text:
    State Board of Tax Appeals.
    NATIONAL TURN VEREIN, PETITIONER, v. CITY OF NEWARK, RESPONDENT.
    Decided June 24th, 1941.
    For the petitioner, Martin G. Bross, Jr.

    For the respondent, James F. X. O’Brien (by Vincent J. Qasale).

   Quinn, President.

Petitioner claims to be a fraternal organization, entitled to exemption from taxation of real and personal property owned by it and used for its purposes. The property'in question consists of land, building and personal property situated in the City of Newark, and there assessed for taxes for the year 1939. The pertinent statute is R. 8. 54:4-3.26, providing as follows:

“All real and personal property used in the work and for the purposes of one or more fraternal organizations or lodges, or any association or society organized on the lodge plan, or affiliated associations, whether incorporated or unincorporated, shall be exempt from taxation under this chapter, if the legal or beneficial ownership of such property is in one or more of said organizations, lodges, associations or societies, and no part of such property is used for pecuniary profit.”

The respondent taxing district contends that petitioner is not a fraternal organization within the true intent of the statute, but merely an athletic club or association, whose fraternal nature, if any, is purely incidental. The determination of questions of this character in borderline cases such as that here presented, is attended with some difficulty, because of the extreme generality of the legislative language, and the particular fact situation, taken as an entirety, must govern the disposition of each case.

The certificate of incorporation of the petitioner, filed in 1887, recites that the object of the association is "the intellectual and phj'sical improvement of the members, by forming and keeping a library, by establishing schools, and by furnishing instructions in gymnastic exercises.”

The constitution and by-laws of the organization sets up several committees — a school committee, charged with governing activities of a school of physical culture for children and young persons; an athletic committee, controlling all athletic events, supervising and selecting the personnel of all of the athletic teams representing the verein in competition; a games committee, in charge of bowling alloys, billiard tables and card room; and supply, finance and auditing, inspection and repair, and membership and admission committees.

It appears from the testimony, that, although membership in the petitioner is in some broad aspects fraternal, in the sense that the joint and continued endeavors of a group of individuals in any direction will, over a period of time, produce a close bond between them, yet the primary purpose for which this association was established, and to which the property under appeal is principally devoted, is the conduct of a school of gymnastic instruction for boys and girls, and the organization and maintenance of athletic and gymnastic teams for competitive and exhibition purposes. In short, counsel for respondent accurately described it as an athletic club or association. It may be conceded that its activities are beneficial to the community, but the legislature has not said that all organizations whose activities are in promotion of the public welfare are to be granted exemption from taxation. The act relied on herein is limited in scope to fraternal organizations. That is the inescapable condition precedent not met by petitioner. The requirement, in the cases of fraternal organizations, that they be of a character beneficial to the .public generally, is a condition subsequent, born of judicial construction of the statute by the courts and by this board. City of Camden v. Camden County Board of Taxation (Supreme Court, 1938), 121 N. J. L. 262; 2 Atl. Rep. (2d) 40; Township of Lyndhurst v. Italian Benefit Society, Civility and Work, New Jersey Tax Reports, 1934-1939, p. 606; Society DiMutuo Soccorso, Inc., v. City of Hackensack, Id., p. 668.

In Centro Espanol of Elizabeth v. City of Elizabeth, Id., p. 675, we said of an exemption claimant there before us:

“* * * petitioner is essentially an athletic and social club for persons of Spanish origin. It is not in any sense a fraternal organization or lodge, as envisaged by the 1936 statute. For exemption purposes, the merits of a differentiation between the two are within the exclusive province of the legislature.”

We are of the view, therefore, that the application for exemption must be denied. The judgment of the Essex County Board of Taxation, dismissing the appeal to that body, is affirmed.


source: Caselaw Access Project

author: Leyden, C. C. J.

license: Public Domain

text:
    Morris County Circuit Court.
    CLYDE J. ROBB, ADMINISTRATOR AD PROSEQUENDUM OF THE ESTATE OF GEORGIANNA ROBB, DECEASED, PLAINTIFF, v. JOHN C. HICKEY, INC., A NEW JERSEY CORPORATION, AND ROGER W. KING, DEFENDANTS.
    Decided July 2, 1941.
    For the plaintiff, Riordan J. Roett, Jr. (Frank C. Scerbo, of counsel).
    For the defendants, McCarter, English & Egner (Gerald McLaughlin, of counsel).
   Leyden, C. C. J.

The issues presented by the pleadings were the negligence of the defendants and the contributory negligence of the plaintiff’s decedent. The jury was instructed concerning the applicable principles of law, in the course of which it was pointed out that if contributory negligence upon the part of the plaintiff’s decedent had been established, the comparative degrees of the negligence of the parties was immaterial.

The jury returned a verdict in the absence of the judge and it was recorded at the clerk’s desk as follows: “The jury finds that there was negligence on the part of both parties involved — The evidence shown is that the defendant was more negligent than the plaintiff — We therefore recommend an award of $2,000 to the plaintiff Clyde J. Robb and against the defendants John C. Hickey, Inc., a New Jersey Corporation, and Roger W. King.”

Both parties are dissatisfied with the verdict; the plaintiff with its substance and the defendants with its form. Plaintiff has a rule to set aside the verdict upon the ground that it is ambiguous, inconsistent, inadequate and contrary to the charge of the court. Defendants, upon notice, move to mould the verdict into one in favor of the defendants and against the plaintiff, urging that it is merely informal and the intent of the jury to find for the defendants is clearly indicated by the sentences: “The jury finds that there was negligence on the part of both parties involved — The evidence shown is that the defendant was more negligent than the plaintiff * * * that the balance of the verdict recommending an award of $2,000 to the plaintiff should be treated as surplusage and disregarded.

It is true that a verdict must be responsive to the issues and recommendations of the jury dehors the issues submitted by the court, such as the suggestion of the equal division of another fund between the parties (Haller v. Haller, 45 Pa. Super. 409) or the amount claimed in the suit be donated to the American Red Cross (Rosbyn v. White, 189 N. W. Rep. 577) or each party (plaintiff being unsuccessful) pay his own cost (Lykins v. Hamrick, 137 S. W. Rep. 852) or of leniency in a criminal case (State v. Overton, 85 N. J. L. 287; 88 Atl. Rep. 689) may be treated as surplusage and properly disregarded;

However, suclids not the situation in the instant case. Here the verdict finds both parties guilty of negligence, erroneously compares the degrees- of their negligence and recommends an award of $2,000 in favor-of the plaintiff and against both defendants. What then did the jury agree upon and intend ? Did -it find in favor of the defendants as is legally indicated by the first sentence, or in favor of plaintiff in the sum of $2,000 as is clearly indicated by the last sentence? The recommendation of an award to the' plaintiff is pertinent to the issues, for basically the liability of defendants to plaintiff in damages was in question. Tt cannot be treated as surplusage and disregarded. Reading the verdict as a whole, it is self contradictory, inconsistent and ambiguous. One is left to conjecture and surmise as to the real purpose of the jury. It is defective in substance, not merely in form.

The court may, in fact should, mould an informal verdict to render it formal, effective and to coincide with the substance of the verdict as agreed upon and intended by the jury, but this power is only exercised where the real purpose and intent of the jury clearly, sufficiently and convincingly appears. Kilgus v. Wayne Co., 85 N. J. L. 351; 88 Atl. Rep. 1056. Where, as here, the verdict is uncertain or ambiguous, it cannot be moulded. The court will not substitute its verdict in place thereof. Gerhab v. White, 40 N. J. L. 242.

This leads to the denial of defendants’ motion to mould and is also dispositive of the plaintiff’s rule. The latter will be made absolute and a new trial granted.


author: Harry H. Umberger, Deputy Commissioner.

text:
    New Jersey Department of Labor, Workmen’s Compensation Bureau.
    JAMES WOODLE, PETITIONER, v. CLARA AND WILLIAM SULLIVAN, RESPONDENT.
    Decided July 1, 1941.
    For the petitioner, Thomas Shebell.

    For the respondent, Cox & Walburg (by William Wain).

   *******

It seems clearly established in the medical testimony that the condition from which petitioner is now suffering is multiple sclerosis. The controversy medically, there being admission by petitioner’s experts that this condition pre-existed the accident is as to whether or not the accident suffered by petitioner aggravated this pre-existing condition. Petitioner’s experts maintained it did, respondent’s that it did not. It was further stated that this condition is remissional in nature.

That the petitioner suffered from this disease previous to the accident I do not think can be doubted because of his former symptoms of numbness of the right hand which the medical testimony clearly establishes was a result of this disease. That it was not disabling before the accident is equally clear from the evidence of petitioner’s continuance at work without difficulty until after the occurrence of his accidental injuries.

It appears clear and convincing that the petitioner enjoyed good health and was able to perform his usual labors up to the time of the accident complained of and that immediately thereafter his health rapidly retrogressed until he has now become totally incapacitated. That this retrogression was mainly due to the development of his disease of multiple sclerosis is also clearly apparent.

Petitioner urges that the fall suffered by him activated this condition and caused thereby his present total disability.

Bespondent urges in its brief that the mere fact that two things happen within a short time of each other is not proof that one caused the other. But yet where, as here, physical deterioration closely follows an event competent to produce that effect, one cannot easily escape the inference of a causal connection between the two and such inference is not overcome by mere medical theory*- in my opinion.

Bespondent further contends in his brief that liability for petitioner’s disability does not attach in this case if it is found that petitioner’s disability is the result of multiple sclerosis as this is an incurable disease, and cites the case of Toohey v. Gorman, 125 N. J. L. 41; 12 Atl. Rep. (2d) 273, wherein the court held that the non-union of the fractured bone causing the disability was due to an incurable disease (Pagett’s) and that since the employer was not responsible for the incurable disease it was not responsible for the disability resulting from the non-union of the fracture. There is, however, a long line of cases holding that where an accident aggravates or activates a pre-existing disease the employer is liable for all the ensuing disability thus precipitated notwithstanding the fact that the injury itself would not have caused as great a disability as ensued were it not for the underlying condition.

The distinction in the Toohey v. Gorman case from the latter mentioned ones is that in the former the disease itself was unaffected by the injury, i. e., it was not aggravated or accelerated and thus it was the disease and the fracture that together caused the total disability as an aggregate of the two. In this case, however, it is the disease alone that causes the end result, but would not have caused the same had it not been activated by the fall suffered by petitioner and this claim, therefore, falls within the purview of the other class of cases, such as Geizel v. Regina Co., 96 N. J. L. 31; 114 Atl. Rep. 328.

I do, therefore, find and determine that the petitioner sustained personal injuries by accident arising out of and in the course of his employment with respondent on June 24th, 1939.

* * * ❖ * \ ❖ ❖

Harry H. Umberger, Deputy Commissioner.


author: John C. Wegner, Deputy Commissioner.

text:
    New Jersey Department of Labor, Workmen’s Compensation Bureau.
    MARY F. GRAY, PETITIONER, v. HERBERT GREENWOOD AND FRANCES GREENWOOD AND GLOBE INDEMNITY CO., RESPONDENTS.
    Decided July 8, 1941.
    For the petitioner, David Roslcein.

    For the respondent, A. Dionel Reid.

   From the evidence adduced and stipulation of counsel it clearly appears that the petitioner, Mary F. Gray, on January 32th, 1940, was 65 years of age and had followed the occupation of a seamstress for over 35 years. It also appears that prior to the accident, she had been hired from time to time by the respondents to work as a seamstress which entailed mending, general alterations and repair work to the clothing of Mrs. Greenwood and her daughter. For this work she was paid by the day and all the necessary materials and supplies were furnished by the respondent. Moreover, she was always directed and instructed by Mrs. Greenwood as to the manner in which the work was to be performed. Although this work was usually performed at the petitioner’s home, the evidence discloses that on several occasions in the past Mrs. Gray had been instructed to and did go to the home of the respondent to perform her duties, because of the volume of accumulated work. The petitioner' had not only worked as a seamstress for the present respondent since her marriage, but also bad been engaged as the family seamstress for the respondent’s mother for a number of years prior thereto, during which time the respondent was a member of the household.

Several days prior to January 12th, 1940, the respondent Mrs. Greenwood phoned the petitioner and requested that she come to the respondent’s home in Maplewood, New Jersey, where she had a considerable amount of mending, alteration and seamstress work to bo performed. The testimony is undisputed that the respondent agreed to pay the petitioner the sum of $4 per day for this work which sum included the petitioner’s cost of transportation from Newark, New Jersey, where she lived, to the home of the respondent in Maplewood. In fact the respondent arranged to meet the petitioner that morning at the train station in Maplewood from which point she was to transport her to the respondent’s home. On the date of the accident, in accordance with the foregoing arrangements, the petitioner proceeded by train from Newark to Maplewood where she was met at the station by the respondent with an automobile. The streets were covered with ice and snow and were admittedly slippery with footing precarious. The petitioner was ihus driven by the respondent to her home, and, because of the icy condition of the driveway, the car was parked at a point in the street immediately adjacent to the respondent’s residence. The petitioner stepped out of the car, took a few steps toward the house and slipped and fell on the grass plot adjacent to the curb sustaining the injuries upon which this claim is predicated. Prom the foregoing facts, which appear to be uncontroverted, I am called upon to determine whether or not the petitioner met with an accident which arose out of and in the course of her employment with the respondent.

I am constrained to find that she suffered a compensable accident on the morning of January 12th, 1940. The petitioner’s employment by the respondent as a seamstress by the day on occasions in the past is undisputed. True she was only called upon to render these services as the needs of Mrs. Greenwood required, but the evidence clearly justifies the conclusion that there was an expectancy on the part of both the employer and employe that the service, though in broken periods, would be continued in the future. The employment of the petitioner on the day in question was neither by chance or accidental. In my opinion it was a recurring employment not disimilar to that rendered by a part time servant. Harrington v. Garrison, 11 N. J. Mis. R. 754. Clearly she was not a casual employe since her employment was regular in the sense that it was steady and permanent for more than a single piece of work. Jasnig v. Winter, 115 N. J. L. 320; 179 Atl. Rep. 844.

Hor can it be said that she was an independent contractor. The evidence without dispute discloses that in the performance of her work as a seamstress, she was furnished with all necessary materials and supplies and performed her work under the instruction and direction of the respondent.' The petitioner was paid by the day and unquestionably hired by the day. There was no one specific piece of work that she was to do, she was required to do all mending, sewing and alteration work which the respondent required of her to do. This employment was in and not out of her regular line of work. She is clearly within the protection of the Workmen’s Compensation Act as an employe. Jasnig v. Winter, supra.

The testimony is free from dispute that the wage of $4 per day which the petitioner was to receive for her work on January 12th, 1940, included the cost of her transportation from her home in Newark to that of the respondent in Maple-wood. The further uncontroverted fact that she was met at the station in Maplewood by the respondent with her automobile and thus driven to her place of employment, in accordance with the pre-arranged plan of the parties, clearly indicates that the respondent had undertaken and assumed to provide and furnish the transportation of the employe to the place where the service was to be performed. Thus the petitioner had already entered and was within the scope of her employment with the respondent when the accident occurred. An accident which occurs while an employe is being transported by means furnished by the respondent to the place where the work is to be done, is one which arises out of and in the course of the employment. Rubeo v. McMullen Co., 117 N. J. L. 574; 189 Atl. Rep. 662; affirmed, 118 N. J. L. 530; 193 Atl. Rep. 797; 120 N. J. L. 184; 198 Atl. Rep. 843.

Accordingly, I find and determine that the petitioner on January 12th, 1940, was an employe of the respondent as a seamstress for which work she was to be paid the sum of $4 per day, and on the morning in question she met with an accident that arose out of and in the course of her employment and that she suffered injuries and disability by reason thereof.

# ^ % sji t'fi %

John C. Wegner, Deputy Commissioner.


text:
    New Jersey Department of Labor, Workmen’s Compensation Bureau.
    FRANCIS E. FLYNN, PETITIONER, v. J. B. PIERCE FOUNDATION, RESPONDENT.
    Decided June 30, 1941.
    For the petitioner, Vincent A. Broderick.

    For the respondent, Collins & Corbin (by Patrick P. McDevitt).

   In the case sub judice petition was filed January 30th, 1941, alleging an accident to petitioner- August 2d, 1940, while in the employ of the respondent, whereby he sustained injury to the right index finger.

The respondent by way of answer admits the accident, its compensability and the payment of temporary compensation but further states the following:

“At an informal hearing the petitioner was awarded compensation for temporary disability from August 2d, 1940, until January 12th, 1941, and compensation for 25% loss of use of the right index finger. The respondent has paid temporary disability in accordance with the informal award.

“On January 20th, 1941, there was served upon the Aetna Casualty and Surety Company, the Compensation Carrier for the respondent, a warrant of seizure issuing out of the Family Court of the Domestic Relations Court of the Borough of Manhattan directed to the Commissioner of Welfare of the City of New York, authorizing him to take and seize all the right, title and interest of the petitioner, Francis E. Flynn, in and to the award for compensation made at the informal hearing. Said warrant was served after judgment was obtained in the said Domestic Eelations Court in favor of Winifred Bell and against the petitioner, Francis E. Flynn. The respondent herein admits its liability to the petitioner for the award for the permanent loss of use of the petitioner’s right index finger and is willing to pay the amount thereof. The respondent requests that full faith and credit be given to the judgment of the Domestic Eelations Court of the Borough of Manhattan, and State of New York in accordance with provisions of the United States Constitution.”

* í¡< % $

The testimony of the petitioner showed that at the time he sustained his injury he lived in New Jersey and subsequently moved to New York, lie also testified that he was separated from his wife, Winifred Bell. The claim petition filed hv him shows that at the present time he is residing at No. 118 Milligan Place, South Orange, New Jersey.

There was admitted into evidence in behalf of the respondent an exemplified copy of the judgment of the Domestic Eelations Court of the City of New York entitled “In the matter of an agreement for support by and between Winifred Bell and Frank Flynn.” This agreement shows that the respondent admitted his legal liability for the support of his son, Kobert Flynn, six years old. The agreement is dated March 26th, 1936, and signed by Winifred Bell and by the petitioner, Frank Flynn. Attached to said exemplified copy of the agreement for support is an order issuing out of the Domestic Eelations Court of the City of New York dated September 20tli, 1940, entitled “In the matter of the petition of Winifred Bell, petitioner, for an Order to compel support by Frank Flynn, respondent.” This order recites that the petitioner herein was arraigned before the court on September 20th, 1940, and it appeared from competent proof that he was employed by the J. B. Pierce Foundation as a carpenter and was receiving compensation from the Aetna Casualty and Surety Company of 151 William street, New York City, in the amount of $19.83 weekly and that the petitioner, Frank Flynn, was examined and heard in his own behalf and the court was satisfied of Iris ability to make provision for the support of his child by paying $7 per week, and it was ordered that the .Aetna Casualty and Surety Company deduct from compensation payments $7 per week, * * * and turn the same over to the Family Court at 135 East Twenty-second street, New York City. Said order was consented to by the petitioner herein and signed by Justice W. B. Dunham.

The exemplified copy of the warrant of seizure which was admitted in evidence and marked R-3 shows that proof was submitted to the Justice of the Domestic Relations Court of the City of New York that Francis E. Flynn abandoned.his minor son, Robert, in the City of New York, leaving him without adequate support and that an award issued out of the Domestic Relations Court on September 20th, 1940, for the apprehension of the said Francis E. Flynn. The said Domestic Relations Court authorized the Commissioner of Welfare of the City of New York to take and seize all of the right, title and interest Francis E. Flynn had in and to an award of. compensation in the sum of $198.30 which he was entitled to receive from the Aetna Casualty and Surety Company of New York City. It was stipulated on the record that said order of seizure was served upon the Aetna Casualty and Surety Company in New York City.

The question that now confronts me is what cognizance am I to give to the warrant of seizure issued in New York. I appreciate the provisions of the United States Constitution as to the full faith and credit clause but in my opinion this problem is not mine for solution.

The act reads as follows:

“The right of compensation granted by this chapter shall have the same preference against the assets of the employer as is now or may hereafter be allowed by law for a claim for unpaid wages for labor. Claims or payments due under this chapter shall not be assignable and shall be exempt from all claims from creditors and from levy, execution or attachment.” N. J. S. A. 34:15-29.

N. J. S. A. 34:15-57 states the duties of the deputy commissioners. N. J. S. A. 34:15-58 and 66.1 outline the procedure of docketing the judgment entered in the Bureau and the collection of same.

Having made the award the modus operandi for its collection is as outlined above. The recognition to be given the warrant of seizure rests with the court above wherein the judgment has been filed.

Under date of April 28th, 1940, the Aetna Casualtj and Surety Company was made a party respondent in this action.

It is hereby ordered * * * that judgment be entered in favor of Francis E. Flynn, the petitioner and against J. B. Pierce Foundation and Aetna Casualty and Surety Company, respondents.

***>£*❖*

John C. Wegner, Deputy Commissioner.


author: Stein, V. C.

text:
    Newark Milk and Cream Company, a corporation, et al., complainants, v. Milk Drivers and Dairy Employees Local No. 680, of Newark, A. F. of L., et al., defendants.
    [Decided March 27th, 1941.]

      Messrs. McCarter, English & Egner and Mr. Leonard J. Emmerglide, for the complainants.

      Mr. Thomas J. Marlcey, for the Independent Dnion of Dairy Employees.

      Mr. Thomas L. Parsonnet, for the defendants.
   Stein, V. C.

On March 1st, 1941, complainants Newark Milk and Cream Company, as employer, and six of its employees, presented their bill of complaint with affidavits annexed naming as defendants Milk Drivers and Dairy Employees Local No. 680, of Newark, A. E. of L., two of its officers and two others not connected with the complainants but who have been engaged in picketing activities as hereinafter outlined.

The allegations of the hill of complaint supported by proof established that the corporate complainant is engaged in the sale of milk, cream and ice cream; that a contract was entered into by it with Independent Union of Dairy Employees, which contract by its terms expired October 31st, 1941, unless the Independent Union ceased to represent a majority of the company’s employees, which fact was to be determined by the National Labor Eelations Board. The contract recognized the Independent Union as the sole bargaining agent of the employees and covered wages, hours and working conditions. The bill further alleged that no strike, labor dispute or controversy existed between the corporate complainant and any of its employees. On February 27th, 1941, under authority of and for the defendant Union, Local No. 680, the places of: business of the corporate complainant’s customers were picketed by the Union through the individual defendants, not employees of the complainant, who carried signs bearing the following language:

“Alderney Dairy or Newark Milk & Cream Co. is not signed up with the Milk Drivers & Dairy Employees Local Union 680 A. F. of L. Please Co-operate With Us and Buy Only Milk & Cream Delivered by A. P. of L. Union Drivers.”
“This Establishment Sells Milk & Cream of the Alderney Dairy or the Newark Milk & Cream Co. which is not signed up with the Milk Drivers & Dairy Employees Union Local 680 A. F. of L. Please Co-operate Buy Only Milk & Cream Delivered by A. F. of L. Union Drivers.”
“This Establishment Sells Milk & Cream of the Alderney Dairy or the Newark Milk & Cream Co. which is not signed up with the Milk Drivers & Dairy Employees Union Local 680, A. F. of L. Please do not Patronize Until They Sell Only Milk & Cream Delivered By A. F. of L. Union Drivers.”

The picketing was peaceful and took place in front of the places of business of the retail customers of the corporate complainant.

Upon the filing of the bill and affidavits, an order to show cause with intermediate injunction was issued. Upon the return of the order to show cause on March 10th, 1941, the answering affidavits filed by the defendants set forth, among other things, that the activity of the defendant Union in picketing the customers of the corporate complainant was conducted in order to bring about a “test case;” that the signs carried by the pickets were consciously prepared in order to secure a judicial determination “that both primary and secondary picketing are an exercise of our right of free speech constitutionally guaranteed to us, as established by the decisions of the United States Supreme Court, especially the recent cases of Milk Wagon Drivers Union of Chicago, Local 753, v. Meadowmoor Dairies, Inc., 85 L. Ed. 497; 61 Sup. Ct. Rep. 552, and A. F. of L. v. Swing, 85 L. Ed. 513; 61 Sup. Ct. Rep. 568.”

In the Meadowmoor Case injunction issued restraining all conduct, violent and peaceful. The master to whom the cause had been referred found that the retail customers of the vendors who purchased milk from the dairy company were intimidated by the commission of acts of violence, and his action was affirmed by the high court which justified its decision because the picketing “in connection with or following a series of assaults or destruction of property,” had the effect of intimidating the persons in front of whose premises the picketing occurred. Mr. Justice Frankfurter, who wrote the opinion for the United States Supreme Court, declared that the picketing in the case was set in the “background of violence.” On the same day (February 10th, 1941) the United States Supreme Court, in 'an opinion by the same .justice, decided the Swing Case. In that case “A union of those engaged in what the record describes as beauty work unsuccessfully tried to unionize Swing’s beauty parlor. Picketing of the shop followed.” The use of false placards in picketing as well as forcible behavior toward Swing’s customers was charged. A preliminary injunction was granted but later dissolved and the complaint struck for want of equity. The Illinois Appellate Courts held that the trial court was in error and that the jurisdiction of equity had been properly invoked because (1) there was no dispute between the employer and his immediate employees; (2) the placards were libelous; (3) there were acts of violence. Said Mr. Justice Frankfurter for the United States Supreme Court:

“* * * We are asked to sustain a decree which for purposes of this case asserts as the common law of a state that there can be no 'peaceful picketing or peaceful persuasion’ in relation to any dispute between an employer and a trade union unless the employer’s own employees are in controversy with him.

“Such a ban of free communication is inconsistent with the guaranty of freedom of speech. That a state has ample power to regulate the local problems thrown up by modern industry and to preserve the peace is axiomatic. But not even these essential powers are unfettered by the requirements of the Bill of Bights. The scope of the Fourteenth Amendment is not confined by the notion of a particular state regarding the wise limits of an injunction in an industrial dispute, whether those limits be defined by statute or by the judicial organ of the state. A state cannot exclude workingmen from peacefully exercising the right of free communication by drawing the circle of economic competition between employers and workers so small as to contain only an employer and those directly employed by him. The interdependence of economic interest of all engaged in the same industry has become a commonplace. * * * The right of free communication cannot therefore be mutilated by denying it to workers, in a dispute with an employer, even though they are not in his employ. Communication by such employees of the facts of a dispute, deemed by them to be relevant to their ‘interests, can no more be barred because of concern for the economic interests against which they are seeking to enlist public opinion than could the utterance protected in Thornhill's Case. 'Members of a union might, without special statutory authorization by a State, make known the facts of a labor dispute, for freedom of speech is guaranteed by the Federal Constitution.”

The decision of the Illinois Supreme Court was reversed.

Since the return of the order to show cause in this ease the legislature of this state enacted R. S. 2:29-77.1 et seq.; N. J. S. A. 2:29-77.1 et seq., which act was approved on March 13th, 1941. The statute (R. S. 2:29-77.3; N. J. S. A. 2:29-77.3) forbids the issuance of a temporary or permanent injunction “in any case involving or growing out of a labor dispute, as herein defined, except after hearing the testimony of witnesses in open court (with opportunity for cross-examination) in support of the allegations of a bill of complaint made under oath, and testimony in opposition thereto, if offered, and except after findings of all the following facts by the court or judge or judges thereof:

“(a) That unlawful acts have been committed and are likely to be continued unless restrained;

“(b) That substantial and irreparable injury to complainant’s property will follow unless the relief is granted;

“(c) That as to each item of relief granted greater injury will be inflicted upon complaint by the danial thereof than will be inflicted upon defendants by the granting thereof;

“(d) That complainant has no adequate remedy at law.”

The act (R. S. 2:29-77.8; N. J. S. A. 2:29-77.8) defines a case involving or growing out of a labor dispute and as applied to the admitted facts in this case that section is controlling. It provides that a case is held to involve or to grow out of a labor dispute when it involves persons who are engaged in industry, trade, craft, employment or occupation; or who are members of an affiliated organization of employers or employees; whether such dispute is “(3) between an association or associations of employees and any other association or associations of employees * * *. (c) The term ‘labor dispute’ includes a controversy concerning terms or conditions of employment, * * * regardless of whether or not-the disputants standing (stand) in the proximate relation of employer and employee.”

Notice having been served upon the defendants by the complainants for an order fixing a day for hearing in this case, the hearing was held on March 19th, 1941, at which time oral proof was offered bjr complainants and defendants and the arguments of counsel for the parties heard.

On the day of the hearing Independent Union of Dairy Employees upon application and notice to all parties was by order permitted to intervene as a party complainant and participated in the taking of proofs and the arguments of counsel.

It is shown by the testimony and admitted by the answer of the defendants that there is no strike or labor dispute between the parties nor is it argued by the defendants that the complain ant’s establishment is a non-union shop or that the complainant company is hostile to union labor. The defendants’ answer admits that at least one of the signs constituted secondary boycott. It is shown by the proof and not denied that a large number of complainant’s customers have ceased to do business with it and others threatened so to do unless the picketing in front of their premises is discontinued.

Under the statute, however, the picketing of the complainant’s customers even if carried on for the avowed purpose of inducing or compelling complainant to accept the demands of the defendant Union and thus bring about the so-called closed show is lawful.

R. S. 2:29-77.1; N. J. S. A. 2:29-77.1 section (k) declares as a matter of public policy of the State of New Jersey that certain acts are lawful and are “in nowise to constitute a tort or a nuisance” namely (e) giving publicity to the existence of any labor dispute by “patrolling, picketing, without fraud or violence;” (j) “Requiring as a condition of employment that all employees of a particular employer or group of employers shall be members of a particular labor organization.”

In the consideration of this case there is, therefore, involved the scope and application of a legislative enactment whose wisdom or lack of wisdom is not a consideration open to judicial inquiry. Clearly the effect of the statute is to regulate the procedure by which an injunction may be obtained and to limit the scope of the relief which may be granted. The statute so interpreted leads me to the conclusion that under the proof and the admissions in this case the complainants are not entitled to relief. The order to show cause will be discharged.


author: Herr, A. M.

text:
    Julia R. Houghland, petitioner, v. Glen S. Houghland, defendant.
    [Decided June 24th, 1941.]

      Messrs. Osborne, Cornish & 8check (Mr. Harry V. Osborne, Jr., appearing), for the defendant.

      Mr. John J. Deeney, for the petitioner.
   Herr, A. M.

This is an application by a divorced husband for an order directing his former wife to return to him the sum of $450 which he paid to her as alimony after her remarriage.

The final decree of this court divorcing the petitioner and the defendant was entered on July 11th, 1940. Prior thereto, on April 11th, 1940, an order had been entered directing Mr. Houghland to pay his wife the sum of $150 per month as and for her support and maintenance. On June 10th, 1941, an order was entered vacating the provision for the pajunent of alimony contained in the order of April 11th, 1940, for the reason that Mrs. Houghland had remarried on March 1st, 1941.

The proof presented on the return day of the order to show cause why the alimony provision should not be vacated revealed that Mrs. Houghland had not informed her former husband of her remarriage, that he did not learn of such remarriage until late in May, 1941, and that Mrs. Houghland (now Mrs. Freeman) continued for three months after her remarriage to accept from him the sum of $150 per month which he sent to her attorney as her alimony pursant to the order of April 11th, 1940. The order of June 10th, 1941, provided that Mr. Houghland might apply for the relief now sought.

The situation is governed by R. S. 2:50-38; N. J. S. A. 2:50-38. Prior to the passage of this act in 1933, the rule was that the remarriage of a divorced wife did not, ipso facto, terminate the duty of her former husband to pay alimony. Cropsey v. Cropsey, 104 N. J. Eq. 187, 190; 144 Atl. Rep. 621.

The statute reads as follows:

“If after the decree of divorce the wife shall remarry, the court of chancery shall not make any order touching the alimony of such wife except that the court of chancery, upon application of the former husband, on notice and upon proof of the marriage of the former wife after the decree of divorce, must modify any order or decree touching the alimony of the former wife by vacating and annulling any and all provisions in any such order or decree, or both, directing the payment of money for the support of the former wife.”

Shortly after the passage of this act, in the unreported case of Hauenstein v. Hauenstein (Docket 57, page 92), the late Advisory Master Child said:

“The purpose of the legislature in passing this law is plain, it was to avoid the effect of the decisions in the cases of Warren v. Warren, 92 N. J. Eq. 334; Dietrich v. Dietrich, 99 N. J. Eq. 711; Cropsey v. Cropsey, 104 N. J. Eq. 187, which cases held that the remarriage of the divorced wife did not, of itself, terminate her right to alimony.

“The act of 1933 is perfectly clear. It prohibits an allowance to a divorced wife who remarries and if the allowance has been made, makes it mandatory upon this court to vacate any provision for alimony. * * *”

The only reported eases interpreting our statute are Suozzo v. Suozzo (1938), 16 N. J. Mis. R. 475; 1 Atl. Rep. (2d) 930, and Corbin v. Mathews (1941), 129 N. J. Eq. 549; 19 Atl. Rep. (2d) 633.

In the Suozzo Case the petitioner made an application to hold her former husband in contempt for failure to pay permanent alimony, and the defendant countered with a petition to vacate the order for alimony alleging the petitioner’s remarriage. . The petitioner objected to the defendant’s counter application being heard until he had fully satisfied the arrears under the alimony order. It was held that the objection was without merit (although the defendant failed to establish the petitioner’s remarriage). Advisory Master Eogers said in his opinion in that case (at p. 176) :

“* * * It has been held under our statute (R. S. 2:50-38) that remarriage of a former wife after her decree for divorce ipso facto terminates her right to further payments under her order therefor in that on application of the former husband the court must vacate such order and hold it ineffectual from the date of remarriage. Hauenstein v. Hauenstein (Docket 57, page 92); Rothenberg v. Rothenberg (Docket 78, page 621).”

In the Corbin Case the bill of complaint recited a separation agreement and referred to the complainant’s subsequent Nevada divorce and remarriage. On the complainant’s motion to strike the defendant’s answer and counter-claim, it appeared from the ex parte affidavits that the defendant did not know until about July, 1939, that the complainant had remarried in December, 1937. The decree of this court directed the defendant to pay the accrued arrearages under the separation agreement, the defendant having ceased to make the agreed payments in July, 1939. The Court of Errors and Appeals held that the maintenance agreement became merged in the Nevada divorce decree and took on the aspect of alimony. In reversing the decree of this court, the Court of Errors and Appeals said (per Case, J., pages 554-5) :

“* * * We do not know what the Nevada courts would determine if application should be made by the defendant for a modification of the alimony decree in view of the wife’s remarriage; and it is quite unnecessary for us to dwell on that subject inasmuch as this is not a suit for enforcement of the decree. But the course of our Chancery Court on a like procedure is charted by the following statutory direction (R. S. 2:50-38) : * * * (quoting the statute).”

The legislature of the State of Yew York some years ago passed a statute similar to our own. That statute (section 1159 of the Yew York Civil Practice Act) reads as follows:

“Where an action for divorce is brought by a husband or wife, and a final judgment of divorce has been rendered in favor of the wife, the court, by order upon application of the husband on notice, and on proof of the marriage of the wife after such final judgment, must modify such final judgment and any orders made with respect there! o by annulling the pi'ovisions of such final judgment or orders, or of both, directing payments of money for !he support of the wife. (Am’d. L. 1934, ch. 220, in effect Sept. 1.)”

In the case of Linton v. Hall (N. Y. Supreme Court, 1914), 86 Misc. Rep. 560; 149 N. Y. Supp. 385, there was an application for the modification of a judgment for alimony upon the ground that the wife had remarried three months after the entry of the final decree of divorce, although the husband had no knowledge of the remarriage for almost six years thereafter. The statute was then substantially the same as it is at present and the question was whether the plaintiff was entitled to alimony until the date of the order annulling the alimony provision of the judgment, or only until her remarriage. The court held that the intent and purpose of the statute was that the plaintiff was not entitled to alimony subsequent to her remarriage. The opinion (per Aspinwall, J., 149 N. Y. Supp. pp. 386-7) stated:

“HI the defendant can only be relieved from the payment of alimony from the time of the entry of the order annulling the provision, the defendant, under the situation existing in this case, not having notice of his former wife’s remarriage until many years thereafter, it would in effect mean that a woman could, by contracting a secret marriage, or by remarrying in a remote or foreign jurisdiction, and the former husband not having knowledge of such remarriage for a long period of time, as in the case at bar for a period of almost six years, mulct him in a largo sum of money by reason of alimony having been paid, or having accrued, as herein, and she would, therefore, while being supported by her present husband, also be in receipt of moneys from her former husband, or, in other words, the former husband, under such conditions, would be assisting in the support, ‘either in whole or in part/ of the said plaintiff after her marriage to another, a situation which I am convinced, the statute was enacted to prevent.”

In Dumproff v. Dumproff (1930), 138 Misc. Rep. 298; 244 N. Y. Supp. 597, the New York Supreme Court again interpreted the statute, as follows (per Dunne, J., 244 N. Y. Supp. 598-599):

“* * * The purpose of the section [section 1159, Civil Practice Act] is to prevent a woman who had married, after obtaining a divorce, from being supported wholly or in part by her former husband. * * *

“* * * Upon her remarriage I hold that eo instanti the obligation to compel provision for her maintenance is shifted' from the shoulders of her former spouse to him who assumes all the privileges, and therefore is ordinately a full measure of the duties incident to the marital state. This is as it should be. For otherwise, in a. possible case ad interim the time of such remarriage and the application by the former husband for a modification of the final decree, the alimony paid bjr such former husband would not only lighten the duty of the second spouse in respect to the support of his wife, but might even be reflected,'if the wife were a mere conduit, in the enhanced financial circumstances'of such second husband. There could be no justice in such proposition.

“The court holds, therefore, that the plaintiff is not entitled to alimony subsequently to her remarriage. * * *”

And in Kirkbride v. Van Note, 275 N. Y. 244; 9 N. E. Rep. (2d) 852; 112 A. L. R. 243, Judge Finch, of the New York Court of Appeals, said (9 N. E. Rep. (2d) 854; 112 A. L. R. 245):

“The provision of the Civil Practice Act is mandatory. Where a former wife has remarried and an application is made for modification of the judgment with respect to the direction of payment of money for the support of the former wife, the court ‘must modify/ and cannot in its discretion refuse to do so. Alimony is awarded for present maintenance, ánd ‘as a matter of public policy a wife who has a husband with whom she is living should be supported by him and not by one from whom she has been divorced.’ Schley v. Andrews, 225 N. Y. 110, 114; 121 N. E. Rep. 812, 813. The law recognizes the unfairness of requiring a husband to pay alimony for a period during which his former wife is married to another. * * * The modification is not limited to the time subsequent to the application. It applies nunc pro tunc as of the time of the remarriage to all unpaid alimony. To hold otherwise would enable a woman to conceal her remarriage and thereby obtain alimony from her former husband while she is living with a new spouse.

“The case of Cary v. Cary, 217 N. Y. 670; 112 N. E. Rep. 1055, is cited to us as supporting the contention of the plaintiff that the modification can apply only to alimony accruing subsequent to the application. That case was affirmed by a divided court. To the extent that the affirmance of the determination of the lower courts in that case may conflict with the conclusions we have reached herein, that case must be d eemed overruled.”

It is my judgment, especially in the light of these analogous decisions, that under our statute the remarriage of a divorced wife ipso facto terminates her right to alimony and that an order providing for the payment of alimony becomes ineffectual at that time. “On application of the former husband the court must vacate such order and hold it ineffectual from the date of remarriage.” (Suozzo v. Suozzo, supra.) Since Mrs. Houghlamks right to alimony and Mr. Houghland’s duty to provide it both terminated on March 1st, 1941, the order of June 10th, 1941, was effective as of the former date, nunc pro tunc.

Tn continuing to accept alimony from her former husband, Mrs. Houghland violated the provisions of the statute. The reason for her failure to disclose her remarriage to him was, obviously, her desire to continue to receive $150 per month, notwithstanding the fact that her acceptance thereof constituted a fraud upon her former husband. Having successfully concealed her remarriage for three months she defrauded Mr. Houghland and became herself unjustly enriched in the sum of $450, which Mr. Houghland now seeks to recover.

Mrs. Houghland (now Mrs. Freeman) contends that the court does not have power to order the return of money paid under the alimony order because the statute provides that the court “shall not make any order touching the alimony of such wife except” that it must vacate (as it already has vacated) all alimony provisions in any existing order or decree. This argument is in my judgment specious and untenable. In the first place, the relief sought is not an “order touching the alimony.” Although the $450 of which Mr. Houghland was defrauded was paid by him under the mistaken belief that he was paying alimony, it was not, in fact, alimony. Mrs. Houghland’s right to alimony having terminated upon her remar-, riage, the payments made by Mr. Houghland after that time, even though paid as alimony, were not of such nature.

Furthermore, the obvious purpose of the statute is not to prevent the court from ordering the return of alimony paid after the remarriage of a' divorced wife under the circumstances presented in this case. In my judgment, the intent of the statute is to prevent a wife who has remarried from securing arrearages of alimony and to preclude her from seeking to hold her former husband in contempt for nonpayment thereof. It was designed to change the earlier rule that a divorced wife’s remarriage was simply a fact to be considered in an application for the reduction of alimony. It directs the court to vacate entirely the provision of any earlier order for the payment of alimony.

The contention that the statute, because of its peculiar wording, prohibits this court from ordering the return of money paid as alimony to a divorced wife after her remarriage (concealed from her former husband or not known to him) would in effect nullify the purpose of the statute, put a premium upon fraud and deceit, and enable a woman to mulct her former husband in violation of the statute. Where, as here, a woman is guilty of imposition or fraud in securing moneys in the guise of alimony, she will be ordered to repay it. Gorrell v. Gorrell, 2 N. J. Mis. R. 707. See Wittlinger v. Wittlinger, 13 N. J. Mis. R. 349; 178 Atl. Rep. 97; Cropsey v. Cropsey, supra; Hollingshead v. Hollingshead, 91 N. J. Eq. 261, 279; 110 Atl. Rep. 19.

For the above reasons an order will be advised that the petitioner repay to the defendant the sum of $450, in accordance with the prayer of his petition.


author: Collester, D. C. J.

text:
    Clifton District Court.
    IDA SCHMID, PLAINTIFF, v. HERBERT D. SLOATE AND THE CITY OF PATERSON, A MUNICIPAL CORPORATION, DEFENDANTS.
    Decided July 17, 1941.
    For the plaintiff, Edward G. Weiss and Louis Bold.

    For Herbert D. Sloate, Hugh O. Bpernow.

    For the City of Paterson, George Buroshy.

   Collester, D. C. J.

This is an action founded upon negligence which is brought by the plaintiff to recover damages from Herbert D. Sloate and the City of Paterson which she claims to have sustained as a result of the alleged negligence of the defendants. The pertinent facts are as follows:

The plaintiff was the owner of a mortgage encumbering certain premises located in the City of Paterson which said mortgage was in default and she placed it in the hands of her attorney for the purpose of foreclosure. As a preliminary step in the proceedings, her attorney, on July 3d, 1937, made a search of the title of said premises at which time he discovered on record in the register’s office of Passaic County a certificate of tax sale bearing date July 6th, 1936, held by Fred Ehrenkranz & Co. encumbering the premises secured by the aforesaid mortgage. Thereafter, plaintiff’s attorney requested a tax search to be made by the defendant Herbert D. Sloate, 'the official designated by the Oity of Paterson for that purpose and on July 9th, 1937, received a tax search which did not set forth any reference to the tax sale certificate held by Fred Ehrenkranz & Co. On July 17th, 1937, a bill of foreclosure was filed in the Court of Chancery on behalf of the plaintiff and at the sale held by the sheriff of Passaic County pursuant to the writ of fieri facias, said plaintiff purchased the property for the nominal bid of $100.

Pending the foreclosure proceedings, a contract was entered into between the plaintiff and Orville Gates and Muriel Gates, his wife, whereby the latter agreed to purchase the premises from the plaintiff upon acquiring title thereto at the foreclosure sale. The foreclosure sale having been completed, a warranty deed was made by the plaintiff and her husband to Mr. and Mrs. Gates..

Subsequently, the Gillian Eealty Co., assignee of Fred Ehrenkranz & Co., instituted proceedings in the Court of Chancery to foreclose the certificate of tax sale dated July 6th, 1936, and the plaintiff to comply with her warranty was required to pay the said Gillian Eealty Co. the sum of $322.94 for the.cancellation of the tax certificate.

The plaintiff in this action now seeks to recover the sum of $322.94 from the defendants, Herbert D. Sloate and the City of Paterson, on the ground that the tax search delivered to the plaintiff by the City of Paterson was negligently made and did not disclose the tax sale certificate which had been issued to Fred Ehrenkranz & Co. prior to the date of said tax search.

In the case sub judice, two paramount questions present themselves for the consideration of the court:

1. Is there a duty owed by the tax search official to the plaintiff, a breach of which will render said tax search official personally liable in damages?

2. Can the City of Paterson be held responsible to 'the plaintiff for the alleged negligent act of its tax search official ?

The duty of the defendant Sloate, the tax search officer of the City of Paterson, is provided for by statute:

N. J. S. A. 54:5-11. The governing body of each municipality shall from time to time, by resolution, designate a bonded official of the municipality to make examinations of its records as to unpaid municipal liens and to certify the result thereof. The official so designated, and each new incumbent of the office, shall thereafter be vested with the power to make official certificates of searches for municipal liens until a new official has been designated for the purpose, and no other official than the one so designated shall make any such official certificate.

N. J. S. A. 54:5-12. Upon receipt of the fees hereinafter provided, and of a written application from any person containing a diagram showing the location and dimensions of the tract of land to bo covered by the certificate, and the name of the owner of the tract, such official shall make an examination of the records of the municipality, and, within fifteen days after receipt of the application, issue a certificate certifying the taxes, assessments or other municipal liens or charges, levied or assessed against the property described in the application, which are liens thereon at the date of the certificate. He shall include therein all unpaid installments of assessments theretofore levied and in force, whether due or not.

N. J. S. A. 54:5-13. The certificate provided for in section 54:5-12 of this title shall include a statement of all tax sales made at any time prior to its date not held by the municipality and not redeemed at the date of the certificate, and in the case of a continuation search shall indicate whether the liens, if any, shown in the original certificate shall have been paid and satisfied or remain in force.

N. J. S. A. 54:5-16. All searches so made shall be certified as correct by the designated official, and the fees collected shall be paid by him to the governing body of the municipality. He shall keep a duplicate copy of each certificate, consecutively numbered, showing the fees charged, and bound in book form as a permanent record of his office.

It is apparent from the foregoing statutes that it was the intention of the legislature in enacting the same to protect investors, either grantees or mortgagees of real estate by providing for a certificate as to tax and assessment liens on which they can safely act. (See Cliffside Park Mortgage Co. v. Englewood, 113 N. J. Eq. 146 (at p. 149); 166 Atl. Rep. 36). Said statutes place upon the tax search officer a public duty of making a true and accurate search of the tax and assessment liens encumbering real property. The duty of the tax search officer with respect to the tax and assessment records of the municipality being a public duty, if there is a breach of it, he will be liable to anyone who may have suffered damage from his negligence or default—the action being founded not on contract but on the breach of a duty. Appleby v. State (Court of Errors and Appeals), 45 N. J. L. 161; Add. on Torts, 14, 15; Wharton on Neg., §§ 285, 443.

The testimony presented at the trial of this cause shows that the tax search officer Sloate was negligent in making his tax search. It is admitted that the tax records of the City disclosed the outstanding tax sale lien held by Fred Ehrenkranz & Co. at the time Sloate made his search and it is further conceded that said officer neglected to set forth notice of said lien on his tax search certificate. By virtue of N. J. S. A. 54:5-13 (supra), Sloate had a statutory duty to set forth in his certificate of tax search "A statement of all tax sales made at any time prior to its date not held by the municipality and not redeemed at the date of the certificate.” (Italics mine.) It is readily, apparent that Sloate breached the duty as outlined by statute by reason of his negligence.

Public officers are answerable to private persons for injuries resulting from the negligent performance of their duties. 22 R. C. L. 484, § 162; Upton v. Slater, 83 N. J. L. 373; 85 Atl. Rep. 225; Florio v. Jersey City, 101 N. J. L. 535; 129 Atl. Rep. 470. In American Print Works v. Lawrence, 23 N. J. L. 590, the Court of Errors and Appeals said:

"It is enough for the decision of this case that we recognize the well settled principle that public officers, acting without private emolument in a matter of public concern, shall not be personally liable for the consequential injuries arising out of an act done by them under lawful authority and in a proper manner!’ (Italics mine.)

Mr. Justice Kalisch in the Florio case (supra) commenting upon the above statement said:

“This is ill harmony with the principle of the cases above referred to. The only legitimate inference to be drawn from the language used is that where the act done by the public officer is under lawful authority and free from, negligent conduct he is absolved from liability, otherwise not.” (Italics mine.)

It having been determined that the tax search officer Sloate breached the statutory duty imposed upon him in the instant ease, the question before this court is whether or not the plaintiff can recover damages for such a breach. It is well established in this state that liability for such a breach of official duty inures only in favor of one who is prejudiced by the breach thereof. 34 Cyc. 1022; Appleby v. State, supra; Upton v. Slater, supra. In the opinion of this court from the undisputed and uncontradieted evidence presented in this cause, it is apparent that the plaintiff was not prejudiced by the breach of duty on the part of Sloate.

First, it must be noted that the plaintiff did not place any reliance upon this tax search so that it would result in her damage. The plaintiff was a mortgagee whose mortgage was in default. The existence of the tax lien in no manner affected the plaintiff’s position pending the foreclosure action or at the foreclosure sale at which time the plaintiff purchased the property from the sheriff. It is apparent that the plaintiff purchased the property at the foreclosure sale to protect her mortgage interest and the title she now holds is by virtue of the terms of her mortgage, which created an immediate estate in the mortgaged premises in fee, subject to defeasance by payment, except that the right to entry and possession was postponed until default. Colton v. Depew, 60 N. J. Eq. 454; 46 Atl. Rep. 728; Cliffside Park Mortgage Co. v. Englewood, supra (at p. 150). Said purchase was not made by the plaintiff in reliance upon the status of the taxes as revealed by the tax search certificate.

Secondly, the plaintiff had knowledge of the existing outstanding tax lien by reason of its appearance on the records of the Passaic County register, a fact which was known to her attorney to whom had been entrusted the duty of making a search of the title. Confronted with the knowledge of the outstanding tax sale certificate appearing on said record, it became incumbent upon the plaintiff, through her attorney, to investigate the effectiveness of the recorded tax sale certificate. By not doing so, her own negligence caused the injury which she ultimately sustained and she was not prejudiced or damaged by failure of the tax search officer to list the outstanding tax lien on the tax search. A similar situation arose in the case of Upton v. Slater, supra where suit was brought against the county clerk of Passaic County on the ground that said clerk had failed to próperly index a mortgage and that the plaintiff in said action, relying upon the index, had in good faith purchased the property covered by the mortgage and was afterward compelled to pay said mortgage. Mr. Justice Trenchard in the opinion rendered by the court said:

“We assume for the purpose of this case that failure of the county clerk to index the mortgage was a breach of his official duty but liabilitjr for such a breach of official duty inures only in favor of one who was prejudiced by the breach thereof * *

“The implication arising from the record before us is that the plaintiff had actual notice of the mortgage when he purchased the property. He, therefore, was not damnified by the failure to index tfie mortgage.”

Nor is the City of Paterson liable for damages to the plaintiff. It is, and has long been, settled by the courts in this state that in the absence of a statutory provision a municipal corporation charged with the performance of a public duty is not liable to an individual for neglect to perform it, or negligence in the performance of such duty, whereby'a public wrong has been done for which indictment will lie, although such individual has suffered special damage. Board of Freeholders of Sussex v. Strader, 18 N. J. L. 108; Cooley v. Freeholders of Essex, 27 Id. 415; Hart v. Freeholders of Union, 57 Id. 90; 29 Atl. Rep. 490; Kehoe v. Rutherford, 74 N. J. L. 659; 65 Atl. Rep. 1046; Doran v. Asbury Park, 91 N. J. L. 651; 104 Atl. Rep. 130; Florio v. Jersey City, 101 N. J. L. 535; 129 Atl. Rep. 470; Callan v. Passaic, 104 N. J. L. 643; 141 Atl. Rep. 778.

It is conceded that a municipality can be rendered liable by legislative enactment and the legislature has provided a remedy where the tax lien is still held by the municipality:

N. J. S. A. 54:5-17. A person who shall acquire for valuable consideration an interest in lands covered by an official tax search, in reliance on that search, shall hold such interest free from any municipal lien held by the municipality not shown on that search.”

Since the tax lien in the case sub judice is not one still retained by the municipality, the foregoing provision does not apply. Nor can this court agree with the plaintiff’s contention that the municipality can be held liable by implication. In the court’s opinion, a municipality can be rendered liable for the negligent acts of its agents and servants only if the legislature specifically and expressly so provides. To hold otherwise would require this court to usurp the rights and duties of the legislature.

Tor the foregoing reasons, it is therefore the decision of this court that the motion for a judgment in favor of the defendants should be granted and therefore judgment will be entered upon said motion in favor of the defendants, Herbert D. Sloate and the City of Paterson, a municipal corporation, against the plaintiff, Ida Schmid, of “no cause for action.”


author: Prall, C. P. J.

text:
    Warren County Court of Common Pleas.
    IN THE MATTER OF THE PETITION OF JAMES C. KELSEY.
    Decided February 13, 1941.
    For the petitioner, Harry Runyon and Harlan Besson.

    For the respondent, Claude TS. Coolc, prosecutor of the pleas, and Alfred W. Seiss.

   Prall, C. P. J.

(Presiding oil request pursuant to statute.) This is a habeas corpus proceeding. The petitioner, Janies C. Kelsey, was committed to the custody oí the sheriff and keeper oí the common jail of Warren County on sworn complaint that he was a fugitive from justice from the State of Illinois. He was charged on oath by his divorced wife, Florraine W. Kelsey, with having, on or about July 8th, 1939, kidnapped his minor child, Hosanna, aged four, without then and there having the consent of the said Florraine W. Kelsey. Some time thereafter petitioner, having been indicted on a kidnapping charge and on a conspiracy charge in Cook County, Illinois, and the Governor of Illinois having requested his extradition, the Governor of New Jersey, Hon. A. Harry Moore, issued warrants for his apprehension, and he was deprived of his liberty. There are two extradition proceedings, the one based upon a charge of kidnapping, and the other upon a charge of conspiracy, and by consent of counsel both cases were considered together, since they arose out of the same transaction and questions of law and of fact common to both were involved.

The traverse filed in the habeas corpus proceedings by the petitioner denies the allegations of the return and shows that under the terms of a decree of the Circuit Court of Cook County, Illinois, dated March 8th, 1937, it was provided, inier alia, that Florraine W. Kelsey, the defendant named in the decree, and James O. Kelsey, the petitioner named in said decree, have the care and custody of the minor child, Hosanna, in the manner provided by paragraph 21 of said decree, and that on July 8th, 1939, with the written consent of the mother, Florraine W. Kelsey, petitioner took the child from Illinois to New Jersey. After the arrival of the child in New Jersey, he discovered that her physical condition was very poor, and after having submitted her for examination to competent physicians, learned that she suffered from malnutrition and other ailments, and that it would require many months of careful treatment under competent medical supervision to restore her to her normal health, and that it was then decided not to take the child back to the State of Illinois because by doing so petitioner believed her life wquld be in danger.

The language of said decree providing for custody of the child is as follows:

“It is further ordered, adjudged and decreed that the defendant have the care and custody of the minor child of the parties hereto, until the further order of the court, subject to the right of the plaintiff .to see and visit with said child at all reasonable times, and the plaintiff to have the custody and control of the minor child for a period of two months during the summer of each year, during which time the defendant shall have the right to see and visit said child at all reasonable times;”

The documents annexed to the request for extradition and made a part thereof include copy of the indictment,, copy of the paragraph above quoted from the decree, and copy of the statute upon which the indictment is founded, and that law as set forth contains a proviso to the effect that it “shall not extend to a parent taking his or her minor child, unless such parent is deprived of the right to have the custody of such child by the order of a court of competent jurisdiction.” The indictment alleges that the crime was committed on July 8th, 1939, in Oook County, Illinois.

The inquiry seems to narrow to the question as to whether upon the face of the record in the extradition proceeding, the defendant, Kelsey, could possibly have been guilty of the crime charged in the indictment under the statute in question upon the date alleged. From this record it would seem to be apparent, without danger of contradiction, that the defendant, Kelsey, had the right to the custody of his minor child on July 8th, 1939, and that the statute in question excepts from its provisions a parent having such right of custody, and that, therefore, no crime was possibly committed by Kelsey, as alleged. “If the commitment be * * * for a matter for which by law no man ought to be punished, the courts are to discharge.” In re Rose, 122 N. J. L. 507, 509; 6 Atl. Rep. (2d) 388.

Moreover, in addition to what was shown on the face of the record, proofs were taken which supported the allegations of the traverse. This testimony was uncontradicted. It appeared that on or about July 8th, 1939, Mrs. Morraine W. Kelsey had written a letter to her husband which was as follows:

“Saturday, July 8th, 1939. Dear Jim: Since you have offered to give me the usual check for Rosanna, I will agree to let you take her to New York City on a three weeks’ vacation with the consideration that you let me hear from her at least once a week. Mrs. Morraine Kelsey.”

Although there was no provision in the divorce decree requiring such permission, nevertheless, it appears to have been given. This letter was introduced in evidence by consent.

It further appeared by the testimony that proceedings had been taken before the Court of Chancery of New Jersey relative to the child’s custody and a rule to show cause had been issued by the Chancellor which, among other things, forbade the removal of the child from the State of Now Jersey.

The petitioner further testified that he had retained the child in the State of New Jersey because he learned that his former wife had not been a good mother to the child, but farmed the baby out in a poor section of the town, while she lived in a good section of the town, and that an examination of the child by a physician confirmed his views as to her physical condition. This is important because a careful scrutiny of the evidence satisfies the court that the intent of the petitioner to retain the child in his custody arose while he was in the State of New Jersey, as a result of his study of the child’s physical condition. As to the merits of this inquiry we have no concern, except so far as it reveals the state of mind of the defendant. It is of importance in determining the questions involved in this proceeding to ascertain at what place and at what time the petitioner made the decision to retain the custody of the child.

The real question presented by this record is the determination as to whether, what the petitioner actually did, as shown on the face of the record and uncontradieted testimony, could have constituted the crime charged. In determining this the court will look beyond the mere sufficiency of the indictment as a criminal pleading. See Hard v. Splain, 45 Dist. of Col. (Appeal Cases) 1. In extradition, it must appear, as a condition precedent to the issuance of a warrant, that the person demanded is substantially charged with a crime against the laws of the state from whence he is alleged to have fled, and a crime which he could have committed on the date stated. This is a question of law always open to inquiry on a writ of habeas corpus. Hyatt v. New York, 188 U. S. 691; 47 L. Ed. 657. The gravamen of the crime in kidnapping is the carrying away of the person from his place of residence. See John v. State, 6 Wyo. (at p. 215). The crime is committed, if at all, as soon as the person is carried away from his place of residence, forcibly or fraudulently. The following note in 77 A. L. R. (at p. 322), is applicable to the situation at bar:

“Obviously, if the person, having legal custody consents to the taking, the crime of kidnapping is not committed, under a statute defining kidnapping as ‘forcibly or fraudulently’ carrying off or decoying a person from his place of residence. So, it was held in John v. State (1896), 6 Wyo. 203; 44 Pac. Rep. 51, that the defendant, who took his eleven-year-old daughter out of the state, with her consent and with the consent of her mother, to whom custody had been awarded in divorce proceedings, for the purpose of preventing the child’s appearance as a witness in a criminal trial in which it had been subpoenaed, was not guilty of kidnapping.”

It is manifest that the taking of the child, Rosanna, by petitioner was not a forcible or fraudulent taking, as it was done in conformity with the Illinois decree, and with the written consent of the mother, even though that consent may have been unnecessary.

Doubtless it is unnecessary to consider anything but what appears on the face of the record. However the uncontradicted testimony makes the case for petitioner much stronger. The act of removing the child from the State of Illinois was entirely lawful and proper and if, at the time of such removal, the petitioner did not entertain the intent to keep the child away from the State of Illinois, and did not reach that decision until after he had arrived in New Jersejq then the offense, if committed at all, must have been committed while the defendant was in the State of New Jersey, which would, of necessity, result in a denial of the claim for extradition, and in the discharge of the petitioner. The conclusion is unescapable from a study of the record and the testimony presented that there was no intent on the part of the petitioner to keep the child away from the State of Illinois at any time while he was in that state, and this intention did not arise until he came to New Jersey and there learned that the child’s physical condition was such that it would be unsafe for her to return to the custody of her mother, which decision was supplemented by an order of the New Jersey Court of Chancery made on or about November 17th, 1939, forbidding the removal of ihe child from the state, and committing it to the custody of the petitioner.

The extradition in the conspiracy ease must likewise fail. The requisition is defective on its face. It is dated March 23d, 1940, and certifies the documents attached to be authentic. The petition, affidavit, indictment, &c., attached are dated May 13th, 1940, and May 14th, 1940. The Governor of Illinois could not have had them before him when he certified them to he authentic. The requisition is fatally defective, and the Governor’s rendition made on these papers is without effect.

It must fail for another reason. Stripped of legal verbiage the indictment in this case charges petitioner with conspiracy to kidnap his child. ' It has been shown that it was legal for him fo take the child on the date alleged. Therefore he could not bo guilty of conspiracy to do a legal act.

The conspiracy case must fail for still another reason. There is not a statement of fact in the entire record to support the charge. Even the affidavit of Charles English has none; it is a mass of conclusions. The uncontradicted testimony of petitioner shows there was no conspiracy, that he did not see or have any relations with Charles English on July 8th, 1939, or at any time near that date.

In extradition proceedings the court will not pass on the weight of evidence. See In re Thompson, 85 N. J. Eq. 221. In the present case all testimony taken was uncontradicted. It established that the petitioner was not a fugitive from justice, since no crime had been committed before or at the time he left Illinois. See Strassheim v. Daily, 221 U. S. 285; 55 L. Ed. 738. There was no evidence of intent on the part of the petitioner to keep the child permanently out of Illinois at the time he left that state. Constructive presence is not sufficient. The presence necessary to support extradition must be an actual presence at or about the time the crime charged is alleged to have been committed. There must be some reasonable basis for such a charge. Both proceedings arise out of the same transaction; the conspiracy indictment is an effort to accomplish what could not be done in the proceedings on the kidnapping indictment. The court in order to determine this should look’ beyond the mere sufficiency of the indictment as a criminal pleading. See Hard v. Splain, supra. The uncontradicted testimony shows that the petitioner was not a fugitive from justice. ■

Under the circumstances the petitioner should be discharged. Let orders be presented accordingly.


author: Per Curiam.

text:
    ISRAEL BARBER, PLAINTIFF-APPELLANT, v. BEN SCHLOSSBERG, INC., DEFENDANT-APPELLEE.
    Submitted May 6, 1941
    Decided July 30, 1941.
    Before Brogan, Chief Justice, and Justices Case and Heher.
    For the plaintiff-appellant, Ziegener & Brenner.

    For the defendant-appellee, Atwood G. Wolf.

   Per Curiam.

This is plaintiff’s appeal from District Court judgment. The issue in the case was one of fact and the fact issue was resolved against him. The argument of the appellant here rests on one point, namely, that the judgment should be set aside “because the undisputed facts of the case entitled appellant” to judgment. We have examined the state of case as settled by the trial court and have read the respective briefs. We agree that a fact issue was involved and our view is that the conclusion of the learned trial court in his fact determination was supported by the evidence. This court may not reverse a judgment, based on the fact conclusion of the trial court, sitting without a jury, or of the jury when it has determined the facts where there was testimony that supported such conclusion, as was the case here.

The judgment therefore will be affirmed, with costs.


author: Palmer, S. C. C.

text:
    THE UNION LABOR LIFE INSURANCE COMPANY, PLAINTIFF, v. THURA O. WENDEBORN, DEFENDANT.
    Decided July 14, 1941.
    For the motion, Eristeller & Zuclcer (Lionel P. Eristeller).

    Contra, Samuel Ealilcman.

   Palmer, S. C. C.

This is a motion to strike an answer in an ejectment suit. The complaint, in statutory form, demands possession of a tract of land in the Borough of Audubon, in the County of Camden, and alleges that plaintiffs right to possession accrued on May 2d, 1941, and that defendant wrongfully deprives it of possession.

The affidavits in support of this motion state that the plaintiff is the owner and holder of a bond and mortgage covering said premises dated July 13th, 1938, made by defendant and her husband, Nicholas J. Wendeborn, duly recorded; that on January 13th, 1941, there was a default in the quarterly payment on account of the principal and plaintiff has exercised its option to declare the entire balance to be due and that possession has been demanded and refused by defendant.

The affidavit further states that defendant derives her title and right of possession by deed dated July 16th, 1936, from the Oaklyn Building and Loan Association to her and her husband as tenants by the entirety, and that defendant is separated from her husband and they are not living together.

The answer is in statutory form and then sets up three separate defenses, the first of which alleges that defendant and her husband are tenants by the entirety; that the cause of action is based on a bond and mortgage executed by defendant and her husband, and that her husband, a member of the Naval Reserves, was called into active service on January 1st, 1941, and that the cause of action is barred by the provisions of the Soldiers’ and Sailors’ Civil Relief Act approved October'17th, 1940, being Public Act No. 861 of the Seventy-sixth Congress.

The second separate defense makes the same allegations and concludes with the statement that the alleged remedy is barred by said Act of Congress.

The third separate defense alleges that the cause of action is barred by reason of the failure of plaintiff to join the husband as a party defendant. There is no denial of the allegations in the affidavits submitted by the plaintiff. The question then becomes one of the construction of some of the provisions of the Soldiers’ and Sailors’ Civil Relief Act as applied to this situation.

The Ejectment Act, R. S. 2:51-3; N. J. S. A. 2:51-3, requires suit to be brought against the person in possession. That obviously has been done in this case. It is not suggested that an ejectment suit may not be brought against one of two tenants by the entirety, except as the Civil Relief Act may affect the situation.

Section 100 of said act states that it makes provision to suspend the enforcement of civil liabilities in certain cases of persons in the military service of the United States, in order to enable such persons to devote their entire energy to the defense needs of the nation.

Section 200 of the act provides that before a default judgment may be entered an affidavit must be filed showing that the defendant is not in military service. It further provides in actions or proceedings in which the party in military service is a party, if such party does not personally appear the court may appoint an attorney to represent him. The defendant here is obviously not in military service.

Section 302 of the act provides that in suits to enforce obligations secured by mortgage, trust deed or other security in the nature of a mortgage upon real or personal property-owned by a .person in military service the court majr, on its own motion, and shall on the application of such person or some person in his behalf, stay the proceedings or make some other equitable disposition of the matter to conserve the interest of all parties.

This suit is not against a defendant in military service and is not brought to enforce any obligation arising from the bond and mortgage. The person in service, that is, the husband of the defendant, does not, nor does anyone in his behalf, make an application for any stay or proceedings.

Section 300 of the act deals with the subject'of distress or ejection of the wife, children or other dependents of a person in military service where the rent does not exceed the sum of $80 per month. These provisions with relation to the question of landlord and tenant actions precede those in the statute dealing with mortgages and the provisions are quite different and obviously intended to apply to different situations. Consequently the first and second separate defenses present no defense to this suit.

As to the third separate defense, I know of no rule requiring the husband of the defendant to be made a party in such an ejectment .as is here presented because he is one of the tenants by the entirety. His title cannot be affected by this ejectment suit. Possession only of the property in question is demanded and obviously the plaintiff has a right to bring this suit to obtain such possession.

The motion to strike the answer will be granted.


author: Fulop, D. C. J.

text:
    STEPHEN MONDOCK, PLAINTIFF, v. GUS GENNRICH, DEFENDANT.
    Decided July 31, 1941.
    For the plaintiff, Henry Gottfried.

    For the defendant, Harry Unger.

   Fulop, D. C. J.

This suit is to recover from defendant the cost of the funeral of his deceased wife. Plaintiff is the brother of the deceased wife. He paid the bill and took an assignment from the undertaker of the latter’s claim against the defendant.

Defendant’s wife died on February 26th, 1941, an inmate of the State Hospital for the Insane at G-reystone Park. She was first committed in July, 1938, and finally adjudged insane in October of that year. The defendant had separated himself from her several years earlier. In 19313, he instituted suit for divorce and nullity of marriage. An order requiring him to pay his wife’s costs and counsel fees and $8 a week alimony pendenite Hie was entered in the suit and remained in force until the death of the wife. The husband never paid the amounts ordered and never pressed his suit to a conclusion.

Immediately after the wife’s death, the authorities at Grey-stone Park notified her mother but not the defendant. Her family claimed the body. Before the funeral, plaintiff asked defendant to pay for it, but he refused. He did not claim the right to make the arrangements for the funeral. On the contrary, he said he had no money and was willing to have her buried by the plaintiff or by the state. Plaintiff warned defendant that he would be expected to pay the cost and then proceeded to have the funeral performed. The cost was $282.10.

The undertaker testified that this was a reasonable charge for the services performed and’ materials furnished. Ho evidence was offered tending to show that the type of funeral accorded the decedent was commensurate with the defendant’s means.

At the time of his wife’s death, defendant’s debts exceeded his assets and this is still the case. He had been and still is earning $30 per week, on which he finds it difficult to maintain himself and his ailing .daughter.

At the conclusion of the plaintiff’s case, defendant moved for a nonsuit. Decision was reserved until the conclusion of the case when the motion was renewed and defendant also moved for a directed verdict.

It is the established law of this state that a husband is liable for the reasonable cost of his wife’s funeral, even though it be ordered and performed'without his knowledge or consent, and even though he be living apart from her at the time of her death. The rule is based on public policy.

The insolvency of the hubsand has no bearing on his liability for burial. If the husband is insolvent, then the wife’s estate also becomes liable for the funeral expenses. But the husband’s liability is primary and is not excused by insolvency. Toppin v. Moriarty (1899), 59 N. J. Eq. 115 (at p. 117); 44 Atl. Rep. 469; Watt v. Atlantic Safe Deposit and Trust Co. (Court of Errors and Appeals, 1920), 92 N. J. Eq. 224 (at p. 225); 112 Atl. Rep. 186; Gould v. Moulahan (1895), 53 N. J. Eq. 341; 33 Atl. Rep. 483; 30 C. J. 606-8, tit. "Husband and Wife,” § 156; 27 Am. Jur. 58-9, tit. “Husband and Wife,” § 459; Barnes v. Starr (Maryland Court of Appeals, 1923), 144 Md. 218; 124 Atl. Rep. 922; 34 A. L. R. 809 and annotation at 34 A. L. R. 812; Magrath v. Sheehan (Massachusetts Sup. Jud. Court, 1936), 5 N. E. Rep. (2d) 547; 108 A. L. R. 1223, and annotation at 108 A. L. R. 1226.

Defendant contends that his wife’s misconduct excuses him from the duty of providing for her burial. He was not divorced and the marriage was not annulled. There was no adjudication exonerating him from supporting her during her lifetime. On the contrary, there was an order in force requiring him to support her. I am satisfied that the wile was mentally deranged long before she was committed and before defendant abandoned her. I am not satisfied that the defendant had sufficient grounds for divorce.

However, I am inclined to the view that even the established misconduct of the wife does not relieve an undivorced husband from his duty to bury her. His duty is to the public. See Weinstein v. Lotsoff, 232 Ill. App. 566, cited with approval in Colovos v. Gouvas (1937), 269 Ky. 752; 108 S. W. Rep. (2d) 820; 113 A. L. R. 871 (at p. 880); 27 Am. Jur. 58 and 59, tit. “Husband and Wife,” § 459, and annotation at 34 A. L. R. 812.

Defendant contends that the plaintiff was an officious inter-meddler and that the public policy requiring a husband to pay for the funeral of his wife is not applicable because the state would have buried her.

Plaintiff was not an officious intermeddler. He had some interest in the burial of his sister. Even a stranger has the right to make the arrangements if the husband fails to do so or is absent. Plaintiff gave the defendant an opportunity to handle the arrangements. Defendant refused. Public policy does not favor burial at the public expense. Plaintiff had the right to make reasonable and necessary arrangements.

Counsel for defendant referred to R. S. 44:1-157; N. J. S. A. 44:1-157, as authority for his contention that the state would have provided a decent Christian burial. The state provides burial only for public charges.

Defendant was not a poor person within the meaning of the law. He was earning $30 per week. Hnder the law of this state that amount is subject to a wage execution. lie was not eligible for poor relief. He was not entitled to have his wife buried at public expense.

The husband’s lack of means is of importance in determining whether the costs incurred for the wife’s funeral are reasonable. There is no evidence before the court that the funeral bill incurred was in keeping with the means of the defendant. There is no evidence to the contrary, but the burden of proof is on the plaintiff. The court cannot take judicial notice of the usual cost of funerals nor of the minimum cost, nor of the extent of the services required in the case of a person of small means.

Defendant cites R. S. 30:5-16; N. J. S. A. 30:5-16 and R. S. 44:7-13; N. J. S. A. 44:7-13, to the effect that the state limits the cost' of funerals for its. public charges to $100.

The court can and does take judicial notice of this statutory determination of the reasonable cost of the funeral of a poor person. While defendant is not entitled to public support for himself, nor a funeral for'his wife at public expense, nevertheless his means are so small that the statutory standard may properly serve as a guide in the absence of evidence.

The motions for a nonsuit and for a directed verdict are denied. There will be judgment for the plaintiff for $100 and costs of suit.