon the petitioner the right to the relief sought as a matter of strict legal right, mandatory, or may the court in the exercise of its equitable powers, inquire into the circumstances and deny the petitioner a decree where the petitioner does not come into court with clean hands?

I have spent considerable time trying to reconcile whether ■or not the doctrine of pari delicto or the equitable maxim “he who comes into equity must come with clean hands,” applies in annulment cases. This is because public policy is involved and the state is an interested party to litigation of this character. I have been referred to the case of Davis v. Green, 91 N. J. Eq. 17, which in effect holds that these doctrines do not apply in annulment cases of this kind. However, the court of appeals later in the case of Tyll v. Keller, supra, and Dolan v. Wagner, 95 N. J. Eq. 1, hold to the contrary, as did Vice-Chancellor Backes in the case of Schaffer v. Krestovnikow, 88 N. J. Eq. 192.

It is also argued that the maxim of unclean hands was not urged by the defendant. In the case of Pennello v. Pennello, 97 N. J. Eq. 421, Vice-Chancellor Buchanan states:

“The maxim of unclean hands and the maxim cognate thereto are applicable to and may be invoked by the court sua sponle in suits for annulment upon whatever ground brought. But the maxim of unclean hands is one not capable of exact delimitation. Ordinarily, at least, to justify or necessitate its application, some element of moral turpitude on the part of the suitor must appear.”

The question whether the court may invoke the maxim of unclean hands on its own motion is discussed in 4 A. L. R. 47.

It is also urged that to refuse a decree of annulment would be tantamount to recognizing the possibility of a person having two legal wives or two legal husbands at the same time. May not equitable considerations be presented which would require the court in the interest of decency and fair dealing, to deny a party the relief of a decree of annulment? In the case now under consideration the petitioner and the defendant were married on July 2d, 1925, and lived together as man and wife until the year 1927, at which time the petitioner learned that the defendant had another husband living. He had made an investigation and found that to be the fact and yet he continued to live with the defendant as man and wife up to the time the defendant brought maintenance proceedings against him in 1930.

In the case sub judice it appears that for nearly three years after knowledge of the facts had come to him, the petitioner and the defendant continued to sustain toward each other the relationship of husband and wife. It would seem that when the petitioner became apprised of the fact that the defendant’s husband was alive, and having reasonable opportunity to investigate the facts and circumstances, of all of which he availed himself, he was called upon to act, and to act with reasonable promptitude and expedition. He should then without unnecessary delay have decided upon the course to be pursued. The petitioner was not at liberty to play fast and loose with the defendant and by his conduct sanction and approve a marriage which he knew to be illegal. It was not only unconscionable but criminal for him to continue to cohabit with her with knowledge of the prior marriage and then at a later day repudiate the relationship and bring this action to annul the marriage. His conduct was such as appears to me as'worthy of condemnation and I am therefore constrained to deny him the relief prayed for.

I might also add that in the case of Schaffer v. Kreslovnikow, supra, a case similar to the one under consideration, Vice-Chancellor Backes said:

“Then, too, as" far as respects relief to the petitioner, the doctrine of unclean hands would bar him if we looked upon the cohabitation as continuously criminal.”

Counsel for the petitioner has called to my attention the case of Stokes v. Stokes, 113 N. Y. Supp. 142, which was later reversed and a new trial ordered by the court of appeals in 198 N. Y. 301. Upon examination of this ease I find that the court of appeals reversed the lower court because of the fact that the findings of the lower court were so inconsistent that it was impossible to harmonize them. However, the court states, “while it may be well that there are extreme eases where the position of the party seeking relief of the kind sought here, is so inequitable that a court of equity will refuse to interfere, no such defense was pleaded or sufficiently proved in the case before us.”

As I have concluded to dismiss the proceedings I shall not comment but merely refer to the fact that this cause is not properly entitled within the rule laid down in the case of Dooley v. Dooley, 98 N. J. Eq. 22.

I shall, therefore, deny the relief requested in the petition, and dismiss the proceedings.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    WALTER HARRIS, PLAINTIFF, v. DAVID KAPLAN AND HARRY D. GRIFFITH, DEFENDANTS.
    Submitted February 2, 1931
    Decided July 2, 1931.
    Before Gummere, Chief Justice, and Justices Trenchard and Lloyd.
    Por the rule, Edwards, Smith & Dawson (Edwin E. Smith and Andrew 0. Wittreich, of counsel).

      Contra, Anschelewitz, Frank el <& Barr (William Ilartshome, of counsel).
   Per Curiam.

This is the defendant Griffith’s rule to show cause why plaintiff’s verdict for $2,500 should not be set aside as to damages only.

The testimony upon the part of the plaintiff reasonably tended to show that plaintiff, Harris, on July 28th, 1929, was traveling on a motorcycle from New York to Asbury Park on the state highway through Red Bank and was following an automobile owned and driven by defendant Kaplan; that they were on Wyekoff Place which runs on an angle from the Maple avenue part of the state highway to the Broad street part; that the visibility was good; that while thus proceeding in a southerly direction on Wyekoff Place behind Kaplan, the automobile of Griffith, going north, turned out of Broad street into Wyckoff Place, going at a high rate of speed, and after having paused somewhat, proceeded northerly on Wyckoff Place and pulled directly in front of the automobile of Kaplan on his, Griffith’s, wrong side of the road; that Griffith then tried to get out of the way of Kaplan’s car by pulling to his right and thereby brought the left side of his automobile in contact with the left front of the Kaplan car; that the resulting crash brought the automobile of Kaplan into sharp contact with the motorcycle upon which the plaintiff was riding, the force of this impact driving the handlebar of the motorcycle against the side of the plaintiff, breaking his rib and injuring him.

Plaintiff brought this suit against both defendants. The jury placed the liability upon the defendant Griffith and rendered a verdict against Griffith of $2,500 and found a verdict in favor of Kaplan of no cause of action.

As we read the proofs the foregoing statement of facts is overwhelmingly supported by the evidence.

The defendant Griffith writes down three reasons for a new trial: (1) that the verdict was against the weight of the evidence; (2) that the verdict was contrary to law; and (3) that the damages awarded by the jury are excessive.

We turn now to the damages awarded by the jury. The verdict was for $2,500. We are not satisfied that the verdict is excessive. Plaintiff claimed for damages resulting from personal injuries and also for the loss of his motorcycle. The evidence tended to show, and was uncontradicted, that the motorej'ole was so damaged as to render it practically worthless. The plaintiff’s injuries were what may well be called serious, and up to the time of the trial, which was September 10th, 1930, he had not fully recovered therefrom. It was undisputed that his rib was broken; that he suffered severely for three weeks and was unable to resume his usual occupation for a period of four months; that thereafter he was much disturbed with headaches, pain in his side, back and shoulder. He was a young man and theretofore had had employment under contract as a chauffeur, and had theretofore been well and strong.

The evidence as to his earnings is not perfectly clear, but undoubtedly his average earnings prior to the accident amounted to $40 a week, and the jury might have found from the evidence that they amounted to $80 a week. His expenses for doctors and X-rays amounted to $12; the proved loss for his motorcycle was $450. Considering his wages lost, and what would be reasonable compensation for his pain and suffering and future discomfort or disability, it seems reasonably certain that his verdict of $2,500 cannot be said to be excessive.

And upon the whole case we think the verdict cannot be said to be against the weight of the evidence, either upon the question of negligence of the defendant or upon the alleged contributory negligence of the plaintiff, and that the verdict is not contrary to law.

The rule will be discharged, with costs.


author: Pee Ctjbiam.

text:
    DANIEL HENDERSON, RAE HENDERSON AND JENNIE STANCIL, PLAINTIFFS, v. ABBOTTS ALDERNEY DAIRIES, INCORPORATED, DEFENDANT.
    Submitted February 2, 1931
    Decided July 2, 1931.
    Before Gummere, Chief Justice, and Justices Trenchard and Lloyd.

      Eor the rule, Samuel P. Orlando.

    Contra, Leroy W. Loder and Samuel T. French.

   Pee Ctjbiam.

This is defendant’s rule to show cause why the plaintiffs’ verdicts obtained April 25th, 1930, in the Cumberland Circuit, should not be set aside. The verdict in favor of Daniel Henderson was $2,000; that in favor of Eae Henderson was $15,000, and that in favor of Jennie Stancil was $10,000.

That was the second trial of this cause, the verdicts for the plaintiffs at the first trial having been set aside on rules to show cause, apparently for the reason, among others, that as to the verdict in favor of the husband of Mrs. Stancil (then but not now a party) it was in disregard of the charge of the court.

The evidence at this trial reasonably tended to show that on July 5th, 1926, Eae Henderson and Jennie Stancil were riding on the Millville-Bridgeton pike in an automobile owned by Daniel Henderson and being driven by one Prank Tarri. They were traveling in the direction of Bridgeton at a speed estimated variously at from twenty to twenty-five miles an hour, and while thus proceeding, the defendant’s truck, without any warning or signal of any kind, suddenly came out. of a byroad known as Carmel road which comes to an end at the place of collision. The truck was a large and heavy truck. The intersection was more or less obstructed by vegetation and foliage. The truck came out, according to witnesses, fast, and the driver thereof undertook to make a left-hand turn towards Millville, in the face of the plaintiff’s car, and so almost completely blocking the highway. The driver of the plaintiffs’ car applied his brakes, but was unable to avoid collision with the truck which was then occupying a position on the highway at an angle of forty-five degrees, and the impact occurred as the plaintiffs’ car reached a point from five to ten feet on the Millville side of the intersection. In the impact plaintiffs’ car was smashed in the front and Eae Henderson and Jennie Stancil riding therein were injured..

We think it was competent for the jury to find, as it did, that the driver of defendant’s truck was negligent. He testified that he stopped his truck and looked both ways; that towards Bridgeton he could see plainly, the road being a perfectly straight road; that towards Millville he could see about two hundred feet, although his view was somewhat obstructed; that as he proceeded1 to a point of clear view he was busy shifting his gears.

We think it was also competent for the jury to determine that the driver of plaintiffs’ car was not guilty of contributory negligence.

It is therefore clear that the verdicts cannot be disturbed by reason of the refusal of the trial judge to nonsuit, nor by reason of the refusal of the trial judge to direct a verdict for the defendant. We think also that the verdicts cannot be disturbed upon the ground that the verdicts are against the great weight of the evidence on the question of liability.

But we think that the verdicts are plainly excessive. In our judgment the testimony with respect to the injury to the car of the plaintiff Daniel Henderson does not warrant a judgment in excess of $1,500.

The plaintiff Jennie Stancil kept a boarding house at Bivalve; she apparently was fifty-one years of age at the time of the accident and was married. No doubt she was seriously injured. She remained in the hospital for about two weeks and was thereafter treated at her home by her family physician at an expense of $121, and by another physician at an expense of $25, and by another physician at an expense of $12, with some other incidental expenses. She no doubt has experienced considerable pain and suffering as a result of the accident. Admittedly, her health at the time of the trial was not good, but it likewise appears that her health had not been good prior to the accident. Considering all of the testimony relative to both past and future results of the accident, we think that it plainty -will not justify a recovery in excess of $6,000.

As to Rae Henderson, she, too, no doubt, was seriously injured. She, too, was taken to the Millville hospital and there remained for about two weeks. The evidence tends to show that her injuries were principally a fracture of the left leg just above the anide and injuries to her bladder. The fracture of the leg was a serious one and it resulted in an expenditure of upwards of $525 in order to effect a cure, which had not been completed up to the time of the trial, with more or less indication of permanent disability of the ankle. She at the time of the trial was a widow and approximately fifty-three years of age. Considering the testimony with respect to her injuries, and possible duration and normal results thereof, so far as they can be gathered from the testimony, we think it is clear that the extent of recovery warranted by the proof is $10,000.

As to each plaintiff who consents to a reduction of his or her verdict to the figures herein above named the rule will be discharged; as to each plaintiff who fails to so consent, the rule will be made absolute.


author: Lawrence, 0. C. J.

text:
    ETHEL J. BRUNT, PLAINTIFF, v. GEORGE R. SCHENCK, DEFENDANT.
    Decided July 11, 1931.
    Before Lawkence, Circuit Court judge.

      Eor the rule, McDermott, Enright & Carpenter (Carl 8. Kuebler).

    Contra, Harry B. Cooper.

   Lawrence, 0. C. J.

This was an accident case tried before me and a jury at the Monmouth Circuit. A verdict was returned in favor of the plaintiff for $3,000. Defendant took out the present rule to show cause, pursuant to Bamph. L. 1931, ch. 356, and argued for a new trial on two grounds: first, that the verdict was contrary to the weight of the evidence; and second, that the damages awarded are excessive.

The case contains no unusual features. Plaintiff while riding in her husband’s car, which was being driven by their son, was injured when it collided with the automobile of the defendant. Mr. Brunt was on the front seat and his wife was sitting in the rear. The accident occurred at an intersection of a main highway^ in Middletown township, with a less traveled gravel road. The Brunt car was being driven at the time on the highway in a southerly direction at a speed of thirty-five miles an hour. Defendant came over to the side road from the left intending to cross the highway. The intersection was posted with danger signs, and being familiar with it, as he approached he stopped his automobile at the edge of the highway to allow north-bound cars to pass. He observed the Brunt ear coming from his right, but as it appeared to be a considerable distance away, after allowing two more cars to go by, he drove on to the highway, since “he had to cross some time,” and as the rear wheels of his car were just over the centre line, there was a sudden “explosion” at the right rear, caused by the Brunt car striking it and with such force as to slue it around to the dirt shoulder of the highway. The Brunt car came to a stop near the centre of the highway practically at the place of the collision.

The evidence at the trial was comparatively free from contradiction in its essential details; that offered in behalf of plaintiff differing only as to the distance of their car from the intersection, which obviously must have been much less than as conceived by defendant. Young Brunt testified that as they approached his vision of the gravel road to the left was for the moment obscured by the line of automobiles going north on the highway, and that he was not aware of the presence of defendant’s car until within ten feet of the intersection when it suddenly came from the rear of the last car in the line of traffic and crossed to his side of the highway and at a time when a collision was inevitable.

In these circumstances, counsel for defendant urges that the accident was due solely to the negligence of the driver of the Brunt car, in that he failed to observe the approach of defendant’s automobile from the left, and that if he had reduced the speed of his car as he came to the intersection and waited until the line of north-bound traffic had passed, he would have seen the Schenck car in time to have avoided striking it. He accordingly argues that the verdict was contrary to the weight of the evidence. This appears not to be so, however. The jury could well have found that the collision was due directly to defendant’s impatience to get across the highway at a time when there was considerable traffic upon it, and in particular his failure to properly look for cars coming thereon in a southerly direction. Moreover, if the jury had found that the accident was due to the joint negligence of both drivers, the verdict should not be set aside (Shamberger v. VanBlarcon, 7 N. J. Mis. R. 1011); while plaintiff’s relation to the car in which she was riding, as disclosed by the evidence, was such that even though joint negligence was found, her right to recover of defendant would still be warranted. Jacobson v. Bentley-Morrison Corp., 103 N. J. L. 16; Benning v. Herbert, 8 N. J. Adv. R. 526

The injuries received by Mrs. Brunt in the accident consisted of a concussion, a contusion at the back of the head and a laceration of the scalp which required twenty stitches. She was in a hospital for three days, confined after that to the house for two weeks, was then examined by a specialist for an ear difficulty and thereafter was obliged to remain at home because of her condition for four weeks. At the time of the accident she was forty-two years of age in good health, witli brown hair. After the accident and the treatment of the laceration of the scalp, her hair came in gray, as it appeared at the trial, and she has a scar on the top of her head, although not apparent to casual observation since it is concealed by her hair. In addition to the head injury, she sustained some injury to the back in the sacroiliac region and at the time of the trial—over a year after the accident—she still suffered from headaches and backaches, which she did not have before. She also complained of inability to sleep as she had before been accustomed.

In view of these injuries, it cannot be said that the award is so manifestly excessive as to require a reduction. Taylor v. Anderson, 8 N. J. Mis. R. 586; Redfield v. Hurff, 9 Id. 15; Bethanis v. Siegel, Ibid 21; Nagy v. Manziano, Ibid. 229; Jacobs v. Public Service, &c., Ibid. 592. The rule to show cause will be discharged.


author: Beery, Vice-Ordtnaey.

text:
    In the matter of the estate of Alexander H. Chamberlain, deceased.
    [Decided June 20th, 1931.]

      Mr. Henry T. Stetson, for the executors.
   Beery, Vice-Ordtnaey.

After an examination of the executor’s account I have decided to make the following allowances:

To the executors, the sum of $5,000 for commissions on corpus and the sum of $500 for commissions on income.

To Henry T. Stetson, Esq., as proctor for the executors, the sum of $3,500, “in addition to the $1,500 already paid as shown in the account.”

The commissions to the executors amount to slightly less than two per cent, on the inventory value of the estate and about two and one-half per cent, on the present value. The commissions on the income amount to approximately five per cent, on the total income. I do not feel that larger allowances to the executors could be justified. There is nothing in the file to indicate any unusual service by them and it appears from a copy of the will left with me by the proctor for the executors that the executors, upon the passing of this account, become trustees and continue as such during the life of the daughter of the decedent. They will be entitled, eventually, to commissions not exceeding five per cent, on the corpus of the trust estate and to commissions at a rate not exceeding five per cent, on the income received by them as trustees. While, as I have said, there is nothing to indicate any unusual service by the executors in this estate, it does appear that since the testator’s death in August, 1929, the value of the estate has shrunk from over $258,000 to slightly less than $200,000. This shrinkage is due, apparently, to stock market conditions, the testator’s estate being largely composed, at the time of his death, of stocks listed on the New York Stock Exchange, and subject to market fluctuations. They are not legal investments for trust funds and while the will authorized the executors to continue the investments and relieved them from surcharge for losses arising from such retention, it would seem to me that common business experience should have suggested to the executors, at least to the executor trust company, which is supposed to be a specialist in this line of work, and holds itself out as such, that immediate sale of these stocks at the then market prices would have been most advisable, and that their retention might very possibly result in a loss to the estate. It was common knowledge, not only amongst bankers and trust companies, but the general public as well, that the stock market condition at the time of testator’s death was an unhealthy one, that values were very much inflated and that a crash was almost sure to occur. In view of this fact, I think it was the duty of the executors to dispose of these stocks immediately upon their qualification as executors and that the loss to the estate resulting from their failure to act should be taken into consideration now in awarding them compensation for their services. It is only the fact that the will authorizes the executors to retain these stocks that prevents a surcharge now.

In approving the executors’ account containing an item showing payment of $1,500 on account of counsel fees, I do not visit to be understood as approving the practice of executors making payments on account of counsel fees without an order of the court authorizing them to do so. There is no such order in the files in this cause. Such payments, made without authority of the court, are always at the personal risk of the executors and circumstances might arise under which they would be surcharged for the amount of such payments.


author: Macicay, C. C. J.

text:
    ELLA SUPER AND JOHN SUPER, HER HUSBAND, PLAINTIFFS, v. GARFIELD-PASSAIC TRANSIT COMPANY, A CORPORATION OF NEW JERSEY, AND PUBLIC SERVICE CO-ORDINATED TRANSPORT, A CORPORATION, DEFENDANTS.
    Decided July 10, 1931.
    Por the plaintiffs, Elmer Friedbauer.

    Por the defendant Public Service Co-ordinated Transport, Henry H. Fryling.

    Por the defendant Garfield-Passaic Transit Company, Alexander M. MacLeod.

   Macicay, C. C. J.

Plaintiffs in this case, Ella Super and John Super, her husband, sought to recover compensation from the defendants for injuries sustained as the result of an accident which occurred on March 8th, 1930, about two-thirty P. M.

It appears that the plaintiff Ella Super was a passenger in the Garfield-Passaic Transit Company’s bus, having paid a fare and being entitled to ride to her destination. It further appears that the bus in which the plaintiff was riding was traveling in a westerly direction along Jefferson street and stopped at the curb to discharge two passengers. On this particular day it had been raining on and off all day. After discharging the passengers the Garfield-Passaic Transit Company’s bus started to make a left-hand turn south into Columbia avenue and when the turn had been about three-quarters completed, or when the bus was three-quarters of the way across, there was a collision between that bus and a bus of the Public Service Co-ordinated Transport.

Plaintiffs claim is that there was negligence on the part of both defendants. The Garfield-Passaic Transit Company contends that the Public Service bus ran into its bus, and therefore the negligence was that of the Public Service bus and not of the Garfield-Passaic bus.

The plaintiff Ella Super testified that the Public Service bus struck the Garfield-Passaic bus but later testified that she did not see the accident until after the impact—that she did not see the two buses come together.

The driver of the Garfield-Passaic bus testified that he pulled to the right-hand side of the curb to discharge two passengers at Jefferson street and Columbia avenue; that he looked into the mirror and saw the Chestnut street line bus approaching and that it passed safely; that he again looked into the mirror when about halfway across the intersection and at that time did not see anything approaching; that when about three-quarters of the way across he heard tires skidding on the wet pavement and that the Public Service bus skidded, striking his left front wheel and causing a very small jar in the bus of the Garfield-Passaic Company.

The testimony of this witness is the only testimony showing negligence on the part of the Public Service Co-ordinated Transport. This witness was undoubtedly very much interested in the result of the ease.

Plaintiff then called the Public Service bus driver who testified that the Garfield-Passaic bus was at a standstill at the curb discharging passengers; that he blew his horn three or four times in passing and that part of his bus had already passed when the Garfield-Passaic bus started, swung left and hooked into the right door of the Public Service bus.

Anna Payda, who testified for the defendant GarfieldPassaic Transit Company, said she did not see the Public Service bus before the accident happened.

Mary Payda testified that the Public Service bus rammed into the Garfield-Passaic bus but later contradicted this by saying she didn’t see the Public Service bus before the accident. Anna Payda testified that the right side of the Public Service bus and the left side of the Garfield-Passaic bus came together, but she couldn’t tell what part of the Public Service bus came in contact with the Garfield-Passaic bus.

The Public Service Co-ordinated Transport produced five witnesses who were passengers having no interest in the case whatsoever. They testified that the Public Service bus driver blew his horn several times; that the bus was partly past the Garfield-Passaic bus at the time the accident happened and that the right door opposite and back of the driver of the Public Service bus was struck—one witness saying the door was knocked down and another saying the glass was broken in the door.

The Public Service Co-ordinated Transport seeks to have the verdicts set aside on two grounds: (1) Because the verdict is contrary to the weight of the evidence, and (2) because the damages awarded by the jury were excessive. The defendant Garfield-Passaic Transit Company seeks to have the verdicts set aside for the same reasons.

I recall this case very distinctly and remember the attitude and conduct of the various witnesses on the stand at the time of the trial.

I am of the opinion that the verdicts, insofar as the Public Service Co-ordinated Transport is concerned, are against the clear weight of the evidence presented. The rule to show cause as to the Public Service Co-ordinated Transport is made absolute and venire de novo awarded.

As to the rule granted to the defendant, Garfield-Passaic Transit Company, I cannot say that the verdict is contrary to the clear weight of the evidence presented. I am of the opinion, however, that the verdict in the case is excessive insofar as Ella Super is concerned. She was injured on a Saturday and did not go to see a doctor until the following Monday, and after that she did not see a doctor until the following Saturday. She testified that she was confined to her bed for a period of three months, though it appears that two days after the accident the Garfield-Passaic bus driver found her at home in a kimona. She let him in and conversed with him in broken English. Dr. Lesko has been giving her electric treatments for her arm.

Most of the witnesses say the impact was very slight, and further than that, the testimony is that the Garfield-Passaic bus was going at a very slow rate of speed ahd the Public Service bus was traveling between eight and twelve miles an hour.

There is testimony that Mrs. Super said she simply struck her eye on the brass rail of the bus but no mention was made of any injury to her arm. There were no marks on- the arm at the time of the trial and it was admitted there was no fracture. I watched Mrs. Super closely on the witness stand when she was asked to raise her arm and noticed that she hugged it close to her side every time she was asked to raise it; and on one or two occasions when the question was not directed to her arm she moved it out from her side and did not seem to haA-e great difficulty in moving it.

Insofar as the Garfield-Passaic Transit Company is concerned, I am of the opinion that the verdict of $1,500 to Mrs. Super is excessive. If Ella Super will, within twenty days from the entry of an order hereunder, consent to a reduction of her verdict to $5,000, the rule granted to GarfieldPassaic Transit Company will be discharged, otherwise the rule will be made absolute as to her and a new trial granted as to damages only.

The rule to show cause will be discharged as to the plaintiff John Super.

The rule to show cause granted to Garfield-Passaic Transit Company will be discharged as to John Super.


author: Lawrence, C. C. J.

text:
    LOUIS P. CROCE, INCORPORATED, PLAINTIFF, v. MYRON JACK, DEFENDANT.
    Decided July 18, 1931.
   Lawrence, C. C. J.

Plaintiff instituted this suit on July 17th, 1930, to recover on certain promissory notes given by defendant on account of the purchase price of certain restaurant fixtures- covered by a conditional bill of sale, title to which was to remain in plaintiff until paid for. Defendant admittedly has not paid the notes, alleging in the answer filed that there was a failure of consideration in that plaintiff did not install the kind of fixtures called for by the agreement and otherwise breached it to his damage which he makes the subject of a counter-claim. On March 10th, 1931, plaintiff caused a writ of replevin to be issued out of the Common Pleas Court of the county, under which it repossessed the chattels in question. In the suit thereon, defendant filed no answer and allowed the judgment for possession to go by default, although the basis of the action was failure to pay the notes in the present suit, which under the terms of the sales agreement gave plaintiff the right to take possession, if it so elected.

Plaintiff now moves to strike the answer and counter-claim of defendant in the present suit on the ground that he failed to litigate the notes in the subsequent replevin suit, and is now estopped because the latter suit disposed of the issue here involved and has therefore become res adjudicata. This does not appear to be so, however. How the latter suit could affect the pending action instituted long prior is not made clear. Plaintiff retained title to the chattels under the agreemeut and on defendant’s failure to pay the notes, no matter for what reason—even though legitimate—the former became entitled to take them back. The interesting question now arises, however, whether it can also recover on the notes. In any event, defendant’s right to rest upon his answer and counter-claim in the pending suit seems clear. The motion to strike will therefore be denied. The amendments asked for, or rather applied for, on the hearing of the motion are deemed unnecessary and will not be allowed. The ruling on the proposed amendments may, however, be regarded as made without prejudice to a renewal of the application therefor at the trial, should it then appear, under the evidence, that they should be made, in order that the record may disclose all of the issues involved.


author: Pee Ctjeiam.

text:
    CHARLES E. VAIL ET AL., PROSECUTORS, v. INHABITANTS OF THE CITY OF PLAINFIELD ET AL., DEFENDANTS.
    Submitted October 17, 1930
    Decided July 17, 1931.
    Before Justices Parker, Campbell and Bodine.
    Eor the prosecutors, Horace E. Bunker.

    Eor the defendants, J. Henry Crane.

   Pee Ctjeiam.

The prosecutors are trustees of the Eahway and Plainfield Monthly Meeting of the Eeligious Society of Priends. They own a burying lot fronting on the southwest side of Church street, in the city of Plainfield. The property adjoins the meeting house, and the title to the whole premises is held as one parcel by the prosecutors as trustees. The trustees are without power, except as directed by the members of the Monthly Meeting. No burial lots are sold. Members of the society may be buried there without charge, except for the cost of interment. The ordinance assailed is a local improvement ordinance for the widening and alteration of Church street, the establishment of curb lines, the installation of house connections with water and gas mains, the relocation of inlets to storm sewers, construction of sanitary sewers and the construction of surface drainage and appurtenances, pavings, curbing and so forth.

The prosecutors claim exemption of the burial grounds from local improvement assessments.

Under an act concerning cemeteries (1 Comp. Stat. p. 375, § 8), lands of any incorporated cemetery association are exempt from all public taxes, rates or assessments. The lands in question are not owned by an incorporated association. Statutes granting exemption from assessments for local improvements have been strictly construed. Flower Hill Cemetery v. North Bergen, 68 N. J. L. 488; Fairview Heights Cemetery Co. v. Fay, 90 Id. 427.

Prosecutors argue that because cemetery lands are frequently placed in a special category there is an implied exemption from the burdens in general imposed on property. We can find no case and none have been referred to in support of such proposition.

Although the Society of Priends is of honorable and ancient origin their property is not exempt from taxation unless the legislature has so provided. Although the Society of Priends has held title to the land in question from the earliest times we cannot convert a voluntary association into a corporate entity so as to exempt its lands from taxation.

If the assessment is excessive, or in any other respect unfair, an appeal lies to the Circuit Court, and we will not, prior to a determination in that court, consider the matter on certiorari. Section 42, article 20, Home Rule act, as added to Pamph. L. 1925, p. 231; MacEvoy v. Bergenfield, 6 N. J. Mis. R. 211.

Lastly, the assessment is attacked because the board of commissioners making the assessment is said not to have been constituted in accordance with the Home Eule act. Article 20, section 16 of the Home Eule act (Pamph. L. 1911, ch. 152) provides that assessments shall be made by a board charged with the duty of making general assessments except where there is now provided by law a board for making all such assessments. At the time of the adoption by the city of Plainfield of the provisions of the Home Eule act, the city did not have such an assessment board. Article 20, section 11 of the Home Eule act provides as follows: “The governing body of every municipality in which no board is provided by law for the making of all assessments for benefits accruing from local improvements, may, by ordinance, create a general board for that purpose, which board shall thereafter make all such assessments.”

Pursuant to this enactment, Plainfield created a board of commissioners of assessment by ordinance adopted November 19th, 1929. The board of commissioners was appointed by the mayor by and with the advice and consent of the common council. Section 18 of article 20 of the Home Eule act provides for such board to be appointed by the governing board of the city. It is contended that the board appointed by the mayor and confirmed by the common council is not a board appointed by the governing body. It would seem as though an appointment in which the mayor and council concurred complied with the statute. However, two of the commissioners were disqualified and two new commissioners were appointed by the mayor and confirmed by the council. Section 19, article 20 of the Home Eule act provides that in case of the death or disqualification of any member of the board that the governing body shall appoint some other suitable person to act. After this provision of law came to the attention of the council they declared the appointments of the mayor void and chose two special members of the board of commissioners, to act in the place of the disqualified members. The board so constituted with these new members proceeded to act, and it is their action which is now challenged. We fail to see any irregularity in a selection in the way provided by law of new members in place of those disqualified to act. A statement of the facts indicates that there was a substantial compliance-with the statute when the members of the commission were chosen by the mayor and council and a literal compliance therewith when the new members were finally chosen in place-of the two disqualified members.

The writ will be dismissed, with costs.


author: Lawbencje, C. C. J.

text:
    SEVLESRUO HOLDING CORPORATION ET AL. (MARIA GRANDE INCLUDED), PLAINTIFFS, v. FIREMEN’S INSURANCE COMPANY ET AL. (AMERICAN EQUITABLE ASSURANCE COMPANY, A CORPORATION, INCLUDED), DEFENDANTS.
    Decided July 17, 1931.
    Before Lawrence, Circuit Court judge.
    Eor the rule, Joseph T. Lieblioh.

      Oonira, Arthur T. Vanderbilt (Mr. Stoffer).

   Lawbencje, C. C. J.

This suit was tried before me at the Morris Circuit with a jury. It involved damage by fire to certain buildings and contents covered by policies of the respective defendants. Maria Grande, an officer of the plaintiff corporation, was included as an individual plaintiff in a count of the complaint filed, for the reason that she owned certain furniture and other household goods and chattels in one of the buildings which she claimed had been destroyed at the time of the fire. This loss was subject to the provisions of a policy issued to her by the defendant American Equitable Assurance Company. By consent, this claim was disposed of by a separate trial and a verdict was returned in favor of Mrs. Grande for $273. She applied for a rule to show cause limited as to damages only, which was allowed. On the return •of the rule, it was argued in her behalf that the award was wholly inadequate under the evidence. The claim was sharply contested at the trial both as to the accidental origin of the fire and the extent of the loss, particularly with regard to many of the items included in the proof of loss. The evidence for the plaintiff comprehended her own statement and that of her daughter, while that relating to the value of the articles claimed to have been destroyed was meagre. Testimony of members of the local fire and police departments, called as witnesses by the defendant company, raised an issue as to whether Mrs. Grande was in actual occupation of the building and had the furniture and chattels listed in the proof of loss therein at the time of the fire. The question thus presented was peculiarly for the jury, including, of course, the credibility of the witnesses and the weight to be given to the proofs submitted. A review of the evidence leads to the conclusion that the award should not be set aside on the ground of inadequacy. The absence at the trial of proper proof of a greater amount of loss doubtless accounts for the verdict. The rule to show cause will be discharged.


author: Mackay, C. C. J.

text:
    CHARLES DOLCI, PLAINTIFF, v. PUBLIC SERVICE CO-ORDINATED TRANSPORT, DEFENDANT.
    Decided July 22, 1931.
    Por the plaintiff, Heller & Boss.

    Por the defendant, Henry H. Fryling.

   Mackay, C. C. J.

The plaintiff in this case seeks to recover compensation for injuries sustained as the result of an accident occurring September 17th, 1929, at the corner of Bergen and Lexington avenues, Clifton, New Jersey.

Plaintiff claims he was traveling in a northerly direction along Lexington avenue at about ten to twelve miles an hour. The defendant’s bus was traveling in an easterly direction on Bergen avenue. The plaintiff claims that the bus was traveling between thirty-five and forty-five miles an hour at the time it made the turn; that it did not stop at the stop street sign and came over to the plaintiff’s side of the roadway. The plaintiff is not corroborated as to the speed of the bus by his witness.

The charges of negligence, as I gather it, are three in number: (1) failure to stop at the stop street sign; (2) traveling thirty-five to fortjr-five miles an hour, and (3) coming over on to the plaintiff’s side of the roadway to the east of the center line.

The only witness for the plaintiff was a man who was following the bus. He testified that it kept going hut after the accident wasn’t quite sure whether it was to the east of the center line of the roadway or not.

The defendant contends that the rule to show cause should be made absolute because the verdict is contrary to the weight of the evidence.

Prom the story told by eight witnesses produced for the defendant, one of whom, the bus driver, was an interested party, it appears that the bus stopped at the stop street sign, started in first gear, was partly turned into Lexington avenue, when the driver put on his brakes and stood still; that at that point the bus was standing still at an angle; that the plaintiff was a distance of approximately fifty feet or more away on the west side of the road, traveling north and looking west, and at that particular time when the plaintiff was looking west the bus was west or a little northwest of his line of vision; that the bus driver blew his horn and when it was too late the plaintiff, in an attempt to get out of the way, struck the right front side of the bus with his left front side. A witness who was traveling in a northerly direction said he attempted to pass the plaintiff on the left and blew his horn because he was in a hurry to get to the hospital. Plaintiff would not move over so he passed him on the right. This was a few seconds before the accident happened.

The weight of the evidence in favor of the defendant is so overwhelming that I am forced to the conclusion that the verdict was the result of prejudice or mistake on the part of the jury.

I agree that the law laid down in the cases cited by plaintiff in his brief is a correct exposition thereof, but there are other cases which are not cited which seem to me to be in point in this case.

In the ease of Dickinson v. Erie Railroad Co., 85 N. J. L. 586, the court referred to a previous trial of this case in which the verdict was set aside by the Supreme Court as being contrary to the weight of the evidence. It seemed that Judge Adams granted a nonsuit and the Court of Errors and Appeals reversed the same, holding that the case should have gone to the jury and that it was the province of the Supreme Court to set aside the verdict and not the Circuit Court judge. Under the new law a Circuit Court judge, having the same powers as the Supreme Court, can now set the verdict aside if the evidence warrants it.

To justify a court in setting aside a verdict of a jury on the ground that it is against the weight of the evidence it must be so palpable as to give rise to the inference that it is the -result of mistake, passion, prejudice or partiality. Floersch v. Donnell, 82 N. J. L. 357.

Counsel for plaintiff calls attention to the mistake in the defendant’s brief to the effect that the right side of the bus came in contact with the right side of the plaintiff’s car. Erom the evidence it appears that it was the right side of the bus and the left side of the plaintiff’s car.

In the present case the verdict is against the clear weight of the evidence relative to stopping at the stop street sign, the speed of the bus and the side of the road the bus was on prior to and at the time of the happening of the accident, and, therefore, the verdict must be set aside and a new trial ordered.

Eule to show cause made absolute and venire de novo awarded.


text:
    MARY SPARNON AND JOHN SPARNON, PLAINTIFFS, v. SAMUEL VERMEULEN, DEFENDANT.
    Decided July 22, 1931.
    For the rule, Harold A. Price and William A. Dolan.

    Opposed, George B. Vaughan and Acherson J. Maclcerly.

   Mackay, C. C. J.

Two separate cases were consolidated for trial. The judgment record is not before me. My recollection is that the jury found John Sparnon guilty of contributory negligence so that there was no recovery so far as he was concerned against the defendant. A verdict was rendered, as I recall it, in favor of Mary Sparnon against the defendant in the sum of $5,500. A rule to show cause was granted with exceptions reserved.

Under an act of the legislature passed this year, rules to show cause in the Supreme Court are heard before the Circuit judge who presided at the trial.

Defendant contends that (1) the verdict is contrary to the weight of the evidence, and (2) the verdict is excessive.

I have examined the testimony very carefully and am satisfied the jury could have found John Sparnon and Samuel Vermeulen guilty of negligence.

As to the second point that the verdict is excessive, I find that the plaintiff Mary Sparnon was thrown on the concrete road, striking her face and causing a concussion of the brain and cut over the right eye which required five stitches; that there were two cuts on each knee and her shoulder, back, nose and ankles were discolored; that plaintiff’s bowels have not bben functioning properly since the accident; that she spent two days and two nights in the hospital; that she could walk around before the accident, though she stumbled occasionally; that she could take her bath and care for herself personally and do various kinds of housework before she was injured; that prior to the accident she could raise both arms normally and now she can only raise them a little bit; that it is necessary for her to get up three or four times a night and that sharp pains come into her right eye.

Mary Sparnon, her husband, nephew and another relative testified that she could cook, go to the toilet and walk around before the accident though she stumbled occasionally.

There is no doubt that plaintiff was suffering from progressive muscular atrophy and had been for a period of about two years or a little longer. It also appears that this disease takes from five to fifteen years to run its course and if plaintiff was suffering therefrom for a period of from two to two and a half years, she still had some period of time to live.

It is quite true that this condition was not brought about as a result of the accident. Nevertheless, Dr. White gave the following answer to this question: "Q. What effect did the accident have upon that condition? A. This condition is primarily a condition of the peripheral nerves and runs its own course. I would not say that the accident had a definite—was a definite factor in the progress of the disease by itself, bxtt it most certainly caused a psychic and nervous upset which has affected the patient in the presence of this condition in a rather disastrous degree.”

I am a little doubtful about the testimony of Dr. Kinsley after carefully reading the same and recalling his examination on the witness-stand. It strikes me he wanted to make it appear to be a serious case and that his great ability was effecting a cure. Eor this reason he testified at first rather hesitatingly. When Mrs. Sparnon first came to see him she was unable to walk but later he managed to have her stand on her feet and wiggle her toes.

It is true Dr. White, Dr. Morrison, Dr. Mills and Dr. Quirk stated that she was suffering from an incurable disease, nevertheless, Dr. White’s own testimony hereinbefore referred to shows that the accident had some effect on the plaintiff’s condition.

Counsel for plaintiff cites the case of Wilson v. Brown, 7 N. J. Mis. R. 389. In that case the verdict was $3,500; and while no bones were broken, the plaintiff suffered a general shaking up and bruises, a minor concussion of the brain, with local injury to the nerves; she was ten days in the hospital, three weeks in bed at home, three months confined to the house, lost a great deal of income as a practical nurse because of her disability, and at the time of the trial, she testified she still did not have pnough grip in her hand to lift a flat iron, and if any strength is required in her occupation of nursing, she has to call for help.

In the instant case, Mary Sparnon had no separate occupation, she was in bed only two days and her nervous condition was not due particularly to the accident but to a previous condition.

Counsel for plaintiff also cites the case of Taylor v. Anderson, 8 N. J. Mis. R. 586. In that case the verdict of $3,000 was upheld where the proofs showed that a piece of flesh about the size of a silver dollar was sliced off of the plaintiff’s forehead at the base of the hair line, leaving a raw opening which destroyed the flesh and resulted in a permanent scar at that point. In addition, there was a cut across the bridge of the nose, leaving another scar. Her left eyelid was cut open, necessitating four stitches to be taken in it, and there was a cut on the left side of her face, necessitating a couple of stitches there. The cuts healed in the course of time, but left permanent scars, thus seriously disfiguring the plaintiff’s face. In view of this permanent disfigurement and of the pain and suffering resulting to the plaintiff from the accident, the award was considered moderate.

Even in this case last mentioned, the injuries appear to be more serious than in the case now before me.

I am of the opinion from all of the evidence before me that the verdict of $5,500 to Mary Sparnon is excessive. If Mary Sparnon will, within twenty days from the receipt of this memorandum, consent to a reduction of her verdict to $3,000, the rule to show cause will be discharged, otherwise the rule to show cause will be made absolute and a new trial granted.


author: Hakky J. Goas, Deputy Commissioner.

text:
    New Jersey Department of Labor, Workmen’s Compensation Bureau.
    JAMES FLANIGAN, PETITIONER, v. CONROY BROTHERS, RESPONDENT.
    Eor the petitioner, Charles Becker.

    Eor the respondent, McCarter & English.

   Petitioner alleges that he sustained an accident arising out of and in the course of his employment with respondent on June 23d, 1928. He alleges that while working as a. laborer he fell from a scaffold a distance of about ten feet. He alleges that as a result of said accident he sustained injuries which caused temporary disability for a period of' thirty-one weeks. He further alleges that as a result of said accident he sustained a laceration of his skull and concussion of the brain, with consequent permanent injury to his head generally, to the brain, affecting his mental condition. He alleges further as permanent injuries a loss of hearing-in both ears, loss of appetite and loss of sleep. He has a syphilitic condition which he alleges has been aggravated by said accident. He further alleges that his eyes are affected with constant loss of vision, as a result of said accident.

Eespondent has paid petitioner as and for his temporary disability thirty-one weeks at $17 a week, amounting to $527. Eespondent denies that petitioner has sustained any permanent injury directly or indirectly by way of aggravation or otherwise from the accident referred to. Respondent, however, taking all injuries, diseases and any and all other conditions of petitioner into consideration, and basing this settlement on not only petitioner’s present condition but on any and all developments in his condition which may be by him or by doctors alleged to be the result of said accident, either directly or by way of aggravation, is willing to settle the entire matter on a compromise basis for thirty-one weeks’ temporary disability at $17 a week, which has already been paid, and for thirty per cent, of total permanent disability amounting to one hundred and fifty weeks at $17 a week, with petitioner’s attorney to receive a counsel fee of $500, which respondent is to pay. Petitioner and his attorney accept said compromise settlement as above outlined.

From the testimony and the facts stipulated, the settlement is fair to both sides, and is approved by this court upon the distinct understanding of the petitioner and his attorney, respondent and its attorneys, that a fundamental element of the settlement is the fact that any future and further developments resulting in an increased disability to the petitioner are taken into consideration, and are, in a large measure, the reason for respondent’s willingness to agree to this compromise settlement.

Hakky J. Goas, Deputy Commissioner.


author: Habby J. Goas, Deputy Commissioner.

text:
    New Jersey Department of Labor, Workmen’s Compensation Bureau.
    VISTOR BARNES, PETITIONER, v. RENT-A-CAR COMPANY OF NEW JERSEY, RESPONDENT.
   Hi # Hi ❖ ❖ Hi

2. The said petition filed by the petitioner alleged that on the 15th day of November, 1928, he was injured while he-was driving an automobile owned by the respondent, which injury arose out of and in the course of his employment. The answer of the respondent admitted that the petitioner-had sustained an accident but denied that the said accident, arose out of and in the course of the petitioner’s employment.

3. The matter came on for hearing Wednesday, the 8th day of May, 1929. At the said hearing the petitioner, Barnes,, testified that around midnight of the 15th day of November,. 1928, he was instructed by Eaymond Lindsley, the general manager of the respondent’s business, to drive him (Lindsley) to his home. He did so, and on their arrival at Lindsley’shome, he said he was given permission by Lindsley to have his midnight meal before returning to the respondent’s place of business. While he was returning from the restaurant, where he had obtained his midnight meal, he was involved in an accident with another automobile.

4. The respondent produced Eaymond Lindsley, the general manager as aforesaid, who denied expressly that he had given Barnes permission to use the car for the purpose of getting his midnight meal, and asserted that he had instructed Barnes to return to the respondent’s garage with». the car immediately. Bespondent then produced Earl Kelly, night manager of respondent’s garage, who testified that Barnes had returned to the garage within fifteen or twenty minutes after he had departed to take Lindsley home. On Barnes’ return he walked into respondent’s place of business through the front or Broad street entrance, then went out again with the respondent’s automobile in his possession.

5. After a consideration of all the facts and circumstances I do find that the petitioner was not engaged within the scope or in the course of his employment with the respondent at the time of the said accident.

❖ H* ❖ ❖ Hí ❖ ❖

Habby J. Goas, Deputy Commissioner.


author: Charles E. Corbin, Deputy Commissioner.

text:
    New Jersey Department of Labor, Workmen’s Compensation Bureau.
    JOSEPH SIANO, PETITIONER, v. H. LEM WHITE, RESPONDENT.
    Eor the petitioner, J. Frank Weigand.

    Eor the respondent, McCarter English.

   A formal petition for compensation having been filed by the petitioner in the above-entitled cause, to which an answer was thereafter filed by the respondent, and the matter having come on in due course to be heard before this court, at Elizabetli, and a basis for compromise settlement of this case having been agreed upon by and between the petitioner, his attorney, J. Prank Weigand, and the respondent and his attorney, and said basis of compromise settlement having been presented to this court, and the testimony of the petitioner having been taken and heard in open court, and the report of the petitioner’s physician also having been heard in open court as well as the testimony of Dr. Avidan, a disinterested physician connected with this bureau, it is found and determined from said testimony and from the stipulated facts as follows:

Petitioner alleges that he sustained an accident arising out of and in the course of his employment with the respondent on December 11th, 1928. He says that at that time he was a laborer and while digging a ditch the bank caved in and the petitioner was completely buried. He alleges that as a result of said accident he sustained serious' and permanent injury. He alleges that he received, as a result of the said accident, hernia and a fractured sturnum as well as nervous injuries, and that he is unable to sleep because of his said injuries and is unable to do work of any kind. The petitioner claims a very serious total permanent disability.

Respondent denies that the aforesaid fracture of the sturnum and hernia as well as any nervous injury or central nervous disturbances or any other conditions .of the petitioner are the result of an accident arising out of and in the course of his employment with the respondent, but the respondent takes all injuries, diseases and any and all other conditions of the petitioner into consideration, including any and all ultimate results of any and all of the various diseases, injuries and conditions of the petitioner, and basing this compromise settlement not only on the present condition of the petitioner but on any and all developments in his condition of any nature whatsoever, which may be by him or by doctors alleged to be the result of his alleged accident, either directly or by way of aggravation, is willing to make a compromise settlement of the éntire matter for three weeks’ temporary disability and for ten per cent, of total permanent disability, or fifty weeks at $17 a week.

It is agreed that all counsel fees and all medical expenses as well as any other expenses incurred by the petitioner are to be paid by the petitioner himselL This court directs that a counsel fee of $125 be paid by the petitioner to his attorney and that a medical fee of $60 be paid by the petitioner to his doctor, and that the petitioner pay all other expenses incurred by him.

From the testimony and the facts stipulated this compromise settlement is fair to both sides and is approved by this court upon the distinct understanding of the petitioner and his attorney and the respondent and his attorneys, that a fundamental element of this compromise settlement is the fact that any future or further disturbances resulting in an increase of disability to the petitioner are taken into consideration, and are in a large measure the reason for respondent’s willingness to agree to this compromise settlement.

**$*$$*

Charles E. Corbin, Deputy Commissioner.


author: John J. Stahl, Referee.

text:
    New Jersey Department of Labor, Workmen’s Compensation Bureau.
    MADELINE CONNORS, PETITIONER, v. KATIE KNOFFE, RESPONDENT.
    For the petitioner, George H. Richenaker.

    For the respondent, McCarter & English.

   $$$$$$$$

3. By stipulation, counsel dispensed with the production of witnesses, and in lieu thereof, submitted an agreed statement of facts, as follows: On May 11th, 1928, the petitioner was employed by the respondent in the capacity of waitress in the respondent’s restaurant, known as the Casino, and located in the Palisades Amusement Park, Grantwood, New Jersey. The petitioner received wages for her said services at the rate of $20 per week, including her meals. While performing her duties as waitress in the said restaurant on May 11th, 1928, an explosion of powder or fireworks took place in a shanty distant about twenty-five to thirty feet from the restaurant. The concussion of the explosion caused the restaurant building to rock or shake violently, and from the shock incident thereto, the petitioner suffered and still suffers with a nervous disorder, affecting the organs of her entire body. The shanty in which the explosion took place was neither owned, operated nor controlled by the respondent; neither was it being used in connection with restaurant business of the respondent.

4. Upon these facts, the only question to be determined is whether or not the petitioner suffered a personal injury by accident, arising out of and in the course of the employment. After carefully considering the same, I find that the accident sustained by the petitioner is not one coming within the purview of the act, entitling her to compensation; although it appears that the accident arose in the course of the employment, I find, however, that the accident did not arise out of the said employment. The legislature, when drafting the Workmen’s Compensation act, never intended that every employe should be compensated for an injury or injuries received during the course of employment; for if it had, the phrase “accident arising out of [the employment]” would have been expressly omitted. An accident arising out of an employment when it occurs in the course of the employment and is the result of a risk involved in the employment or incident to it, or to the conditions under which it is required to be performed. The accident is thus a natural or necessary consequence or incident of the employment or of the conditions under which it is carried. In Emerick v. Slavonian Roman Greek Church, 93 N. J. L. 282, it was held: “Where an accident is the result of a risk reasonably incident to the employment, it is an accident arising ‘out of the employment, within the meaning of section 2, Workmen’s Compensation act, 1911. Sometimes the employment will be found to directly cause the injury, but more often it arises out of the conditions incident to the employment. But in every case there must be apparent some causal connection between the injury and the employment or the conditions under which it is required to be performed, before the injury can be found to arise out of the employment.”

t'.i >;« ij* &

John J. Stahl, Referee.


text:
    New Jersey Department of Labor, Workmen’s Compensation Bureau.
    RUSSELL A. MITCHELL, PETITIONER, v. NATIONAL BEARING AND METAL COMPANY, INCORPORATED, RESPONDENT.
    For the petitioner, Samuel B. Weisenfeld.

    For the respondent, Richard W. Baker.

   At the time of the trial of this case the petitioner testified in his own behalf and rested his case on that testimony. On behalf of the respondent, Mr. Wallace Histed and Mr. Fredi Gunterman were called to testify^. After thoroughly going over the testimony in this case I find that the petitioner has failed to prove that he sustained an injury by accident arising out of and in the course of his employment on April 22d, 1929, as alleged. The petitioner claims that he was taking a tool to the blacksmith shop to be sharpened when the wind shut the door, and in putting up his hand to stop the same he cut his right wrist on the broken glass in the top part of the door. The respondent showed, however, that a thorough inspection of the blacksmith shop door and the surroundings disclosed no evidence of blood whatsoever, whereas at a window of the nearby factory building there was a pool of blood below the window and some blood on the broken glass of the window. It was admitted by the petitioner that his brother worked right inside the window, and that after the accident he went over to call his brother, but there was no blood either below the broken glass in the door of the blacksmith shop or between there and the window of the machine shop in the factory building, but there was blood found on the ground near the window of the machine shop. Further, the petitioner admitted that one pane of glass where his brother worked was broken the day before the accident, and stated that on the day of the accident he broke the other window in order to call to his brother. This does not seem plausible as it would not be necessary to break another glass when one was already broken.

iH % H« ❖

Charles E. Corbin, Deputy Commissioner.


text:
    New Jersey Department of Labor, Workmen’s Compensation Bureau.
    HAROLD PERRY, PETITIONER, v. JACOB TANIS, RESPONDENT.
    For the petitioner, George B. Vaughan.

    For the respondent, McCarter <£ English.

   i'fi ijc 5i« íj: íJí % :Jj

Petitioner alleges that he sustained an accident arising out of and in the course of Ms employment with the respondent on December 20th, 1928. He says that at that time he was employed by the respondent as a farm laborer, and that while chopping wood the axe slipped and the petitioner cut his thumb. He alleges a permanent loss of the left thumb. He alleges that because of the said injury he is unable to perform the work in which he was formerly engaged.

Respondent denies that the petitioner received an injury to his said thumb or any injury whatsoever as a result of an accident arising out of and in the course of the petitioner’s employment with the respondent, and the respondent denies that there is any permanent injury to the petitioner’s left thumb, or any other injury to the petitioner by reason of any accident arising out of and in the course of the employment of the petitioner with the respondent, but the respondent takes all injuries, diseases and any and all other conditions of the petitioner into consideration, including any and all ultimate results of any and all of the various diseases, injuries and conditions of the petitioner, and basing this compromise settlement not only on the petitioner’s present condition but on any and all developments in his condition which may be by him or by doctors alleged to be results of his alleged accident, either directly or by way of aggravation, is willing to make a compromise settlement of the entire matter for sixty per cent, loss of the left thumb or thirty-six weeks at $16.35 a week, and for four weeks’ temporary disability at $16.35 a week. Respondent and petitioner agree that the counsel fee for the attorney for the petitioner shall be $100, of which the respondent agrees to pay one-half. The petitioner agrees to pay the remaining one-half of the aforesaid counsel fee, and also agrees to pay any and all medical expenses, including a medical bill of $50 to Dr. L. S. Voorhees.

Erom the testimony and the facts stipulated this compromise settlement is fair to both sides and is approved by this court, upon the distinct understanding of the petitioner and his attorney and the respondent and his attorneys that a fundamental element of this compromise settlement is the fact that any future or further disturbances resulting in an increase of disability to the petitioner are taken into consideration, and are in a large measure the reason for respondent’s willingness to agree to this compromise settlement.

H< H* 3* s¡* $ H?

John J. Stahl, Referee.


author: Backes, Y. C.

text:
    Ida Melisse Bennett et al., complainants, v. Newark Milk and Cream Co. et al., defendants.
    [Decided July 27th, 1931.]

      Mr. Charles S. Smith, for the complainants.

      Messrs. McCarter & English (Mr. Egner) and Messrs. Hood, Laferty & Campbell (Mr. Hood), for the defendants.
   Backes, Y. C.

The bill is to set aside a sale by the complainants to Mr. William Scheerer of their one-half holdings in the Newark Milk and Cream Company on the ground of fraud. At the time of the sale Scheerer was the owner of the other half interest in the company. The sale took place in December, 1921. The repudiation came eight years later, with the filing of the bill in June, 1930.

The corporation was formed in 1894 by Mr. William H. Bennett to retail milk and its by-products in Newark and vicinity. Its capitalization was $25,000. Scheerer became his associate in the corporation more than thirty years ago, each owning one hundred and twenty-five shares of the stock. Bennett was the practical man; Scheerer is a banker. Bennett managed; Scheerer co-operated. The business was successful and at Bennett’s death in 1913, his shares were appraised at $37,500 ($300 per share). He devised and bequeathed the residue of his estate to the Eidelity (Union) Trust Company, executor, in trust, inter alia, to pay the income of his personal estate to his widow and two sons, the complainants, in equal shares, and at the death of the widow, the principal to the sons equally, except the shares in the company which he directed to be held until the younger son arrives at fifty, with power to sell if it should be decided to be prejudicial to the best interest of the estate to retain them, meantime, in conjunction with the stockholder, to manage the business of the company to make it “as profitable as possible to my estate.” Mr. Stanley A. Eutz, in the employ of the company for thirty years, managed the company during the last illness of Bennett—-two years—and has ever since been its manager and made a remarkable success of it, increasing the annual output from $700,000 in 1913 to $3,000,000 in 1920. Scheerer’s brother, George, was associated with him. Scheerer had no part in the business. No doubt he advised in the management and dictated the policy of the company; but his knowledge of the condition of the business came from an annual audit of the books made by a firm of accountants engaged since before Bennett died. There had been discord between the Bennett and Scheerer interests ever since the death of Bennett. Eutz had discharged Mr. Chester L. Bennett, the older son, for alleged inattention, shortly after his father’s death and the Bennetts were thereafter refused participation in the management and they were aggrieved and were militant; they felt that, as they were not in touch with the management of the company, they were kept in ignoranc of its affairs and that their dividends were purposely low to embarrass them. In 1919 they filed a bill for the construction of the Bennett will, the removal of the trustee, an inspection of the books of the eompanjr, the declaration of dividends, the removal of the directors and the appointment of a receiver. The matter was bitterly fought, on intermediate motions, until December, 1920, when the cause was referred to a vice-chancellor for hearing. The Bennetts were granted an inspection of the books. In May, 1921, they filed another bill attacking the management, asking for an accounting and a restraint upon Scheerer and his associates acting as directors and to oust them, and for a receiver. About the same time they petitioned the Essex orphans court to remove the Fidelity Union Trust Company as executor and trustee and for an accounting, and the cause was on trial when a settlement was reached. Prior, in 1915, there was litigation over the executor’s account and for two years, 1916 to 1918, there was litigation over a share of stock in the company held by Eutz and which he surrendered only after a decree to that end was affirmed by the court of errors and appeals. It was during the trial in the orphans court, for the removal of the executor, that the judge suggested a settlement and the lawyers were agreeable. That meant purchase by Scheerer; the Bennetts had no means. Mr. Egner, for Scheerer, expressed his client’s willingness to purchase, but declined to make an offer, insisting that it must come from the Bennetts. It was left to them and their lawyers, Mr. William Harris and Mr. Jacob Siff, to fix the price. With the field wide open, it is a fair assumption that the Bennetts did not stop short of the utmost they thought the traffic would stand. The two lawyers had vigorously prosecuted the litigations for upwards of two years and were conversant with every angle. Their accountant had inspected the books and they knew the condition of the company. Harris says the Bennetts first suggested $150,000, which he frowned upon, saying he could do better. This they deny, but nevertheless they set the price, dictated the terms, and delivered their proposition with an ultimatum that it must be accepted within twenty-four hours; and Scheerer accepted, with slight modifications. The terms laid down were: $200,000 in the company’s bonds secured by mortgage on its assets, at eight per cent., not callable for ten years; $50,000 to pay counsel fees of $25,000, the actual disbursements of the litigations and the balance to be divided among the three Bennetts for their services in the litigations; Scheerer to pay the federal income tax on the sale; the trustee not to have commissions beyond $97,500 and was to make no charge for disbursements in defending the various suits. As modified, the formal contract entered into by the parties provided for the payment of $200,000 in cash with a guaranteed income of eight per cent, per annum for ten years; $45,000 for counsel fee and expenses (out of which Harris paid the Bennetts, each, $5,000); Scheerer to pay the federal income tax and to relieve the estate of charges by the trustee for legal expenses in the litigations and of commissions on the $200,000 trust fund in excess of one and a half per cent. The aggregate of tliese items exceed $300,000. Now, after enjoying an eight per cent, annual income for nearly nine years, the Bennetts claim that they were deceived in the value of their shares, in the value of the tangible assets and of the good will of the company, and consequently were misled in fixing the price of their stock, and they ask that the settlement be set aside and that their stock be restored to the estate. They offer as an explanation for their tardiness, that they had but recently learned from their lawyer, Siff, now deceased, that the income of the company for the year following the sale, 1922, was $350,000, and, arguendo that they were cheated.

The bill, after rehashing the many complaints that led to the previous litigations and which were supposed to have been adjusted in the settlement, sets up that because of meager dividends, contrived by Scheerer to oppress them into submission, complainants were in reduced circumstances and in financial distress; that their lawyer, Harris, urged them to make the settlement, painting a gloomy picture of their future if they did not; that Siff, by duress and coercion, endeavored to have them accept; that their lawyers were fraudulently imposed upon by Scheerer’s false representations that their one-half share was worth but $200,000, and that Scheerer, his brother and the milk company, formed a conspiracy to defraud them, in that they suppressed the true value of the stock and prevented the complainants from learning it.

The bill is unrestrained in its charges against Scheerer of conspiracy, imposition and fraud in the sale, that find no warrant in allegations, nor support in the proofs. It is meager in allegations of specific misrepresentation or of suppression of the truth of specified facts. In a summary, the causes for action are stated as fraudulent suppression of material facts and failure to disclose material facts; conspiracy to procure a sale at an inadequate price, and to further the conspiracy, subjecting the complainants to duress, oppression and coercion; false representation of the value of the stock to their attorneys and that the price “was so shockingly inadequate that the contract is unconscionable.” We must look to the briefs to get the precise point of the grievances.

We pause to observe that the insinuation in the bill, that Scheerer agreed to pay Harris a fee of $45,000 to favor the sale, upon his alleged false representation that the complainants’ stockholdings were worth only $200,000, is not only untrue but was untrue to the knowledge of the complainants, and to reprehend it as a willful slur upon counsel and a slander of the defendant. The $50,000 item for counsel fee and costs was entirely the creation of the complainants. Cut to $45,000, the complainants profited to the extent of $5,000 each, which they exacted, leaving the balance to Harris, out of which to pay the accountant and other charges of the litigation and for his compensation.

There is not a whit of testimony of misrepresentation by Scheerer in coming to a settlement, but the complainants contend, in their brief, that he owed them a duty to make full disclosure of the condition of the company and to advise them of the value of their stock, and that he failed them. That was not due them from Scheerer as a co-stockholder or officer of the company. Kelly v. Black, 90 N. J. Eq. 439. But they point to the fact that he was, as well, chairman of the board of directors of the Fidelity Union Trust Company, the trustee of the shares he bought, and argue that from this position sprung a relation of trust and confidence that puts upon him the burden of proving full disclosure and that no advantage was taken. Assuming the argument to be sound, it must be conceded that though there subsists bitter strife between a trustee and his ward, and there be no trust and confidence in fact, in consequence, and that they deal at arm’s length, the duty of a trustee nevertheless prevails of acting fairly and of proving it. Animosity does not excuse the one nor dispense with the other. Assuming further that Scheerer, in virtue of his office in the trust company, was in legal theory a trustee (in practice he had no contact with the trust; that was in charge of the head of another department of the company), the proofs are satisfying that his conduct was consistent with the standards of duty of a trustee established in equity jurisprudence.

There is no just complaint of the management. It was capable, highly efficient and profitable. Salaries were modest, so were the dividends, considering the earnings. The earnings were used in expansion or were accumulated. There is no objection that there was not a true account kept of every penny of income and of disbursements and that the items of all tangible property were recorded and that the books of the company were scrupulously kept. The criticism is that the books carried the pl^sical assets of the company at their liquidation values instead of at their current or replacement values, and hence the surplus of the company, as shown by the books on December 31st, 1919, was but $158,560.78. That was the company’s method and if it was erroneous, not modern accountancy, the complainants knew it when they made the settlement, for they had the books and their accountant, in revising them and in closing them as of December 31st, 1919, estimated the surplus at $509,754.44. He reached this result bjr writing up the physical assets from their book value to his appraised value and by including an item of $135,350.55 for good will. The higher estimated values were arrived at by an independent appraisal of the real property, which the complainants’ attorneys caused to be made. The books, thus revised by them as of December 31st, 1919, were the ground work of the earlier litigation in the orphans court and in this court and upon the revision, the complainants staked their hope for success. When the settlement came, two years later, the tangible assets and their value as fixed by them as of December 31st, 1919, plus the profits of 1920 and the probable profits of 1921, formed the basis of their calculation of the value of their holdings. The books for 1920, 1921, disclosed the operation of the business for those years. The complainants say they did not have them, but they had the court’s order for their inspection and could have had them for the asking. They knew that they would reveal the net income for the year 1920, and they also knew that the income for 1921 had not been ascertained (the books had not been balanced) and that Scheerer did not know what it would be; but, as the company had been prosperous in the past, it was their privilege to surmise, as it was Scheerer’s, that there had been handsome profits, for they knew what the annual net income was in the years previous to 1919, and that in that year it was $115,636.08; and they had the company’s income tax report for 1920, which was afterwards (1924) revised by the government to $166,673.40, upon which a tax of $54,258.92 was paid. In fact, the complainants had all the available information concerning the condition of the company that Scheerer had or that he could have had. Both parties also had the other side of the picture: That the company’s business was purely service, it bought milk from farmers and distributed it to consumers, and that success depended altogether upon the good will of the customer, earned and retained only by a highly efficient management, and that a loss of the manager or a lapse in the service, even for a few days, might mean disaster; that a depression was on, much like the one we are now experiencing; that the Dairymen’s League, an organization of farmers, had entered the field in Newark, in competition, to do away with the middleman, such as the company; that the company’s milk depot in Newark, an old tobacco factory,, its principal single asset, was no longer fit, and that the city authorities had, in effect, condemned it, and had then recently passed an ordinance requiring separate buildings for grade A and B milk, and that to meet the new demands. the company had to be refinanced, a thing wholly out of the question in the strife and litigation which had then been going on for six years.

Now, for the purpose of this suit, after the suit was brought, the complainants again had the books revised; this time by a new accountant who, according to his estimate of the value of the tangible assets and of his interpretation of the books, reports the surplus of the company to be $374,-403.89 as of December 31st, 1919; $488,824.47 as of December 31st, 1920, and $623,748.80 when the settlement was made in December, 1921, and the complainants emphasize that these valuations are exclusive of the value of the good will. This accountant, by his method of adjusting the books, has also sought to demonstrate that the net income for 1920, after income tax, was $139,825.42, and in 1921, $170,283.30, while defendants’ accountant in a review and analysis of the reports of complainants’ two accountants shows them to be $97,994.65 and $92,101.74, respectively, and that the company’s surplus, December 31st, 1921, was $478,093.19, exclusive of good will. No doubt other adversary accountants could produce even greater conflict and confusion. These-postmortem findings are of no value, unless thereby it is shown that the complainants were misinformed; and that is not apparent. The present showing, accepting their accountants’ estimates of the tangible assets at their face value, does not demonstrate, as they contend, that the price they received was less than one-half the value of the tangible assets and excluded a consideration for the good will, which is their chief complaint, for it cannot be said, in reason, that the horses, wagons, tin cans and bottles and the real estate of the company had the inflated aggregate value, except as part of the plant of the going concern, in which the good will supplied the leaven. The good will was reckoned in by the complainants; it was the subject of a separate item in rounding out the figure they set. Moreover, the Bennetts took the cream, they took cash; Scheerer, the unliquid assets and the venture. As things then stood, and they were critical, iheir’s seemed the safer bet, and, having affirmed the sale lor so many years, they cannot be permitted to repudiate it at this late date, because doing so will be to their advantage.

The Eidelity Union Trust Company, as co-defendant, is called upon to account for the loss sustained by the sale. The grievance against it is, in effect, that it handed the management of the company over to Scheerer and negligently failed to guard the complainants against his pitfalls and permitted them to become his victims. The trust company was not consulted, had no part in the settlement and when it inquired, intervened, was rebuffed and refused all information and participation. The complainants would have none of its advice, spurned its offices and when they had finished with Scheerer, certified to the trustee that it was prejudicial to the estate to hold the shares (using the terms of the trust upon which the power of sale was conditioned) and virtually demanded that it sign on the dotted line. The trustee, it is true, could have declined, but a refusal would have been at the risk of accounting for the loss of the sale had the concern misad ventured—an alternative of consequences, inescapable of the complainants’ censure, whatever the course taken. The present whimpering of the complainants that the trustee failed to restrain them in their willfulness, failed to nurse, admonish and discipline them in their unruliness and to resist them, though they might face about and hold it responsible for being thwarted, is as pathetic as it is puerile, and the demand by them upon the trustee, made recently before the bill was filed “to enlighten us as to just how you arrived at the figure that you sold our one-half interest for” was not only insincere but artful.

The bill will be dismissed.


author: Eldredge, J.

text:
    ROBERT K. CASSATT ET AL., PARTNERS, TRADING AS CASSATT & COMPANY, PLAINTIFFS, v. THE FIRST NATIONAL BANK OF WEST NEW YORK, NEW JERSEY, A COPORATION, DEFENDANT.
    Decided July 29, 1931.
    Por the plaintiffs, McCarter d English.

    Por the defendant, Walter S. Keown.

   Eldredge, J.

The plaintiffs in the above-entitled cause filed their complaint to recover frolm the defendant an amount alleged to be due for certain purchases of stock made by the plaintiffs for the defendant. The complaint contains six counts. The first count alleges that the defendant ordered the plaintiffs to buy for the defendant one hundred shares of the common stock of Baldwin Locomotive Works, when issued, at a certain price, plus commission, and agreed to take and pay for the stock when the same should be issued; that the plaintiffs thereafter bought the said securities at the agreed price for the account of the defendant and delivered them to the defendant, who refused to accept the stock or pay the agreed price or commissions.

The second count is like the first, but for a different block of stock.

The third count repeats the first, with the added allegation that the defendant was then and there acting as an agent for some other person as undisclosed principal.

The fourth count bears the same relation to the second as the third bears to the first.

The fifth and sixth counts read as follows:

(5) “They sue for the agreed price of stock sold and delivered by them to the defendant in accordance with the bill of particulars thereunto annexed, marked Exhibit A, and made part hereof.”

(6) “They sue for the reimbursement of moneys laid out by them as agents for the defendant in the purchase of securities for the account of the defendant, in accordance with the bill of particulars hereunto annexed, marked Exhibit A, and made part hereof.”

Counsel for the defendant now moves to strike out the complaint upon six different grounds, which, in substance, amount to two, and for present purposes will be so considered.

Respecting the first and second counts of the complaint, the defendant alleges that the transactions therein set out come within the purview of the statute of frauds, and respecting all six counts it alleges that the transactions set out are illegal because they are in violation of the provisions of the Federal Reserve act and ultra, vires, and hence there can be no recovery on any one of the accounts of the complaint.

It is to be noted in regard to the defendant’s first contention that the complaint does not, on its face, set out a transaction which would be unenforceable by reason of the statute of frauds. It is silent as to whether the alleged agreement was in writing or oral. A bill of particulars, however, was furnished upon demand and the bill of particulars states that the alleged agreement was an oral one. The defendant contends that this admission in the bill amplifies the complaint. Hence, the complaint as amplified does state a transaction within the purview of the statute, and the first and second counts must therefore be stricken.

This contention cannot he sustained for two reasons. In the first place, the motion in this case is addressed to the whole complaint. Where a motion is addressed to a complaint as a whole it will be denied if any count in the complaint be good. Malone v. The Brotherhood of Locomotive Firemen and Engineers et al., 94 N. J. L. 347; Van Schoick v. Van Schoick, 76 Id. 242.

In the second place, the plaintiff is not required to negative the application of the statute in his complaint and aver that the promise was in writing, because the law presumes the fact that the promise was in writing, and what the law intends may be omitted in the averments of pleading. Wilkinson-Gaddis Co. v. Van Riper, 63 N. J. L. 394; Ziegener & Lane v. Daeche, 91 Id. 634.

So far, then, as the statute of frauds is concerned, the complaint is good unless a bill of particulars, when furnished, becomes a part of the complaint for the purpose of disposing of this motion.

Defendant contends that it does, and relies upon the case of Frederick J. Rabe and Charles R. Hopkins, co-partners, under the firm name of Rabe & Hopkins v. Cornelius J. Danaher, recently decided by tfie United States District Court for the District of Connecticut and not yet reported. If this were a New Jersey decision undoubtedly the defendant’s contention would be sound, but this case comes from the District of Connecticut and appears to be contrary to the decisions of our own courts, which would be controlling in the present matter.

On questions of pleading in actions at law the state practice controls, and hence our own decisions are controlling here.

That a bill of particulars is not a part of the record for the purpose of a motion to strike a complaint appears to have been decided in the case of State v. Lehigh Valley Railroad Co., 94 N. J. L. 171, in which the court said:

“The theory of ordering particulars is to limit the proof to the matters specified in the bill of particulars and to enable the other party to meet his opponent’s proof without danger of surprise. Consequently, such bills have relation to the trial and not to the record.”

The bill of particulars having admitted a verbal contract, the defendant may and, of course, will set up the statute of frauds in its answer, but that statute will not avail in the present proceeding.

The defendant further contends, as has been already stated, that all the counts are bad, or, in other words, that the whole complaint is bad because the alleged transaction is illegal and ultra vires. The transaction, however, cannot be said to be illegal in the sense that a gambling contract is illegal. The purchase of stock or the agreement to purchase is not per se illegal. If this transaction between the plaintiffs and the defendant be illegal, it is such because of the lack of authority on the part of a national bank to enter into such an agreement as is alleged in the complaint. Hence, the defendant’s two contentions that the agreement is both illegal and ultra vires become one of the same.

That a national bank may take advantage of the defense of ultra vires cannot be denied. “A contract of a corporation which is ultra vires in the proper sense, that is to say, outside the object of its creation as defined in the law of its organization and therefore beyond the powers conferred upon it by the legislature, is not voidable only, but wholly void and of no legal effect. The objection to the contract is not merely that a corporation ought not to have made it, but that it could not make it. The contract cannot be ratified by either party because it could not be authorized by either. No performance on either side can give the unlawful contract any validity or be the foundation of any right of action upon it.” Central Transportation Co. v. Pullman Car Co., 139 U. S. 24.

Further, that a national bank has no power to purchase or deal in the stock of other corporations for speculative purposes or investment is so well established that a citation of authority is unnecessary. See 7 C. J. 808, § 733, and cases, cited thereunder.

It is equally well established, however, that while a national bank is without authority to buy stock in another corporation for speculation or investment, it is not wholly without authority in every and all circumstances to buy such stock. “As incidental to its power to loan money on personal security,, a bank may, in the usual course of doing such business accept, stock of another corporation as collateral, and by the enforcement of its rights as pledgee it may become the owner of the-collateral and be subject to liability as- other stockholders.”' Germania National Bank v. Case, 99 U. S. 628.

So, also, a national bank may be conceded to possess the-incidental power of accepting in good faith stock of another corporation as security for a previous indebtedness. California National Bank v. Kennedy, 167 U. S. 362.

Not every transaction, then, of a national bank in connection with the purchase and sale of stock is illegal or ultra vires, but each transaction must stand or fall in the light of' the facts and circumstances surrounding it. There is nothing upon the face of the complaint in question from which the exact nature of the transaction could be determined, and. hence the court is not justified in holding that the agreement sued upon is ultra vires, for “upon a motion to dismiss a complaint upon the ground that it does not state facts sufficient to constitute a cause of action ‘every intendment and fair inference is in favor of the pleading. If in any aspect, upon the facts stated the plaintiff is entitled to recover, the-motion should be denied/ ” Dyer v. Broadway Central Bank,. 252 N. Y. 430.

Whether such a contract as is alleged in the present complaint is enforceable must depend upon the facts and circumstances under which the contract is made, and cannot be-determined upon a motion to strike out the complaint.

The motion to strike will therefore be denied.